1 David A. Senior (# 108759) McBreen & Senior
2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
3 Phone: (310) 552-5300 Fax: (310) 552-1205
4 dsenior@mcbreensenior.com

5 John R. Grele (# 167080) Law Offices of John R. Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken Jenner & Block LLP
10 One IBM Plaza Chicago, IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Attorneys For Plaintiff MICHAEL ANGELO MORALES

14

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

MICHAEL ANGELO MORALES, 16

17

Plaintiff,

18

) Case No. ) ) COMPLAINT FOR EQUITABLE AND ) INJUNCTIVE RELIEF ) [42 U.S.C. § 1983] )

19

v.

)

)

20 RODERICK Q. HICKMAN, Secretary of the ) EXECUTION IMMINENT:

California Department of Corrections; STEVEN ) EXPEDITED REVIEW REQUESTED 21 ORNOSKI, Warden, San Quentin State Prison, )

22 San Quentin, CA; and DOES 1-50,

) )

23

Defendants.

)

)

24

25

26

27

28
1
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

1

NATURE OF ACTION

2 1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of

3 the right of plaintiff to be free from cruel and unusual punishment under the Eighth and Fourteenth

4 Amendments of the United States Constitution. Plaintiff seeks temporary, preliminary, and

5 permanent injunctive relief to prevent the defendants from executing plaintiff by means of lethal

6 injection, as that method of execution is currently used in California. Plaintiff contends that lethal

7 injection, as performed in California, unnecessarily risks infliction of pain and suffering. Plaintiff

8 further contends that the use of pancuronium bromide, a paralytic agent that acts as a chemical veil

9 over the lethal injection process, disguises the pain and suffering to which he will be subjected.

10 Plaintiff additionally contends that defendants, as a result of their failure to use medically approved

11 procedures and properly trained personnel, have inflicted pain and torture on several executed

12 prisoners in the past, making plaintiff certain he will suffer the same fate unless defendants adopt a

13 humane and safe execution protocol.

14

JURISDICTION AND VENUE

15 2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), § 1343 (civil

16 rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This action arises under the

17 Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983.

18 3. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that plaintiff is currently incarcerated at

19 San Quentin State Prison (“San Quentin”) in San Quentin, California, located in this District. All

20 executions conducted by the State of California (“State”) occur at San Quentin. The events giving

21 rise to this complaint have occurred and will occur in this District.

22

23

THE PARTIES

24 4. Plaintiff Michael Angelo Morales is a United States citizen and a resident of the State. He is

25 currently a death-sentenced prisoner under the supervision of the California Department of

26 Corrections. He is held at San Quentin State Prison, San Quentin, California, 94974.

27 5. Defendant Roderick Q. Hickman is the Secretary of the California Department of Corrections.

28
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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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1 6. Defendant Steven Ornoski is the Warden of San Quentin State Prison, where the plaintiff is

2 incarcerated and where the plaintiff’s execution is scheduled to occur.

3 7. Plaintiff is ignorant of the true names of Does 1-50 but alleges that they have or will

4 participate in plaintiff’s execution by virtue of their roles in designing, implementing, and/or carrying

5 out the lethal injection process. When plaintiff discovers the Doe Defendants’ true identities, he will

6 amend his complaint accordingly.

7

GENERAL ALLEGATIONS

8 8. On January 6, 2006, the clerk of the Superior Court of Ventura County issued a Notice of

9 Public Session in the case of People v. Morales, No. CR 17960, scheduling a public session on

10 January 31, 2006 for the purpose of the setting of the date of execution of judgment of death of

11 February 21, 2006.

12 9. Under California law, death sentences shall be carried out by “administration of a lethal gas

13 or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause

14 death, by standards established under the direction of the Department of Corrections.” Cal. Penal

15 Code § 3604(a). The statute prescribes no specific drugs, dosages, drug combinations, or the manner

16 of intravenous line access to be used in the execution process; nor does the statute prescribe any

17 certification, training, or licensure required of those who participate in the execution process. All of

18 the details of the execution process are to be determined by the Department of Corrections.

19 10. The Department of Corrections has decided to execute plaintiff by poisoning him with a lethal

20 combination of three chemical substances: sodium pentothal, a short-acting barbiturate; pancuronium

21 bromide, which paralyzes all voluntary muscles; and potassium chloride, an extremely painful

22 chemical which activates the nerve fibers lining the prisoner’s veins and interferes with the heart’s

23 contractions, causing cardiac arrest.

24 11. In performing plaintiff’s execution by lethal injection, the Department of Corrections will

25 follow the protocol established in San Quentin Operational Procedure No. 770. The protocol by

26 which lethal injection executions are performed under Procedure No. 770 violates constitutional and

27 statutory provisions enacted to prevent cruelty, pain, and torture.

28
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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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1 12. Procedure No. 770 was adopted without any medical research or review to determine that a 2 prisoner would not suffer a painful death. No member of the medical community was involved in its 3 adoption. The procedure was adopted by the former Warden of San Quentin, Daniel Vasquez, after 4 observing two executions in Texas, without any input from or consultation with medical personnel. 5 13. The absence of standardized procedures for administration of the chemicals, the lack of 6 qualifications of the personnel involved in the process, and the combination of the three particular 7 chemicals used in Procedure No. 770 create a grave and substantial risk that plaintiff will be 8 conscious throughout the execution process and, as a result, will experience an excruciatingly painful 9 and protracted death. 10 14. Procedure No. 770 lacks medically necessary safeguards, thus increasing the risk that plaintiff 11 will suffer unnecessary pain during the lethal injection process. There is no standardized time to 12 administer each of the three chemicals. The protocol identifies no procedures for ensuring that the 13 anesthetic agent is properly flowing into the prisoner, and it identifies no procedures for ensuring that 14 the prisoner is properly sedated prior to the administration of the lethal chemicals as would be 15 required in any medical or veterinary procedure before the administration of a neuromuscular 16 blocking agent, such as pancuronium bromide, or the administration of a painful potassium chloride 17 overdose. 18 15. The protocol established in Procedure No. 770 does not establish any minimum qualifications 19 or expertise required of the personnel who perform all of the tasks in the lethal injection process. 20 There are no guidelines upon which these personnel can rely if they are required to exercise their 21 discretion during the process. The protocol has no plan in place if the plaintiff requires medical 22 assistance during the execution. 23 16. Sodium pentothal, in an ordinary clinical dose, is a very short-acting barbiturate that is 24 usually administered only during the preliminary phase of anesthesia administration. There is a 25 reasonable likelihood that sodium pentothal, if ineffectively delivered (which is particularly likely 26 given the inadequacy of the administration procedures under Procedure No. 770), will not provide a 27 sedative effect for the duration of the execution process. Without adequate sedation, plaintiff will 28
4
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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1 experience excruciating pain as a result of the conscious asphyxiation caused by pancuronium

2 bromide and the painful internal burn and cardiac arrest caused by a potassium chloride overdose.

3 17. Pancuronium bromide, the second chemical administered in the lethal injection process,

4 paralyzes voluntary muscles, including the diaphragm, but it does not affect consciousness or the

5 perception of pain. Pancuronium bromide, administered by itself as a “lethal dose,” would not result

6 in a quick death; instead, it would ultimately cause someone to suffocate to death while still

7 conscious. There is no indication in the Department of Correction’s lethal injection protocol,

8 however, that pancuronium bromide is used to cause death. It therefore is completely unnecessary in

9 the lethal injection process and only serves to mask any pain or suffering that the plaintiff may

10 experience.

11 18. Pancuronium bromide could not lawfully be used alone as the fatal agent because causing

12 death by suffocation violates the Eighth Amendment’s prohibition against crue l and unusual

13 punishment.

14

COUNT I

15

VIOLATION OF RIGHT TO BE FREE FROM CRUEL AND UNUSUAL

PUNISHMENT PURSUANT TO THE EIGHTH AND FOURTEENTH

16

AMENDMENTS TO THE UNITED STATES CONSTITUTION

(42 U.S.C. § 1983) 17

19. Plaintiff realleges and incorporates by reference the allegations contained in paragraphs 1 18

through 18. 19

20. Defendants Roderick Q. Hickman, Steven Ornoski, and Doe Defendants are acting under 20

color of California law in causing to be administered to plaintiff chemicals that will cause 21

unnecessary pain in the execution of a sentence of death, thereby depriving plaintiff of his rights 22

under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment, in 23

violation of 42 U.S.C. § 1983. 24

21. The California Department of Corrections Procedure No. 770, which specifies the State’s 25

lethal injection protocol, violates plaintiff’s rights under the cruel and unusual punishment clause of 26

the Eighth Amendment because (a) the protocol creates the unreasonable and unacceptable risk of 27

28
5
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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1 unnecessary physical and psychological pain; (b) the protocol does not comport with contemporary 2 norms and standards of society; and (c) the protocol offends the dignity of the person and society. 3 22. The Department of Correction’s lethal injection protocol requires utilization of three 4 dangerous chemicals but does not ensure that the personnel entrusted with the lethal injection 5 procedure possess the proper and necessary training, experience, or expertise to administer those 6 drugs. Moreover, the protocol fails to specify any timing for the administration of the three separate 7 chemicals, which is an essential requirement for their proper administration. 8 23. The use of pancuronium bromide as administered under the Department of Correction’s lethal 9 injection protocol increases the risk that the use of this chemical, in combination with the initial dose 10 of sodium pentothal, will result in plaintiff being paralyzed but conscious and suffering death from 11 the burning veins and heart failure caused by the administration of the potassium chloride. 12 Moreover, because the Department of Correction’s protocol calls for the potassium chloride to be 13 administered in a lethal dose, the use of pancuronium bromide serves no purpose in the execution 14 process. Pancuronium bromide unnecessarily increases the risk that a conscious prisoner will be 15 paralyzed during the injection of an extremely painful drug, yet be entirely unable to inform the 16 attendants of his condition. Without the use of pancuronium bromide, a prisoner would be able to 17 indicate that he was still conscious prior to the administration of potassium chloride. This is 18 particularly crucial because the Department of Correction’s protocol indicates that the prisoner will 19 be alone in a room when he is executed, making it impossible to determine whether a prisoner is 20 conscious once he is paralyzed by the pancuronium bromide. 21 24. The American Veterinary Medical Association (AVMA) states that a combination of a 22 barbiturate and a neuromuscular blocking agent such as pancuronium bromide, a combination similar 23 to that called for by Procedure No. 770, is not an acceptable euthanasia method for animals when 24 used alone. 25 25. Sodium pentothal, which is an extremely fast-acting but not long- lasting barbiturate in an 26 ordinary clinical dose, is used as the anesthetic agent in the Department of Correction’s lethal 27 injection procedure. In veterinary medicine, sodium phenobarbital, a somewhat slower-acting but 28
6
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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1 longer- lasting barbiturate, is used for animal euthanasia. The AVMA states that when potassium 2 chloride is used for euthanasia, it is extremely important for the personnel who perform euthanasia to 3 be trained and knowledgeable in anesthetic techniques and competent in assessing the anesthetic 4 depth appropriate for potassium chloride administration, a depth at which animals are in a surgical 5 plane of anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of 6 response to noxious stimuli. California law requires no n- veterinary personnel who perform animal 7 euthanasia to undergo strict training by a veterinarian and/or a registered veterinary technician who 8 specializes in anesthesia. The Department of Correction’s lethal injection protocol under Procedure 9 No. 770 includes no comparable requirement; in fact, it does not require any training of the personnel 10 who use the same drug in executing prisoners. 11 26. The Department of Correction’s lethal injection procedure fails to address the individual 12 prisoner’s medical condition and history. Several regularly prescribed drugs at San Quentin interfere 13 with the ability of sodium pentothal to act properly as an anesthetic. Moreover, the lethal injection 14 protocol allows for prisoners to take Valium shortly before the execution, a drug which can also 15 interfere with the sodium pentothal’s effectiveness. 16 27. Procedure No. 770 contains no description of the training, credentials, certifications, 17 experience, or proficiency required of any personnel involved in the administration of the lethal 18 injection procedure, notwithstanding the fact that it is a complex medical procedure requiring a great 19 deal of expertise in order to be performed correctly. For example, Procedure No. 770 does not 20 require at the execution the presence of any personnel who possess sufficient expertise to insert an 21 intravenous line properly, determine if there is a blockage in the intravenous line, or evaluate whether 22 a prisoner is properly sedated before proceeding with the painful parts of the execution process. 23 28. The absence of such trained personnel greatly increases the risk that a prisoner would not 24 receive the necessary amount of anesthetic prior to being paralyzed by the pancuronium bromide and 25 then experience the painful internal burn of the potassium chloride. Toxicology reports from 26 prisoners executed by other states suggest that some prisoners likely remained conscious during the 27 28
7
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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1 administration of lethal drugs, which could have occur red because of improper insertion of the 2 intravenous line, an unrecognized blockage in the line, or various other reasons. 3 29. Inducing unconsciousness by correctly administering sodium pentothal is indispensable to 4 preventing the wanton infliction of pain when the potassium chloride overdose is administered. 5 Procedure No. 770, however, does not require the preparation of backup syringes of sodium 6 pentothal. 7 30. The Department of Correction’s lethal injection protocol fails to address any reasonably 8 foreseeable complications with any appropriate medical response. Moreover, the protocol includes 9 no safeguards that would protect the prisoner in the event a stay of execution is entered after the 10 lethal injection process has begun. Thus, the protocol fails to provide any protections to prevent a 11 prisoner from being wrongly executed should a reprieve be granted after the process has begun but 12 before death has occurred. 13 31. At any time before the potassium chloride is administered, the prisoner could be readily 14 resuscitated if trained personnel and routine resuscitation medication and equipment were present at 15 the execution site. Even after the potassium chloride is administered, resuscitation would still be 16 possible, although admittedly it would be more challenging. Any resuscitation, however, would 17 require the close proximity of the necessary equipment, medication, and properly trained personnel. 18 The omission of such personne l and equipment under the protocol set forth in Procedure No. 770 19 further undermines the constitutionality of the procedure. 20 32. Although it is possible to conduct executions in a constitutionally compliant manner, the 21 Department of Corrections has chosen not to do so. The Department of Corrections could choose to 22 use different chemicals that pose a low risk of administration error yet do not cause extraordinarily 23 grave consequences to a condemned inmate if not properly administered; instead, it has knowingly or 24 recklessly chosen to use chemicals that pose a high risk of administration error. Moreover, it has not 25 taken precautions to ensure that the personnel who administer the lethal injection chemicals possess 26 the training, experience, and expertise needed to administer those chemicals properly. Thus, while it 27 is possible for the Department of Corrections to choose different lethal injection chemicals and/or 28
8
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
CHICAGO_1355066_6

1 retain qualified personnel to administer its chosen chemicals in order to ensure the constitutionality

2 of its lethal injection procedure, the Department of Corrections has not done so.

3

COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

4 33. The use of pancuronium bromide under the protocol established in Procedure No. 770 to

5 paralyze plaintiff greatly increases the risk that a conscious prisoner will be subjected to a painful and

6 protracted death. Moreover, it serve s no legitimate penological purpose.

7 34. Pancuronium bromide does not play a legitimate role in killing the condemned person. The

8 execution protocol provides that potassium chloride kills the condemned. The administration of

9 pancuronium bromide cannot be justified on the grounds that the drug paralyzes the breathing

10 muscles because death by asphyxiation is itself a form of cruel and unusual punishment under the

11 Eighth Amendment.

12 35. If panc uronium bromide is administered, paralyzing plaintiff during the execution procedure,

13 he will have no alternative “reasonable and effective means of communication” to communicate that

14 he was not properly anaesthetized because he will be dead at the conclusion of the procedure.

15 36. Enjoining the administration of pancuronium bromide will have no appreciable impact on

16 California correctional institution procedures. If anything, it will simplify the execution process by

17 eliminating one step in the process.

18 37. The question of whether there exist readily available alternatives to pancuronium bromide is

19 not an issue in this case because paralyzing a condemned inmate in the execution process is not a

20 legitimate penological goal.

21 38. The Ninth Circuit and this Court have previously held that Defendants and their predecessors,

22 in order to forestall discussion and criticism of California’s lethal injection procedure, have

23 implemented restrictions on the execution process in order to prevent witnesses from being aware of

24 complications experienced during the procedure.

25 39. The Department of Correction’s failure to require sufficient training, credentials, certification,

26 experience, or proficiency of the personnel involved in the administration of the lethal injection

27 procedure greatly increases the risk that a conscious prisoner will experience excruciating pain as a

28
9
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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1 result of the conscious suffocation caused by the pancuronium bromide and the painful internal burn

2 and cardiac arrest caused by a potassium chloride overdose. Moreover, it serves no legitimate

3 penological purpose.

4 40. Allowing personnel who lack sufficient training, credentials, certification, experience, or

5 proficiency to conduct the lethal injection procedure does not play a legitimate role in killing the

6 condemned person. Conscious suffocation, as caused by the administration of pancuronium bromide,

7 violates the Eighth Amendment because death by asphyxiation is itself a form of cruel and unusual

8 punishment. Similarly, conscious internal burning and cardiac arrest, as caused by a potassium

9 chloride overdose, constitute unnecessary physical and psychological pain in violation of the Eighth

10 Amendment.

11 41. If plaintiff remains conscious during the administration of the pancuronium bromide and

12 potassium chloride, he will have no alternative “reasonable and effective means of communication”

13 to communicate the fact that he was not properly anaesthetized because the pancuronium bromide

14 will paralyze him and he will be dead at the conclusion of the procedure.

15 42. Enjoining the administration of the lethal injection procedure by personnel who lack

16 sufficient training, credentials, certification, experience, or proficiency will have no appreciable

17 impact on the correctional institution.

18 43. The question of whether there exist readily available alternatives to requiring personnel who

19 possess sufficient training, credentials, certification, experience, or proficiency to conduct the lethal

20 injection procedure is not an issue in this case because causing a prisoner who has not been properly

21 anaesthetized as a result of administration error to experience excruciating pain from the conscious

22 suffocation caused by pancuronium bromide and the painful internal burn and cardiac arrest caused

23 by a potassium chloride overdose is not a legitimate penological goal.

24

EXHAUSTION ALLEGATIONS

25 44. On January 9, 2006, plaintiff filed an inmate appeal on CDC Form 602 alleging that his

26 execution under the lethal injection protocol of the California Department of Corrections would

27 constitute cruel and unusual punishment. A copy of the Form 602 is attached hereto as Exhibit A.

28
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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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1 Plaintiff asked that his appeal be processed as an emergency appeal pursuant to 15 Cal. Code Regs.

2 § 3084.7 on the ground that the State of California shortly intended to seek his execution date.

3 Plaintiff’s claim has not yet been ruled upon.

4 45. Notwithstanding his filing of an appeal on CDC Form 602, Plaintiff is not required to exhaust

5 administrative remedies before bringing this claim because resolution of the gr ievance seeking

6 modification of Procedure No. 770 is not possible through the appeal process and exhaustion is futile.

7 46. On November 24, 2004, Donald J. Beardslee, San Quentin Inmate No. C-82702, raised a

8 challenge similar to plaintiff’s claim here when he filed two inmate appeals on CDC Form 602

9 alleging that the Department of Correction’s lethal injection procedure violated his rights under the

10 First and Eighth Amendments to the United States Constitution. After being considered on an

11 emergency basis, the appeals were first denied by the Warden and then denied by the Director of the

12 Department of Corrections on Third Level Review. In denying Beardslee’s appeal, the Director’s

13 Level Appeal Decision stated that Beardslee’s “sentence and penalty were established by court in

14 California; therefore relief at the Director’s Level of Review cannot be afforded the appellant.”

15 Administrative review therefore cannot resolve any of the issues raised in plaintiff’s appeal.

16 47. Moreover, pursuit of administrative revie w is futile for additional reasons. In subsequent

17 proceedings in Beardslee’s case, the Court of Appeals for the Ninth Circuit observed that “by

18 regulation the California Department of Corrections does not permit challenges to anticipated

19 action[s]. 15 Cal. Code Regs. § 3084.3(c)(3).” Beardslee v. Woodford, 395 F.3d 1064, 1069 (9th

20 Cir. 2005). Thus, no administrative challenge to the lethal injection protocol is possible here.

21 48. Plaintiff’s challenge to the lethal injection protocol that the Department of Corrections intends

22 to use to execute him is ripe for adjudication now.

23

PRAYER FOR RELIEF

24

WHEREFORE, Michael Angelo Morales prays for:

25

1.

Temporary, preliminary, and permanent injunctive relief to enjoin the defendants,

26 their officers, agents, servants, employees, and all persons acting in concert with them from
27 executing plaintiff by lethal injection using Procedure No. 770;
28
11
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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1

2.

In the event tha t Procedure No. 770 is not enjoined in its entirety as violating the

2 Eighth and Fourteenth Amendment s, temporary, preliminary, and permanent injunctive relief to

3 enjoin defendants, their officers, agents, servants, employees, and all persons acting in concert with

4 them from administering pancuronium bromide during the execution process;

5

3.

In the event that Procedure No. 770 is not enjoined in its entirety as violating the

6 Eighth and Fourteenth Amendment s, temporary, preliminary, and permanent injunctive relief to
7
enjoin defendants, their officers, agents, servants, employees, and all persons acting in concert with 8

9 them from allowing personnel who lack sufficient training, credentials, certification, experience, or

10 proficiency to conduct the lethal injection procedure;

11

4.

Reasonable attorneys’ fees pursuant to 42 U.S.C. § 1983 and the laws of the United

12 States;

13

5.

Costs of suit; and

14

6.

Any such other relief as the Court deems just and proper.

15 MICHAEL ANGELO MORALES
16

17
18
19 Dated: January 11, 2006
20 David A. Senior (# 108759)
21 McBreen & Senior 1880 Century Park East, Suite 1450
22 Los Angeles, CA 90067 Phone: (310) 552-5300
23 Fax: (310) 552-1205 24 dsenior@mcbreensenior.com

By: ____________________________ One of his attorneys

25

26

27

28
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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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1 John R. Grele (# 167080)

Law Offices of John R. Grele

2 703 Market Street, Suite 550

San Francisco, CA 94103 3 Phone: (415) 348-9300

4

Fax: (415) 348-0364 jgrele@earthlink.net

5 Richard P. Steinken

6 Benjamin J. Bradford Janice H. Lam

7 Stephanie L. Reinhart

Jenner & Block LLP 8 One IBM Plaza

Chicago, IL 60611-7603 9 Phone: (312) 923-2938

10

Fax: (312) 840-7338 rsteinken@jenner.com

11 Ginger D. Anders

12 Jenner & Block LLP

601 Thirteenth Street, NW

13 Suite 1200 South

Washington DC 20005-3823 14 Phone: (202) 639-6000

15

Fax: (202) 639-6066 ganders@jenner.com

16

17

18

19

20

21

22

23

24

25

26

27

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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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1

VERIFICATION

2

I, David A. Senior, hereby declare:

3

1.

I am a member of the State Bar of California and admitted to practice before all courts

4 of this state, as well as this Court, the U.S. Court of Appeals for the Ninth Circuit, and the U.S.

5 Supreme Court. I am appointed counsel for Plaintiff Michael Angelo Morales in this matter. I have

6 personal knowledge of the matters set forth in this complaint, except as otherwise indicated, and I
7
could and would competently testify to them if called upon to do so. 8

9

2.

Mr. Morales is in custody and restrained of his liberty in a county other than where my

10 office is situated. Additionally, many of the facts alleged herein are more within my knowledge.

11 Therefore, I make this verification on his behalf.

12

3.

I have reviewed the foregoing complaint. I verify that all of the alleged facts that are

13 not otherwise supported by citations to the record or declarations to the attached petitions are true and

14 correct to my own knowledge, except as to any matters stated in it on information and belief, which I

15 am informed and believe are true and correct.

16

4.

I declare under penalty of perjury under the laws of the State of California and the

17

United States of America that the foregoing is true and correct. 18

Executed on January 11, 2006 in Los Angeles, California. 19

20

21
22
23 Subscribed and sworn to before me
24 this _____ day of ________.

By: ____________________________ David A. Senior

25

26

27

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COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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 1 David A. Senior (# 108759) McBreen & Senior
2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
3 Phone: (310) 552-5300 Fax: (310) 552-1205
4 dsenior@mcbreensenior.com

5 John R. Grele (# 167080) Law Offices of John R. Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken Jenner & Block LLP
10 One IBM Plaza Chicago, IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Attorneys For Plaintiff MICHAEL ANGELO MORALES

14

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA 15

16 MICHAEL ANGELO MORALES,

) Case No. C 06 0219 (MCC) )

17

) DEATH PENALTY CASE

Plaintiff,

) MOTION FOR EXPEDITED

18

) DISCOVERY AND TO COMPEL

) PRODUCTION OF DOCUMENTS

19

)

v.

)

20

)

21

RODERICK Q. HICKMAN, Secretary of the California Department of Corrections; STEVEN

) Date: January 20, 2006 ) Time: 9am

22 ORNOSKI, Warden, San Quentin State Prison, ) Courtroom: 7

San Quentin, CA; and DOES 1-50,

)

23

)

Defendants.

)

24

)

25

26

27

28

1
MOTION FOR EXPEDITED DISCOVERY AND TO COMPEL PRODUCTION OF DOCUMENTS

1 I. NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE that as soon as this motion can be set for hearing on an emergency

3 basis, plaintiff will move this court for the following orders:

4

Pursuant to Fed.R.Civ.P. 26(d), plaintiff moves for an order permitting discovery to go forward

5 without compliance with the procedures and timelines set out in Fed.R.Civ.P. 26(f). Plaintiff asks
6 this court to 1) allow discovery to proceed immediately; 2) require the parties to serve discovery
7 requests personally, by fax, or by electronic mail; 3) require the parties to serve objections to
8 discovery requests in person, by fax, or by electronic mail within one day of being served; 4) require
9
10 the party serving objections to be available for a meet and confer session on the day fo llowing the
11 service of objections even if objections are served on a Friday or the day before a holiday, and

12 5) establish a briefing schedule for motions to compel pursuant to which all papers would be served

13 in person, by fax, or by electronic mail, and by which the opposition and reply papers would each be

14 filed and served one day after filing and service of, respectively, the moving and opposition papers.
15 Pursuant to Fed.R.Civ.P. 37 and Local Rule 37, plaintiff also moves for an order compelling 16
production of documents related to California’s lethal injection procedure, which documents shall be 17
described below. 18

19

In light of plaintiff’s impending execution, plaintiff asks this Court to set a briefing schedule

20 that will allow this motion to be heard on January 20, 2006. Establishing expedited discovery
21 procedures for this litigation now is necessary so that, should this court deny plaintiff’s motion for a
22 preliminary injunction, plaintiff will have sufficient time to conduct discovery in order to develop
23 support for a motion for summary judgment and/or a stay of execution.
24

25

26

27

28

2 Expedited Motion to Compel Production of Documents

1 II. MEMORANDUM OF POINTS AND AUTHORITIES

2 A. Procedural Background

3

Plaintiff is confined in San Quentin State Prison under sentence of death. On January 6, 2006,

4 the clerk of the Superior Court of Ventura issued a Notice of Public Session scheduling a public

5 session on January 18, 2006 for the purpose of the setting of the date of execution of judgment of
6 death of February 21, 2006. On January 12, 2006, the Superior Court of Ventura issued an Order 7
continuing the Notice of Public Session to January 31, 2006 8
Plaintiff is concurrently filing a complaint under 42 U.S.C. § 1983 challenging California’s 9
lethal injection procedure. Plaintiff alleges that the administration of the drugs that constitute 10 11 California’s lethal injection procedure (to the extent it has been made public) creates an unacceptable
12 risk that plaintiff will experience a level of pain and suffering during his execution that offends the
13 Eighth and Fourteenth Amendment s to the United States Constitution. Plaintiff will be filing a

14 motion for a temporary restraining order and preliminary and permanent injunctive relief to halt the

15 execution while his claims can be litigated.

16

B. Good Cause Exists to Allow Discovery to Proceed Immediately

17

Fed.R.Civ.P. 26(d) provides as a general rule that no discovery shall take place before the

18 parties have met and conferred as required by Fed.R.Civ.P. 26(f). Both Rule 26(d) and Rule 26(f)
19 permit this Court to relieve the parties from the procedures otherwise required by Rule 26(f). This
20 Court should do so here.
21
The negotiated give and take contemplated by Rule 26(f) has little application to this case. 22

23 Rule 26(f) provides in pertinent part:

24

“Except in categories of proceedings exempted from initial disclosure under Rule

26(a)(1)(E), or when otherwise ordered, the parties must, as soon as practicable, and in

25

any event at least 21 days before a scheduling conference is held or a scheduling order is

due under Rule 16(b), confer to consider the nature and bases of their claims and

26

defenses and the possibilities for a prompt settlement or resolution of the case, to make

or arrange for the disclosures contemplated by Rule 26(a)(1), and to develop a proposed

27

discovery plan[.]”

28

3 Expedited Motion to Compel Production of Documents

1 No scheduling conference is currently set. Rule 16(b) contemplates that such conferences will be set

2 approximately 90 days after the appearance of a defendant. Obviously, this schedule is unworkable

3 in this case. Even if plaintiff could convince defendants to meet and confer immediately, the
4 conference would be an idle act. In Beardslee v. Woodford, 395 F.3d at 1075-76, the Ninth Circuit 5
noted that the State “tendered only minimal evidence in response to Beardslee’s claims” and 6
inexplicably declined to produce significant portions of Procedure No. 770 in response to discovery 7
requests similar to those tendered to defendants here. In the present case, the Office of the 8 9 California Attorney General and the Office of the District Attorney for San Joaquin County have
10 already stated in letters to counsel for plaintiff that they will not provide any documents requested by
11 plaintiff without a court order mandating such production. Thus, there is no point in meeting at this

12 point to frame a discovery plan.

13

Allowing discovery to proceed immediately under the requested expedited procedures balances

14 the interests of both sides. Plaintiff has an interest in developing meritorious constitutional claims
15 that can be litigated as fully as possible before it is too late. Defendants have an interest in litigating
16 this matter as quickly as possible so that, if a preliminary injunction is issued but defendants
17 ultimately prevail, a new execution date can be set sooner rather than later.
18 Because good cause exists, this Court should order that discovery may proceed.
19

20 C. Defendants Should be Compelled to Produce Documents

21

1. Procedural History

22

On January 5, 2006, at approximately 2:00 p.m. (PST), counsel for plaintiff delivered a letter

23 seeking production of documents necessary for a full and fair adjudication of the claims arising in

24 connection with plaintiff’s imminent execution to Mr. James Willett, the District Attorney for San

25 Joaquin County, and to Mr. Keith Borjon, the Supervising Deputy Attorney General assigned to this
26 case. A copy of that letter is attached hereto as Exhibit A. Later, on January 5, 2006, counsel for 27 plaintiff called Messrs. Willett and Borjon to inquire if a response to the letter would be forthcoming. 28
Mr. Borjon promised a response on January 6. 4
Expedited Motion to Compel Production of Documents

1

On January 6, 2006, Senior Assistant Attorney General Dane R. Gillette responded to

2 plaintiff’s request by letter, which stated “Absent a court order we will not provide any of the

3 documents requested in your letter. That said, and without conceding the existence of any item or

4 waiving any objections to their disclosure, I have attached a complete copy of the redacted version of
5 San Quentin Operational Procedure No. 770.” On January 10, 2006, Chuck Schulz, the Supervising
6 Deputy District Attorney for San Joaquin County responded to plaintiff’s request with a letter that
7 stated “Absent a court order, the San Joaquin County District Attorney’s office will not provide any
8
9 of the documents requested in your letter dated January 5, 2006.”

10

2. Documents to be Produced

11

Plaintiff sought production of the following documents:

12 • A complete copy of the current version of San Quentin Operational Procedure No. 770. On

13

January 6, 2006, defendants provided plaintiffs with what they termed “a complete copy of

14

the redacted version” of Operational Procedure No. 770, showing a revision date of June 13,

15

2003.

16 • Complete copies of all previous versions of the Operational Procedure No. 770.

17 • All documents relating to the creation or provenance of Operational Procedure No. 770.

18 • All documents relating to any research, investigations, or tests related to the creation of

19

Operational Procedure No. 770.

20 • All documents relating to the administration of lethal injection which describes any revisions

21

or changes in the process from its inception to the present.

22 • All documents relating to any changes in factors used by the California Department of

23

Corrections to take into consideration the weight, age, and/or physical condition of the inmate

24

in administering the dosage of chemicals, and the relation between the timing of the lethal

25

injection and the time and quantity of food last ingested by the inmate.

26 • Complete copies of any other publications or writings go verning California’s lethal injection

27

procedure.

28

5 Expedited Motion to Compel Production of Documents

1 • All documents relating to the decision to implement lethal injection in California as it is

2

currently practiced.

3 • A complete copy of the “Execution Security Plan,” referred to on p. 2 of the June 13, 2003

4

revision of Procedure No. 770.

5 • All documents relating to “staff assignments on the execution detail,” referred to on p. 12 of

6

the June 13, 2003 revision of Procedure No. 770.

7 • All documents relating to the readiness, operational, and equipment checks performed at

8

various intervals preceding the execution, as stated in the June 13, 2003 revision of Procedure

9

No. 770.

10 • All documents relating to the proper control of the necessary chemicals, referred to on p. 12

11

of the June 13, 2003 revision of Procedure No. 770.

12 • All documents relating to obtaining the lethal injection chemicals, referred to on p. 17 of the

13

June 13, 2003 revision of Procedure No. 770.

14 • All documents relating to the Execution Team who will execute plaintiff, including but not

15

limited to the identities of the team members and the Lieutenant in Charge of the Chamber;

16

the role that each member is to play in plaintiff’s execution; the training that each member has

17

received for his or her intended role; each member’s employment history, including discipline

18

and complaints; any medical training the members have received at any time; any history of

19

drug use; any criminal records, whether or not resulting in conviction; and any background

20

checks performed on the team members.

21 • All documents relating to each one of the following tasks in the execution process of Mr.

22

Morales, including but not limited to any descriptions or procedures for the task; the identities

23

of persons in charge of the task; the training that each person has received for his or her

24

intended role; each person’s employment history, including discipline and complaints; any

25

medical training that they have received at any time; any history of drug use; any criminal

26

records, whether or not resulting in conviction; and any background checks done on the team

27

members:

28

6 Expedited Motion to Compel Production of Documents

1

o Pre-execution examination of plaintiff’s physical health, including assessment of

2

plaintiff’s venous integrity and ability to achieve peripheral IV access;

3

o Drug mixing;

4

o Syringe preparation;

5

o IV line set-up;

6

o Patency of catheters/IV lines;

7

o Inmate removal from cell and strap down;

8

o Catheter insertion;

9

o Drug administration;

10

o Assessment of plane anesthesia;

11

o EKG monitoring;

12

o Pronouncement of death.

13 • All documents relating to “the administration of the lethal injection,” referred to on p. 19 of

14

the June 13, 2003 revision of Procedure No. 770.

15 • All documents relating to the State Physician and staff physician, referred to on p. 19 of the

16

June 13, 2003 revision of Procedure No. 770, including but not limited to their identities,

17

employment history, medical training, any history of drug use, criminal history, disciplinary

18

history, history of malpractice or complaints wherever registered, and any background checks

19

performed on them.

20 • All documents relating to the procedures to be used to monitor plaintiff’s heart as referred to

21

on p. 19 of the June 13, 2003 revision of Procedure No. 770.

22 • All documents relating to the mixing of the drugs and the preparation of the syringes of

23

sodium pentothal, pancuronium bromide, and potassium chloride to be used in the execution

24

process.

25 • All documents relating to the decision not to prepare a backup syringe of sodium pentothal

26

but to prepare syringes of pancuronium bromide and potassium chloride, as referred to on pp.

27

26-27 of the June 13, 2003 revision of Procedure No. 770.

28

7 Expedited Motion to Compel Production of Documents

1 • All documents relating to procedures to be used to revive plaintiff in the event a stay or

2

reprieve is issued after the execution process has begun but before it is complete.

3 • All documents relating to what constitutes proper storage of all chemicals and equipment, as

4

referred to on p. 30 of the June 13, 2003 revision of Procedure No. 770.

5 • All documents relating to the “injection team,” as referred to on p. 32 of the June 13, 2003

6

revision of Procedure No. 770, including but not limited to the qualifications required to serve

7

on the injection team; identities of the team members; employment history, including

8

discipline and complaints; medical training; any history of drug use; criminal history, whether

9

or not resulting in conviction; and background checks performed on the team members.

10 • All documents relating to the person or persons in the pharmacy who will issue the “necessary

11

agents” to a member of the lethal injection team, as referred to on p. 32 of the June 13, 2003

12

revision of Procedure No. 770, including but not limited to their identities, employment

13

history, medical training, any history of drug use, criminal history, disciplinary history,

14

history of malpractice or complaints wherever registered, and any background checks

15

performed on them.

16 • All documents relating to the procedure for rolling back the lip of the diaphragm on the “Y”

17

injection site, as referred to on p. 36 of the June 13, 2003 revision of Procedure No. 770.

18 • All documents relating to the decision to administer a saline solution between the

19

pancuronium bromide and the potassium chloride, as detailed on the CDC web site.

20 • All documents relating to the decision to prepare the syringe of sodium pentothal last, as

21

referred to on p. 37 of the June 13, 2003 revision of Procedure No. 770.

22 • All documents relating to the method by which it is determined when the execution will

23

proceed so that the syringe of sodium pentothal can be prepared, as referred to on p. 37 of the

24

June 13, 2003 revision of Procedure No. 770.

25 • All documents relating to the decision to use a single syringe of five grams of diluted sodium

26

pentothal as opposed to a continuous flow.

27

28

8 Expedited Motion to Compel Production of Documents

1 • All documents relating to what constitutes a “person qualified, trained or otherwise authorized

2

by law” to insert the angiocath, as referred to on p. 39 of the June 13, 2003 revision of

3

Procedure No. 770.

4 • All documents relating to what constitutes a usable vein, as referred to on p. 39 of the June

5

13, 2003 revision of Procedure No. 770, and the timing and determination of whether or not

6

plaintiff possesses usable veins.

7 • All documents relating to procedures to be used to execute plaintiff in the event a usable vein

8

cannot be found.

9 • All documents relating to the method by which it will be determined that a malfunction or

10

blockage in the first line exists, as referred to on p. 32 of the June 13, 2003 revision of

11

Procedure No. 770.

12 • All documents relating to how, in the event of a malfunction or blockage in the first line

13

during the administration of the sodium pentothal, it will be determined that plaintiff has

14

achieved a sufficient level of unconsciousness to allow the execution to proceed.

15 • All documents relating to how, if plaintiff has not been rendered unconscious by the sodium

16

pentothal, he will be able to communicate that fact to the injection team, execution team, or

17

assembled witnesses in light of the administration of the paralytic agent pancuronium

18

bromide.

19 • All execution logs of all prisoners executed by lethal injection.

20 • All documents relating to the conduct of prior executions in California by lethal injection,

21

including but not limited to autopsy reports, photographs, diagrams, toxicology reports, and

22

videotapes and audiotapes of the executions.

23 • All documents relating to blood tests performed for previous executions in California by

24

lethal injection, including but not limited to toxicology reports measuring the presence of the

25

execution chemicals in the bloodstream.

26 • All documents relating to blood tests performed on other inmates executed in California by

27

lethal injection, including but not limited to toxicology reports measuring the presence of the

28

execution chemicals in the bloodstream.

9 Expedited Motion to Compel Production of Documents

1 • All correspondence by the California Department of Corrections regarding the use of lethal

2

injection.

3 • All documents relating to the assessment of the competency of the lethal injection teams

4

assigned to plaintiff’s execution and to previous executions carried out in California.

5 In plaintiff’s January 5, 2006 letter to counsel for defendants, plaintiff offered to enter into any
6 appropriate protective order to protect any confidentiality concerns raised by defendants to ensure
7 plaintiff’s access to the documents requested. Nonetheless, defendants have refused to provide any
8
9 of the documents requested in the absence of a court order, although a complete copy of the redacted
10 version of Procedure No. 770 was provided.

11

Plaintiff is entitled to discovery of all matter relevant to the subject matter of the action.

12 (Fed.R.Civ.P. 26(b).) The subject matter of the action is clear. As Procedure No. 770 sets out,

13

1
plaintiff will be put to death by the serial administration of three chemicals: sodium thiopental,

14 pancuronium bromide, and potassium chloride. Sodium thiopental is administered first and renders
15 the inmate unconscious. Potassium chloride, the final drug administered in the sequence, interferes
16

with the heart’s contractions, causing cardiac arrest and death. The second drug, pancuronium 17

2
18 bromide, is a neurotoxin that completely paralyzes plaintiff’s voluntary muscles and breathing.

19

Defendants cannot seriously dispute that if plaintiff is not properly anesthetized by the

20 administration of sodium thiopental, he will experience, in the following order: 1) the conscious

21 experience of prolonged suffocation—which in itself is an Eighth Amendment violation—while
22 being completely paralyzed; and 2) excruciating, burning pain in his veins from the potassium 23
chloride, another Eighth Amendment violation. 24

25

26

1

27

Sodium thiopental is the generic name for the drug Sodium Pentothal.
2

The purpose and effect of these drugs are described in Dr. Mark Heath’s declaration in support of

28 plaintiff’s companion motion for a temporary restraining order, preliminary injunction, and order to

show cause.

10

Expedited Motion to Compel Production of Documents

1

A shocking amount of information about the administration of the California lethal injection

2 procedure has not been made public. Each set of the requested documents seeks information about

3 the procedures by which plaintiff will be put to death and the qualifications and training of the people
4 responsible for correctly implementing those procedures. The material sought is clearly relevant to 5
the subject matter of this action. 6
The “importance of the issues at stake in the litigation, and the importance of the proposed 7
discovery in resolving the issues,” outweigh whatever burden that gathering and producing this 8 9 information may place on defe ndants. (Fed.R.Civ.P. 26(b)(2).) It is unlikely that the requested
10 information will fill more than a couple of banker’s boxes. By contrast, plaintiff’s interest in
11 vindicating his constitutional rights and in holding California’s veiled lethal injection procedure up to

12 public scrutiny cannot be overstated. The documents should be produced.

13 III. CONCLUSION

14

For the foregoing reasons, plaintiff’s motions should be granted.

15

MICHAEL ANGELO MORALES

16

17

18

19 Dated: January 13, 2006
20 David A. Senior (# 108759)
21 McBreen & Senior 1880 Century Park East, Suite 1450
22 Los Angeles, CA 90067 Phone: (310) 552-5300
23 Fax: (310) 552-1205 dsenior@mcbreensenior.com
24

25

John R. Grele (# 167080) Law Offices of John R. Grele

26 703 Market Street, Suite 550 San Franc isco, CA 94103

27 Phone: (415) 348-9300 Fax: (415) 348-0364

28 jgrele@earthlink.net

By:

/s/

John R Grele

11 Expedited Motion to Compel Production of Documents

1 Richard P. Steinken

Benjamin J. Bradford

2 Janice H. Lam

Stephanie L. Reinhart 3 Jenner & Block LLP

4

One IBM Plaza Chicago, IL 60611-7603

5 Phone: (312) 923-2938 Fax: (312) 840-7338

6 rsteinken@jenner.com

7 Ginger D. Anders

Jenner & Block LLP 8 601 Thirteenth Street, NW

9

Suite 1200 South Washington DC 20005-3823

10 Phone: (202) 639-6000 Fax: (202) 639-6066

11 ganders@jenner.com

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12 Expedited Motion to Compel Production of Documents

1 David A. Senior (#108759) McBreen & Senior
2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
3 Phone: (310) 552-5300 Fax: (310) 552-1205
4 dsenior@mcbreensenior.com

5 John R Grele (#167080) Law Offices of John R. Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken Jenner & Block LLP
10 One IBM Plaza Chicago, IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Attorneys For Plaintiff MICHAEL ANGELO MORALES

14

IN THE UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

MICHAEL ANGELO MORALES,

)

Case No. C 06 0219 (MCC)

17

)

)

18

Plaintiff,

)

)

19

) DECLARATION OF JOHN R

) GRELE IN SUPPORT OF MOTION

20

v.

) FOR DISCOVERY

)

21 RODERICK Q. HICKMAN, Secretary of the

)

California Department of Corrections; STEVEN )

22 ORNOSKI, Warde, San Quentin State Prison, ) Date: January 20, 2006

) Time: 9 am

23 San Quentin, CA; and DOES 1-50,

) Courtroom: 7

)

24

)

Defendants.

)

25

)

26 I, John R Grele, under penalty of perjury, declare as follows:
27 1. I am local counsel for Michael Angelo Morales in his action challenging his
28

Decl. re Mot. for Discovery

C 06 0219 (MCC)

1

1 execution by lethal injection. I am licensed to practice before this Court.

2

2. Respondent is seeking to execute Mr. Morales on February 21, 2006. The

3 provisions for discovery in the Federal Rules of Civil Procedure will not provide sufficient time

4 in which to litigate discovery prior to his execution. It is for this reason, that Mr. Morales

5 requests expedited review and discovery.

6

3. On January 5, 2006 counsel for Mr. Morales delivered a letter seeking production

7 of documents from respondent in anticipation of this litigation. That letter is attached to the

8 motion for discovery as Exhibit A. On January 6, 2005, Senior Assistant Attorney General Dan

9 Gillette responded that “Absent a court order we will not provide any of the documents

10 requests.” He attached a redacted copy of Procedure 770, part of San Quentin’s operating

11 procedure for lethal injection.

12

4. The documents sought in the expedited motion for discovery filed concurrently

13 with this Declaration are reasonably related to this action, and relevant or likely to lead to

14 relevant and admissible evidence. They are not obtainable through any other source.

15

5. This application is even more important given the circumstances surrounding San

16 Quentin’s execution of Clarence Ray Allen. On information and belief, I am aware that in Mr.

17 Allen’s case, two doses of potassium chloride, the third chemical, were necessary. This second

18 dose of potassium chloride should not be required if the process is proceeding as planned and

19 with the planned effects. Today, San Quentin admitted for the first time that this was required in

20 two other deaths by lethal injection under Procedure 770. None of the previously- released

21 information concerning prior lethal injections disclosed this critical fact.

22

6. On Friday, January 13, 2006, I caused to be hand-delivered the complaint in this

23 matter on Senior Assistant Attorney General Dan Gillette. On that date, and pursuant to our

24 agreement as to service, I emailed the request for discovery and the request to have it heard on

25 shortened time to Mr. Gillette. I was unable to file it that day because it was still not accessible

26 for efiling.

27 ///

28 ///

Decl. re Mot. for Discovery

C 06 0219 (MCC)

2

1 ///

2

I declare under penalty of perjury under the laws of the United States that the foregoing is

3 true and correct. Executed on this 17th day of January, 2006, in San Francisco, California.

4

_______________________

John R Grele

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Decl. re Mot. for Discovery

C 06 0219 (MCC)

3

 
 1 David A. Senior (# 108759)

McBreen & Senior

2 1880 Century Park East, Suite 1450

Los Angeles, CA 90067 3 Phone: (310) 552-5300

4

Fax: (310) 552-1205 dsenior@mcbreensenior.com

5 John R. Grele (# 167080)
6 Law Offices of John R. Grele 703 Market Street, Suite 550
7 San Francisco, CA 94103 Phone: (415) 348-9300
8 Fax: (415) 348-0364 jgrele@earthlink.net
9

10

Richard P. Steinken Jenner & Block LLP

11 One IBM Plaza Chicago, IL 60611-7603

12 Phone: (312) 923-2938 Fax: (312) 840-7338

13 rsteinken@jenner.com

14 Attorneys For Plaintiff MICHAEL ANGELO MORALES

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17 MICHAEL ANGELO MORALES,

) Case No. C 06 0219 (MCC) )

18

Plaintiff,

) PLAINTIFF’S MOTION FOR

) TEMPORARY RESTRAINING

19

) ORDER; MEMORANDUM OF

) POINTS AND AUTHORITIES IN

20

) SUPPORT THEREOF

21

v.

) )

22 RODERICK Q. HICKMAN, Secretary of the

) ) Date: January 26, 2006

23 California Department of Corrections; STEVEN ) Time: 9am ORNOSKI, Warden, San Quentin State Prison, ) Courtroom: 7

24 San Quentin, CA; and DOES 1-50,

)

)

25

Defendants.

)

) 26

27

28

PLAINTIFF’S MOTION FOR TRO, Case No. C 06 0219 (MCC)
CHICAGO_1358141_3

1

TABLE OF CONTENTS

2

3 NOTICE OF APPLICATION AND APPLICATION

4 I. INTRODUCTION

5 II. FACTUAL BACKGROUND

6 III. ARGUMENT

7 A. THE LEGAL STANDARD

8 B. PLAIN TIFF IS LIKELY TO SUCCEED ON THE MERITS

9 1. Plaintiff’s Claim Is Cognizable Under Section 1983

10

2. California’s Lethal Injection Protocol Violates the Eighth Amendment 11

a. Procedure No. 770 Creates a Tremendous Risk of Unnecessary

12

Pain During Executions by Imposing Conditions Conducive to

13

Botched Executions and Failing to Compensate for these Conditions

14

b. The Use of Pancuronium Bromide in Combination With Sodium

15

Pentothal Creates a Significant Risk that Inmates Will Be

Conscious, But Unable to React, During Their Executions

16 c. The Risk Created by Procedure No. 770 Has Been Realized in

17

California Executions

18

d. The Deficiencies in Procedure No. 770 are the Result of CDC’s

Conscious Choices 19

20

e. Conclusion

21

C. MR. MORALES WILL SUFFER IRREPARABLE HARM IF TEMPORARY RELIEF IS NOT GRANTED

22 D. THE BALANCE OF HARDSHIPS FAVORS MR. MORALES

23 E. GRANTING TEMPORARY RELIEF IS IN THE PUBLIC INTEREST

24 IV. CONCLUSION
25

26

27

28
i
PLAINTIFF’S MOTION FOR TRO, Case No. C 06 0219 (MCC)
CHICAGO_1358141_3

Page 1 2 3 4 5 5 5 5
8
14
16
18 20
21 21 22 24

1

TABLE OF AUTHORITIES

2 CASES
3

4

Associated General Contractors of California, Inc. v. Coalition for Economic Equity, 950 F.2d 1401 (9th Cir. 1991)

5 Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005)
6 Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994)
7 Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004)
8 Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996)
9 Gomez v. U.S. Dist. Ct. for Northern Dist. of Cal., 966 F.2d 460 (9th Cir. 1992)
10 Gomez v. U.S. Dist. Ct. for Northern Dist. of Cal., 503 U.S. 653 (1992)
11
Gregg v. Georgia, 428 U.S. 153 (1976) 12
13 Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427 (9th Cir. 1995)

14 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996)

15 LaGrand v. Stewart, 170 F.3d 1158 (9th Cir. 1999)

16 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947)

17 Morales v. Woodford, 336 F.3d 1136 (9th Cir. 2003)

18 Nelson v. Campbell, 541 U.S. 637 (2004)

19 People v. Morales, 770 P.2d 244 (Cal. 1989)

20 Rupe v. Wood, 863 F. Supp. 1307 (W.D. Wash. 1994)

21 CONSTITUTION
22 U.S. Const. amend. VIII
23 STATUTES and RULES 24 Cal. Penal Code § 190.2(a)(15), (18)
25 Cal. Penal Code § 3604 26 Conn. Gen. Stat. § 54-100 (West 2005) 27
Idaho Code § 19-2716 (Michie 2005) 28
i
PLAINTIFF’S MOTION FOR TRO, Case No. C 06 0219 (MCC)
CHICAGO_1358141_3

Page
21 passim passim 7, 20, 22 passim
21 22 5, 6 5 21 22 5, 20 3 5 3 7
5
3 3, 6, 18
19 19

1 Kan. Crim. Proc. Code Ann. § 22-4001 (West 2005)

19

2 Civil Local Rule 65-1

1

3 Fed. R. Civ. P. 65(b)

1

4 Wash. Rev. Code § 10.95.180

5 15 Cal. Code Regs. § 3084.7

6 15 Cal. Code Regs. § 3084.3(c)(3)

7 16 Cal. Admin. Code § 2039

8 42 U.S.C. § 1983

9 ARTICLES

10 S. Russell, The Execution of Stanley Tookie Williams; Injection: Designed to Make

11

Execution More Humane, SFGate.com, available at

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/12/14/MNG05G7QM61.DTL

12

(last visited Jan. 12, 2006)

8 4 4 11 5, 24
23

13 2000 Report of the AVMA Panel on Euthanasia, 218 J. Am. Veterinary Med. Ass’n 669 (2001)
14

11, 16, 19

15

J.D. Mortenson, Earning the Right to be Retributive: Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Clause, 88 Iowa L. Rev. 1099 (2003)

7

16 J. Groner, Lethal Injection: A Stain on the Face of Medicine, available at

17

http://bmj.bmjjournals.com/cgi/content/full/325/7371/1026

19

18

19

20

21

22

23

24

25

26

27

28
ii
PLA INTIFF’S MOTION FOR TRO, Case No. C 06 0219 (MCC)
CHICAGO_1358141_3

1

NOTICE OF APPLICATION AND APPLICATION

2

Plaintiff Michael Morales is currently under a sentence of death. On January 6, 2006, the

3 clerk of the Superior Court of Ventura County issued a Notice of Public Session in the case of

4 People v. Morales, No. CR 17960, scheduling a public session on January 18, 2006 for the

5 purpose of the setting of the date of execution of judgment of death of February 21, 2006. On

6 January 12, 2006, the Superior Court of Ventura County entered an Order continuing the Notice

7 of Public Session to January 31, 2006. Mr. Morales seeks preliminary injunctive relief to

8 prevent defendants Steven Ornoski, Warden of San Quentin Prison, and Roderick Hickman,

9 Secretary of the California Department of Corrections (“CDC”), from executing Mr. Morales by

10 means of lethal injection pending the resolution of this action. Mr. Morales alleges that the

11 Department of Correction’s lethal injection protocol, as described in Procedure No. 770, which is

12 attached hereto as Exhibit A, constitutes cruel and unusual punishment in violation of the Eighth

13 and Fourteenth Amendment because it creates a substantial risk that Mr. Morales will be fully

14 conscious and in agonizing pain for the duration of the execution process.

15

This application for a temporary restraining order is made pursuant to Federal Rule of

16 Civil Procedure 65 and Civil Local Rule 65-1. Mr. Morales will sustain irreparable harm if

17 injunctive relief is not granted preventing the defendants from conducting Mr. Morales’s

18 execution in accordance with Procedure No. 770. Mr. Morales is likely to prevail on the merits

19 of the underlying action and the balance of hardships weighs decidedly in his favor. This

20 application is based on the verified complaint, the following memorandum of points and

21 authorities, and exhibits including the declaration of Dr. Mark Heath.

22

Pursuant to Fed. R. Civ. P. 65(b), the complaint has been provided to opposing counsel.

23 Mr. Morales requests that the Court issue an order to show cause and determine a briefing

24 schedule so that the hearing on this matter occurs no later than January 26, 2006, or as soon

25 thereafter as the Court may set given the need for expedited resolution of this matter.

26

27

28
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1 I. INTRODUCTION

2

Under California law, Michael Morales, a death row inmate at San Quentin State Prison,

3 will be executed by lethal injection. A growing body of evidence, including medical evidence,

4 eyewitness observations, and veterinary studies, persuasively demonstrates that CDC’s lethal

5 injection protocol creates a significant risk that inmates will fail to receive adequate anesthesia

6 and will be conscious for the duration of their executions. Without anesthesia, the inmate would

7 experience first slow suffocation and then the “extraordinarily painful” activation of the sensory

8 nerve fibers in the walls of the veins that is caused by potassium chloride. See Declaration of Dr.

9 Mark Heath ¶ 11, attached hereto as Exhib it C. Given this significant danger under the current

10 protocol, Mr. Morales seeks to prevent the defendants from executing him in a manner that is

11 likely to subject him to this excruciating pain.

12

Procedure No. 770 calls for the use of three drugs in succession: first, sodium pentothal,

13 an ultrashort-acting barbiturate that under ideal conditions will cause the inmate to lose

14 consciousness; pancuronium bromide, a neuromuscular blocking agent that paralyzes the

15 muscles and has no apparent purpose other than to make the execution appear peaceful to

16 witnesses; and finally, potassium chloride, which induces cardiac arrest. Procedure No. 770 also

17 establishes the conditions under which these drugs are administered. These conditions –

18 including the remote administration of the drugs, the absence of trained personnel, and a failure

19 to monitor the inmate’s condition – create a serious risk that the drugs, particularly the sodium

20 pentothal, will not be properly administered. Such an error could result, and has resulted, in

21 inmates retaining consciousness during portions of their executions. Yet Procedure No. 770 also

22 fails to set forth any procedures for preventing or reacting to these obvious risks: It does not, for

23 instance, explain how execution personnel should detect and react to problems with drug

24 administration or provide for stopping the execution should it become clear that the inmate is

25 conscious.

26

Thus, Mr. Morales’s suit is not premised on the possibility that some unforeseen error or

27 unavoidable accident might cause him to be aware and in excruciating pain during his execution.

28
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1 On the contrary, he alleges that the significant risk of botched executions is an entirely

2 foreseeable consequence of the conditions imposed by, and failings of, Procedure No. 770. It is

3 surely unconstitutional for the State to institute an execution protocol that creates a significant

4 risk of inflicting excruciating pain, and then to consciously disregard that risk. Mr. Morales

5 therefore requests that the Court enjoin the defendants from executing him by means of lethal

6 injection as it is currently administered under Procedure No. 770.

7 II. FACTUAL BACKGROUND

8

In 1983, Michael Morales was convicted in Ventura County court of murdering Traci

9 Winchell. The jury found that two special circumstances – killing by torture and intentional

10 killing by lying in wait – applied to the offense. Cal. Penal Code § 190.2(a)(15), (18).

11 Following the penalty phase, the jury sentenced Mr. Morales to death. See People v. Morales,

12 770 P.2d 244 (Cal. 1989). The California Supreme Court affirmed the conviction and sentence

13 in 1989, id. at 249, and the United States Supreme Court denied certiorari.

14

Mr. Morales filed a petition for habeas corpus in federal court in 1996, raising several

15 constitutional challenges to his conviction and sentence. The district court denied the petition in

16 full, and the Ninth Circuit affirmed in July 2003. See Morales v. Woodford, 336 F.3d 1136, 1153

17 (9th Cir. 2003). The Supreme Court denied certiorari on October 11, 2005, and the stay of

18 execution was lifted shortly thereafter. Mr. Morales will not elect a form of execution, and

19 therefore will be executed by means of lethal injection. See Cal. Penal Code § 3604(b)

20 (providing that lethal injection is the presumptive means of execution). On January 6, 2006, the

21 clerk of the Superior Court of Ventura County issued a Notice of Public Session in People v.

22 Morales, No. CR 17960, setting a hearing on January 18, 2006 for the purpose of the setting the

23 date of execution of judgment of death of February 21, 2006. On January 12, 2006, the Superior

24 Court of Ventura County continued the Notice of Public Session to January 31, 2006.

25

On January 9, 2006, plaintiff filed an inmate appeal on CDC Form 602 alleging that his

26 execution under the lethal injection protocol of the California Department of Corrections would

27 constitute cruel and unusual punishment. A copy of the Form 602 is attached to the Verified

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1 Complaint filed contemporaneously. Plaintiff asked that his appeal be processed as an

2 emergency appeal pursuant to 15 Cal. Code Regs. §3084.7 because the State of California

3 shortly intended to seek his execution date. Plaintiff’s claim has not yet been ruled upon.

4

Notwithstanding his filing of an appeal on CDC Form 602, Plaintiff is not required to

5 exhaust administrative remedies before bringing this claim because resolution of the grievance

6 seeking modification of Procedure No. 770 is not possible through the appeal process and

7 exhaustion is futile.

8

On November 24, 2004, Donald J. Beardslee, San Quentin Inmate No. C-82702, raised a

9 challenge similar to plaintiff’s claim here when he filed two inmate appeals on CDC Form 602

10 alleging that the Department of Correction’s lethal injection procedure violated his rights under

11 the First and Eighth Amendments to the United States Constitution. After being considered on

12 an emergency basis, the appeals were first denied by the Warden and then denied by the Director

13 of the Department of Corrections on Third Level Review. In denying Beardslee’s appeal, the

14 Director’s Level Appeal Decision stated that Beardslee’s “sentence and penalty were established

15 by court in California; therefore relief at the Director’s Level of Review cannot be afforded the

16 appellant.” Administrative review therefore cannot resolve the issues raised in plaintiff’s appeal.

17

Moreover, pursuit of administrative review is futile for additional reasons. In subsequent

18 proceedings in Beardslee’s case, the Court of Appeals for the Ninth Circuit observed that “by

19 regulation the California Department of Corrections does not permit challenges to anticipated

20 action[s]. 15 Cal. Code Regs. § 3084.3(c)(3).” Beardslee v. Woodford, 395 F.3d 1064, 1069

21 (9th Cir. 2005). No administrative challenge to the lethal injection protocol is possible here.

22 III. ARGUMENT

23

In moving for a temporary restraining order against defendants, Mr. Morales seeks only

24 to preserve the status quo while he litigates his Eighth Amendment claim. Mr. Morales is likely

25 to succeed on the merits, and will suffer irreparable harm in the absence of temporary relief. It is

26 also in the public interest to grant temporary relief because doing so will allow the important

27 question of the constitutionality of Procedure No. 770 to be resolved on the merits.

28
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1

A. THE LEGAL STANDARD

2

In order to obtain a temporary restraining order or preliminary injunction, Plaintiff must

3 demonstrate “(1) a strong likelihood of success on the merits, (2) the possibility of irreparable

4 injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the

5 plaintiff, and (4) advancement of the public interest (in certain cases).” Johnson v. Cal. State Bd.

6 of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995). As the Ninth Circuit has explained, the

7 necessary showing of likelihood of success diminishes in proportion to the “relative hardship to

8 the party seeking the preliminary injunction,” Beardslee v. Woodford, 395 F.3d 1064, 1067-68

9 (9th Cir. 2005); thus, where the balance of hardships tips sharply in favor of the plaintiff, he need

10 only demonstrate the existence of serious questions going to the merits, see id.

11

B. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS

12

1. Plaintiff’s Claim Is Cognizable Under Section 1983

13

Mr. Morales does not challenge the legality of his conviction or sentence, nor does he

14 seek to prevent the State from executing him in a lawful manner. Mr. Morales’s challenge

15 therefore is a “method of execution” claim that is cognizable under 42 U.S.C. § 1983. See id. at

16 1068-69 (holding that because Beardslee challenged “California’s lethal injection protocol,

17 rather than the punishment of lethal injection per se,” his claim was cognizable under § 1983

18 rather than habeas corpus); see also Nelson v. Campbell, 541 U.S. 637, 647 (2004) (focusing on

19 whether the petitioner’s challenge “would necessarily prevent” the State from carrying out the

20 execution (emphasis in original)).

21

2. California’s Le thal Injection Protocol Violates the Eighth Amendment

22

The Eighth Amendment, applicable to the States through the Fourteenth Amendment,

23 prohibits the imposition of cruel and unusual punishments. U.S. Const. amend. VIII. The

24 prohibition includes the “infliction of unnecessary pain in the execution of the death sentence.”

25 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947); see also Gregg v. Georgia, 428

26 U.S. 153, 173 (1976) (holding that the Eighth Amendment prohibits the “unnecessary and

27 wanton infliction of pain”). Whether a method of execution inflicts “unnecessary” pain is

28
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1 inherently a relativistic inquiry. Thus, whether pain is “unnecessary” must be determined

2 according to “evolving standards of decency,” and “contemporary values concerning the

3 infliction of a challenged sanction.” Gregg, 428 U.S. at 173. A method of execution that was

4 touted as more humane than available alternatives when it was first introduced therefore could,

5 over time, come to offend contemporary values because, fo r example, experience with the

6 method in question has demonstrated that it is not in fact as humane as first thought. See Fierro

7 v. Gomez, 77 F.3d 301, 303 n.1 (9th Cir. 1996) (noting, in a challenge to the constitutionality of

8 execution by lethal gas, that the California Supreme Court had last considered such a challenge

9 in 1953, and that the court’s consideration had been limited by then-existing scientific

10 knowledge), vacated as moot in light of Cal. Penal Code § 3604, 519 U.S. 918.

11

In determining whether a particular method of execution offends contemporary standards

12 of decency by inflicting unnecessary pain, the Ninth Circuit examines the “objective evidence of

13 the pain involved in the challenged method.” Campbell v. Wood, 18 F.3d 662, 682 (9th Cir.

14 1994). Such evidence can include the execution records of inmates executed using the same

15 method; expert testimony regarding the effect of the method on both humans and animals; and

16 scientific studies and other evidence analyzing the effects on humans and animals. See Fierro,

17 77 F.3d at 307 (listing the types of evidence considered by the district court in analyzing the

18 effects of exposure to cyanide gas); Campbell, 18 F.3d at 683-87 (discussing expert testimony,

19 scientific literature, and experiments on death by hanging considered by the district court).

20 Moreover, the Ninth Circuit has established that evidence of an inmate’s voluntary and

21 involuntary movement, expression, and apparent consciousness during his execution, as

22 observed by witnesses to the execution, can be probative of whether the inmate is suffering

23 unnecessary pain. See Fierro, 77 F.3d at 307-08 (relying on eyewitness accounts of executions

24 by lethal gas); Campbell, 18 F.3d at 685 (relying on physician’s observations during an

25 execution by hanging to conclude that the inmate had quickly lost consciousness and had not

26 suffered).

27

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1

Because it is impossible to determine with certainty before the fact whether a particular

2 inmate will suffer unnecessary pain during his execution, the question whether a method of

3 execution will inflict unnecessary pain on an individual inmate is fundamentally an inquiry as to

4 whether the inmate is “subject to an unnecessary risk of unconstitutional pain or suffering.”

5 Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004) (emphasis added); Fierro, 77 F.3d at

6 307 (“Campbell also made clear that the method of execution must be considered in terms of the

7 risk of pain.” (emphasis in original)); Campbell, 18 F.3d at 687. “For any individual challenging

8 a death sentence, evidence of botched executions can only be put in terms of probability.” J.D.

9 Mortenson, Earning the Right to be Retributive: Execution Methods, Culpability Theory, and the

10 Cruel and Unusual Punishment Clause, 88 Iowa L. Rev. 1099, 1118-20 (2003). Of course, any

11 medical or quasi- medical procedure inherently carries a risk that a mistake or accident might

12 cause unforeseen pain. Thus, the Eighth Amendment does not require executioners to eliminate

13 all possible risk of pain or accident from their execution protocols. See Campbell, 18 F.3d at

14 687. A risk of pain becomes unnecessary, however, when experience with an execution

15 procedure demonstrates that there are foreseeable problems that could arise that would result in

16 the inmate suffering intense pain and the procedure fails to minimize or at least account for those

17 risks.

18

Thus, in the only two cases in which the Ninth Circuit has considered a method-of-

19 execution challenge, the court drew a distinction between an execution protocol that was

20 constitutional because it recognized and prevented a foreseeable risk of pain, and a procedure

21 that was unconstitutional because it inherently involved a substantial risk of pain. In upholding

22 Washington’s use of judicial hanging, the Ninth Circuit acknowledged the possibility of

23 “bungled” executions that could result in asphyxiation or decapitation, but held that the risk was

24 “slight” because Washington’s detailed execution protocol “minimized [the risk] as much as

25 possible.” See Campbell, 18 F.3d at 684-85, 687 & n.17. In contrast, the court held that

26 execution by lethal gas was unconstitutional because it involved a “substantial risk” of several

27 minutes of “intense physical pain.” Fierro, 77 F.3d at 308; see also Rupe v. Wood, 863 F. Supp.

28
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1 1307, 1313-15 (W.D. Wash. 1994) (holding that a “significant” risk (less than 24% probability)

2 of decapitation rendered judicial hanging unconstitutional as applied to an obese inmate),

3 vacated in part as moot in light of Wash. Rev. Code § 10.95.180 (eff. June 6, 1996), 93 F.3d

4 1434 (9th Cir. 1996).

5

Under these standards, the CDC’s lethal injection protocol is clearly unconstitutional

6 because it creates a significant and substantial risk that the inmate will experience a prolonged,

7 agonizing death. Although executions following Procedure No. 770, if performed properly

8 under ideal circumstances, may not inherently involve unnecessary pain and suffering, Procedure

9 No. 770 creates a procedure that is rife with potential problems and opportunities for untrained

10 personnel to commit grave errors, all of which can lead to an excruciating death. The Procedure

11 so utterly fails to account for these potential problems, which are inherent in allowing medically

12 untrained personnel to perform executions by remote control, that executions performed

13 according to Procedure No. 770 carry a significant and unconstitutional risk of unnecessary pain.

14 a. Procedure No. 770 Creates a Tremendous Risk of Unnecessary Pain During

15

Executions by Imposing Conditions Conducive to Botched Executions and

Failing to Compensate for these Conditions 16

17

Procedure No. 770 instructs that executions shall be carried out by means of an IV line

18 inserted into a vein and monitored and controlled remotely, from a separate room. Procedure

19 No. 770, at 36.1 This line is “inserted into a usable vein by a person qualified . . . or otherwise

20 authorized by law to initiate such a procedure.” Id. at 39. Once a flow of saline solution has

21 been started, “injection team members vacate the chamber” and the chamber door is locked and

22 sealed. Id. The injection team then causes five grams of sodium pentothal, an ultrashort-acting

23

24

25

1 Plaintiff is relying upon what the Office of the Attorney General describes as a “redacted version” of Procedure No. 770, provided to Mr. Morales on January 6, 2006. It is impossible to

26 tell what has been redacted, as the defendants have never produced a complete copy of the protocol in litigation. See Beardslee, 395 F.3d at 1075 & n.12 (“Indeed, the State declined to

27 produce significant portions of Procedure No. 770. . . . The State has advanced no legitimate

reason, indeed, no reason at all, for its refusal to disclose the entire protocol to the condemned

28 prisoner.”).

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1 barbiturate anesthetic, to be administered through the IV. This dosage, if properly administered,

2 would be sufficient to induce unconsciousness in almost all people. Heath Decl. ¶ 9. Next, 100

3 milligrams of pancuronium bromide, which completely paralyzes both the inmate’s voluntary

4 muscles and his diaphragm, is administered. Procedure No. 770, at 36; Heath Decl. ¶ 9.

5 Finally, the inmate is given 100 milligrams of potassium chloride, see Procedure No. 770, at 27,

6 which eventually – after two or more minutes – causes cardiac arrest.

7

Although the doses of sodium pentothal and pancuronium bromide each would, if given

8 alone, eventually cause death by stopping breathing, neither drug has sufficient time to cause

9 death before the potassium chloride is administered. See Heath Decl. ¶10. Thus, medical

10 evidence indicates inmates are alive at the time that the potassium chloride is injected. Id.

11 Potassium chloride, when given in doses sufficient to cause death, is known to be excruciatingly

12 painful, because it activates the nerves in the inmate’s veins before it causes the heart to stop. Id.

13 ¶ 11. It is therefore imperative that inmates be anesthetized before the potassium chloride is

14 administered. Id. ¶¶ 12-13.

15

Administering the lethal drugs in the manner dictated by Procedure No. 770 creates the

16 risk that the sodium pentothal will not be administered properly and the inmate will not be

17 rendered fully unconscious by the time that the other two drugs are administered. Because

18 Procedure No. 770 fails to ensure the proper administration of sodium pentothal, the risk of

19 consciousness cannot be mitigated by the fact that the five- gram dose of sodium pentothal may

20 be excessive in comparison to the dose that would be used in a surgical setting. Although the

21 full five grams of sodium pentothal, if the dose reached the inmate, would be almost certainly

22 sufficient to induce unconsciousness, that fact is irrelevant in light of the substantial danger that

23 the full dose of sodium pentothal simply will not reach the inmate.

24

The risk that inmates will be conscious during their executions is in part inherent in the

25 use of sodium pentothal itself; CDC has chosen to use an ultrashort-acting anesthetic that is

26 extremely sensitive to errors in administration. In medical situations, sodium pentothal is used

27 only for specific, expeditious tasks, and only by personnel who have considerable expertise in

28
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1 anesthesia. Heath Decl. ¶¶ 18, 23. Monitoring the effects of sodium pentothal, like those of

2 other ultrashort-acting anesthetics, requires considerable expertise in anesthesia. Id. ¶ 23.

3 Moreover, because sodium pentothal is extremely unstable, it must be carefully and properly

4 mixed so that it does not crystallize, a technical task that requires significant training in

5 pharmaceutical calculations. Id. ¶ 28. Thus, sodium pentothal’s instability makes it more likely

6 to be administered incorrectly, and its fast-acting properties heighten the risk that improper

7 administration will result in ineffective anesthesia and consciousness.

8

The danger of improper administration of sodium pentothal is exacerbated by the fact that

9 Procedure No. 770 does not require medically trained personne l to supervise, or assist in the

10 medical tasks necessary to prepare for the execution. See Procedure No. 770, at 39 (stating only

11 that the person who inserts the IV shall have either some unspecified training, or be “authorized

12 by law” to initiate the procedure). These tasks include mixing the sodium pentothal solution,

13 Heath Decl. ¶¶ 20(a), 28; setting up the IV line and associated equipment, including the “Y”

14 injection site, in order to ensure that fluids do not leak and are not misdirected, id. ¶ 20(e), (f);

15 and finding a usable vein, properly inserting the IV line in the proper direction, and verifying that

16 the drugs are flowing into the inmate’s vein rather than into surrounding tissue, id. ¶ 20(f), (h).

17 All of these tasks require a high degree of specialized training. See id. ¶ 23.

18

Procedure No. 770 makes several of these tasks more prone to mistakes by deviating

19 from established medical practice. The protocol creates the risk that the drugs will be

20 administered in the wrong order by requiring that the syringes be labeled by number, rather than

21 by contents. This is a serious deviation from accepted medical standards, which would never

22 permit such ambiguous labeling. See id. ¶ 20(b). If an error in loading or labeling the syringes

23 occurs, the personnel administering the drugs will have no means of detecting it. Second, the

24 protocol requires that the neoprene diaphragm on the “Y” injection site be pulled back to allow

25 the insertion of syringe tips instead of a needle. Procedure No. 770, at 36. There is no medical

26 reason for this modification of standard practice, which calls for a needle to be inserted through

27 the diaphragm in order to ensure a sealed connection. See id. ¶ 29. In addition, because the

28
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1 drugs are administered from another room, IV line extensions must be used, see Procedure No.

2 770, at 36, which increases the risk that a flaw or kink in the IV line will disrupt the flow of

3 drugs. Heath Decl. ¶ 26. A reasonable medical standard of care would not permit these

4 unnecessary line extensions.

5

The risk of inadequate anesthesia is compounded by the fact that Procedure No. 770

6 requires that no personnel be present in the execution chamber when any of the drugs are

7 administered. The protocol thus prevents personnel from obtaining any sort of visual or other

8 verification that the drugs are actually being administered to the inmate, or that the sodium

9 pentothal anesthetic has taken effect. Proper monitoring of the flow of fluids into the vein

10 requires a clear view of the IV site, and also tactile examination of the skin surrounding the IV

11 site to verify skin firmness and temperature. Id. ¶¶ 20(f), 24.2

12

Proper monitoring of the inmate would also necessitate that a person trained specifically

13 in assessing anesthetic depth closely observe the inmate at all times after the sodium pentothal is

14 administered. Only persons trained in anesthesia are able to assess properly whether the inmate

15 has attained the degree of unconsciousness necessary to render him insensitive to pain. Id.

16 ¶¶ 21-23. For this reason, the American Veterinary Medical Association (AVMA) requires that

17 persons euthanizing animals be “competent in assessing depth [of anesthesia] appropriate for

18 administration of potassium chloride.” See 2000 Report of the AVMA Panel on Euthanasia, 218

19 J. Am. Veterinary Med. Ass’n 669, 681 (2001). Similarly, California requires extensive training

20 in the use of anesthesia for all technicians authorized to euthanize animals. See 16 Cal. Admin.

21 Code § 2039.

22

Thus, Procedure No. 770, by requiring that non- medical personnel remotely inject an

23 unstable drug into inmates without proper monitoring, creates conditions that are highly

24

25
26 2 Although Procedure No. 770 provides that the flow of saline through the IV lines shall be observed when the lines are first put into place, see Procedure No. 770, at 39, the fact that the
27 injection team vacates the execution chamber thereafter prevents any further monitoring once the flow of drugs is begun. Thus, the injection team would have no way of knowing if the inmate’s
28 movement or some other event causes the IV lines to become dislodged or kinked.
11
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1 conducive to serious errors that could cause the sodium pentothal to be administered improperly.

2 In the face of this danger, the protocol fails to take even the most rudimentary steps towards

3 minimizing the obvious potential problems. Indeed, the protocol is stunning in its complete

4 failure to acknowledge any risk or potential problem other than tampering with the lethal drugs

5 in the days leading up to the execution. See Procedure No. 770, at 31.

6

Examples of Procedure No. 770’s failure to account for the very risks that it creates are

7 numerous. Despite the fact that the injection team personnel are not doctors or nurses who are

8 capable of exercising competent medical judgment based on the situation at hand, Protocol No.

9 770 contains no specific instructions for inserting the angiocath into the vein; what size should

10 be used; what to do if there is trouble finding an adequate vein; or how to compensate if any

11 equipment malfunctions. Similarly, Procedure No. 770 does not attempt to account for the

12 foreseeable issues that may arise when an inmate requires special consideration for any reason.

13 There is no provision for individualized dosage calculation or medical care for, for instance,

14 obese inmates who may require larger doses of sodium pentothal, or inmates on medications that

15 may interfere with the anesthetic. Nor is there any indication of how personnel should go about

16 exercising their discretion should these types of issues arise, or who bears responsibility for

17 making medical decisions on the scene. Indeed, the protocol does not specify whether the

18 injection team is in any way prepared to handle the contingencies that might occur during the

19 course of an execution, or provide that training should encompass foreseeable contingencies.

20 See Procedure No. 770, at 39.

21

Procedure No. 770 also does not attempt to minimize the risks inherent in handling the

22 drugs themselves. There is no procedure specified for obtaining, storing, and appropriately

23 labeling the drugs, all of which could affect their efficacy. There is no attempt to control the

24 problems created by the instability of sodium pentothal: There are no instructions on mixing the

25 sodium pentothal solution, beyond noting that the drug should be in “complete, clear

26 suspension,” id. at 37, or any instruction to verify that the sodium pentothal has not crystallized

27 in the IV tubing or precipitated by the time it is actually used.

28
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1

Despite Procedure No. 770’s insistence on removing all personnel from the execution

2 chamber before any drugs are administered, the protocol does not anticipate and provide for the

3 problems that could arise as a result of this policy. There is no procedure for testing or verifying

4 the efficacy of the extended IV tubing, or even any instruction on precisely how to set up the

5 tubing. Nor is there a procedure for entering the chamber during the execution should any of the

6 equipment malfunction or the inmate somehow indicate that something has gone awry.

7 Although the protocol calls for a heart monitor, there is no indication of who observes the

8 monitor or what the team would do if the monitor indicated a problem.

9

Finally, and most disturbingly, the protocol apparently does not require execution

10 personnel to verify in any manner, even through the windows of the execution chamber, that the

11 inmate has been rendered unconscious by the sodium pentothal. Nor does the protocol call for a

12 backup syringe of sodium pentothal to be readied in case something goes wrong. See Procedure

13 No. 770, at 37; cf. Heath Decl. ¶ 46 (noting use of a backup syringe of sodium pentothal in other

14 states). Thus, despite the foreseeable risks created by the protocol and described above,

15 Procedure No. 770 simply does not acknowledge, much less provide for, the possibility that the

16 five-gram dose of sodium pentothal will fail to render the inmate unconscious.

17

Procedure No. 770 thus both creates an unacceptable quantum of risk that the inmate will

18 not be anesthetized and therefore will suffer excruciating pain during his execution, and also fails

19 utterly to account for these obvious contingencies and instruct personnel on how to react to or

20 prevent them. In this respect, the lethal injection protocol is starkly different from the judicial

21 hanging protocol that the Ninth Circuit upheld in Campbell, 18 F.3d at 683. Like the risk that an

22 inmate will be conscious and in excruciating pain during the lethal injection process,

23 Washington’s judicial hanging procedure carried the risk that an inmate would die of

24 asphyxiation, which is slow and painful, or decapitation, which mutilates the inmate’s body. See

25 id. at 683. Unlike the CDC’s protocol, however, Washington’s protocol carefully acknowledged

26 these risks and provided detailed procedures specifically designed to minimize them. Thus, as

27 the court noted, Washington’s protocol reflected medical opinions as to the manner in which

28
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1 different methods of hanging would kill inmates and which modes of causing death were the

2 most humane. Id. In order to avoid death by asphyxiation or decapitation, the protocol included

3 detailed instructions on numerous factors that would affect the manner of death, including the

4 diameter of the rope; the method of tying the knot; treating the rope with wax and boiling it to

5 reduce elasticity; and the length of the drop in relation to body weight and the manner in which

6 that length should be calculated. Id. at 683-85. All of these instructions were the result of

7 careful consideration of the available scientific and medical evidence. In light of the Washington

8 protocol’s ample provision for the risks of an inhumane death, the Ninth Circuit concluded that

9 the risk of a botched execution was “slight,” and had been “minimized as much as possible.” Id.

10 at 687 & n.17; Fierro, 77 F.3d at 307 (emphasizing that the Campbell court considered hanging

11 in terms of the “risk of pain,” and concluded that “under the Washington hanging protocol, the

12 risk of a prolonged and agonizing death by asphyxiation or decapitation was negligible”

13 (emphasis in original)).

14

In contrast to Washington’s protocol, it is impossible to detect in the version of Procedure

15 No. 770 currently available any attempt on CDC’s part to account for any problems that could

16 arise during an execution. This failure is particularly egregious in light of the fact that simply

17 having a qualified person verify, visually and tactically, that the inmate is indeed anesthetized

18 following the administration of the sodium pentothal, would go a long way towards mitigating

19 the risk of unnecessary pain. Yet it does not appear that CDC has considered this or any other

20 means of lessening the dangers created by the protocol. This egregious failure renders the

21 significant risk of error truly unnecessary. Cf. Campbell, 18 F.3d at 687 & n.17.

22

b. The Use of Pancuronium Bromide in Combination With Sodium Pentothal

Creates a Significant Risk that Inmates Will Be Conscious, But Unable to

23

React, During Their Executions

24

In light of the fact that sodium pentothal is an ultrashort-acting anesthetic, and Procedure

25 No. 770 creates the risk that the dose will not be properly administered, it is particularly

26 important that the inmate have the opportunity to alert execution personne l should he regain – or

27 never lose – consciousness, and that the execution personnel have the ability to ascertain whether

28
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1 the inmate is properly anesthetized. Yet the use of pancuronium bromide in combination with

2 sodium pentothal effectively prevents any post-administration correction of problems with the

3 sodium pentothal. It also serves no purpose within the lethal injection process, raising the

4 question why the State insists on employing it while refusing to justify its use. See Beardslee,

5 395 F.3d 1075-76 & n.13 (“The State did not, even under repeated questioning at oral argument,

6 provide a single justification for the use of pancuronium bromide, which is one of the key issues.

7 This response is, to say the least, troubling.”).

8

Pancuronium bromide is a neuromuscular blocking agent that blocks nerve cells from

9 interacting with muscle tissue, therefore paralyzing the inmate’s muscles, including those of the

10 chest and diaphragm. Heath Decl. ¶¶ 37-38. A patient given pancuronium bromide alone would

11 slowly suffocate to death; thus, the unanesthetized experience of the effects of pancuronium

12 bromide would in itself involve extraordinary suffering, as the inmate struggled to breathe. Id.

13 ¶ 41. Because the drug does not affect the brain or nerves themselves, however, so an

14 unanesthetized patient would remain completely conscious, but due to the paralysis would be

15 completely unable to communicate either verbally or by movement the fact that he is conscious.

16 Id. ¶¶ 39-40.

17

Pancuronium bromide also prevents observers from determining whether an inmate is

18 conscious. According to Dr. Heath, the drug’s paralytic effect is so total that it would interfere

19 with an anesthesiologist’s ability to assess consciousness. Id. Thus, even if Procedure No. 770

20 provided some mechanism by which personnel could monitor the inmate’s consciousness, the

21 use of pancuronium bromide all but ensures that it will be impossible to determine visually

22 whether the inmate is still able to feel pain. Should an inmate retain consciousness after the

23 sodium pentothal is administered, the inmate would suffer slow suffocation as well as the

24 excruciating pain of the potassium chloride, all while being completely paralyzed and unable to

25 communicate. Id. ¶ 37-38. This period would last at least a minute, until the inmate loses

26 consciousness from suffocation or is killed by the potassium chloride. Id.

27

28
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1

It is precisely this risk of the combination of ineffective anesthesia and paralyzed

2 consciousness that has led at least nineteen states to prohibit the use of a sedative in conjunction

3 with a neuromuscular blocking agent like pancuronium bromide to euthanize animals. See

4 Beardslee, 395 F.3d at 1073 & n.9 (listing the relevant state laws and noting that this evidence is

5 “somewhat significant”). The AVMA, moreover, has promulgated guidelines that prohibit this

6 combination of drugs. See 2000 Report of the AVMA Panel on Euthanasia, supra, at 681.

7 AVMA also prohibits the use of neuromuscular blocking agents alone, stating that because the

8 drugs cause “respiratory arrest before loss of consciousness, . . . the animal may perceive pain

9 and distress after it is immobilized.” Id. at 696 app. 4. The fact that so many states and the

10 nation’s leading veterinary association have condemned as inhumane the use of anesthetics and

11 neuromuscular blocking agents in tandem is persuasive evidence that this combination of drugs

12 is not consistent with evolving standards of decency. Given that the Eighth Amendment

13 prohibits the same infliction of unnecessary pain that we seek to avoid imposing on household

14 pets and other animals, the veterinary avoidance of this method of euthanasia is compelling

15 indeed.

16

Despite the evidence that employing pancuronium bromide is not consistent with basic

17 standards of care for animals, and the fact that the use of pancuronium bromide increases the risk

18 that an inmate will suffer unnecessary pain, the CDC insists on using it while refusing to explain

19 its reasons for doing so. In previous execution challenges, the defendants’ experts have

20 conceded that pancuronium bromide is used primarily to prevent witnesses from observing

21 movement that “could be interpreted as . . . pain or discomfort.” Beardslee, 395 F.3d at 1076

22 n.13 (noting that “[t]he record does not contain any other explanation” for the use of

23 pancuronium bromide). The paucity of the record accords with Dr. Heath’s opinion that

24 pancuronium bromide serves no legitimate purpose in the execution procedure while greatly

25 increasing the risk of an inmate’s suffering undetected ago ny.

26

c. The Risk Created by Procedure No. 770 Has Been Realized in California

Executions

27

28
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1

There is ample evidence that Procedure No. 770 has caused some inmates executed in

2 California to experience unnecessary pain during their executions. Both execution records and

3 witnesses’ accounts of these executions provide evidence that is consistent with consciousness

4 following the administration of the sodium pentothal. As the Ninth Circuit has held, both

5 eyewitness accounts of, and medical information gleaned from, executions can be probative of

6 whether an inmate has likely suffered pain during his execution. See Fierro, 77 F.3d at 307-08;

7 Campbell, 18 F.3d at 685. This evidence in turn can help courts determine the overall risk of

8 unnecessary pain created by a method of execution, even if the sample size of past executions is

9 small. See Campbell, 18 F.3d at 687 (relying in part on a physician’s observations of the only

10 hanging conducted according to the challenged protocol in upholding Washington’s execution

11 procedure).

12

Witness accounts of the 2002 execution of Stephen Wayne Anderson suggest that Mr.

13 Anderson was not properly anesthetized when he died. The execution took over 30 minutes, and

14 during that time Mr. Anderson’s chest and stomach “heaved more than 30 times.” Rocconi Decl.

15 ¶ 6, Heath Decl. Ex. 3. According to Dr. Heath, the typical reaction to sodium pentothal is

16 yawning, drawing one or two deep breaths, or visibly exhaling so that the cheeks puff out. Heath

17 Decl. ¶ 45. Irregular heaving of the chest is not consistent with the depression of the central

18 nervous system caused by sodium pentothal. Id. Rather, chest heaving is indicative of labored

19 respiratory activity, which in turn strongly suggests that Mr. Anderson was conscious, and

20 indeed may have been laboring against the paralyzing effect of the pancuronium bromide. Id.

21

The execution log of Manuel Babbit’s 1999 execution also indicates that something went

22 wrong during the process. A minute after the pancuronium bromide was administered, Mr.

23 Babbit had shallow respirations and brief spasms in his upper abdomen – again suggesting an

24 attempt to fight against the effects of the pancuronium bromide. See id. ¶ 47; Execution Log of

25 Manuel Babbit, Heath Decl. Ex. 2. In addition, Mr. Babbit’s heart rate remained constant until

26 the potassium chloride was administered; had the full five grams of sodium pentothal reached

27

28
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1 Babbit, his heart rate would have changed significantly. Heath Decl. ¶ 47. His distress was

2 evident to witnesses. Declaration of Charles Patterson, Exhibit B.

3

The execution logs of William Bonin’s 1996 execution also reflect irregularities that may

4 have caused Bonin to die in excruciating pain. Mr. Bonin was given a second dose of

5 pancuronium bromide for reasons that remain unclear, even though the initial dose would

6 paralyze an inmate for several hours. Execution Log of William Bonin, Heath Decl. Ex. 2;

7 Heath Decl. ¶ 46. The redundant dose raises questions about whether Bonin received the initial

8 doses of sodium pentothal and pancuronium bromide; whether the injection team believed that

9 he was still conscious; and, more broadly, whether such an irregularity is indicative of the lack of

10 training or judgment of injection personnel. Heath Decl. ¶ 46.

11

These accounts of recent California executions, according to the Ninth Circuit, are

12 “extremely troubling,” because they indicate “that there were problems associated with the

13 administration of the chemicals that may have resulted in the prisoners being conscious during

14 portions of the executions.” Beardslee, 395 F.3d at 1075.

15

d. The Deficiencies in Procedure No. 770 are the Result of CDC’s Conscious

Choices

16

Procedure No. 770’s failure to mitigate the obvious risks that it creates is the result of 17

conscious choices made by CDC. California’s lethal injection statute, Cal. Penal Code § 18
3604(a), gives the Department of Corrections almost total discretion over the means by which 19
inmates are executed: CDC is responsible for choosing the drugs that comprise the lethal 20
injection cocktail; developing the procedures by which the drugs are administered; and 21

determining what training and qualifications, if any, are required for the execution team. CDC 22

has chosen to exercise this discretion in a manner that creates a foreseeable and known risk that 23

inmates will suffer excruciating pain before their deaths. 24
The choices made by other state corrections departments and legislatures highlight the 25
irresponsibility of CDC’s protocol. Several states employ physicians or other qualified medical 26

personnel to approve the design of the protocol or to ensure that executions are carried out in a 27

medically acceptable manner. See Heath Decl. ¶ 30. Georgia, for instance, has doctors present 28

18
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1 during the execution process to insert the IV lines if necessary. See J. Groner, Lethal Injection:

2 A Stain on the Face of Medicine, available at http://bmj.bmjjournals.com/cgi/content/full/

3 325/7371/1026 (last visited Jan. 12, 2006). Connecticut’s protocol is developed in consultation

4 with the Commissioner of Public Health. See Conn. Gen. Stat. § 54-100 (West 2005). Other

5 states have mandated that the execution process must comply with accepted medical standards or

6 be humane. See Idaho Code § 19-2716 (Michie 2005) (requiring “expert technical assistance”

7 where necessary to ensure that death does not cause “unnecessary suffering”); Kan. Crim. Proc.

8 Code Ann. § 22-4001 (West 2005) (requiring that drug combination be sufficient to “cause death

9 in a swift and humane manner”). CDC could commit itself to ensuring a humane process, or to

10 seeking assistance from physicians, but it has chosen not to do so, and to deviate from accepted

11 medical practice in several respects, thereby consciously disregarding the very real risk of

12 botched executions.

13

Just as incomprehensibly, CDC has chosen to use drugs that are extremely sensitive to

14 error, in that sodium pentothal can wear off quickly if not administered correctly, and

15 pancuronium bromide will mask the inmate’s resulting consciousness. For precisely this reason,

16 the AVMA has chosen to use pentobarbital, a longer-acting anesthetic, in animal euthanasia, and

17 bars entirely the use of an anesthetic in combination with a neuromuscular blocker like

18 pancuronium bromide. See 2000 Report of the AVMA Panel on Euthanasia, supra, at 680-81.

19 Thus, it is clear that other means of causing death by injecting lethal chemicals are available, and

20 that considerations of good medical practice and preventing pain and consciousness are not

21 incompatible with the aim of causing death.

22

The CDC’s deliberate decision to use volatile drugs in a manner conducive to error is

23 unconscionable. Although, as the Beardslee court noted, “objective evidence of contemporary

24 values” may indicate “that lethal injection has been deemed an acceptable means for society to

25 implement a death sentence,” 395 F.3d at 1072, it is ultimately the manner in which the CDC has

26 chosen to implement lethal injection that must withstand Eighth Amendment scrutiny. The

27 available alternatives to the CDC’s callous protocol, and the relatively minimal changes in

28
19
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1 procedure that could substantially mitigate the risk of excruciating pain, demonstrate that the

2 protocol chosen by CDC creates a preventable, and therefore unnecessary, risk of an

3 excruciatingly painful death.

4

e. Conclusion

5

Like the lethal gas method of execution held unconstitutional in Fierro, California’s

6 lethal injection protocol creates a significant risk that an inmate will experience excruciating pain

7 for several minutes. See Fierro, 77 F.3d at 307. This risk is inherent in the design of the

8 protocol, with its insistence on remote administration and its choice of drugs, and is aggravated

9 by Procedure No. 770’s failure to account for the problems that could arise as a result.

10

The risk of unnecessary pain is clearly more substantial than the slight or negligible risk

11 that may be characterized as an “accident” or anomaly. See Campbell, 18 F.3d at 687. Available

12 information from California executions and those performed in other states indicates the strong

13 possibility tha t at least some of these inmates were not properly anesthetized during their

14 executions. While it is impossible to quantify precisely the risk of pain that an individual inmate

15 like Mr. Morales faces when he enters the execution chamber, the nature of the risk renders it

16 more substantial than might otherwise be the case. Because the potential problems are caused by

17 Procedure No. 770, every inmate, regardless of his health or size, faces the risk of unnecessary

18 pain during his execution. The risk is not dependent on unforeseeable contingencies, such as an

19 uncontrollable electrical problem, see Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464

20 (1947), but simply increases if an inmate’s individual characteristics make him less receptive to

21 anesthesia.

22

The Ninth Circuit has twice affirmed a district court’s refusal to stay an execution based

23 on a challenge to California’s lethal injection protocol, but both times the court has emphasized

24 that it was not deciding the merits, but was merely reviewing whe ther the district court abused its

25 discretion in denying a motion for preliminary relief. See Beardslee, 395 F.3d at 1076; Cooper,

26 397 F.3d at 1034 (Browning, J., concurring). Indeed, in Beardslee, the court repeatedly noted

27 that Beardslee had raised “troubling” questions about the administration of Procedure No. 770,

28
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1 but concluded that “ultimate resolution of the merits of this issue . . . will have to await another

2 day.” 395 F.3d at 1075-76. Since that decision, a growing body of evidence has dispelled any

3 doubt that the problem of botched lethal injections is a real one. Mr. Morales deserves to have

4 his challenge considered on a full record after discovery.

5 C. MR. MORALES WILL SUFFER IRREPARABLE HARM IF

6

TEMPORARY RELIEF IS NOT GRANTED

7

If the State is not enjoined from executing Mr. Morales in accordance with Procedure No.

8 770, Mr. Morales will suffer irreparable harm. The excruciating pain that Mr. Morales will

9 suffer during his execution clearly constitutes irreparable harm. See Jolly v. Coughlin, 76 F.3d

10 468, 482 (2d Cir. 1996) (holding that continued pain and suffering resulting from deliberate

11 medical indifference is irreparable harm). Moreover, he will have no meaningful retrospective

12 remedy, as he will no longer be alive. Indeed, the State’s violation of Mr. Morales’s Eighth

13 Amendment rights in itself warrants a presumption of irreparable harm, as the Ninth Circuit

14 “ha[s] stated that an alleged constitutional infringement will often alone constitute irreparable

15 harm.” Associated General Contractors of California, Inc. v. Coalition for Economic Equity,

16 950 F.2d 1401, 1412 (9th Cir. 1991) (internal quotation marks omitted).

17

D. THE BALANCE OF HARDSHIPS FAVORS MR. MORALES

18

The balance of hardships tips sharply in Mr. Morales’ favor. In requesting preliminary

19 relief, Mr. Morales seeks simply to maintain the status quo while he litigates his claim that the

20 lethal injection procedure is unconstitutionally painful. Without this relief, Mr. Morales will be

21 unable to build a record establishing the danger presented by Procedure No. 770 before he

22 himself is executed. The State, in contrast, will suffer no harm if Mr. Morales’s execution is

23 stayed pending the resolution of this action. See Gomez v. U.S. Dist. Ct. for Northern Dist. of

24 Cal., 966 F.2d 460, 462 (9th Cir. 1992) (Noonan, J., dissenting from grant of writ of mandate)

25 (“The state will get its man in the end. In contrast, if persons are put to death in a manner that is

26 determined to be cruel, they suffer injury that can never be undone, and the Constitution suffers

27 an injury that can never be repaired.”). The State has not yet set an execution date; thus, it will

28
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1 not be forced to reschedule the execution, and the public as yet has no expectation that Mr.

2 Morales will be executed on a particular date.

3

Mr. Morales has not delayed unduly in bringing this claim, and his diligence in pursuing

4 the claim demonstrates that he is not attempting to manipulate the judicial process in any

5 manner. Cf. Gomez v. U.S. Dist. Ct. for Northern Dist. of Cal., 503 U.S. 653, 654 (1992)

6 (holding that particularly where an inmate has engaged in “abusive delay,” the court may

7 consider the State’s interest in moving forward with the execution in balancing the equities). Mr.

8 Morales’s challenge to the method of execution did not become ripe until his appeals were

9 exhausted and it became clear that he would be executed by lethal injection. See LaGrand v.

10 Stewart, 170 F.3d 1158, 1159 (9th Cir. 1999) (stating that the petitioner’s challenge to the

11 method of execution had previously been dismissed as premature because the method of

12 execution had not yet been chosen); see also Beardslee, 395 F.3d at 1069 n.6 (stating that

13 uncertainty as to when method-of-execution challenge became ripe weighed in Beardslee’s

14 favor). Thus, Mr. Morales could not have filed this suit until after his federal habeas petition was

15 denied.

16

After the United States Supreme Court denied certiorari on Morales’s habeas petition and

17 the stay of execution of execution was lifted, Mr. Morales moved promptly to assert his claim.

18 Unlike in Cooper and Beardslee, Mr. Morales has not waited until his execution is imminent to

19 file this suit. Cf. Beardslee, 395 F.3d at 1066-67 (Beardslee filed suit one month before his

20 execution date, after it was already scheduled); Cooper, 379 F.3d at 1030-31 (Cooper filed suit

21 eight days before his scheduled execution).

22

E. GRANTING TEMPORARY RELIEF IS IN THE PUBLIC INTEREST

23

An inmate’s claim that California’s lethal injection protocol causes unconstitutional

24 wanton pain and suffering implicates the public interest. See Beardslee, 395 F.3d at 1067 (“In

25 cases where the public interest is involved, the district court must also examine whether the

26 public interest favors the plaintiff.”). Because Mr. Morales alleges that the State of California

27

28
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1 will violate his Eighth Amendment rights by executing him in accordance with Procedure No.

2 770, it is paramount to the public interest that Morales’s claims be resolved on the merits.

3

Lethal injection has become the predominant method of execution because it is widely

4 believed by officials to be, and is perceived by the general public as, the most humane form of

5 execution. See S. Russell, The Execution of Stanley Tookie Williams; Injection: Designed to

6 Make Execution More Humane, SFGate.com, available at http://www.sfgate.com/cgi-

7 bin/article.cgi?f=/c/a/2005/12/14/MNG05G7QM61.DTL (last visited Jan. 12, 2006). In

8 choosing lethal injection on the assumption that it is painless, the California state legislature has

9 concluded that employing the most humane method of execution possible is in the public

10 interest. There is now compelling evidence, in the form of eyewitness accounts and medical

11 evidence and opinion, that lethal injection protocols like the one used in California create a

12 significant and unacceptable risk of inflicting unnecessary pain. The Ninth Circuit has twice

13 been denied the opportunity to consider the constitutionality of California’s Procedure No. 770

14 because the district court declined to stay the inmates’ executions, and both times the circuit

15 court has indicated that it could decide the merits only on a full record. Definitively resolving

16 the important and pressing question of the constitutionality of Procedure No. 770 is entirely in

17 the public interest, and therefore granting temporary relief so that Mr. Morales may remain alive

18 while the parties conduct discovery into this issue also furthers the public interest.

19

There are no countervailing considerations suggesting that granting temporary relief

20 would hurt the public interest. Mr. Morales has not engaged in abusive delay, nor is this suit an

21 attempt simply to put off his execution. As noted above, Mr. Morales’s execution date has not

22 been set, so there are no expectations that his sentence will be carried out by a given date.

23 Where an inmate presents a meritorious claim of constitutional dimension and is not attempting

24 to manipulate the judicial process, it cannot possibly be in the public interest to allow the State to

25 execute him using the very method that he cha llenges.

26

27

28
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1 IV. CONCLUSION

2

Michael Morales is not attempting to prevent the State from executing him. He simply is

3 demanding the constitutional protection to which he is entitled, by requesting that this Court

4 ensure that he is not executed in an unconstitutional manner. To avoid the risk that Mr.

5 Morales’s execution will be performed in such a manner as to cause him to suffer minutes of

6 torture immediately preceding his death, Mr. Morales is entitled to relief under 42 U.S.C. § 1983.

7

Accordingly, Mr. Morales requests that the Court issue a temporary restraining order

8 preventing defendants from executing him by means of lethal injection under the protocol

9 currently in effect in the State of California.

10

11

12

Respectfully submitted,

13 Dated: January 17, 2006 14

MICHAEL ANGELO MORALES

15

16

17 18 Dated: January 17, 2006

19 David A. Senior (# 108759) McBreen & Senior
20 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
21 Phone: (310) 552-5300
Fax: (310) 552-1205 22 dsenior@mcbreensenior.com

23 John R. Grele (# 167080)

24

Law Offices of John R. Grele 703 Market Street, Suite 550

25 San Francisco, CA 94103 Phone: (415) 348-9300

26 Fax: (415) 348-0364

jgrele@earthlink.net

27

By: /s/ John R Grele

28
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1 Richard P. Steinken

Benjamin J. Bradford

2 Janice H. Lam

Stephanie L. Reinhart 3 Jenner & Block LLP

4

One IBM Plaza Chicago, IL 60611-7603

5 Phone: (312) 923-2938 Fax: (312) 840-7338

6 rsteinken@jenner.com

7 Ginger D. Anders

Jenner & Block LLP 8 601 Thirteenth Street, NW

9

Suite 1200 South Washington DC 20005-3823

10 Phone: (202) 639-6000 Fax: (202) 639-6066

11 ganders@jenner.com

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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 Case 5:06-cv-00219-JF Document 62 Filed 02/14/2006 Page 1 of 15

1

2 **E-filed 2/14/06**
3

4

5

6

7

DESIGNATED FOR PUBLICATION

8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

12 Michael Angelo MORALES,

Case Number C 06 219 JF Case Number C 06 926 JF RS

13

Plaintiff,

DEATH-PENALTY CASE

14

v.

ORDER DENYING

15 Roderick Q. HICKMAN, Secretary of the California Department of Corrections and

CONDITIONALLY PLAINTIFF’S MOTION FOR PRELIMINARY

16 Rehabilitation; Steven W. Ornoski, Acting Warden INJUNCTION of San Quentin State Prison; and Does 1-50,

17

Defendants.

[Docket No. 12]

18

19

Plaintiff Michael Angelo Morales is a condemned inmate at California’s San Quentin

20 State Prison. He is scheduled to be executed at 12:01 a.m. on February 21, 2006. The present

21 action challenges the manner in which California’s lethal-injection protocol is administered. In

22 his amended complaint, Plaintiff contends that the way in which the protocol is carried out

23 creates an undue risk of causing him excessive pain as he is being executed, thereby violating the

24 Eighth Amendment’s command that “cruel and unusual punishments [not be] inflicted.” U.S.

25 Const. amend. VIII.

26

Plaintiff seeks a preliminary injunction to stay his execution so that the Court may

27 conduct a full evidentiary hearing to consider his claims. Defendants Roderick Q. Hickman,

28 Secretary of the California Department of Corrections and Rehabilitation, and Steven W.

Case Nos. C 06 219 JF & C 06 926 JF RS ORDER DENYING CONDITIONALLY PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION (DPSAGOK)

Case 5:06-cv-00219-JF Document 62 Filed 02/14/2006 Page 2 of 15

1 Ornoski, Acting Warden of San Quentin State Prison, oppose the motion. The Court has read the

2 moving and responding papers and has considered the oral arguments of counsel presented on

3 January 26 and February 9, 2006. The Court also has considered the parties’ responses to its

4 request for supplemental briefing dated February 13, 2006. The Court has jurisdiction pursuant

5 to 42 U.S.C. § 1983 (2006). Beardslee v. Woodford, 395 F.3d 1064, 1069-70 (9th Cir. 2005).

6 For the reasons set forth below, Plaintiff’s motion will be denied, subject to certain conditions

7 concerning the manner in which the execution is to be carried out.

8

I

9

The Eighth Amendment prohibits punishments that are “incompatible with the evolving

10 standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S.

11 97, 102 (1976) (internal quotation marks and citations omitted). Executions that “involve the

12 unnecessary and wanton infliction of pain,” Gregg v. Georgia, 428 U.S. 153, 173 (1976), or that

13 “involve torture or a lingering death,” In re Kemmler, 136 U.S. 436, 447 (1890), are not

14 permitted. When analyzing a particular method of execution or the implementation thereof, it is

15 appropriate to focus “on the objective evidence of the pain involved.” Fierro v. Gomez, 77 F.3d

16 301, 306 (9th Cir. 1996) (citing Campbell v. Wood, 18 F.3d 662, 682 (9th Cir. 1994)), vacated on

17 other grounds, 519 U.S. 918 (1996). In this case, the Court must determine whether Plaintiff “is

18 subject to an unnecessary risk of unconstitutional pain or suffering such that his execution by

19 lethal injection under California’s protocol must be restrained.” Cooper v. Rimmer, 379 F.3d

20 1029, 1033 (9th Cir. 2004).

21

In California, unless a condemned inmate affirmatively selects to be executed by lethal

22 gas, executions are performed by lethal injection. Cal. Penal Code § 3604 (West 2006). 23 Defendants have developed California’s lethal-injection protocol1 to implement this statutory

24 directive. See id. at § 3604(a) (lethal injection to be administered “by standards established

25
1Defendants have developed two versions of the protocol: a confidential version labeled “San
26
Quentin Institution Procedure No. 770” and a redacted, publicly available version labeled “San Quentin
27 Operational Procedure No. 770.” During the course of this litigation, the Court reviewed the confidential
version in camera and ordered Defendants to make it available to Plaintiff’s counsel with certain
28 redactions related to prison security and subject to a protective order. There are potentially significant
differences between the two versions.
2
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Case 5:06-cv-00219-JF Document 62 Filed 02/14/2006 Page 3 of 15

1 under the direction of the Department of Corrections”).2 The protocol calls for the injection of a

2 sequence of three drugs into the person being executed: five grams of sodium thiopental, a

3 barbiturate sedative, to induce unconsciousness; 50 or 100 milligrams of pancuronium bromide, a

4 neuromuscular blocking agent, to induce paralysis; and 50 or 100 milliequivalents of potassium 5 chloride, to induce cardiac arrest.3 Significantly, each drug is given in a dosage that is lethal in

6 and of itself.

7

In his amended complaint, Plaintiff contends that these drugs are administered in such a

8 way that there is an undue risk that he will be conscious when the pancuronium bromide and the

9 potassium chloride are injected. Defendants agree with Plaintiff that a person injected with either

10 of these two drugs while conscious would experience excruciating pain; however, they assert that

11 the dosage of sodium thiopental is more than sufficient to insure that Plaintiff will be

12 unconscious prior to their administration.

13

A significant number of media reports have described this action as an attack on the

14 constitutionality of lethal injection. See, e.g., Lethal Injection of Murderer-Rapist Could Be

15

16

2The Department of Corrections was reorganized into the Department of Corrections and

Rehabilitation on July 1, 2005.

17
3The lethal-injection protocol is not entirely clear as to which dosages of pancuronium bromide

18 and potassium chloride are used. The protocol provides for the preparation of two syringes of 50

milligrams each of pancuronium bromide (which is also known as Pavulon). It then instructs:

19

The “NS” syringe shall be removed and one of the #2 syringes (Pavulon)

shall be inserted. The entire contents shall be injected with slow, even

20

pressure on the syringe plunger.

21

CAUTION: If all of the Sodium Pentothal has not been flushed from the

line, there is a chance of flocculation forming when coming in contact

22

with the Pavulon, which will block the flow of fluid through the

Angiocath. If this should happen, shift over to the contingency line

23

running to the right arm. When the contents of the first #2 syringe has

[sic] been injected, repeat with the second #2 syringe.
24 San Quentin Operational Procedure No. 770 § VI.E.4.d.5)(g)(5) (publicly available version). Regarding

syringes of 50 milliequivalents of potassium chloride, the protocol directs, “The first #3 syringe (KCl)
25 shall be inserted and the entire contents shall be injected. The second #3 syringe shall be repeated or

26 until death has been pronounced by the physician [sic].” Id. at § VI.E.4.d.5)(g)(7). Additionally, the
protocol and Defendants’ submissions are inconsistent as to whether the volume used to administer

27 sodium thiopental is 20 or 50 cubic centimeters, see id. at § VI.E.4.d.5)(c)(6)(d); this difference would
affect how much sodium thiopental actually gets to an inmate being executed due to the volume of fluid

28 containing sodium thiopental that is retained in the intravenous line after the flush of 20 cc of saline, as a

percent of the total dose of sodium thiopental that is intended to be administered.

3

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1 Blocked, San Diego Union-Trib., Feb. 10, 2006, at A4 (“A federal judge said yesterday that he

2 might block a murderer and rapist’s Feb. [sic] 21 execution to provide enough time to determine

3 whether lethal injection is cruel and unusual punishment.”). As is apparent from the foregoing

4 discussion, these reports are in error. Rather, the discrete issues in the present action are whether

5 or not there is a reasonable possibility that Plaintiff will be conscious when he is injected with

6 pancuronium bromide or potassium chloride, and, if so, how the risk of such an occurrence may

7 be avoided.

8

II

9

The United States Court of Appeals for the Ninth Circuit has explained that a condemned

10 inmate seeking a stay of execution is

11

required to demonstrate (1) a strong likelihood of success on the

merits, (2) the possibility of irreparable injury to the plaintiff if

12

preliminary relief is not granted, (3) a balance of hardships

favoring the plaintiff, and (4) advancement of the public interest

13

(in certain cases). Alternatively, injunctive relief could be granted

if he demonstrated either a combination of probable success on the

14

merits and the possibility of irreparable injury or that serious

questions are raised and the balance of hardships tips sharply in his

15

favor. These two alternatives represent extremes of a single

continuum, rather than two separate tests. Thus, the greater the

16

relative hardship to the party seeking the preliminary injunction,

the less probability of success must be established by the party. In

17

cases where the public interest is involved, the district court must

also examine whether the public interest favors the plaintiff. [¶] In

18

capital cases, the Supreme Court has instructed that equity must

take into consideration the State’s strong interest in proceeding

19

with its judgment.

20 Beardslee, 395 F.3d at 1067-68 (internal quotation marks, citations, brackets and emphasis

21 omitted). As the United States Supreme Court has adjured,

22

before granting a stay [of execution], a district court must consider

not only the likelihood of success on the merits and the relative

23

harm to the parties, but also the extent to which the inmate has

delayed unnecessarily in bringing the claim. Given the State’s

24

significant interest in enforcing its criminal judgments, there is a

strong equitable presumption against the grant of a stay where a

25

claim could have been brought at such a time as to allow

consideration of the merits without requiring entry of a stay.

26

Nelson v. Campbell, 541 U.S. 637, 649-50 (2004) (citations omitted).

27

28

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1

III

2

Two years ago, condemned inmate Kevin Cooper faced imminent execution at San

3 Quentin. Eight days before he was scheduled to be executed, Cooper filed an action in which he

4 challenged California’s lethal-injection protocol on Eighth Amendment grounds. This Court

5 declined to stay the execution, finding that Cooper had delayed unduly in asserting his claims and

6 that he had done no more than raise the possibility that he might suffer unnecessary pain if errors

7 were made in the course of his execution. Cooper v. Rimmer, No. C 04 436 JF, 2004 WL

8 231325 (N.D. Cal. Feb. 6, 2004). The Ninth Circuit affirmed for the same reasons. Cooper, 379 9 F.3d 1029.4

10

Just over one year ago, another inmate under sentence of death, Donald J. Beardslee, filed

11 an action in this Court challenging the lethal-injection protocol shortly after the San Mateo

12 Superior Court set his execution date. Beardslee contended that the protocol violated both his

13 First Amendment right to freedom of speech and his Eighth Amendment right not to be subjected

14 to cruel and unusual punishment. While this Court recognized that Beardslee had been more

15 diligent than Cooper in that he filed his action thirty days before his scheduled execution and had

16 exhausted his administrative remedies prior to filing, it nonetheless concluded that Beardslee also

17 had delayed unduly in asserting his claims. On the merits, the Court concluded, “Based upon the

18 present record, a finding that there is a reasonable possibility that . . . errors will occur [during

19 Beardslee’s execution] would not be supported by the evidence. [Beardslee’s] action thus is

20 materially indistinguishable from Cooper.” Beardslee v. Woodford, No. C 04 5381 JF, 2005 WL

21 40073 (N.D. Cal. Jan. 7, 2005).

22

The Ninth Circuit disagreed with this Court’s determination that Beardslee’s action was

23 untimely. Beardslee, 395 F.3d at 1069-70. The appellate court noted that “the precise execution

24

25

4In a separate habeas corpus proceeding originally brought before the Ninth Circuit, that court

26 granted Cooper a stay of execution to permit him to return to the United States District Court for the
Southern District of California to pursue his claim that he is innocent of the crimes of which he was

27 convicted and for which he was sentenced to death. Cooper v. Woodford, 358 F.3d 1117 (9th Cir. 2004)
(en banc). This Court subsequently dismissed without prejudice Cooper’s challenge to the lethal-

28 injection protocol in light of Cooper’s failure to exhaust his administrative remedies. Cooper v.

Woodford, No. C 04 436 JF (N.D. Cal. Oct. 12, 2004).

5

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1 protocol is subject to alteration until the time of execution” and it found that “by regulation the 2 California Department of Corrections does not permit challenges to anticipated actions.”5 Id. at

3 1069. Beardslee thus suggests that in California, a condemned inmate’s challenge to the lethal-

4 injection protocol may not become ripe for judicial review until the inmate’s execution is

5 imminent. See id. at 1069 n.5; but cf. id. at 1069-70 n.6 (“we have not resolved the question of

6 when challenges to execution methods are ripe”). At the very least, unlike Cooper, “Beardslee

7 pursued his claims aggressively as soon as he viewed them as ripe.” Id. at 1069.

8

Although it concluded that Beardslee’s challenge was timely, the Ninth Circuit affirmed

9 this Court’s decision on the merits, holding that “we cannot say, given our deferential standard of

10 review, that the district court abused its discretion in denying [a] stay of execution.” Id. at 1070.

11 In doing so, however, it noted that

12

the California execution logs of William Bonin, Keith Williams,

Jaturun Siripongs, and Manuel Babbit[t] . . . contain indications

13

that there may have been problems associated with the

administration of the chemicals that may have resulted in the

14

prisoners being conscious during portions of the executions. This

evidence, coupled with the opinion tendered by Beardslee’s expert,

15

raises extremely troubling questions about the protocol.

16 Id. at 1075.

17

In the present action, Plaintiff has been even more diligent than Beardslee: he filed his

18 challenge to the lethal-injection protocol shortly before the Ventura Superior Court scheduled his 19 execution—thirty-nine days before the execution date that court ultimately set.6 Because in light

20 of Beardslee, Plaintiff is not guilty of undue delay in bringing his claim, there is no presumption

21 against the grant of a stay due to delay, much less the “strong equitable presumption” identified 22 by the Supreme Court in Nelson, 541 U.S. at 650.7

23

24

5The regulation reads in relevant part, “An appeal may be rejected for any of the following

reasons: . . . (3) The appeal concerns an anticipated action or decision.” Cal. Code Regs. tit. 15, §
25
3084.3(c) (2006).

26

6It also appears from the face of his amended complaint that Plaintiff has exhausted his

27 administrative remedies.

28

7This conclusion is buttressed by the Supreme Court’s recent denial, by a vote of 6-3, of an

application to vacate a stay of execution in Crawford v. Taylor, 546 U.S. ___ , No. 05A705 (Feb. 1,

6

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1

IV

2

Plaintiff’s diligence in filing the present action has made it possible for this Court to

3 proceed in a somewhat more orderly fashion than otherwise would have been possible. At the

4 initial hearing on January 26, 2006, the Court announced that it would construe Plaintiff’s

5 application for a temporary restraining order as it would a motion for a preliminary injunction,

6 ordered supplemental briefing on Plaintiff’s motion to expedite discovery as well as his motion

7 for a preliminary injunction, and scheduled oral argument on the motion for a preliminary

8 injunction. On February 1, 2006, the Court issued an order granting in part Plaintiff’s motion for 9 expedited discovery; the discovery granted was completed the following day.8 The Court heard

10 argument on the motion for a preliminary injunction on February 9, 2006, and requested 11 additional supplemental briefing by an order dated February 13, 2006.9 As a result of this

12 procedural history, the record in the present action is substantially more developed than the

13 record in Cooper or Beardslee.

14

Through their involvement in the Cooper and Beardslee cases, both this Court and the

15

16 2006). Like Plaintiff, Taylor filed an action pursuant to § 1983 in which he challenged his state’s lethal-
injection protocol when his execution was imminent but an execution date had not yet been set. During
17 the course of the litigation, the United States District Court for the Western District of Missouri
scheduled an evidentiary hearing for February 2006. The Missouri Supreme Court subsequently selected
18 February 1, 2006, for Taylor’s execution date, and the district court issued a stay of execution. A panel
of the Eighth Circuit vacated the stay, 2-1, and remanded with instructions for the action to be reassigned
19 and for the new judge to hold an expedited evidentiary hearing. Following an abbreviated telephonic 20 hearing, the district court denied Taylor relief. The Eighth Circuit panel affirmed, again 2-1, but the en
banc court granted Taylor a stay by a vote of 9-1. As noted, the Supreme Court declined to vacate the
21 stay. For the same reasons that the present action is analogous to Taylor, it is distinguishable from other
recent cases in which the Supreme Court has allowed executions to go forward. See, e.g., Neville v.
22 Livingston, 546 U.S. ___ , No. 05-9136 (Feb. 8, 2006); Elizalde v. Livingston, 546 U.S. ___, No. 05A696
(Jan. 31, 2006).
23
8The discovery granted was concerned primarily with the three executions that Defendants have
24 conducted since Beardslee—those of Beardslee himself on January 19, 2005; Stanley Tookie Williams
on December 13, 2005; and Clarence Ray Allen on January 17, 2006. In addition, as noted, much of the
25 confidential version of California’s lethal-injection protocol was disclosed. Although not required to do 26 so by the discovery order, Defendants also voluntarily produced additional execution logs that previously
had not been made available.
27
9The additional briefing addresses whether it would be feasible for Plaintiff’s execution to
28 proceed using only sodium thiopental or utilizing an independent means to insure that Plaintiff will be
unconscious before pancuronium bromide and potassium chloride are injected.
7
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1 Ninth Circuit have acquired substantial familiarity with the legal and factual issues surrounding

2 lethal injection in California. In addition, many other courts have reviewed lethal-injection

3 protocols similar to California’s. To date, no court has found either lethal injection in general or

4 a specific lethal-injection protocol in particular to be unconstitutional. See, e.g., Bieghler v.

5 State, 839 N.E. 691, 694-96 (Ind. Dec. 28, 2005); Boyd v. Beck, ___ F. Supp. 2d ___, No. 5:05-

6 CT-774-D, 2005 WL 3289333 (E.D.N.C. Nov. 29, 2005); Abdur’Rahman v. Bredesen, ___

7 S.W.3d ___, No. M2003-01767-SC-R11-CV, 2005 WL 2615801 (Tenn. Oct. 17, 2005); Aldrich

8 v. Johnson, 388 F.3d 159 (5th Cir. 2004) (lethal injection in Texas); Reid v. Johnson, 333 F.

9 Supp. 2d 543 (E.D. Va. 2004); Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) (lethal injection

10 in Texas); People v. Snow, 65 P.3d 749, 800-01 (Cal. 2003); Sims v. State, 754 So.2d 657 (Fla.

11 2000); State v. Webb, 750 A.2d 448, 453-57 (Conn. 2000); LaGrand v. Stewart, 133 F.3d 1253,

12 1265 (9th Cir. 1998) (lethal injection in Arizona); but cf. Rutherford v. Crosby, 546 U.S. ___,

13 No. 05-8795 (Jan. 31, 2006) (granting stay of execution pending disposition of cert. pet.); Hill v.

14 Crosby, 546 U.S. ___, No. 05-8794 (Jan. 25, 2006) (granting stay of execution & granting cert.);

15 Anderson v. Evans, No. CIV-05-0825-F, 2006 WL 83093, at *3-*4 (W.D. Okla. Jan. 11, 2006)

16 (denying mot. to dismiss 8th amend. challenge to lethal-injection protocol). At the same time, it

17 should be noted that the record now before this Court, which includes both additional expert

18 declarations and detailed logs from multiple executions in California, contains evidence of a kind

19 that was not presented in these earlier cases. See, e.g., Reid, 333 F. Supp. 2d at 548-49 (limiting

20 scope of review to “issues pertaining to the particular chemical combination . . . and their [sic]

21 probable affect [sic] on Reid” and excluding other evidence); Webb, 750 A.2d at 453-57

22 (resolving challenge in state where no lethal injections had been performed); Bieghler, 839

23 N.E.2d at 696; Boyd, 2005 WL 3289333, at *3.; cf. Anderson, 2006 WL 83093, at *3-*4

24 (discussing evidence proffered in complaint).

25

This Court and others have found persuasive the declarations of Defendants’ medical

26 expert, Dr. Mark Dershwitz, to the effect that “over 99.999999999999% of the population would

27 be unconscious within sixty seconds from the start of the administration of [five grams of]

28 thiopental sodium” and that “this dose will cause virtually all persons to stop breathing within a

8
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1 minute of drug administration. Therefore . . . virtually every person given five grams of

2 thiopental sodium will have stopped breathing prior to” the administration of the pancuronium

3 bromide. Cooper, 379 F.3d at 1032; see also, e.g., Reid, 333 F. Supp. 2d at 547 (discussing two

4 grams of sodium thiopental used in Virginia). In most if not all of the legal challenges to lethal

5 injection, condemned inmates have suggested various errors that could occur during the

6 administration of sodium thiopental, thereby rendering an inmate conscious when the

7 pancuronium bromide and potassium chloride are administered. However, “the risk of accident

8 cannot and need not be eliminated from the execution process in order to survive constitutional

9 review,” Campbell, 18 F.3d at 687, and the courts that have considered the issue to date have

10 found that “the likelihood of such an error occurring ‘is so remote as to be nonexistent,’”

11 Beardslee, 2005 WL 40073, at *3 (quoting Reid, 333 F. Supp.2d at 551).

12

Plaintiff does not dispute Dr. Dershwitz’s conclusions at the theoretical level, agreeing

13 that a person’s breathing and consciousness should cease within one minute of the beginning of

14 the administration of sodium thiopental. Instead, he contends that in actual practice in

15 California, for whatever reason, the sodium thiopental has not had its intended effect. He cites,

16 inter alia, the following evidence from the execution logs:

17

Jaturun Siripongs, executed February 9, 1999: The administration of sodium thiopental

18

began at 12:04 a.m. and the administration of pancuronium bromide began at 12:08 a.m.,

19

yet respirations10 did not cease until 12:09 a.m., four minutes after the administration of

20

sodium thiopental began and one minute after the administration of pancuronium bromide

21

began.

22

Manuel Babbitt, executed May 4, 1999: The administration of sodium thiopental began

23

at 12:28 a.m. and the administration of pancuronium bromide began at 12:31 a.m., yet

24

respirations did not cease until 12:33 a.m., five minutes after the administration of

25

sodium thiopental began and two minutes after the administration of pancuronium

26

bromide began. In addition, brief spasmodic movements were observed in the upper

27

28

10“Respirations” is the term used by the employees of the Department of Corrections and

Rehabilitation who witnessed the executions and made entries in the execution logs.

9

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1

chest at 12:32 a.m.11

2

Darrell Keith Rich, executed March 15, 2000: The administration of sodium thiopental

3

began at 12:06 a.m. and the administration of pancuronium bromide began at 12:08 a.m.,

4

yet respirations did not cease until 12:08 a.m., when pancuronium bromide was injected,

5

two minutes after the administration of sodium thiopental began. Chest movements were

6

observed from 12:09 a.m. to 12:10 a.m.12

7

Stephen Wayne Anderson, executed January 29, 2002: The administration of sodium

8

thiopental began at 12:17 a.m. and the administration of pancuronium bromide began at

9

12:19 a.m., yet respirations did not cease until 12:22 a.m., five minutes after the

10

administration of sodium thiopental began and three minutes after the administration of

11

pancuronium bromide began.

12

Stanley Tookie Williams, executed December 13, 2005: The administration of sodium

13

thiopental began at 12:22 a.m., the administration of pancuronium bromide began at

14

12:28 a.m., and the administration of potassium chloride began at 12:32 a.m. or 12:34

15

a.m., yet respirations did not cease until either 12:28 a.m. or 12:34 a.m.—that is, either

16

six or twelve minutes after the administration of sodium thiopental began, either when or

17

six minutes after the administration of pancuronium bromide began, and either four

18

minutes before or when the administration of potassium chloride began.13

19

20

11Plaintiff’s medical expert, Dr. Mark Heath, notes that Babbitt maintained a steady heart rate of

21 95 or 96 beats per minute for seven minutes after he was injected with sodium thiopental. Dr. Heath
states that this fact raises concerns about whether Babbitt was properly sedated.

22
12According to Dr. Heath, this evidence is consistent with a conscious attempt to fight the
23 paralytic effect of the pancuronium bromide rather than with unconsciousness due to the successful

administration of the sodium thiopental, particularly in light of Rich’s apparently iatrogenic rapid heart
24 rate of 110 beats per minute as the chest movements were occurring. Rich’s heart rate was 130 beats per

minute when the administration of potassium chloride began.
25

13Defendants’ records are inconsistent in this regard: the formal execution log suggests that
26
Williams stopped breathing at 12:28 a.m. and indicates that potassium chloride was injected at 12:32 a.m.

27 whereas the execution team’s log states that Williams stopped breathing at 12:34 a.m when the potassium
chloride was injected. It appears that the formal log has been altered without any indication as to who

28 made the alteration. Similarly to Rich, Williams apparently experienced an iatrogenic rapid heart rate of
115 beats per minute when he was injected with pancuronium bromide.

10

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1

Clarence Ray Allen, executed January 17, 2006: The administration of sodium thiopental

2

began at 12:18 a.m., yet respirations did not cease until 12:27 a.m., when pancuronium

3

bromide was injected, nine minutes after the administration of sodium thiopental began.

4

In a new declaration filed in the present action on February 6, 2006, Dr. Dershwitz opines

5 that the “respirations” reported in the execution logs may be not be respirations at all,

6 hypothesizing that they are no more than “chest wall movements.” However, he proposes this

7 hypothesis with considerably less certainty than was evident in his discussion of the

8 pharmacokinetics and pharmacodynamics of sodium thiopental, which are his principal areas of

9 expertise. Cf. Beardslee, 395 F.3d at 1075. While Dr. Dershwitz’s explanation may be correct,

10 evidence from eyewitnesses tending to show that many inmates continue to breathe long after

11 they should have ceased to do so cannot simply be disregarded on its face. In rejecting the

12 plaintiffs’ claims on the merits in Cooper and Beardslee, this Court relied on Dr. Dershwitz’s

13 opinion that the amount of sodium thiopental used in California’s lethal-injection protocol should

14 both stop breathing and cause unconsciousness within a minute after administration begins.

15 While there is no direct evidence that any condemned inmate actually was conscious when

16 pancuronium bromide was injected, evidence from Defendants’ own execution logs that the

17 inmates’ breathing may not have ceased as expected in at least six out of thirteen executions by

18 lethal injection in California raises at least some doubt as to whether the protocol actually is

19 functioning as intended, and because of the paralytic effect of pancuronium bromide, evidence

20 that an inmate was conscious at some point after that drug was injected would be imperceptible 21 to anyone other than a person with training and experience in anesthesia.14

22

Other evidence in the present record raises additional concerns as to the manner in which

23 the drugs used in the lethal-injection protocol are administered. For example, it is unclear why

24 some inmates— including Clarence Ray Allen, who had a long history of coronary artery disease

25 and suffered a heart attack less than five months before he was executed, see Allen v. Hickman,

26 ___ F. Supp. 2d ___, No. C 05 5051 JSW, 2005 WL 3610666 (N.D. Cal. Dec. 15, 2005)—have

27

28

14See Dr. Heath’s declaration in response to the February 13 request for supplemental briefing, at

p. 9.

11

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1 required second doses of potassium chloride to stop promptly the beating of their hearts.15 The

2 Court need not list all such anomalies here. It is sufficient for purposes of resolving the present

3 motion to note that Plaintiff has raised more substantial questions than his counterparts in

4 Cooper and Beardslee.

5

V

6

The fact that Plaintiff has raised such questions does not mean that he must be granted a

7 stay of execution. The State’s “strong interest in proceeding with its judgment,” Gomez v. U.S.

8 Dist. Ct. N.D. Cal., 503 U.S. 653, 654 (1992), is no less important here than it was in Cooper and

9 Beardslee. It has been nearly twenty-five years since Plaintiff committed the crimes for which he

10 now faces the death penalty. Even if the Court were to hold an evidentiary hearing and Plaintiff

11 were to prevail, Plaintiff would remain under a sentence of death. Neither the death penalty nor

12 lethal injection as a means of execution would be abolished. At best, Plaintiff would be entitled

13 to injunctive relief requiring the State to modify its lethal-injection protocol to correct the flaws

14 Plaintiff has alleged. Presumably, at some point, Plaintiff would be executed.

15

Having given the matter much thought, the Court concludes that it is within its equitable

16 powers to fashion a remedy—set forth below as the order of the Court—that preserves both the

17 State’s interest in proceeding with Plaintiff’s execution and Plaintiff’s constitutional right not to

18 be subject to an undue risk of extreme pain. Should Defendants decline to implement this

19 remedy, the Court will stay the execution and hold an evidentiary hearing within ninety days in

20 order to resolve the questions raised by the execution logs.

21

Whether or not Defendants implement the remedy and thus proceed to execute Plaintiff as

22 scheduled, the Court respectfully suggests that Defendants conduct a thorough review of the

23 lethal-injection protocol, including, inter alia, the manner in which the drugs are injected, the

24 means used to determine when the person being executed has lost consciousness, and the quality

25

26

15At a press conference immediately following Allen’s execution, Warden Ornoski stated that a

27 second dose of potassium chloride was required because “this guy’s heart has been beating for 76 years,
and it took awhile for it to stop.” Kevin Fagan, Reporter’s Eyewitness Account of Allen’s Execution, S.F.

28 Chron., Jan. 17, 2006, available at http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/01/17/

MNG37GOHD715.DTL.

12

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1 of contemporaneous records of executions, such as execution logs and electrocardiograms.

2 Given the number of condemned inmates on California’s Death Row, the issues presented by this

3 case are likely to recur with considerable frequency. Because California’s next execution is

4 unlikely to occur until the latter part of this year, the State presently is in a particularly good

5 position to address these issues and put them to rest. It is hoped that the remedy ordered by this

6 Federal Court in this case will be a one-time event; under the doctrines of comity and separation

7 of powers, the particulars of California’s lethal-injection protocol are and should remain the

8 province of the State’s executive branch. A proactive approach by Defendants would go a long

9 way toward maintaining judicial and public confidence in the integrity and effectiveness of the

10 protocol.

11

VI

12

As noted at the outset, the present action concerns the narrow question of whether the

13 evidence before the Court demonstrates that Defendants’ administration of California’s lethal-

14 injection protocol creates an undue risk that Plaintiff will suffer excessive pain when he is

15 executed. While the Court finds that Plaintiff has raised substantial questions in this regard, it

16 also concludes that those questions may be addressed effectively by means other than a stay of

17 execution, and that these alternative means would place a substantially lesser burden on the

18 State’s strong interest in proceeding with its judgment.

19

Accordingly, and good cause therefor appearing, Plaintiff’s motion for a preliminary

20 injunction is conditionally DENIED. Defendants may proceed with the execution scheduled for

21 February 21, 2006, provided that they do one of the following:

22

1) Certify in writing, by the close of business on Thursday, February 16, 2006, that they

23 will use only sodium thiopental or another barbiturate or combination of barbiturates in 24 Plaintiff’s execution.16

25

26

16In their response to the February 13 request for supplemental briefing, Defendants assert that

27 while sodium thiopental alone would be effective to cause Plaintiff’s death, its use without the other two
drugs would cause the execution to be unduly prolonged. Plaintiff correctly points out that there is no

28 evidence in the record to support Defendants’ claim that the execution could last as long as forty-five

minutes. The execution logs show that several executions pursuant to the current protocol took

13

Case No. C 06 219 JF & C 06 926 JF RS

ORDER DENYING CONDITIONALLY PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

(DPSAGOK)

Case 5:06-cv-00219-JF Document 62 Filed 02/14/2006 Page 14 of 15

1

2) Agree to independent verification, through direct observation and examination by a

2 qualified individual or individuals, in a manner comparable to that normally used in medical

3 settings where a combination of sedative and paralytic medications is administered, that Plaintiff

4 in fact is unconscious before either pancuronium bromide or potassium chloride is injected.

5 Because Plaintiff has raised a substantial question as to whether a person rendered unconscious

6 by sodium thiopental might regain consciousness during the administration of pancuronium 7 bromide or potassium chloride,17 the presence of such person(s) shall be continuous until Plaintiff

8 is pronounced dead. With respect to this alternative:

9

(a) A “qualified individual” shall be a person with formal training and experience

10

in the field of general anesthesia. The nature and extent of such training and experience

11

shall be set forth in a declaration submitted to the Court on or before the close of business

12

on Wednesday, February 15, 2006. Plaintiff may file any comments he may have with

13

respect to the qualifications of such person(s) not later than 12:00 noon on Thursday,

14

February 16, 2006. The Court will advise the parties as to whether it finds the person(s)

15

to be qualified by the close of business on Thursday, February 16, 2006.

16

(b) The person(s) may be employees of the Department of Corrections and

17

Rehabilitation.18

18

(c) If Defendants wish to keep the identity of such person(s) confidential, they

19

20
considerably longer than anticipated. While the Court has no wish to burden the participants in and
21 witnesses to Plaintiff’s execution with additional stress in what obviously is a very difficult situation, it
concludes that the questions surrounding the protocol justify an exception to the standard procedure in
22 this one instance, particularly in lieu of a stay of execution. The Court’s purpose in permitting
Defendants to use other barbiturates or a combination of barbiturates is to give Defendants flexibility
23 with respect to the length of the execution; such an approach appears to be fully consistent both with the
law—“the precise execution protocol is subject to alteration until the time of execution,” Beardslee, 395
24 F.3d at 1069—and with the opinions of Plaintiff’s medical expert, Dr. Heath.

25

17See, inter alia, the excerpts from the execution logs summarized above and Dr. Heath’s

26 declaration filed in response to the February 13 request for supplemental briefing, at p. 9.

27

18Defendants have indicated through declarations and in their offer of proof regarding lethal-

injection procedures that medical doctors, registered nurses, and licensed vocational nurses employed by

28 the Department have rôles at executions. At this time, the Court has no information as to the specific

training and experience of these individuals.

14

Case No. C 06 219 JF & C 06 926 JF RS

ORDER DENYING CONDITIONALLY PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

(DPSAGOK)

Case 5:06-cv-00219-JF Document 62 Filed 02/14/2006 Page 15 of 15

1

may submit their declaration setting forth the qualifications of such person(s) with

2

personal identifiers redacted, except that the redacted information shall be provided to the

3

Court for in camera review by e-mail to g_o_kolombatovich@cand.uscourts.gov.

4

(d) During the execution, the person(s) may wear appropriate clothing to protect

5

their anonymity.

6

If Defendants reject both of the alternatives described above, a stay of execution will

7 issue without the necessity of further proceedings. In that event, the Court will hold an

8 evidentiary hearing on the merits of Plaintiff’s claims on Tuesday, May 2, 2006, and Wednesday,

9 May 3, 2006. The Court will issue a briefing schedule and orders with respect to discovery

10 should that become necessary.

11

The Court will retain jurisdiction with respect to Defendants’ implementation of the

12 remedy provided for herein. This order otherwise is intended to be final for purposes of appellate

13 review.

14

IT IS SO ORDERED.

15

16 DATED: February 14, 2006 17

__________________________________ JEREMY FOGEL United States District Judge

18

19

20

21

22

23

24

25

26

27

28

15
Case No. C 06 219 JF & C 06 926 JF RS ORDER DENYING CONDITIONALLY PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION (DPSAGOK)

 
 Case 5:06-cv-00219-JF Document 78 Filed 02/21/2006 Page 1 of 4

1

2

**E-filed 2/21/06**

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

12 Michael Angelo MORALES,

Case Number C 06 219 JF Case Number C 06 926 JF RS

13

Plaintiff,

DEATH-PENALTY CASE

14

v.

ORDER ON DEFENDANT’S

15 Roderick Q. HICKMAN, Secretary of the California Department of Corrections and

MOTION TO PROCEED WITH EXECUTION UNDER

16 Rehabilitation; Steven W. Ornoski, Acting Warden ALTERNATIVE CONDITION TO

of San Quentin State Prison; and Does 1-50,

ORDER DENYING PRELIMINARY

17

INJUNCTION

Defendants.

18

19

[Docket No. 73]

20

21

22

In its order of February 14, 2006, denying conditionally Plaintiff’s motion for a

23 preliminary injunction, the Court allowed Plaintiff’s execution to proceed subject to Defendants’

24 agreement to one of two conditions. The first alternative permitted Defendants to execute

25 Plaintiff using only sodium thiopental or another barbiturate or combination of barbiturates. The

26 second alternative required Defendants to ensure, through verification by persons with

27 experience and training in general anesthesia, that Plaintiff would be and would remain

28

Case Nos. C 06 219 JF & C 06 926 JF RS ORDER ON DEFENDANTS’ MOTION TO PROCEED WITH EXECUTION UNDER ALTERNATIVE CONDITION TO ORDER DENYING PRELIMINARY INJUNCTION (DPSAGOK)

Case 5:06-cv-00219-JF Document 78 Filed 02/21/2006 Page 2 of 4

1 unconscious at all times following the administration of sodium thiopental. Defendants agreed to

2 the second alternative. Earlier today, as the execution was about to commence, the two

3 anesthesiologists designated by Defendants pursuant to this Court’s remedial order of February

4 16, 2006, declined to participate in Plaintiff’s execution because of ethical concerns arising from

5 their understanding of certain language in the opinion of the United States Court of Appeals for

6 the Ninth Circuit that affirmed this Court’s orders of February 14 and February 16, 2006. As a

7 result of this action by the anesthesiologists, Plaintiff’s execution did not go forward as

8 scheduled. Defendants have rescheduled the execution for 7:30 p.m. this evening and now seek

9 approval from the Court to proceed with the first alternative.

10

Plaintiff opposes Defendants’ motion, arguing among other things that executing him

11 using only sodium thiopental without at the same time addressing issues arising from the manner

12 in which that drug is administered by Defendants still would subject him to an undue risk of an

13 Eighth Amendment violation. This morning, the Court heard approximately one hour of

14 telephonic argument; it also has considered Plaintiff’s written response to Defendants’ motion

15 and the fifth declaration of Plaintiff’s medical expert, Dr. Mark Heath. For the reasons set forth

16 below, the motion will be granted, subject to Defendants’ strict compliance with the conditions

17 set forth herein.

18

It is undisputed that five grams of sodium thiopental, properly administered, is a fatal

19 dose. It also is undisputed that sodium thiopental does not cause pain; in fact, as a barbiturate, it

20 anesthetizes the person into whom it is injected. An insufficient dose, however, has the potential

21 to cause irreversible brain damage while not causing death. The only relevant factual dispute

22 with respect to the present motion is whether there is a realistic possibility that the sodium

23 thiopental injected into Plaintiff will not be properly administered.

24

Plaintiff points out that recurring problems with the manner in which sodium thiopental is

25 administered pursuant to Protocol No. 770 are suggested by the execution logs cited by the Court

26 in its order of February 14, 2006. While he does not concede that there is any basis upon which

27 the Court should allow his execution to proceed today, he is emphatic in his insistence that it

28 2
Case No. C 06 219 JF & C 06 926 JF RS ORDER ON DEFENDANTS’ MOTION TO PROCEED WITH EXECUTION UNDER ALTERNATIVE CONDITION TO ORDER DENYING PRELIMINARY INJUNCTION (DPSAGOK)

Case 5:06-cv-00219-JF Document 78 Filed 02/21/2006 Page 3 of 4

1 must not proceed using the same procedures that the Court itself has found to be problematic. He

2 urges the Court to postpone the execution so that an appropriate protocol for executing him using

3 only sodium thiopental can be developed and thoroughly vetted.

4

Both parties’ medical experts agree that there is no doubt that direct intravenous injection

5 of five grams of sodium thiopental by a trained individual, such as a nurse or other medical

6 professional licensed by the State of California, will be fatal virtually one hundred percent of the

7 time. While Plaintiff objects categorically to any further deviations from Protocol No. 770

8 without discovery and an evidentiary hearing, he acknowledges that there is no medical reason to

9 believe that direct injection poses any risk to him, of Eighth Amendment significance or

10 otherwise, as long as the person performing the injection has proper medical training.

11 Defendants object to direct injection, both because they believe that the current protocol is

12 adequate and because having a person in the execution chamber is contrary to departmental

13 policy. The Court notes, however, that Defendants agreed to have one of the anesthesiologists in

14 the execution chamber.

15

Despite the many twists and turns that have brought it to this point, including the apparent

16 disconnect between the expectations articulated in the orders of this Court and the Court of

17 Appeals and the expectations of the anesthesiologists retained by Defendants, the Court

18 nonetheless recognizes and respects the importance to the State of proceeding with the execution.

19 However, due process requires that to permit it to do so under these circumstances, Defendants’

20 obligations be set forth in a way that leaves no room for reasonable doubt. Accordingly, while

21 Defendants may proceed with the execution this evening using only sodium thiopental, they may

22 do so only if the sodium thiopental is injected in the execution chamber directly into the

23 intravenous cannula by a person or persons licensed by the State of California to inject

24 medications intravenously. The dosage used shall be at least five grams of sodium thiopental to

25 be followed by a 20 cc saline flush as provided in Protocol No. 770. The persons may wear

26 appropriate clothing to protect their anonymity. Based upon the evidence in the record, the Court

27 has no question that such a method is safe, effective and fully consistent with the its order of

28 3
Case No. C 06 219 JF & C 06 926 JF RS ORDER ON DEFENDANTS’ MOTION TO PROCEED WITH EXECUTION UNDER ALTERNATIVE CONDITION TO ORDER DENYING PRELIMINARY INJUNCTION (DPSAGOK)

Case 5:06-cv-00219-JF Document 78 Filed 02/21/2006 Page 4 of 4

1 February 14, 2006.

2

IT IS SO ORDERED.

3

4 DATED: February 21, 2006 5

__________________________________ JEREMY FOGEL United States District Judge

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4
Case No. C 06 219 JF & C 06 926 JF RS ORDER ON DEFENDANTS’ MOTION TO PROCEED WITH EXECUTION UNDER ALTERNATIVE CONDITION TO ORDER DENYING PRELIMINARY INJUNCTION (DPSAGOK)

 
 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

MICHAEL ANGELO MORALES,

)

Case No. C 06 0219 (JF)

12

)

C 06 926 (JF)

)

13

Plaintiff,

)

)

14

)

)[PROPOSED] COMPLIANCE ORDER

15

v.

)

)

16 RODERICK Q. HICKMAN, Secretary of the

)

California Department of Corrections; STEVEN )

17 ORNOSKI, Warden, San Quentin State Prison, )

San Quentin, CA; and DOES 1-50,

)

18

)

)

19

Defendants.

)

)

20

21

This Court, having considered the ex parte application of Plaintiff, hereby GRANTS his

22 application for a compliance order.

23

Defendants shall provide the following:

24

1. All equipment necessary and that is accepted by the medical community as

25 required to assure adequate sedation throughout the administration of the lethal injection

26 procedure in the manner described in the Court’s previous orders;

27

2. A licensed anesthesiologist who will determine, with the necessary monitoring

28

Compliance Order

C 06-219 (JF)

C 06-926 (JF)

1

1 equipment as described by Dr. Dershwitz in his February 2, 2006 declaration to this Court,

2 whether or not Mr. Morales is breathing at any time after the administration of the sodium

3 thiopental;

4

3. So as to avoid the situation wherein Mr. Morales begins to manifest signs of

5 consciousness upon the administration of the pancuronium bromide but cannot be re-sedated

6 quickly enough, a back-up syringe or syringes of at least 5 grams of sodium thiopental that a

7 licensed anaesthesiologist in the chamber will administer as necessary and immediately upon

8 determining that Mr. Morales is manifesting signs of consciousness after administration of the

9 initial dose of sodium thiopental;

10

4. A method to allow the anesthesiologist who is in the chamber with Mr. Morales to

11 communicate orally with the lethal injection team administering the drugs;

12

5. A procedure by which the licensed anesthesiologist who is in the chamber is

13 informed at the time each dose of drug is injected;

14

6. A procedure by which the licensed anesthesiologist will be able to stop the

15 execution immediately at any point that it is determined that Mr. Morales is manifesting signs of

16 consciousness and that he either needs to be properly sedated, or cannot be properly sedated.

17

7. Both anesthesiologists shall record the execution in a manner consistent with

18 standard medical practice for an anesthetized procedure in a hospital setting, and shall preserve

19 all notes, information stored in monitoring devices, printouts or other records. That information

20 shall be forwarded under seal to this Court by the doctors who will verify under oath that it

21 represents all records of any kind of Mr. Morales’ execution from them and all monitoring

22 devices they used. They will also provide the Court with a complete list of all equipment each

23 requested be allowed, and all equipment that was provided. The parties shall be provided with

24 this list as well.

25

IT IS SO ORDERED.

26 Dated:________________________ 27

_______________________________________ Jeremy Fogel United States District Court Judge

28

Compliance Order

C 06-219 (JF)

C 06-926 (JF)

2

1 Submitted by:

2 David A. Senior (#108759)
3 McBreen & Senior 1880 Century Park East, Suite 1450
4 Los Angeles, CA 90067

5 John R Grele (#167080) Law Offices of John R Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Richard P. Steinken
8 Jenner & Block LLP One IBM Plaza
9 Chicago, IL 60611-7603

10 Attorneys For Plaintiff MICHAEL ANGELO MORALES
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Compliance Order

C 06-219 (JF)

C 06-926 (JF)

3

 
 Case 5:06-cv-00219-JF Document 96 Filed 03/16/2006 Page 1 of 35

1 BILL LOCKYER Attorney General of the State of California
2 ROBERT R. ANDERSON Chief Assistant Attorney General
3 GERALD A. ENGLER Senior Assistant Attorney General
4 DANE R. GILLETTE Senior Assistant Attorney General
5 RONALD S. MATTHIAS Supervising Deputy Attorney General
6 State Bar No. 104684 455 Golden Gate Avenue, Suite 11000
7 San Francisco, CA 94102-7004 Telephone: (415) 703-5858
8 Fax: (415) 703-1234 Email: ronald.matthias@doj.ca.gov
9 Attorneys for Defendants

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13 MICHAEL ANGELO MORALES,

CAPITAL CASE

14 Plaintiff, C 06-219 JF

15

C 06-926 JF RS

v.

16

JEANNIE WOODFORD, Acting Secretary;

17 STEVEN ORNOSKI, Acting Warden,

18

Defendants.

19

20

NOTICE OF LODGING OF REDACTED VERSION OF SEALED DOCUMENT

21

22

23

24

25

26

27

28

Case 5:06-cv-00219-JF Document 96 Filed 03/16/2006 Page 2 of 35

1 BILL LOCKYER Attorney General of the State of California
2 ROBERT R. ANDERSON Chief Assistant Attorney General
3 GERALD A. ENGLER
Senior Assistant Attorney General
4 DANE R. GILLETTE Senior Assistant Attorney General
5 RONALD S. MATTHIAS Supervising Deputy Attorney General
6 State Bar No. 104684 455 Golden Gate Avenue, Suite 11000
7 San Francisco, CA 94102-7004 Telephone: (415) 703-5858
8 Fax: (415) 703-1234 Email: ronald.matthias@doj.ca.gov
9 Attorneys for Defendants

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13 MICHAEL ANGELO MORALES,
14 Plaintiff,
15
v.
16 JEANNIE WOODFORD, Acting Secretary;
17 STEVEN ORNOSKI, Acting Warden,

CAPITAL CASE
C 06-219 JF C 06-926 JF RS
NOTICE OF LODGING OF REDACTED VERSION OF SEALED DOCUMENT

18

Defendants.

19

20

Pursuant to Civil L.R. 79-5(c)(5) defendants hereby lodge a redacted version of

21 Operational Procedure 770 (the lethal injection protocol, as revised March 6, 2006), which, in

22 umedacted form, has been submitted to the Court under seal.

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

Notice Of Lodging Of Redacted Version Of Sealed Document - C 06-219 JF
1

Case 5:06-cv-00219-JF Document 96 Filed 03/16/2006 Page 3 of 35

1

Dated: March 16,2006

2

Respectfully submitted,

3

BILL LOCKYER Attorney General of the State of California

4

ROBERT R. ANDERSON

Chief Assistant Attorney General

5 GERALD A. ENGLER

6

Senior Assistant Attorney General

DANE R. GILLETTE

7

Senior Assistant Attorney General

,,//1 \

8

,~...."

/ ~ "....

.

j/'c1 ---"

I ;

_

(7

LLQ,A./..

~
'_----"

9

I

RONALD S. MATTHIAS

10

Supervising Deputy Attorney General

Attorneys for Defendants 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Notice Of Lodging Of Redacted Version Of Sealed Document - C 06-219 JF
2

Case 5:06-cv-00219-JF Document 96 Filed 03/16/2006 Page 4 of 35

OPNO:

0-770

SAN QUENTIN OPERATIONAL PROCEDURE

TITLE:

LETHAL INJECTION CHAMBER (REDACTED)

REVISED:

March 6, 2006

LETHAL INJECTION CHAMBER SAN QUENTIN STATE PRISON

I.

PURPOSES AND OBJECTIVES:

The purpose of this plan is to establish the procedure for the care and treatment of inmates from the time an execution date is set through execution by lethal injection. In addition, this plan identifies staff responsibilities pursuant to preparation for executions and operation of the Lethal Injection Chamber.

II.

REFERENCES

A. California Penal Code Sections: 1193, 1217, 1227,3600,3601,3603,3604,3605, 3700,3700.5,3701,3702,3703,3704,3704.5,3705,3706.

B. California Code of Regulations, Title 15

C. California Department of Corrections Operations Manual

III.

APPROVAL AND REVIEW

A. This plan will be reviewed and/or revised as needed and submitted to the Warden for approval prior to submitting it to the Director, Division of Adult Institutions.

B. This Institution Procedure is confidential and may be reviewed by staff with the need to know at the Warden's office only.

IV.

RESPONSIBILITY

A. The Warden is responsible for the overall operation of this procedure.

B. The Chief Deputy Warden is responsible for the security of the institution in the event of a scheduled execution.

C. The Lieutenant in Charge of the execution chamber is responsible for monitoring and ensuring that this procedure is followed.

D. The Associate Warden, Unit V will be familiar with all aspects of this plan.

V.

METHODS

A. Execution dates are set in accordance with the provisions of Penal Code Sections 1193 and 1227.

B. The first execution date for an individual is set under the provisions of Penal Code
Section 1193. The execution date must be scheduled no sooner than 60 days, but no later than 90 days from the 1193 PC hearing.

Lethal Injection Chamber

March 6, 2006

SQ-OP-0-770-1

Case 5:06-cv-00219-JF Document 96 Filed 03/16/2006 Page 5 of 35

C. All subsequent execution dates are set under the provision of Penal Code Section 1227. Execution dates set under this provision of the penal code section must be scheduled no sooner than 30 days, but no later than 60 days from the 1227 PC hearing.

1. Chronology of Events Prior to Execution:

Upon receipt of the execution order:

a. The Warden will:

1. Notify the Director, Division of Adult Institutions via the Associate Director, Reception Centers Section by telephone, if the execution appears imminent, followed with a copy of the execution order by mail.

2. Together with the Litigation Coordinator and Associate Warden, Unit V interview the inmate to be executed, serve the warrant of execution, and document the interview on CDC-180IB, Service of Execution Warrant - Warden's Initial Interview. Inform the inmate of his choices of execution, either lethal injection or lethal gas and document this on CDC-I801, Notification of Execution Date and Choice of Execution Method. Instruct inmate to indicate his choice within ten dates on CDC-I801-A, Choice of Execution Method, with the explanation that if no choice is made, lethal injection will be the method of execute

3. Notify the Governor's Legal Affairs Secretary by mail of the scheduled execution with a copy of the execution order enclosed.

4. Submit to the Director, Division of Adult Institutions via the Associate Director, Reception Centers Section, names of three (3) psychiatrists who will serve as the required panel of alienists. The alienists will be employees of the Department of Corrections and Rehabilitation who have previously received the approval of the Director, Division of Adult Institutions.

5. Secure from the Case Records Manager the central file of the inmate, which will be maintained in the Warden's office seven days prior to the date of execution.

b. The Chief Deputy Warden will:

Prepare to activate execution security plan, Resource Supplement A-5.

c. The Associate Warden, Unit V will:

Lethal Injection Chamber

1. Move inmate to designated area. Inmates housed in East Block will be moved to the first tier upon receipt of the warrant. Inmates in North Segregation will remain in their assigned cells. Inmates in the Adjustment Center will remain in their assigned cells. Five days prior to an execution, inmates will move to a designated cell in North

March 6, 2006

SQ-OP-0-770-2

Case 5:06-cv-00219-JF Document 96 Filed 03/16/2006 Page 6 of 35

d.
e.
Lethal Injection Chamber

Segregation. Inmates in the Adjustment Center may be moved to North Segregation or remain in the Adjustment Center at the discretion of the Warden.

2. Implement hourly checks and logs by condemned unit staff.

3. Direct the condemned unit staff to commence documentation of the inmate's behavior on CDC 128B on each shift. These 128B's will be forwarded daily to the Litigation Coordinator via the Associate Warden, Unit V. Any documentation regarding unusual behavior will be brought to the attention of the Warden.

4. Initiate daily contact with unit on procedural follow through.

The Litigation Coordinator will:

1. Receive from the Visiting Lieutenant a copy of the list of approved visitors. A print-out of visits will be provided weekly.

2. Instruct the Office Assistant who schedules legal visiting to give priority accommodations to the attorney for the inmate. If a scheduling problem occurs, the Litigation Coordinator will immediately be notified.

3. Construct a file on the inmate that shall contain all pertinent documents; i.e., execution order, photocopy of the visiting print-out, Service of Execution Warrant, Notification of Execution Date and Choice of Execution Method, pre-execution activity log, CDC-128B's, and any other pertinent information. This file shall be kept in the Litigation Coordinator's office. In the event the execution is stayed, the file will be closed and filed in the Litigation Coordinator's
office.

4. Update the list of scheduled executions and distribute it to
the Administrative Officer of the Day (AOD) book, Chief Deputy Warden, Associate Warden, Unit V, Visiting Lieutenant, Mailroom Sergeant, Chief Psychiatrist and Chaplains.

The Warden's Administrative Assistant will:

1. Act as a liaison between the inmate's family and the Warden, answering questions the family may have.

2. Direct the mailroom Sergeant to deliver all non-legal incoming mail for the inmate to the Administrative Assistant to be inspected, logged and forwarded to the inmate via the oncoming Third Watch Condemned Row Sergeant. Mail that is sent to the inmate by anonymous senders, containing offensive messages, will be hand carried to the inmate by the Condemned Row Correctional Counselor II. The Correctional Counselor II will give the inmate the option to accept or reject the offensive correspondence. The Administrative Assistant will instruct the First Watch

March 6, 2006

SQ-OP-0-770-3

Case 5:06-cv-00219-JF Document 96 Filed 03/16/2006 Page 7 of 35

f. g.
Lethal Injection Chamber

Condemned Row Sergeant to inspect and log all non-legal outgoing mail from the inmate. The Condemned Row Sergeant will forward any unusual mail immediately to the Administrative Assistant for the Warden's attention. This process must be handled expeditiously to avoid unnecessary delay of outgoing or incoming mail in this category.
The Public Information Officer will:
Advise the Press Secretary of CDCR, by telephone, of the execution date and coordinate the development of a press release for news media agencies.
The Visiting Lieutenant will:
1. Flag the computer file in the memo field with the following instruction:
a) Priority Visiting Privileges. Do not tum away visitors without approval of Warden or Administrative Officer of the Day (AOD). Notify Warden's office (Public Information Officer) seven days prior to imminent execution of each visit that this inmate has on the day that it occurs, or if on weekend or holiday, the next workday.
b) The Visiting Lieutenant will ensure that these instructions are complied with.
2. Make photocopies of the inmate's visiting file along with a computer print-out of all approved visitors and deliver them to the Litigation Coordinator so that visits can be filed in the pre-execution file.
3. Ensure that the attorney for the inmate is afforded every assistance in expeditiously having access to his or her client. In the final weeks prior to the execution, this may include facilitating attorney visits during weekends and holidays should such be necessary.
4. Upon receipt of a warrant of execution for an inmate, and when it appears the execution is imminent, the Visiting Lieutenant will arrange for all visiting for a Grade A inmate to take place in the plexiglass booths of the Main Visiting Room during normal visiting hours. A correctional officer will be assigned to provide constant and direct supervision of the visit.
Grade B inmates will continue to receive non-contact visits in Main Visiting.
5. Beginning at least five (5) days prior to the scheduled execution, the following visiting procedure will be adhered to:
a) Grade B inmates will continue to receive non-contact visits during designated visiting hours.

March 6, 2006

SQ-OP-0-770-4

Case 5:06-cv-00219-JF Document 96 Filed 03/16/2006 Page 8 of 35

b) The visitor(s)/attorney(s) will be required to successfully clear the walk-through metal detector and a pat search. A refusal to comply with the above search procedure will be grounds for denial of a visit.

c) The inmate will visit in waist restraints.

d) The inmate and the visitor(s) may briefly embrace or shake hands at the beginning and end of the visit. No other physical contact will be allowed.

6. In the event there is a scheduled attorney visit, the following procedures will apply:

a) Attorneys and approved visitors of the inmate will not be permitted to visit with the inmate simultaneously.

b) For an attorney/client confidential visit, the attorney will be allowed to bring the following items:

1). One pen or pencil 2). One note pad 3). Necessary legal materials

c) For attorney/client confidential visits, the inmate will be removed from the conference room and proceed with his attorney visit in the plexiglass visiting area under constant visual observation by the special visiting team.

7. All visiting for the inmate will cease once he/she is placed in the overnight cell in the chamber area. Attorneys may have access to their client by phone as requested.

h. The Lieutenant in Charge of the Chamber will:

1. Ensure that the execution chamber is ready.

2. Ensure no individuals enter the chamber area without specific approval of Warden.

1.

The Condemned Row Correctional Counselor II will:

Maintain close daily contact with the inmate upon service of the execution warrant.

2. 45 - 20 days prior to the execution:

a. The Warden will:

1. Work with the Attorney General's Office of Victims' Services to confirm the availability of twelve (12) official witnesses and two (2) or more alternates.

Lethal Injection Chamber

a) Compile and submit to the Director, Division of Adult Institutions via the Associate Director,

March 6, 2006

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Reception Centers Section the original documents of the 20-day pre-execution report of the alienists pursuant to Penal Code 3700.5. The Director of Corrections shall forward the document to the Governor's Legal Affairs Secretary via the agency secretary, Department of Corrections and Rehabilitation. The 20-day report shall be comprised of the following:
1). A current psychiatric report, written by each of the three alienists.
2). Comments of the chaplain attending the inmate.
3). A summary of the inmate's conduct and behavior, submitted by the Condemned Row Correctional Counselor II.
4). A cover letter from the Warden addressing the above.
b) The 20-day report is to be delivered to the Director, Division of Adult Institutions via the Associate Director, Reception Centers Section, 28 days prior to the scheduled execution.
b. The Psychiatrists (Alienists) will:
1. Interview and examine the inmate within sufficient time so as to evaluate the findings and give written report to the Warden within the Warden's 20-day report deadline.
2. The written reports shall include an interpretation of the examinations, interviews, and history stated in lay wording.
3. Information available to one psychiatrist pertinent to the inmate's sanity shall be made available to the other two psychiatrists for evaluation and inclusion in the appropriate psychiatric reports.
c. The Chaplain will:
1. Interview the inmate as needed to assess his spiritual and emotional well-being. The chaplain attending the inmate's religious needs will determine the inmate's religious preferences and needs, next of kin, funeral or other requests, attitudes or thoughts on death and dying, and any observations as to his emotional stability such as acceptance of his sentence, etc.
2. The chaplain will formulate his observations into a written report and submit it to the Warden within sufficient time to meet the Warden's 20-day report deadline.

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d. The Condemned Row Correctional Counselor II will:
1. Assess the observations of the inmate's counselor and custody staff, and research the case history to determine the inmate's past and present conduct and behavior.
2. This information will be submitted in writing to the Warden within sufficient time to meet the Warden's 20-day report deadline.
e. The Lieutenant in Charge of the Chamber will:
1. Survey and prepare the members of the execution team, fill vacancies, after review with the approval of the Warden. Conduct and schedule training as needed. Training will be conducted under the supervision of the Warden or the Chief Deputy Warden in the absence of the Warden.
2. Determine the status of the chamber, assess maintenance and supply needs.
f. The Public Information Officer will:
1. Coordinate with the Press Secretary of CDCR an announcement to the media via recognized wire services that the execution is scheduled and any media representatives wishing to witness or otherwise cover the event must follow the instructions as outlined in the advisory. The Public Information Officer and Press Secretary will announce a 10day filing period in which the news media may submit their written requests to witness the execution. Requests must be for the execution at hand, and will not be kept on file. No request will be considered that is received after close of business of the tenth and final day.
2. Work with the Press Secretary of CDCR to select up to seventeen (17) media witnesses to the execution. Consideration will be given to the broadest cross-section of media format and greatest circulation/viewers.
3. 30 - 7 Days Prior to an Execution:
Sanity Review Request:
a. Attorneys may submit in writing for the Warden's review, any current psychiatric information that they believe may have a bearing on evaluating the sanity of a condemned inmate with a scheduled execution date.
b. This information will be accepted 30 days prior to a scheduled execution, and up to 7 days prior to the scheduled execution. Information submitted sooner than 30 days preceding the scheduled execution will not be considered by the Warden under this procedure, but will be accepted for consideration by the panel of alienists. The panel of alienists will consider this information in preparation of the 20-day pre-execution sanity report.

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c. The Warden will have available for review all psychiatric information pertaining to the condemned inmate known to San Quentin's psychiatric staff. This information will be reviewed along with all material submitted by the inmate's attorney. Upon reviewing the information, the Warden will determine if there exists a substantial showing of insanity.
d. The Warden will notify the condemned inmate's attorney in writing of the results of the requested sanity review. Should the Warden, with the assistance of the independent Department of Corrections and Rehabilitation Psychiatrist, find a substantial showing of insanity, the Warden will notify the District Attorney of Marin County in accordance with Penal Code Section 3701.
e. The Warden will accept requests for the Warden's review of psychiatric information regarding the inmate's sanity up to 7 days prior to the scheduled execution. The procedures that are put in place by San Quentin the week prior to the execution provide the Warden with current information regarding the inmate's behavior and psychiatric condition. In addition, the inmate's behavior is continuously monitored by unit staff for the finalS days with documentation completed every 15 minutes. Should the inmate display unusual or inappropriate behavior, the Warden will be notified immediately by institutional staff. The Warden will take necessary steps to evaluate any reported changes including utilizing the provisions of Penal Code Section 3701, if deemed appropriate. All referrals to the Marin County District Attorney's office, under the provisions of Penal Code Section 3701, will be reported to the Director of Corrections in writing via the Deputy Director of Institutions.
f. The Director will notify the Governor's Legal Affairs Secretary in writing of all referrals to the Marin County District Attorney's office under the provisions of Penal Code Section 3701.
4. 10 - 7 Days Prior to an Execution:
a. The Warden will:
1. Compile and send a final 7-day report (original documents) to the Director, Division of Adult Institutions via the Associate Director, Reception Centers Section which will in essence indicate whether or not there has been any change in the inmate's mental condition since the last 20-day report. The 7-day report will be delivered in sufficient time for forwarding to the Secretary of the Department of Corrections and Rehabilitation whose office will then forward it to the Governor's Legal Affairs Secretary. This report shall be a memorandum updating the formal 20-day report based upon current observations. Intermediate reports may be submitted by the Warden any time there is a change which may have an effect under Section 3700.5 of the Penal Code.
2. Review the inmate's selection of witnesses and spiritual advisor(s) as provided by the Associate Warden, Unit V.

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The requested witnesses/spiritual advisor(s) must meet normal visiting criteria.
b. The Associate Warden, Unit V will:
Ascertain if the condemned inmate wishes to invite up to five (5) witnesses and two (2) spiritual advisors. If so, provide the Warden with the names and addresses.
c. The Psychiatrists (Alienists) will:
Interview and evaluate the inmate in much the same manner as they did for the 20-day report, and submit their findings to the Warden in writing. They shall compare their current evaluations with their previous findings to determine any change in the inmate's mental condition. Their observations must be current and pertain to the inmate's mental state.
d. The Chaplain will:
Report the emotional state of the inmate, being especially sensitive to any change. The chaplain's observations will be submitted in writing to the Warden. These observations shall pertain to contacts made within 3 days preceding preparation of the report.
e. The Condemned Row Correctional Counselor II will:
Report any change in conduct or behavior in writing to the Warden.
f. The Correctional Business Manager II:
1. Contact the next of kin or attorney by telephone to ascertain their wishes concerning disposition of the inmate's remains.
2. If necessary, prepare a letter for the Warden's signature to next of kin requesting their intentions regarding the inmate's remains. Ascertain if they will claim the body and if so advise them of the name and location of the contracting mortuary. If they do not intend to claim the body, have them so state, and arrange for disposal per DOM Supplement SQP 51070.
g. The Public Information Officer will:
1. Notify all media representatives selected to be witnesses.
2. Notify all media representatives selected to cover the execution event. Selection will be made of 125 total persons from legitimate media outlets as defined in DOM Supplement SQP 13010.

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h. The Lieutenant in Charge of the Chamber will:

Report in writing to the Warden that the following procedures have been accomplished:

1. Staff assignments on the execution detail are ready.

2. Preliminary chamber area readiness and operational checks have been made. (Needed maintenance work is requested immediately.)

3. Ensure that chamber area has necessary supplies which will consist of both household and personal needs.

4. Ensure that the required clothing will be available.

5. Supply oflog sheets is on hand.

6. Ensure that the necessary chemicals are not only available, but also properly controlled.

7. Ensure the members of the execution team are relieved of their regularly assigned duties and temporarily assigned to the execution detail. The Personnel Lieutenant will be notified at least 24 hours prior to the reassignments to facilitate the necessary staff diversions to temporary special assignment.

1.

Special Unit Supervisors will:

1. It will be the responsibility of the special unit supervisors (CRT) to notify the appropriate area manager of their intent to re-assign any employee from their normal assignments associated with the execution at least ten (10) days prior to the proposed assignment change.

2. This will enable the unit manager to fill behind these temporary vacancies. The Personnel Lieutenant will be notified seven (7) days prior to the proposed assignment change to coincide with the Personnel Lieutenant's weekly personnel movement sheet.

5. 5 Days Prior to Execution:

a. The Associate Warden, Unit V will initiate the following procedure if execution is imminent:

1. Direct that the inmate be moved to the designated security housing area of Condemned Row where he will be under 24hour a day observation of an officer assigned for that purpose. The officer will check the welfare of the inmate at fifteen (15) minute intervals and log each check.

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2. The Warden may order the inmate to be moved to the designated security housing area of Condemned Row where he will be under 24 hour a day observation of an officer assigned for that purpose at any time following receipt of the

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death warrant when, in the OpInIOn of the Warden, it is necessary to maintain the safety and security of the public, the institution and/or the inmate.
3. Direct that all non-legal property belonging to the inmate be removed from his cell and placed under the security of the officer stationed outside the security cell. The inmate will be given the use of items by the officer as he needs them, and then return them to the officer's care.
4. In the event of a stay at this juncture, the Associate Warden, Unit V will initiate return of the inmate to his former housing status.
5. Along with the Food Manager, interview the inmate to ascertain what request if any he may have for a last meal. Determine if Food Service will be able to fulfill the request. This answer will be reported back to the inmate, and either way, preparations made through the Food Manager for a last meal.
b. The Condemned Row Correctional Counselor II will initiate the following procedure if execution is imminent:
1. Interview the inmate to discern any special requests as to the disposition of his property. The inmate will package and label any property to be sent out of the institution. The Correctional Counselor II will maintain an inventory signed receipt of all the packaged property for mailing the first weekday following the execution. In the event of an indefinite stay, the property shall be returned by a signed (inmate) receipt by the Correctional Counselor II.
2. Arrange for the monitoring of all telephone calls made by the inmate via an institutional telephone. Legal calls will not be monitored but will be facilitated by staff. All calls will be logged on the pre-execution activity log. The Correctional Counselor II will ensure that the inmate has 24 hour access to a telephone for attorney contact.
3. Obtain clothing sizes from the inmate and ensure that appropriate clothing is available.
4. Brief the Warden, Chief Deputy Warden, Associate Warden Unit V, and Facility Captain daily as to the inmate's needs, requests, and behavior.
c. The Chief Deputy Warden will initiate the following procedure if execution is imminent:
The Chief Deputy Warden will implement the Execution Security Plan.

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d. The Warden will initiate the following procedure if execution is imminent:
Issue a Warden's Bulletin to all staff residents advising them of likelihood of a gathering or demonstration at the East Gate.
e. The Visiting Lieutenant will initiate the following procedure if execution is imminent:
1. Announce to visitors via posted notice, Warden's Bulletin, that visiting will be closed the day preceding the execution as well as the day of the execution.
2. Ensure that the family visiting quarters will be vacant the day before and the day of the execution. Prospective visitors, inmates, and housing unit staff will be so informed.
3. Ensure visiting for the condemned inmate is conducted as outlined in the procedure.
f. Spiritual Advisors will be allowed access to the inmate as follows:
1. State employed spiritual advisors selected by the inmate will be allowed to perform their spiritual functions at the cell front of the inmate's cell either on second or third watch. The state employed spiritual advisor may visit the inmate in the holding cell of the execution chamber if requested by the condemned inmate.
2. Non-state employed spiritual advisors may visit the inmate utilizing the visiting process outlined previously in this procedure. Grade B inmates will be on a non-contact basis.
6. 4 Days Prior to an Execution:
a. The Warden will initiate the following procedures if execution is imminent:
1. Issue a letter to San Quentin Village residents, Marin Rod and Gun Club and the Post Office advising them of any likelihood of a gathering or demonstration at the East Gate.
2. Direct that notice be passed during staff briefings and via the Count Gate television monitor, to inform staff of the East Gate closure on the evening prior to the day of the execution.
b. The Business Manager II will:
Notify all contractors and vendors that we will not be accepting any services or goods from 1800 hours, 2 days prior to the execution through the execution day.
7. 3 Days Prior to an Execution:
The Lieutenant in Charge of the Chamber will initiate the following procedure if execution is imminent:

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a. Be responsible for the security of the area. A search of all materials that will come into contact with the condemned inmate will be made. All equipment will be in working order and functioning. All chemicals will be under appropriate control to prevent tampering.
b. The following procedures will be followed without exception:
1. The execution chamber area shall be closed to any and all persons not cleared by the Warden. The Lieutenant in Charge of the chamber has authorized access.
2. The execution chamber area keys will not be issued to any person other than the Lieutenant in Charge of the Chamber or designee.
3. All necessary traffic into the chamber areas will be cleared and directly supervised by the Lieutenant in Charge of the Chamber.
4. The chamber area, holding area, and visiting area are cleaned and sanitized daily until the execution is carried out.
8. Two Days Prior to an Execution:
The Lieutenant in Charge of the Chamber will assume the following responsibilities:
a. Conduct an equipment check of all materials necessary to perform the execution. This shall be conducted not less than twenty-four (24) hours, and not more than ninety-six (96) hours, before the scheduled execution.
b. Check the expiration and/or sterilization dates of all applicable items.
c. Outdated items (e.g. Normal Saline bags) shall be replaced immediately.
d. Sterilized packs bearing a sterilization date in excess of thirty (30) days shall be replaced or re-sterilized immediately.
9. Day Prior to an Execution:
a. The Chief Deputy Warden will:
1. Place institution on lockdown at the appropriate time commensurate with the day and hour of the scheduled execution.
b. The Warden and Associate Warden, Unit V will:
1. Direct that at the appropriate time commensurate with the day and hour of the scheduled execution, the inmate be rehoused in the death watch cell adjacent to the execution chamber area.

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c.
d. e.
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2. The Warden will be notified prior to any otherwise authorized visitor entering the death watch area.

The Lieutenant in Charge of the Chamber will:

1. Obtain the lethal injection:

a). During the afternoon immediately preceding an
execution by lethal injection, proceed to the designated locker to obtain the necessary agents (drugs) for the procedure.

b). When the drugs have been issued, and quantities verified, they shall be placed and secured in the drug
locker in the Chamber.

c). Maintain personal, physical custody of the key to the drug locker until such time as it is opened for use, or for return if not used.

2. Establish a death watch on a round-the-clock basis consisting of one (1) Correctional Sergeant/Lieutenant two (2) Correctional Officers. The Associate Warden, Unit V will give specific instructions to the Death Watch as to security and treatment of the inmate. The Lieutenant in Charge of the Chamber will instruct the death watch officers on procedure and direct that they maintain a log.

3. The Execution Team will arrive for pre-execution instructions. The Lieutenant in Charge will arrange for accommodations as necessary.

The Captain, Central Services will:

1. At the appropriate time commensurate with the day and hour of the scheduled execution, establish an internal support team to assist as needed to maintain the smooth operation of the institution. The team will be staged in the office of the Associate Warden, Unit II.

2. Ensure East Block visiting area, main visiting area, and employees' lounge are cleaned and sanitized.

3. At the appropriate time commensurate with the day and hour of the scheduled execution, inspect all areas.

The Public Information Officer will:

1. Activate the media center at the appropriate time commensurate with the day and hour of the scheduled execution in the In-Service Training hall and staff it with one (1) Correctional Sergeant and six (6) Correctional Officers assigned by the Watch Sergeants for that purpose. The Public Information Officer will address the needs of media representatives that may be operating out of the center. The assigned staff will release no information or offer any commentary unless specifically authorized by the Public

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Information Officer. The Public Information Officer will give regular updates to any media gathered, and notify the Press Secretary of this action.

2. Work with the Press Secretary to prepare a biographical and general information sheet on the inmate for briefing notes for the media, including CDCR I.D. photo. A copy of this biographical and general information sheet will be sent to the Press Secretary.

3. At the time designated by the Warden, identify the media witnesses and escort them to their waiting area room at InService-Training (1ST). The Public Information Officer will instruct the media witnesses there will be no cameras, recorders, sketch pads, etc. These items will be deposited at the media center for later retrieval. No such equipment will be allowed in the witness gallery. Pencils and notepads will be provided. The Public Information Officer may utilize the metal detector at the Inspectoscope Gate, or any other search method deemed necessary and reasonable.

4. The Warden through the Public Information Officer will designate a cut off time for the media to arrive as outlined in the Execution Security Plan.

f.

The Official Witnesses will:

1. Meet at the designated time for greeting by Warden.

10. Day of an Execution:

a. The Warden will:

1. Approximately 2 hours prior to execution, assure all witnesses are appropriately accommodated.

2. Usher the official witnesses to their assembly area and give final instructions as needed.

3. Approximately forty-five minutes before the execution, take hislher position at the execution chamber. Instruct the execution team to prepare the inmate.

4. Approximately 25 minutes before the execution, instruct staff to admit the witnesses. The curtain surrounding the execution chamber will remain closed until all witnesses are in their designated spaces. Order the curtain opened.

5. Approximately 15 minutes before the execution, order the inmate brought into the execution chamber where he/she will be secured to the chair.

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6. Once the inmate is in place and the saline solution is flowing, inquire of both the State Supreme Court and the Attorney General's Office if there is any matter pending before any court to preclude the execution from proceeding. If the response is negative, direct a member of the execution

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b. c. d.
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team stationed on the witness area side of the locked door leading to the execution anteroom to read a prepared statement detailing the court order mandating the execution.
7. Order the administration of the lethal injection until inmate is pronounced dead.
8. Upon verification by the attending physician, a member of the execution team stationed on the witness area side of the locked door leading to the execution anteroom will read a prepared statement
9. Immediately following the execution, thank witnesses. Arrange for their safe departure from the institution.
10. Approximately 1 hour after the execution, the Warden will issue a statement to the media declaring the carrying out of penalty and announcing time of death. No other statements are recommended. The Warden should retire from media access immediately afterwards.
The Associate Warden, Unit V will:
Approximately 2 hours prior to the execution, meet with Warden.
A State Physician will:
Monitoring the heart of the inmate, or by whatever means appropriate, determine and pronounce death.
Public Information Officer will:
1. After receiving the order from the Warden, escort the media witnesses into the witness gallery and maintain the appropriate decorum. During the execution, the Public Information Officer will monitor the media, being sensitive to any attempt to illicitly record the occurrence, as well as their emotional stability. The Public Information Officer will have available ammonia inhalants, nausea bags, and have a Senior MTA standing by.
2. Immediately upon Declaration of Death, take note of the exact time and usher the media witnesses directly to the media center where they will give pool commentary and recounting to the other assembled media. The Public Information Officer will give no commentary until after the official statement by the Warden.
3. Accompany the Warden to the post execution press conference. Field questions that follow the Warden's statement.
4. As soon as possible but no longer than 30 minutes after commencement, diffuse the media event and usher all media out of the prison grounds. Secure the media center and retire to the Warden's office to field telephone inquiries.

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e. The Administrative Assistant to the Warden will:

1. At the time designated by the Warden prior to the execution, escort the official and other witnesses into the witness gallery.

2. Assign a Correctional Officer to escort witnesses invited by inmate and/or the inmate's attorney from their designated waiting area. The correctional officer will remain with these witnesses.
3. During the execution, the Administrative Assistant will remain in the chamber area to assist the Public Information Officer.

4. Immediately following the official statement by the Warden, safely convey him out of the media center.

f. The Lieutenant in Charge and the Execution Team will:

Follow the course of instructions as outlined in this procedure.

11. Witness to an Execution

a. Types of Witnesses:

1. Official Witnesses:

Official witnesses as defined in Section 3605 California Penal Code, will not have their names made public. Official Witnesses will be escorted into the viewing room first, and take seats at the rail. This affords clearer viewing by the remaining witnesses.

2. Witnesses and Other Observers (staff, etc.)

Witnesses and observers will not have their names made
public. Witnesses will be escorted into the viewing room second, taking their places upon the east risers.

3. News Media Witnesses

News media witnesses will not have their names made public, unless they choose to do so. Media witnesses will be escorted into the viewing room third, taking their places upon the north risers.

4. Inmate Requested Witnesses

Inmate requested witnesses will not have their names made public. They will be escorted into the viewing room fourth, taking their places upon the south risers.

b. Allocation of Available Space:

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The total capacity of the witness area of the execution chamber is fifty (50) persons. The distribution of those present shall be as follows:

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c. d.
e.
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Attorney General

1

Staff

4

Official Witnesses

12

Other Witnesses

9

Director's Witnesses

3

YACA Witnesses

2

News Media Witnesses

17

Witnesses Requested by Inmate-

Family and Friends

5

Spiritual Advisor

2

TOTAL

50

Request for Witnesses by the Condemned Inmate:

All requests to witness an execution, including the inmate's request to have family or friends present, shall be directed in writing to the Warden.

Selection of News Media Witnesses (maximum 17):

1. When an execution is scheduled, the Press Secretary of CDCR will notify the media and establish a filing period in which to accept media requests to witness the execution. All media requests to witness each execution shall be directed to the Communications Office, Headquarters. They will only be considered for the scheduled execution and will not be kept "on file." Requests will only be accepted immediately prior to the date of execution and not after the filing period. Media is defined in Title 15, CCR Section 3000 and DOM subsection 13010.5.

2. The Press Secretary and the Public Information Officer will
select the members of the news media to witness an execution. All media witnesses must agree to the use of a
"pool" method and all members must agree to release information simultaneously to all other news agencies at a press conference held as soon as possible after the execution. The media witnesses will not be permitted any cameras, tape recorders, or drawing implements, etc., in the witness area. Pencils and notepads will be provided.

Procedures for Processing Witnesses:

1. All witnesses need to arrive at the institution's West Gate at the time designated by the Warden. Parking will be in the designated parking area. All witnesses, will be processed through the Inspectoscope Gate.

a) No blue jeans, i.e., jeans-style blue, black, or grey pants or Levi's.

b) No cameras or recording equipment. Pencils and notepads will be furnished.

2. All witnesses must have a photo I.D.
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f. Witnesses Accommodation Prior to Execution:
1. After processing, witnesses will be escorted to their designated areas until time to move to the execution chamber. At a time announced by the Warden, the witnesses will be escorted to the witness area and directed to their designated places.
2. During an execution, the Public Information Officer and other escorting staff will remain in the witness area. Officers who escort inmate visitors will not be allowed to witness the execution.
g. Witness Accommodation After Execution:
1. After the announcement of death, the official and other witnesses will be escorted back to their designated area. The inmate's witnesses will be transported to the West Gate.
2. The media witnesses will be transported to the media staging area to await the Warden's press conference approximately one (1) hour after a scheduled execution.
12. News Media:
a. Responsibility:
The Public Information Officer, under the direction of the Warden, in conjunction with the Press Secretary of CDCR, is responsible for coordination of news media personnel pursuant to an execution.
b. Media Access to the Institution:
Members of legitimate media, as defined in Title 15, CCR Section 3000 and DOM subsection 13010.5, will be allowed on San Quentin grounds on the day and time specified by the Warden. Requests must be made to the Press Secretary of CDCR via the process outlined in the media advisory. A maximum of 125 news media personnel will be permitted to remain in the 1ST hall during and after the execution to await the Warden's post execution press conference
c. Coordination of Non-witness News Media:
1. All non-witness media members need to arrive at the institution's West Gate on the day and time specified by the Warden. Parking will be in the designated parking area. Media broadcast vans will be admitted to the institution grounds on a space-available basis and prior written approval. Requests for such accommodations should be made when requesting to cover the event. All media members must have a photo I.D.
2. The media members will be admitted and processed at the West Gate and escorted to the 1ST Building.

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3. After the execution, the media witnesses will join the nonwitness media as soon as possible at the 1ST Building for the media press conference, where they will relate what they witnessed to the media non-witnesses. The Warden's press conference will follow at about one hour after an execution. No more than thirty minutes after the conclusion of the Warden's press conference, the escorting of all media personnel to the West Gate will begin.

d. Condition for Admittance of News Media Representatives:

1. No "blue jeans" are allowed. "Blue jeans" are defined as any denim trousers colored any shade of blue, black, or grey.

2. Cameras (still and video), recording equipment and other equipment will be allowed, subject to search.

3. All media broadcast vans will be parked in next to the 1ST building. Cameras and recording equipment will only be allowed in the 1ST building and the parking area.

4. Satellite link-up vans may be allowed into the lower staff parking lot next to the visiting lot by prior arrangement.

e. Interviews with Condemned Inmates:

All interviews will be consistent with departmental policy.

f.

Information Releases:

1. The names of the 12 official witness will not be released.

2. The names of execution team members will not be released, nor will they be available for interviews or photographs.

3. The Public Information Officer and Press Secretary, will be responsible for all news releases prior to, during and after an execution and for the developing of all necessary press and information releases.

4. The Warden, with the assistance of the Press Secretary and Public Information Officer, will hold a press conference approximately one hour after a scheduled execution. No other interview will be given by the Warden after the news conference is completed.

13. Execution Chamber Operation

a. Personnel:

Responsibilities:

1. WARDEN: Shall have the overall responsibility for the execution and will work and train closely with all personnel responsible for all phases of the procedure. Shall select the execution team.

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b.
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2. CHIEF DEPUTY WARDEN: Shall be responsible for the security of the institution and will be in command of the Emergency Operations Center (EOC). Shall be in command of CRT and other special security forces.
3. ASSOCIATE WARDEN, UNIT V: Shall accompany the Warden on the day of the scheduled execution into the chamber anteroom.
4. CAPTAIN CENTRAL OPERATIONS: Shall coordinate institutional operations. Responsible for sanitation of visiting areas, lounge areas, and entry road areas.
5. PUBLIC INFORMATION OFFICER: Shall be responsible for all news releases prior to, during, and after an execution.
6. ADMINISTRATIVE ASSISTANT: Shall be responsible for escorting the non-witness media members to the In-ServiceTraining building and providing security for the special media vans. Shall provide assistance to the Public Information Officer as needed.
7. LIEUTENANT IN CHARGE OF THE EXECUTION CHAMBER: Shall be responsible for the direct supervision of the execution team, as well as functioning as a liaison with the Warden. He/she is responsible for necessary security integrity of the chamber areas and related functions. Responsible for the sanitation of chamber and adjacent areas.
8. RECORDER: Shall keep accurate records of time that each phase of the execution takes place.
9. THE DEATH WATCH CELL SERGEANT, LIEUTENANT AND OFFICERS: Are responsible for the security of the condemned inmate throughout the night until execution time, under the direction of the Lieutenant in Charge of the Chamber. If the condemned inmate is female, one of the officers shall be female.
10. WITNESS AREA OFFICERS: Shall station themselves in the witness area during an execution.
11. OTHER EXECUTION TEAM OFFICERS: The other execution team officers shall perform duties as assigned by the Lieutenant in Charge of the Chamber.
Facility:
1. Description of Execution Chamber:
a) The lethal execution chamber for the State of California is a self-contained unit located at the California State Prison at San Quentin. The chamber area consists of the witness area, two (2) holding cells, the chemical room, kitchen/officers' area, anteroom and execution chamber.

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b) The witness area is accessible directly by a door located between the main visiting room and the East Block visiting room. This area can be isolated from the rest of the chamber. Visibility during an execution is through five (5) windows. Capacity of this area is fifty (50) persons.
c) The two (2) holding cells each contain a toilet and sufficient room for a mattress.
d) The chemical room contains storage cabinets, work bench, and two (2) chemical mixing pots as well as pipe work and valves. This room is utilized during executions by lethal gas.
e) The kitchen/officers' area has a small sink, cabinet and counter area as well as a resting area for staff members.
f) The anteroom contains several valves and the chamber immersion lever, used during execution by lethal gas. Access to the witness area, or to North Block is through two (2) separate solid iron doors. Also in this area are the direct telephone lines utilized by staff to remain in contact with the State Supreme Court, Attorney General's office, and EOC.
2. Execution Chamber Maintenance:
a) A constant state of readiness and the proper safe operation of the execution chamber requires periodic inspection and maintenance of the chamber throughout the year.
b) The door to the execution chamber is to remain locked in the open position when not In use or testing.
c) To prevent corrosion, there is a natural draft to exhaust stack which keeps the chamber dry and free of any drain odor. To facilitate draft, keep receptacle drain valves A-5 and B-5 open.
d) Total body fluid precautions will be instituted.
14. Lethal Injection Execution:
a. Chemicals needed for execution:
1. Sodium Pentothal, 6.5 Gm, plus one unopened backup
2. Pancuronium Bromide (Pavulon), 40 mg.
3. Potassium Chloride, 240 mEq.
b. Equipment and Materials:

Lethal Injection Chamber

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c.
Lethal Injection Chamber

1. Ten (10) Syringes, 50 cc 2. Ten (10) Syringes, 20 cc 3. Ten (10) Needles 18 Ga., 1" 4. Five (5) Angiocaths, 20 Ga., 1" 5. Five (5) Angiocaths, 18 Ga., 1" 6. Five (5) Angiocaths, 16 Ga., 1 3/4" 7. Four (4) Normal Saline, IV bags, 1000 cc 8. Two (2) Normal Saline, IV bags, 250 cc 9. Twelve (12) Extension sets, 72" long 10. One (1) Box alcohol preps 11. Four (4) Rolls adhesive tape, 1" 12. Four (4) Rolls adhesive tape, 2" 13. One (1) Pair scissors, Bandage, pr. 14. Six (6) Tourniquets 15. Box gloves, surgical, Size 7, sterile 16. Box gloves, surgical, Size 9, sterile 17. Box Surgical masks 18. Three (3) Flashlights, wlbatteries 19. Six (6) 3 Way Stopcocks 20. Restraint Gear- Department approved leather restraints,
handcuffs and leg irons 21. Cardiac Monitor- Two (2) sets 22. Wall Clocks- Two (2) Inmate Needs: 1. Bed Mattress 2. Blanket 3. Pillow 4. AM/FMRadio 5. Television

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d.
Lethal Injection Chamber

6. Inmate Clothing (3 sets)
7. State issue trousers
8. State issue undershorts
9. State issue undershirt
10. State issue socks
11. State issue blue shirt
12. In the event the condemned is female, clothing consists of brassiere, panties, and blue dress.
Female clothing will be provided by the Central California Women's Facility (and delivered with the condemned female 48 hours prior to actual execution date.)
13. Coffee and/or Approved Drinks (non-alcoholic)
14. Last Dinner Meal (as reasonable as possible)
ASCERTAIN DISPOSITION OF PERSONAL PROPERTY FROM CONDEMNED INMATE AFTER HIS/HER PLACEMENT IN DEATH WATCH CELL (DONATION, MAIL TO RELATIVE, ETC.)
Procedures:
1. Two (2) Weeks Prior to Scheduled Execution:
The Lieutenant in Charge of the Chamber will notify the Warden that the following procedures have been accomplished:
a) Specific staff assignments to the execution detail have been made.
b) Preliminary chamber area readiness and operational testing procedures have been made. Necessary maintenance work will be performed in the presence of the Lieutenant in Charge of the Chamber or his/her designate (Chamber Operator/Chemical Operator.)
c) Ensure the chamber areas have full complements of necessary household and personal needs of the condemned inmate. Ensure all required clothing is ready for use.
d) Ensure log sheets are ready for use.
e) Ensure the direct telephone lines used by the State Supreme Court and Attorney General's office to the chamber are working. Telephone: (See Warden for number.)

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f) Inventory all chemicals and equipment necessary in chamber operation and under proper storage.
2. One (1) Week Prior to Scheduled Execution:
The Lieutenant in Charge of the Chamber will inspect the chamber areas for the following:
a) Ensure all maintenance work requested has been completed and the chamber is ready.
b) Preliminary and operational tests are again performed to ensure readiness of chamber areas.
c) Ascertain all necessary clothing, personal items, overnight detail equipment, etc., are properly available and operational. The Lieutenant in Charge of the Chamber will notify the Warden of this inspection. At this point, all equipment should be operational and functioning properly.
d) All necessary supplies should be in the chamber area or where designated and ready for use.
e) The entire area should be in a high state of cleanliness and ready for outside witnesses.
3. Three (3) Days Prior to Scheduled Execution:
The following procedure will be strictly adhered to without exception:
a) The execution chamber area will be closed to any and all persons not specifically cleared by the Warden. The Lieutenant in Charge of the Chamber and necessary team members are authorized access.
b) All traffic into the chamber areas will be approved by the Lieutenant in Charge of the Chamber, who will directly supervise necessary traffic into the area.
c) The Lieutenant in Charge of the Chamber will conduct a pre-execution inventory and equipment check.
d) Members of the injection team shall conduct an equipment check of all materials necessary to perform the execution.
e) At this time, the Lieutenant in Charge will be responsible for the security of the chamber. A search of all materials that will come into contact with the condemned inmate will be made by the Execution Team. All equipment will be in working order and functioning properly.

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Lethal Injection Chamber

f) All chemicals will be stored under appropriate controls to prevent tampering.

NOTE: In the event the condemned inmate is female, she will be transported from the Central California Women's Facility not earlier than three (3)
days prior to the scheduled execution date. The condemned female will be placed upon arrival in the
overnight cell and necessary coverage and supervision of the condemned inmate as outlined in this procedure for male inmates will be arranged by the Lieutenant in Charge of the Chamber.

4. One (1) Day Prior to Scheduled Execution:

a) Chamber Kitchen:

• Check linen - includes officer cot and sheets, pillow, pillowcase and six (6) towels. Contact the laundry if additional supplies are needed.

• Contact the Food Manager for foodstuffs; fruit, coffee, sugar, milk, and ice.

b) Death Watch Cells:

Thoroughly search cells, depending on number of executions set for the next day.

c) At the appropriate time commensurate with the day and time of the execution:

Lieutenant in Charge of the chamber will contact the Warden for last minute information.

d) At the appropriate time commensurate with the day and time of the scheduled execution:

• In the event the condemned inmate is not in the vIsItmg room, the appropriate number of
supervisory and custody staff as determined by the Associate Warden of Unit V will arrive at the condemned row office. One of the detail officers searches the clothing to be worn by the condemned inmate. The unit lieutenant makes the necessary notation in the condemned row log book. The escort team then enters the condemned tier and proceeds to the cell of the condemned inmate. While in the cell, the inmate is given an unclothed body search and then placed in mechanical restraints. The inmate, wearing his underclothing, is escorted to the holding cell where he is retained pending an unclothed body
search which includes a metal detector scan.

• Following this, he is given a complete new outfit of clothing that was previously searched by the

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Lethal Injection Chamber

officer. This clothing consists of undershirt, shorts, socks, blue jeans, blue shirt, and slippers. All items of clothing are regulation for the institution. After the inmate is clothed, he is placed in restraint equipment. He is then escorted to the elevator via the condemned unit door, by the aforementioned officers, then to the lower floor of the cell block and to the door leading to the death watch cell area. The Chamber Lieutenant will be stationed on the opposite side of the door in the death watch cell area with the necessary key which he passes to the officer through the door aperture. The door is unlocked and the officers responsible for the death watch escort the condemned inmate into one of the cells, and the restraint equipment is removed.

• One officer will be posted at the door leading to the death watch area after the condemned inmate is placed in the cell. This position will be posted during the third watch and first watch preceding the execution.

• Equipment required for this position is one (I) handheld radio and key ring.

• The Lieutenant in Charge of the chamber asks the inmate if he has a spiritual advisor, then informs the condemned inmate of the time his dinner will
be served.

• The Lieutenant informs the inmate that he will return to see him later in the evening, or sooner if the inmate desires. At this point, the inmate is introduced to the sergeant/lieutenant and four (4) officers who will be with him throughout the night. All staff, except the death watch detail, leave the chamber area, and the Lieutenant in Charge of the chamber will report directly to the Warden.

e) At the appropriate time commensurate with the day and time of the scheduled execution:

Dinner is brought to the area by the Public Information Officer. The dinner normally is the meal requested by the inmate insofar as is reasonable and possible to obtain. Coffee and juice are available throughout the night.

f) At the appropriate time commensurate with the day and time of the scheduled execution:

• The inmate is usually visited by the spiritual advisor of his choice and the Warden. The Lieutenant in Charge of the chamber returns
during the evening to check with the death watch

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Lethal Injection Chamber

sergeant/lieutenant and officers and stays as required. He remains on duty through the execution. All visitors in the death watch cell area other than the above mentioned must be approved by the Warden.
• The condemned inmate is allowed reasonable last requests. Normally, these requests include the following:
* Special items of food and soft drinks;
* Special programs on the radio or television
set;
* He will be allowed to walk to the chamber
without assistance, however, waistchains will be applied prior to escorting the inmate to the chamber;
* He will be allowed to send out last letters
and make last phone calls
• Requests, other than normally routine, are processed through the Warden.
• Routine requests are handled by the Lieutenant in Charge of the chamber or the respective Watch Commander on duty.
• The telephone located in the chamber kitchenette is restricted to the Warden, and the Lieutenant in Charge of the chamber.
5. Day of Scheduled Execution:
a) Approximately 5 hours prior to the execution:
The inmate requested spiritual advisor, if not a San Quentin chaplain, may arrive at the death watch cell to remain until approximately 45 minutes before the execution. If the requested spiritual advisor is a San Quentin chaplain, he may visit with the inmate and return later in the evening.
b) Approximately 2 hours prior to the execution, the following procedure will be followed:
• Members of the injection team shall enter the injection room and immediately inventory the supplies and equipment to insure that all is in readiness, and if applicable, obtain re-placement items from the designated locker in the armory.
• The chamber operator and chemical operator arrange the necessary chemicals for the execution

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Lethal Injection Chamber

and commence with the final preliminary tests of the execution chamber.

c) Approximately I hour prior to execution, the following procedure will be followed:

1) The drugs will be obtained from the drug locker under the supervision of the Lieutenant in Charge of the Chamber. The drugs will then be drawn in the following manner:

• 5 Gm of Sodium Pentothal will be mixed thoroughly with the 250 mL bag of Sodium Chloride (saline) by drawing off diluent from the bag to completely mix the Sodium Pentothal. The mixture will then be returned to the bag and mixed with the remaining diluent.

• 1 Gm of Sodium Pentothal will be mixed with the supplied diluent and drawn in a 60 cc syringe. This syringe will be marked as #1 and taped to the drug cart.

• Another 500 mg of Sodium Pentothal will be mixed with the supplied diluent and drawn in a second 60 cc syringe marked as #2 and taped to the drug cart after #1.

• 20 cc of Sodium Chloride (saline) will be drawn in a 60 cc syringe and will be marked "FLUSH" and taped to the drug cart after #2.

• 40 mg of Pancuronium Bromide will be drawn in a 60 cc syringe. The syringe will be marked #3 and taped to the drug cart after the "FLUSH" syringe.

• Finally a total of three 60 cc syringes, each with 80 mEq of Potassium Chloride will be drawn. They will be marked in order #4, #5 and #6 and
will be taped to the drug table after #3.

2) The IV set-up will be prepared.

3) Two (2) IV lines will be hung, one for each arm. Each line will consist of a 1000 ml bag of Sodium Chloride and a 15 drops/mL primary IV set. The primary sets will be connected to the two stopcocks at the injection manifold.. The 250 mL bag that was previously mixed with 5 gm of Sodium Pentothal will be piggybacked to the left arm primary IV set utilizing 38" extension tubing. This tubing will be connected to the primary IV set at the lowest of the two CLAVEs
utilizing the needleless connection. Both IV
lines will then continue from the stopcocks

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Lethal Injection Chamber

through the Chamber wall using two sets of pressure tubing for each IV. After removing all air from the lines, each line will be rolled up neatly, marked "right" and "left" and placed on the ledge inside of the Chamber.

d) Approximately 45 minutes prior to execution, the following procedure will be followed:

• The Warden and physician arrive at the execution chamber via the outside entrance.

• With the order from the Warden, the inmate is then moved into the execution chamber and
secured onto the table. The heart monitor equipment is then connected to the monitor. The physician will verify the heart beat registers on the monitor.

• The following execution procedure is started:

(a) The angiocath shall be inserted into a usable vein by a person qualified, trained, or otherwise authorized by law to initiate such a procedure. The flow of Normal Saline shall be started and administered at a slow rate of flow.

(b) The above procedure shall be repeated on a second usable vein.

NOTE:

At this point, the

administration sets shall be running at

a slow rate of flow, and ready for the

injection of syringes containing the

injection agents. Observation of both

set-ups to insure that the rate of flow

is uninterrupted shall be maintained.

NO FURTHER ACTION shall be

taken until the Warden orders that the

execution shall proceed.

• After the IV is started, team members vacate the chamber.

e) Approximately 10 minutes prior to execution, when the saline solution is flowing, the following procedure will be followed:

• The chamber door is closed by the chamber operator and sealed by the Lieutenant.

• Total anonymity of the team members shall be maintained. At NO TIME shall they be addressed by name, or asked anything that would require an oral response. The members of the

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Lethal Injection Chamber

team shall remove all jewelry and wear long sleeve shirts to cover any identifiable marks, tattoos, or scars.

• The chamber operator shall report or signal to the Warden that everything is ready. At the verbal command of the Warden, the execution will begin by administering the lethal agents which will
continue by intravenous infusion until the inmate is pronounced dead by the physician. Once the inmate is pronounced dead, the Warden should instruct the recorder to communicate the expiration of the inmate to the witnesses in the witness room via the port in the anteroom door.

f) When the Signal to Commence is Given By the Warden:

• The Luer Lock tip of Syringe #1 (Sodium Pentothal) shall be locked on to the stopcock, running to the right arm. After the stopcock is manipulated, the injection shall commence. A steady even flow of the injection shall be maintained with only a minimum amount of force applied to the syringe plunger. When the entire contents of the syringe have been injected;

• The stopcock is manipulated allowing the Normal Saline to continue to flow and syringe #1 is
removed from the stopcock.

• The Luer Lock tip of Syringe #2 (Sodium Pentothal) shall be locked onto the stopcock, the stopcock manipulated, and the injection shall commence. A steady, even flow of the injection shall be maintained with only a minimum amount of force applied to the syringe plunger. After the entire contents of the syringe have been injected, the CAIR clamp to the 250 ml bag containing the 5 gm of Sodium Pentothal will be opened and an IV drip of a minimum of 75 drips per minute will be set allowing a continuous flow of Sodium Pentothal) to the left IV. After the drip is set:

(a) The syringe of normal saline marked "FLUSH" shall be locked on to the right stopcock, the stopcock manipulated, and the entire contents injected to flush the line. After the stop cock manipulation;

(b) The "FLUSH" syringe shall be removed and syringe #3 containing the Pancuronium Bromide shall be locked on. After stopcock manipulation, the entire contents shall be injected with slow even pressure on the plunger.

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(c) After stopcock manipulation, syringe

#4 containing Potassium Chloride

shall be locked on, the stopcock

manipulated, and the entire contents

injected.

After stopcock

manipulation, syringe #5 containing

Potassium Chloride shall be locked

on, the stopcock manipulated, and the

entire contents injected. After

stopcock manipulation, syringe #6

containing Potassium Chloride, shall

be locked on, the stopcock

manipulated, and the entire contents

injected.

• Upon completion of the injections, or at such earlier time as may be appropriate, the physician shall pronounce death. After the announcement of the completion of the execution, the witnesses will be escorted from the chamber.

g) Post Execution Procedure:

1). Under the supervision of the Lieutenant in Charge of the chamber, the body shall be removed with care and dignity and placed in a body bag. The body bag shall remain in the chamber area pending removal as prearranged with San Quentin's contract mortuary.

2). The chamber should then be cleaned thoroughly. Between uses, the chamber door and the air intake manifold valve and the exhaust chamber should all be left in accordance with separate instructions for care of same.

3). Any unused drugs or supplies will be returned to the pharmacy.

S. W. ORNOSKI Warden (A)
APPROVED/DISAPPROVED

Date Signed

JOHN DOVEY Director Division of Adult Institutions
EXECUTEI77016-4-97.DOC
Lethal Injection Chamber

Date Signed
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 Case 5:06-cv-00219-JF Document 131 Filed 04/06/2006 Page 1 of 18

1 David A. Senior (# 108759) McBreen & Senior
2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
3 Phone: (310) 552-5300 Fax: (310) 552-1205
4 dsenior@mcbreensenior.com

5 John R. Grele (# 167080) Law Offices of John R. Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP
10 One IBM Plaza Chicago, IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Attorneys For Plaintiff MICHAEL ANGELO MORALES

14

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

SAN JOSE DIVISION

16 MICHAEL ANGELO MORALES,

) Case No. C 06-0219 (JF) (RS)

17

)

Plaintiff,

)

18

) SECOND AMENDED COMPLAINT

) FOR EQUITABLE AND INJUNCTIVE

19

) RELIEF [42 U.S.C. § 1983]

v.

)

20

)

JEANNE WOODFORD, Acting Secretary of )

21 the California Department of Corrections;

)

22

EDDIE YLST, Acting Warden, San Quentin State Prison, San Quentin, CA; and DOES 1-50,

) )

23

)

Defendants.

)

24

)

25

26

27

28

1

SECOND AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case no. 06-219 (JF)(RS)

Case 5:06-cv-00219-JF Document 131 Filed 04/06/2006 Page 2 of 18

1

NATURE OF ACTION

2 1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of

3 the right of plaintiff to be free from cruel and unusual punishment under the Eighth and Fourteenth

4 Amendments of the United States Constitution. Plaintiff seeks temporary, preliminary, and

5 permanent injunctive relief to prevent the defendants from executing plaintiff by means of lethal

6 injection, as that method of execution is currently used in California. Plaintiff contends that lethal

7 injection, as performed in California, unnecessarily risks infliction of pain and suffering. Plaintiff

8 further contends that the use of pancuronium bromide, a paralytic agent that acts as a chemical veil

9 over the lethal injection process, disguises the pain and suffering to which he will be subjected.

10 Plaintiff additionally contends that defendants, as a result of their deliberate failure to use medically

11 approved procedures and properly trained personnel, have inflicted pain and torture on several

12 executed prisoners in the past, making plaintiff certain he will suffer the same fate unless defendants

13 adopt a humane and safe execution protocol.

14

JURISDICTION AND VENUE

15 2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), § 1343 (civil

16 rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This action arises under the

17 Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983.

18 3. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that plaintiff is currently incarcerated at

19 San Quentin State Prison (“San Quentin”) in San Quentin, California, located in this District. All

20 executions conducted by the State of California (“State”) occur at San Quentin. The events giving

21 rise to this complaint have occurred and will occur in this District.

22

23

THE PARTIES

24 4. Plaintiff Michael Angelo Morales is a United States citizen and a resident of the State. He is

25 currently a death-sentenced prisoner under the supervision of the California Department of

26

27

28

2
SECOND AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

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Case 5:06-cv-00219-JF Document 131 Filed 04/06/2006 Page 3 of 18

1 Corrections and Rehabilitation (CDCR). He is held at San Quentin State Prison, San Quentin,

2 California, 94974.

3 5. Defendant Jeanne Woodford is the Acting Secretary of the CDCR.

4 6. Defendant Eddie Ylst is the Acting Warden of San Quentin State Prison, where the plaintiff is

5 incarcerated and where the plaintiff’s execution is scheduled to occur.

6 7. Plaintiff is ignorant of the true names of Does 1-50 but alleges that they have or will

7 participate in plaintiff’s execution by virtue of their roles in designing, implementing, and/or carrying

8 out the lethal injection process. When plaintiff discovers the Doe Defendants’ true identities, he will

9 amend his complaint accordingly.

10

GENERAL ALLEGATIONS

11 8. On January 6, 2006, the clerk of the Superior Court of Ventura County issued a Notice of

12 Public Session in the case of People v. Morales, No. CR 17960, scheduling a public session on

13 January 18, 2006 for the purpose of the setting of the date of execution of judgment of death of

14 February 21, 2006.

15 9. Under California law, death sentences shall be carried out by “administration of a lethal gas

16 or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause

17 death, by standards established under the direction of the Department of Corrections.” Cal. Penal

18 Code § 3604(a). The statute prescribes no specific drugs, dosages, drug combinations, or the manner

19 of intravenous line access to be used in the execution process; nor does the statute prescribe any

20 certification, training, or licens ure required of those who participate in the execution process. All of

21 the details of the execution process are to be determined by the CDCR.

22 10. The CDCR has decided to execute plaintiff by poisoning him with a lethal combination of

23 three chemical substances: sodium pentothal, a short-acting barbiturate; pancuronium bromide, which

24 paralyzes all voluntary muscles; and potassium chloride, an extremely painful chemical which

25 activates the nerve fibers lining the prisoner’s veins and interferes with the heart’s contractions,

26 causing cardiac arrest.

27

28

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1 11. In performing plaintiff’s execution by lethal injection, the CDCR will follow the protocol

2 established in San Quentin Operational Procedure No. 770, as well as certain practices not delineated

3 in the protocol. The protocol and actual practice by which lethal injection executions are performed

4 under Procedure No. 770 violates constitutional and statutory provisions enacted to prevent cruelty,

5 pain, and torture.

6 12. The absence of standardized procedures for administration of the chemicals, the lack of

7 qualifications of the personnel involved in the process, and the combination of the three particular

8 chemicals used in Procedure No. 770 create a grave and substantial risk that plaintiff will not be

9 adequately unconscious during the execution process and, as a result, will experience an

10 excruciatingly painful and protracted death. This risk has been realized in at least six of the previous

11 seven executions and in nine executions total.

12 13. Procedure No. 770 lacks medically necessary safeguards, thus increasing the risk that plaintiff

13 will suffer unnecessary pain during the lethal injection process. For example, there is no

14 standardized administration of each of the three chemicals. The protocol identifies no procedures for

15 ensuring that the anesthetic agent is properly flowing into the prisoner, and it identifies no procedures

16 for ensuring that the prisoner is properly sedated prior to the administration of the lethal chemicals as

17 would be required in any medical or veterinary procedure before the administration of a

18 neuromuscular blocking agent, such as pancuronium bromide, or the administration of a painful

19 potassium chloride overdose.

20 14. The protocol established in Procedure No. 770 does not establish any minimum qualifications

21 or expertise required of the personnel who perform all of the tasks in the lethal injection process, and

22 none exist. There are no guidelines or customary procedures upon which these personnel can rely if

23 they are required to exercise their discretion dur ing the process. There is no plan in place if the

24 plaintiff requires medical assistance during the execution.

25 15. Sodium pentothal, in an ordinary clinical dose, is a very short-acting barbiturate that is

26 usually administered only during the preliminary phase of anesthesia administration. There is a

27

28

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1 reasonable likelihood that sodium pentothal will be ineffectively delivered, given the inadequacy of

2 the administration procedures, the personnel involved , and will not provide a sedative effect for the

3 duration of the execution process. This has actually occurred in many California executions.

4 Without adequate sedation, plaintiff will experience excruciating pain as a result of the conscious

5 asphyxiation caused by pancuronium bromide and the painful internal burn and cardiac arrest caused

6 by a potassium chloride overdose.

7 16. The American Veterinary Medical Association (AVMA) states that when potassium chloride

8 is used for euthanasia, it is extremely important for the personnel who perform euthanasia to be

9 trained and knowledgeable in anesthetic techniques and competent in assessing the anesthetic depth

10 appropriate for potassium chloride administration, a depth at which animals are in a surgical plane of

11 anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of

12 response to noxious stimuli. California law requires non- veterinary personnel who perform animal

13 euthanasia to undergo strict training by a veterinarian and/or a registered veterinary technician who

14 specializes in anesthesia. The Department of Correction’s lethal injection protocol under Procedure

15 No. 770 includes no comparable requirement No such training in fact occurs.

16 17. The AVMA also employs a longer- lasting barbiturate, sodium phenobarbital, for animal

17 euthanasia. The CDCR’s use of sodium pentothal exacerbates the risk of error created by its

18 deficient protocol because sodium pentothal is extremely volatile, short-acting, and sensitive to

19 human error.

20 18. Pancuronium bromide, the second chemical administered in the lethal injection process,

21 paralyzes voluntary muscles, including the diaphragm, but it does not affect consciousness or the

22 perception of pain. A similar paralytic agent has been used by CDCR in the past to torture prisoners

23 as part of its behavioral modificatio n programs. Pancuronium bromide, administered by itself as a

24 “lethal dose,” would not result in a quick death; instead, it would cause someone to suffocate to death

25 while still conscious. The use of pancuronium bromide as administered under the CDCR’s lethal

26 injection protocol increases the risk that the use of this chemical, in combination with the initial dose

27

28

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1 of sodium pentothal, will result in plaintiff being paralyzed but aware of pain and suffering death

2 from the burning veins and heart failure caused by the administration of the potassium chloride.

3 Pancuronium bromide unnecessarily increases the risk that a prisoner will be paralyzed during the

4 injection of an extremely painful drug, aware of this pain, yet be entirely unable to inform the

5 attendants of his condition. Without the use of pancuronium bromide, a prisoner would be able to

6 indicate that he was still conscious or had regained consciousness or awareness prior to the

7 administration of potassium chloride. Properly trained personnel would be able to assess

8 unconsciousness, which they at present cannot and do not do. This is particularly crucial because the

9 CDCR’s protocol indicates that the prisoner will be alone in a room when he is executed, making it

10 impossible to determine whether a prisoner is aware of or feeling pain at the time the pancuronium

11 bromide is administered, or if the administration causes the prisoner to become able enough to sense

12 the pain from pancuronium bromide and, then, potassium chloride.

13 19. The AVMA states that a combination of a barbiturate and a neuromuscular blocking agent

14 such as pancuronium bromide, a combination similar to that called for by Procedure No. 770, is not

15 an acceptable euthanasia method for animals when used alone.

16 20. Because the CDCR’s protocol calls for the potassium chloride to be administered in a lethal

17 dose, the use of pancuronium bromide serves no purpose in the execution process. It is completely

18 unnecessary in the lethal injection process and only serves to mask any pain or suffering that the

19 plaintiff may experience.

20 21. Pancuronium bromide could not lawfully be used alone as the fatal agent because causing

21 death by suffocation violates the Eighth Amendment’s prohibition against cruel and unusual

22 punishment.

23

24

THE DEVELOPMENT OF THE CURRENT VERSION OF PROCEDURE NO. 770

25 22. The version of Procedure No. 770, under which defendants originally intended to execute

26 plaintiff, was adopted without any medical research or review to ensure that a prisoner would not

27

28

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1 suffer a painful death. No member of the medical community was involved in its adoption. The

2 procedure was adopted by the former Warden of San Quentin, Daniel Vasquez, after observing two

3 executions in Texas, without any further input from or consultation with medical personnel. The

4 procedure was not subsequently subject to any review by medical professionals or other persons

5 qualified to assess it to determine if it was an appropriate procedure or if it was being administered in

6 a manner that either caused or prevented unnecessary infliction of pain and suffering. In fact,

7 evidence demonstrated that Procedure No. 770 as administered was not properly sedating executed

8 inmates, as a result of which they were aware of and suffering from pain. Defendants knew this, yet

9 undertook no appropriate review or revisions of their procedures.

10 23. On February 14, 2006, the District Court for the Northern District of California found that

11 plaintiff had raised “substantial questions” that the 2003 protocol “creates an undue risk that plaintiff

12 will suffer excessive pain when he is executed.” Order Denying Conditionally Plaintiff’s Motion for

13 Preliminary Injunction, at 13 (February 14, 2006). The Court therefore suggested that defendants

14 “conduct a thorough review of the lethal- injection protocol, including, inter alia, the manner in which

15 the drugs are injected, the means used to determine when the person being executed has lost

16 consciousness, and the quality of contemporaneous records of executions, such as execution logs and

17 electrocardiograms. . . . A proactive approach by Defendants would go a long way towards

18 maintaining judicial and public confidence in the integrity and effectiveness of the protocol.” Id. at

19 12-13.

20 24. In light of the substantial possibility that Plaintiff would suffer excruciating pain as he was

21 executed, the Court held that Defendants could proceed to execute Plaintiff only if they implemented

22 one of two proposed modifications of the execution procedure. Id. at 13-14. Defendants could either

23 certify that they would execute Plaintiff using only sodium pentothal or another barbiturate; or

24 procure the assistance of anesthesiologists to provide “independent verification” that Plaintiff was in

25 fact unconscious prior to the administration of the pancuronium bromide and potassium chloride. Id.

26 at 13-15.

27

28

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1 25. Defendants first opted to employ anesthesiologists to “ensure that [Plaintiff] [was]

2 unconscious at all times following the administration of sodium thiopental.” Final Order Re

3 Defendants’ Compliance with Conditions, at 4 (February 16, 2006). Those anesthesiologists

4 withdrew from the execution, however, upon learning that, in accordance with the District Court’s

5 orders, they would “have the authority,” and would in fact be required to, “take all medically

6 appropriate steps – either alone or in conjunction with the injection team – to immediately place or

7 return Morales into an unconscious state or otherwise alleviate the painful effects of either or both the

8 pancuronium bromide or potassium chloride.” Opinion of February 19, 2006, at 13 (9th Cir.).

9 Defendants failed to advise the anesthesiologists of this and, in fact, misrepresented the Court’s

10 orders to the anesthesiologists, who became aware of the orders only at the last minute. Because the

11 anesthesiologists then refused to participate, Defendants did not go forward with the scheduled 12:01

12 a.m. execution on February 21, 2006.

13 26. Later that day, Defendants returned to the District Court and sought permission to perform

14 the execution at 7:30 p.m. on February 21, 2006, using the other alternative offered by the District

15 Court, administration of a lethal dose of sodium thiopental or other barbiturate. The Court issued an

16 order allowing the execution to proceed so long as “sodium thiopental [was] injected in the execution

17 chamber directly into the intravenous cannula by a person or persons licensed by the State of

18 California to inject medications intravenously.” Order on Defendants’ Motion to Proceed with

19 Execution, at 3 (February 21, 2006). Defendants declined to comply with the Court’s order, and the

20 execution did not go forward.

21 27. Because Defendants did not comply with either of the two conditions set forth in the Court’s

22 Orders, by the terms of the February 14, 2006 Order, a stay of execution automatically was entered

23 on February 21, 2006.

24 28. Following the events of February 21, 2006, Defendants modified the execution protocol, and

25 these modifications were incorporated in a new version of Procedure No. 770, dated March 6, 2006.

26 According to Defendants, the changes to the protocol were made after consultation with unidentified

27

28

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1 “court experts,” and in part reflected deviations from the 2003 version of the protocol that had been

2 sanctioned by the Defendants but had not previously been formally adopted as revisions to the

3 protocol, or recorded in the contemporaneous records of executions.

4 29. The new version of Procedure No. 770, as well as Defendants’ actual practice in following the

5 new version, is substantially similar to the 2003 version in all material respects relating to the manner

6 in which the chemicals are administered. The new version employs the same three chemicals,

7 injected in the same sequence, but uses a lower initial dose of sodium pentothal, a lower dose of

8 pancuronium bromide, and a higher dose of potassium chloride. The only material difference

9 between the 2003 version of the protocol and the 2006 version is that, in addition to an initial bolus

10 dose of 1.5 grams of sodium pentothal, the new version provides that a continuous drip of five grams

11 of sodium pentothal shall be begun in a second IV line after the initial dose of sodium pentothal is

12 administered. Shortly after the drip is begun, a saline flush is sent through the first IV line and the

13 pancuronium and potassium are injected.

14 30. The new version of Procedure No. 770 utterly fails to address the “substantial questions”

15 raised by Plaintiff, and recognized by the District Court, regarding the significant risk that Plaintiff

16 will suffer excruciating pain during the execution. Among other things, the new version of Procedure

17 No. 770, like the 2003 version, fails to provide any procedure for ensuring that the inmate is in an

18 appropriate surgical plane of anesthesia prior to the administration of the pancuronium bromide; fails

19 to provide for any training to be given to the injection personnel; fails to require any level of

20 experience or other qualifications for such personnel; fails to ensure that an adequate dose of

21 anesthesia is able to reach the prisoner; and fails to provide procedures for obtaining IV access

22 should the inmate have unusable peripheral veins. Moreover, because the design of the execution

23 chamber remains the same, and the new version of the protocol makes no material changes in the

24 equipment used to administer the drugs, the new version does not alleviate the need to use multiple

25 IV extensions or other conditions that have caused the drug administration problems that plagued the

26 previous executions.

27

28

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1 31. Indeed, the new version of Procedure No. 770 is even more deficient than the old version.

2 The additional deficiencies include, but are not limited to, the fact that the new version provides that,

3 much less sodium pentothal will be administered to the inmate, even assuming proper administration

4 by the execution team resulting in the full dose of pentothal reaching the prisone r. This significantly

5 decreased dose of sodium pentothal drastically lowers the margin of error in administering the

6 anesthesia and increases the probability that the inmate will not be placed in an appropriate surgical

7 plane of anesthesia.

8 32. Defendants ha ve deliberately chosen to lower the dose of anesthetic in the belief that the

9 previously used five-gram dose of sodium pentothal rendered inmates “too unconscious” for the

10 potassium chloride to cause death as quickly as it would otherwise. Moreover, by their own

11 admission, Defendants are deliberately increasing the risk of excessive suffering in order to ensure

12 that executions are carried out as quickly as possible.

13 33. Defendants’ failure to address the substantial questions as to the significant risk of

14 excruciating pain created by the original version of Procedure No. 770, even after the experience of

15 several recent executions during which indicia of inadequate sedation were present, and even after

16 the District Court recognized the seriousness and substantial nature of the risk, amounts to conscious

17 disregard of Plaintiffs’ constitutional right to be free from cruel and unusual punishment. Indeed,

18 Defendants have purposefully rendered the execution procedure more dangerous without any rational

19 reason for doing so.

20 34. Defendants’ creation of the new version of Procedure No. 770 in the space of a mere thirteen

21 days, without consultation with any members of the medical community or other experts – besides

22 the unnamed “court experts” – further evidences Defendants’ deliberate disregard of Plaintiff’s

23 Eighth Amendment rights. Defendants flagrantly ignored the District Court’s suggestion that they

24 conduct a “thorough” review of the execution procedures; no such review could have been conducted

25 in such a short time and none was. As a result, Defendants have substituted a new version of

26

27

28

10
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1 Procedure No. 770 that simply perpetuates the deficiencies in the previous version and exacerbates

2 the already-significant risk of inadequate anesthesia.

3

4

COUNT I

5

VIOLATION OF RIGHT TO BE FREE FROM CRUEL AND UNUSUAL

PUNISHMENT PURSUANT TO THE EIGHTH AND FOURTEENTH

6

AMENDMENTS TO THE UNITED STATES CONSTITUTION

(42 U.S.C. § 1983) 7

35. Plaintiff realleges and incorporates by reference the allegations contained in paragraphs 1 8

through 34. 9

36. Defendants Jeanne Woodford, Eddie Ylst, and Doe Defendants are acting under color of 10

California law in causing to be administered to plaintiff chemicals that will cause unnecessary pain in 11

the execution of a sentence of death, thereby depriving plaintiff of his rights under the Eighth and 12

Fourteenth Amendments to be free from cruel and unusual punishment, in violation of 42 U.S.C. 13

§ 1983. 14

37. The CDCR’s Procedure No. 770, which specifies the State’s lethal injection protocol, and the 15

Defendants’ actual practice of implementing the protocol violates plaintiff’s rights under the cruel 16

and unusual punishment clause of the Eighth Amendment because (a) the protocol creates the 17

unreasonable and unacceptable risk of unnecessary physical and psychological pain; (b) the protocol 18

does not comport with contemporary norms and standards of society; and (c) the protocol offends the 19

dignity of the person and society. 20

38. The CDCR’s lethal injection protocol requires utilization of three dangerous chemicals but 21

does not ensure that the personnel entrusted with the lethal injection procedure possess the proper and 22

necessary training, experience, or expertise to administer those drugs. Moreover, the protocol fails to 23

provide specific guidelines for the administration of the three separate chemicals, which is an 24

essential requirement for their proper administration. 25

39. Procedure No. 770 contains no description of the training, credentials, certifications, 26

experience, or proficiency required of any personnel involved in the administration of the lethal 27

28

11
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1 injection procedure, notwithstanding the fact that it is a complex medical procedure requiring a great

2 deal of expertise in order to be performed correctly. For example, Procedure No. 770 does not

3 require at the execution the presence of any personnel who possess sufficient expertise to insert an

4 intravenous line properly in all situations, determine if there is a blockage in the intravenous line, or

5 evaluate whether a prisoner is properly sedated before proceeding with the painful parts of the

6 execution process. Nor is it Defendants’ actual practice to require the participation of such

7 personnel.

8 40. The absence of such trained personnel greatly increases the risk that a prisoner would not

9 receive the necessary amount of anesthetic prior to being paralyzed by the pancuronium bromide and

10 then experience the painful internal burn of the potassium chloride. The execution logs of California

11 prisoners suggests that many executed prisoners did not receive enough sedative prior to the

12 administration of pancuronium bromide. Moreover, toxicology reports from prisoners executed by

13 other states suggest that some prisoners likely remained conscious during the administration of lethal

14 drugs, which could have occurred because of improper insertion of the intravenous line, an

15 unrecognized blockage in the line, or various other reasons. The factors contributing to the

16 likelihood that prisoners in other states were executed while conscious are present in Procedure 770

17 and the actual practice of CDCR in implementing it.

18 41. Inducing and maintaining a sufficient level of unconsciousness by correctly administering

19 sodium pentothal is indispensable to preventing the wanton infliction of unnecessary pain when the

20 potassium chloride overdose is administered. Procedure No. 770, however, does nothing to ensure

21 such a level of unconsciousness and does not require the preparation of backup syringes of sodium

22 pentothal. Nor does the protocol provide guidelines for ensuring that an inmate is deeply

23 anesthetized prior to injecting the second two drugs, or establish procedures for determining when an

24 additional dose of sodium pentothal should be administered.

25 42. The CDCR’s lethal injection protocol and practices fail to address any reasonably foreseeable

26 complications with any appropriate medical response. Moreover, the protocol and practices include

27

28

12
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1 no safeguards that would protect the prisoner in the event a stay of execution is entered or a reprieve

2 granted immediately before or after the lethal injection process has begun. Thus, the protocol and

3 actual practices fail to provide any protections to prevent a prisoner from being wrongly executed

4 should a reprieve or stay be granted after the process has begun but before death has occurred.

5 43. At any time before the potassium chloride is administered, the prisoner could be readily

6 resuscitated if trained personnel and routine resuscitation medication and equipment were present at

7 the execution site. Even after the potassium chloride is administered, resuscitation would still be

8 possib le, although admittedly it would be more challenging. Any resuscitation, however, would

9 require the close proximity of the necessary equipment, medication, and properly trained personnel.

10 The omission of such personnel and equipment under the protocol set forth in Procedure No. 770

11 further undermines the constitutionality of the procedure.

12 44. Although it is possible to conduct executions in a constitutionally compliant manner, the

13 Department of Corrections has deliberately chosen not to do so. As demonstrated by the events of

14 February 21, 2006, the CDCR could choose to use different chemicals that do not cause pain and

15 therefore do not carry extraordinarily grave consequences to a condemned inmate if not properly

16 administered. Instead, the CDCR has knowingly and recklessly chosen to use chemicals that will

17 subject the inmate to excruciating pain in the likely event of administration error. Moreover, it has

18 not taken precautions to ensure that the personnel who administer the lethal injection chemicals

19 possess the training, experience, and expertise needed to administer those chemicals properly. Thus,

20 while it is possible for the CDCR to choose different lethal injection chemicals and/or retain qualified

21 personnel to administer its chosen chemicals in order to ensure the constitutionality of its lethal

22 injection procedure, the CDCR purposefully has not done so.

23 45. These numerous deficiencies in the CDCR’s lethal injection protocol are the direct result of

24 Defendants’ conscious disregard of the significant risk that the execution procedure will result in the

25 wanton and unnecessary infliction of extreme pain.

26

27

28

13
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1

COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

2 46. The use of pancuronium bromide under the protocol established in Procedure No. 770 to

3 paralyze plaintiff greatly increases the risk that an inadequately sedated prisoner will be subjected to

4 a painful and protracted death, and will in fact cause such an unnecessarily painful death. Moreover,

5 it serves no legitimate penological purpose.

6 47. Pancuronium bromide does not play a legitimate role in killing the condemned person. The

7 execution protocol provides that potassium chloride kills the condemned. The administration of

8 pancuronium bromide cannot be justified on the grounds that the drug paralyzes the breathing

9 muscles because death by asphyxiation is itself a form of cruel and unusual punishment under the

10 Eighth Amendment.

11 48. If pancuronium bromide is administered, paralyzing plaintiff during the execution procedure,

12 he will have no alternative “reasonable and effective means of communication” to communicate that

13 he was not properly anesthetized because he will be dead at the conclusion of the procedure.

14 49. Enjoining the administration of pancuronium bromide will have no appreciable impact on

15 California correctional institution procedures. If anything, it will simplify the execution process by

16 eliminating one step in the process.

17 50. The question of whether there exist readily available alternatives to pancuronium bromide is

18 not an issue in this case because paralyzing a condemned inmate in the execution process is not a

19 legitimate penological goal.

20 51. The Ninth Circuit and this Court have previously held that Defendants and their predecessors,

21 in order to forestall discussion and criticism of California’s lethal injection procedure, have

22 implemented restrictions on the execution process in order to prevent witnesses from being aware of

23 complications experienced during the procedure.

24 52. The Department of Correction’s failure to require sufficient training, credentials, certification,

25 experience, or proficiency of the personnel involved in the administration of the lethal injection

26 procedure greatly increases the risk that a prisoner will experience excruciating pain as a result of the

27

28

14
SECOND AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case no. 06-219 (JF)(RS)

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1 suffocation caused by the pancuronium bromide and the painful internal burn and cardiac arrest

2 caused by a potassium chloride overdose. Employing untrained personnel to perform executions

3 exacerbates the risks created by the deficiencies in the protocol and the methods and circumstances of

4 drug administration, because untrained personnel will be unable to react to and remedy problems that

5 arise during an execution. Allowing untrained personnel to develop deviations from the protocol that

6 become customary practices also increases the risk of inhumane executions due to the lack of vetting

7 by qualified experts and the danger that execution team turnover will lead to confusion as to how to

8 perform the execution.

9 53. Allowing personnel who lack sufficient training, credentials, certification, experience, or

10 proficiency to conduct the lethal injection procedure does not play a legitimate role in killing the

11 condemned person. Suffocation while inadequately sedated or otherwise aware, as caused by the

12 administration of pancuronium bromide, violates the Eighth Amendment because death by

13 asphyxiation is itself a form of cruel and unusual punishment. Similarly, internal burning and cardiac

14 arrest while insufficiently sedated or otherwise aware, as caused by a potassium chloride overdose,

15 constitute unnecessary physical and psychological pain in violation of the Eighth Amendment.

16 54. If plaintiff suffers unnecessary pain, he will have no alternative “reasonable and effective

17 means of communication” to communicate the fact that he was not properly anesthetized because he

18 will be unable to do so and the pancuronium bromide will paralyze him and he will be dead at the

19 conclusion of the procedure.

20 55. Enjoining the administration of the lethal injection procedure by personnel who lack

21 sufficient training, credentials, certification, experience, or proficiency will have no appreciable

22 impact on the correctional institution.

23 56. The question of whether there exist readily available alternatives to requiring personnel who

24 possess sufficient training, credentials, certification, experience, or proficiency to conduct the lethal

25 injection procedure is not an issue in this case because causing a prisoner who has not been properly

26 anaesthetized as a result of administration error to experience excruciating pain from the conscious

27

28

15
SECOND AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case no. 06-219 (JF)(RS)

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1 suffocation caused by pancuronium bromide and the painful internal burn and cardiac arrest caused

2 by a potassium chloride overdose is not a legitimate penological goal.

3

EXHAUSTION ALLEGATIONS

4 57. On January 9, 2006, plaintiff filed an inmate appeal on CDC Form 602 alleging that his

5 execution under the lethal injection protocol of the California Department of Corrections would

6 constitute cruel and unusual punishment. Plaintiff asked that his appeal be processed as an

7 emergency appeal pursuant to 15 Cal. Code Regs. § 3084.7 on the ground that the State of California

8 shortly intended to seek his execution date. On or about January 27, 2006, the Director’s Level

9 Appeal Decision was issued, which stated that “no further relief shall be afforded the appellate at the

10 Director’s Level of Review.” The decision stated that “This decision exhausts the administrative

11 remedy available to the appellant within CDCR.”

12 58. Notwithstanding his filing of an appeal on CDC Form 602, Plaintiff is not required to exhaust

13 administrative remedies before bringing this claim because resolution of the grievance seeking

14 modification of Procedure No. 770 is not possible through the appeal process and exhaustion is futile.

15 59. On November 24, 2004, Donald J. Beardslee, San Quentin Inmate No. C-82702, raised a

16 challenge similar to plaintiff’s claim here when he filed two inmate appeals on CDC Form 602

17 alleging that the Department of Correction’s lethal injection procedure violated his rights under the

18 First and Eighth Amendments to the United States Constitution. After being considered on an

19 emergency basis, the appeals were first denied by the Warden and then denied by the Director of the

20 Department of Corrections on Third Level Review. In denying Beardslee’s appeal, the Director’s

21 Level Appeal Decision stated that Beardslee’s “sentence and penalty were established by court in

22 California; therefore relief at the Director’s Level of Review cannot be afforded the appellant.”

23 Administrative review therefore cannot resolve any of the issues raised in plaintiff’s appeal.

24 60. Moreover, pursuit of administrative review is futile for additional reasons. In subsequent

25 proceedings in Beardslee’s case, the Court of Appeals for the Ninth Circuit observed that “by

26 regulation the California Department of Corrections does not permit challenges to anticipated

27

28

16
SECOND AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case no. 06-219 (JF)(RS)

Case 5:06-cv-00219-JF Document 131 Filed 04/06/2006 Page 17 of 18

1 action[s]. 15 Cal. Code Regs. § 3084.3(c)(3).” Beardslee v. Woodford, 395 F.3d 1064, 1069 (9th

2 Cir. 2005). Thus, no administrative challenge to the lethal injection protocol is possible here.

3 61. Plaintiff’s challenge to the lethal injection protocol that the Department of Corrections intends

4 to use to execute him is ripe for adjudication now.

5

PRAYER FOR RELIEF

6

WHEREFORE, Michael Angelo Morales prays for:

7

1.

Temporary, preliminary, and permanent injunctive relief to enjoin the defendants,

8 their officers, agents, servants, employees, and all persons acting in concert with them from

9 executing plaintiff by lethal injection using Procedure No. 770 and the practices associated with the

10 protocol;
11
2. 12

In the event that Procedure No. 770 is not enjoined in its entirety as violating the

13 Eighth and Fourteenth Amendments, temporary, preliminary, and permanent injunctive relief to

14 enjoin defendants, their officers, agents, servants, employees, and all persons acting in concert with

15 them from administering pancuronium bromide and potassium chloride during the execution process;

16

3.

In the event that Procedure No. 770 is not enjoined in its entirety as violating the

17 Eighth and Fourteenth Amendments, temporary, preliminary, and permanent injunctive relief to

18 enjoin defendants, their officers, agents, servants, employees, and all persons acting in concert with

19 them from allowing personnel who lack sufficient training, credentials, certification, experience, or

20 proficiency to conduct the lethal injection procedure;

21

4.

Reasonable attorneys’ fees pursuant to 42 U.S.C. § 1983 and the laws of the United

22

States; 23

24

5.

Costs of suit; and

25

6.

Any such other relief as the Court deems just and proper.

26

27

28

17
SECOND AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case no. 06-219 (JF)(RS)

Case 5:06-cv-00219-JF Document 131 Filed 04/06/2006 Page 18 of 18

1

MICHAEL ANGELO MORALES

2

3

4

5

6

7

Dated: April 6, 2006 8

David A. Senior (# 108759) 9 McBreen & Senior

1880 Century Park East, Suite 1450 10 Los Angeles, CA 90067

11

Phone: (310) 552-5300 Fax: (310) 552-1205

12 dsenior@mcbreensenior.com

By:__________________ John R Grele

13 John R. Grele (# 167080) Law Offices of John R. Grele

14 703 Market Street, Suite 550

San Francisco, CA 94103 15 Phone: (415) 348-9300

16

Fax: (415) 348-0364 jgrele@earthlink.net

17 Richard P. Steinken (admitted pro hac vice)
18 Janice H. Lam (admitted pro hac vice) Stephanie L. Reinhart (admitted pro hac vice)
19 Jenner & Block LLP One IBM Plaza
20 Chicago, IL 60611-7603
Phone: (312) 923-2938 21 Fax: (312) 840-7338
22 rsteinken@jenner.com

23 Ginger D. Anders (admitted pro hac vice) Jenner & Block LLP
24 601 Thirteenth Street, NW Suite 1200 South
25 Washington DC 20005-3823
Phone: (202) 639-6000 26 Fax: (202) 639-6066
27 ganders@jenner.com

28

18
SECOND AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case no. 06-219 (JF)(RS)

 
 Case 5:06-cv-00219-JF Document 149 Filed 04/27/2006 Page 1 of 5

, David A. Senior (# \08579) McBreen & Senior
, 1880 Century Park East, Suite 1450 Los Angeles, California 90067
• Telephone: (310) 552·5)00 dscnjQrtimcbrecnseniQ[ com
• lohn R. Grele (/# 167080)
• Law Offices of John R. Orele , 703 Market Street, Suite 550
• San Francisco, California 94103 Telephone: (415) 348-9300
.• jgrclc'ij'cW1bljnk net Richard p, Steinken (admmedpro hac viet)
" Jenner & Block LLP One IBM Plaza
" Chicago, Illinois 6061 J.7603 " Telephone: (312) 923·2938
rs!ejokenr(jljenncr,com
" " Attorneys for Plaintiff
MICHAEL ANGELO MORALES
"
" Dane R. Gilleue
Senior Assistant Attorney General
" SUite orCalifornia Oepanmeol of Justice " 455 Golden Gate Avenue, Suite 11000
San Francisco, California 94102·7004
" Telephone: (41 5) 703-5866 dane.gillette@doj.ca.gov
Anomeys for Defendants JEANNE S. WOODFORD AND EDDIE S. YLST
"
1/
" 1/
"

**E-filed 4/27/06**

Case 5:06-cv-00219-JF Document 149 Filed 04/27/2006 Page 2 of 5

,

,

,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHER.~ DISTRICT OF CALlFOR.:'IIIA

•

SAN JOSE DIVISION

• ,• MICHAEL ANG ELO MORALES,

) CAS E NO. C 06 0219 (JF) (RS)

•

Plaintiff,

•

vs.

)

C 06-926 (JF) (RS)

)

) STIPULAT ION OF THE PARTIES TO

) CONTINUE HEARING TO SEPTEMBER

"

) 19,2006; [PIWr09EOj ORDER

JEANNE WOODFORD, Secretary of the )

California Department ofCorre<:tions; )

EDD IE YLS T, Warden, San Quentin Stale)

Prison, San Quentin, CA; and DOES ]·50,)

)

Defendants.

)

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

IT [S HEREBY STIPULATED by and between the parties herein through their

" respe<:llve anomeys of record that the evidentiary hearing currently scheduled fo r May 2,

" 2006, be continued until September 19, 2006. Good cause exists for this stipulation as

"" follows:

"

1 "The dates for the evidentiary hearing were adopted in part on the

" ass umption that the panies would cooperate in the discovery process." Order Deferring

" Ruling on Plaintiff s Motion to Continue Hearing, April 4, 2006, at I. In thig regard, the "

" parties have and contmue to coopernle in the discovery process. Any discovery

" disagreements have resulted from the reasonabk represen tation or the clients' interests.

" Counsel have been in regular contact throughout the discovery process and have had

2

Case 5:06-cv-00219-JF Document 149 Filed 04/27/2006 Page 3 of 5

, numerous meetings in good faith pursuant to Local Rule 37·1 to resolve all discovery
, issues. Almost all disagreements have been resolved by counseL Proceeding reasonably

in this manner has required the bulk of the short period of time to prepare for the May 2
,• evidentiary hearing.

, •

2. Despite the efforts of the panies, discovery is not complete. The parties

• have not completed paper discovery, scheduling depositions, conducting depositions, or • reviewmg transcripts and redacting Protected Infonnalion 00 i.J1. at 2). After eITorts to

"

• """ ,63i~"-~--~1~
i - .<.Il.1.. . !2
" 'I: ~<.>~

~~!i'~'H"

" "

"

"

"

"
"

"

" " " " " "

search for and collect requested documents pertaining \0 Procedure 770, Defendants only recently (on April 21, 2006) were able to provide Plaintiff the ability to inspect and copy those documents. Efforts are currently being undenaken to determine if additional documents exist. Plaintiffs have obtained four depositions, and through those depositions, the identities of additional witnesses recently have become known. Remaining depositions that must I>c: completed include the execution Icam leader for thc previous 8 lcthal injection executions conducted at San Quentin, and the medical personncl who had various assignments during thcse executions, including the scheduled exc<:ution for pl~intiff on February 21, 2006. Those depositions were not possible due to the unavailability of the witncsscs.
3. The parties have made substantial efforts to protect the confidentiality of lethal injection tcarn members. This effort has required additionaltimc, and has necessitated court intervention.
4. Counsel have mel in person to outline the remaining discovery required to I>c: conducted I>c:fore a hearing can take place. In doing so, counsel reasonably I>c:lieve

3

Case 5:06-cv-00219-JF Document 149 Filed 04/27/2006 Page 4 of 5

that most or all witnesses who need \0 be deposed have been identified . Some of these
,
, witness have nOI been in the country for several weeks or months, and may not be in the

country at present Arrangements are being made to detenni ne when and where these
,• witnesses can be deposed. A schedule for conducting and completing the depositions of ,• the other wimesses has been agreed to by counsel,

•

5.

• 30, 2006.

Counsel anticipate and have agreed to complete these depositions by lune

"
, "
un~ii~ "" : ",h " "' i l ~
z ~ <.> <:!
" " :E ~ § e
! "
" " "
"
" " "
"
"
" " "

6. Defendants are assessing whether further revisions are required to Procedure 770, in writing or in practice, in light of recent rulings in other jurisdictions. Additional discovery may be required with respect to these revisions.
7. The parties agree that certain expert witnesses are unavailable to a!lend a May 2 evidentiary hearing . Many of plaintiff's expert witnesses work and reside on the East Coast and scheduling and completing their depositions will require additional time.
8. The parties have agreed to exchange expert reports by August 15,2006, and complete expert depositions by September 8, 2006.
9. The parties agree that certain witnesses necessary to conduct a full hearing are unavailable to attend a hearing scheduled to commence on May 2. Arrangements are being made to either ensure their availability to attend a September 19,2006 hearing, or make the witnesses available for a deposition to be used in lieu of testimony to be presented al the hearing.
11/ III

4

Case 5:06-cv-00219-JF Document 149 Filed 04/27/2006 Page 5 of 5

, •

In light of We foregoing, [T IS HEREBY STIPULATED AND AGREED that the

, evidentiary hearing, if possible with the Court's calendar, be continued to September 19,

,• 2006. It is also requested that a four-day hearing be scheduled.

,• DATED: April 26, 2006

MCBREEN & SENIOR

•
•

By,---~ L~",b===='= ___

DAVID A. SENIOR

Attorneys for Plaintiff

MICHAEL ANGELO MORALES

SENIOR ASSISTANT ATTORNEY GENERAL

DATED: Apri126, 2006
" " IT IS SO ORDERED. " DATED: April __27 ,' 2006

By:--C.'(I:-7Q::)"J,----=':=-=-"=" cf'----' DANE R. G1LLETIE Attorneys for Defendants JEANNE S. WOODFORD and EDDIE S. YLST

," . " " "
5

 
 Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 1 of 22

David A. Senior (# 108579)
2 McBreen & Senior 1880 Century Park East, Suite 1450
3 Los Angeles, California 90067 4 Telephone: (310) 552-5300
Fax: (310) 552-1205 5 dsenior@mcbreensenior.com

6
John R. Gre1e (# 167080) 7 Law Offices of John R. Grele
703 Market Street, Suite 550
8
San Francisco, California 94103 9 Telephone: (415) 348-9300
Fax: (415) 348-0364 10 jgrele@earthlink.net

11
Richard P. Steinken (admitted pro hac vice) 12 Jenner & Block LLP
13 One IBM Plaza
Chicago, Illinois 60611-7603 14 Telephone: (312) 923-2938
15 Fax: (312) 840-7338 rsteinken@jenner.com
16

17 Attorneys for Plaintiff MICHAEL ANGELO MORALES
18

19

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

20

SAN JOSE DIVISION

21
MICHAEL ANGELO MORALES,

) CASE NO. C 06 0219 (JF) (RS)

22

)

C 06-926 OF) (RS)

23

Plaintiff,

) ) JOINT PRE-HEARING CONFERENCE

24

vs.

) STATEMENT

)
25
JEANNE WOODFORD, Secretary of the )

26 California Department of Corrections; )

EDDIE YLST, Warden, San Quentin State) HEARING DATE: Sept. 26, 2006

27

Prison, San Quentin, CA; and DOES 1-50,) TIME:

9:00 a.m.

28

) COURTROOM: 3

Defendants.

)

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

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 2 of 22

Pursuant to the Court's Order Scheduling Evidentiary Hearing and Pre-
2
Hearing Conference dated August 11, 2006, and the Standing Order re Pretrial
3
Preparation, the parties submit the following joint pre-hearing conference statement:
4

5

6
SUBSTANCE OF THE ACTION
7
Whether defendant CDCR's Operational Procedure 770 and the manner in
8
9 which it is performed by defendants violate plaintiff s rights under the 8th Amendment

10

11

o ~r-- 12

a;~~g

o S ~ lri 13

Z(/)roN W ...,r.t: lO

~ ~ ~ ~ cn

(/)~lO
ro.e~14

z~()~

uW ~W o.f~ ai.j u~~~iQ2~ci

15 16

:!E()(/)Q)

g,S1-

~

17

of the U.S. Constitution.
RELIEF SOUGHT Plaintiff seeks an order barring defendants from utilizing Operational Procedure 770 and barring defendants from employing the manner and method in which it performs the protocol with respect to his execution.

18

19
FACTUAL BASIS OF THE ACTION
20
21 (1) Undisputed Facts (Although not disputed, defendants reserve the right to object to

22 the admissibility of all facts marked "*").

23
1.
24
2006.
25

No Warden has approved and signed Operational Procedure 770, March 6,

26

2. Defendants concluded that the modifications to Operational Procedure 770,

27 March 6, 2006, will allow a lethal injection execution to proceed more quickly and
28
efficiently. The changes were not made from any concern about the effectiveness or

2

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 3 of 22

constitutionality of the former procedure (Supp. Response to Interrogatory #6).
2
3. Defendant CDCR employs the people who execute inmates for the State of
3
California. These people are execution team members. Typically there are up to 14
4

5 members on the team.

6
4. The teammates select replacement members to the team as needed by
7
unanimous vote by the team, and thereafter solicit the new members to join the team.
8

9

5. There are no doctors on the execution team.

10

6. Currently, there are no Registered Nurses ("RN") on the execution team,

11
and there are no requirements that an RN be on the team.

7. Warden Arthur Calderon presided over four lethal injection executions.

At one time, Calderon claimed he personally selected all the teammates that conducted

executions when he was Warden.

8. Jeanne Woodford was Chief Deputy Warden at San Quentin in 1998 and

18 was responsible for the day-to-day operations of San Quentin. Woodford became
19
Warden in 1999. At one time, Warden Woodford claimed she personally assured herself
20
21 that each member of the execution team had a high degree of skill, competence,
22 professionalism, patience, and stability necessary to be on the team. Warden Woodford
23
presided over four lethal injection executions. Woodford was the Secretary ofCDCR
24
during the scheduled execution of Michael Morales on February 21,2006.
25

3

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 4 of 22 10. Thereafter, Witness #5 was approved by Wardens Calderon and Woodford
2
for membership on the execution team, was selected by Warden Calderon to be the
3
4 execution team leader after Witness # 10 was removed from the team. Witness #5 has 5 participated in 10 California executions, and was the team leader for the last eight
6
California executions.
7
11. Warden Ornoski left it to Witness #5 to select the teammates. Warden
8
9 Ornoski presided over the executions of Stanley Williams and Clarence Ray Allen, and
10
the scheduled execution of Michael Morales on February 21,2006.
11
12. Witness #5 did not review the personnel files of any team members before extending invitations to them to join the team. Witness #5 never periodically reviewed the personnel file of any execution team member while he was the execution team leader.
4

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 5 of 22

9

17. Execution team members are not required, upon entry to the execution team,

10 to undergo psychological testing.
11
18. The team leader gives all directions to the execution team during an

execution; all team members are under his direction. It is important to have an execution

team leader in charge who is able to give clear and concise direction as to what the team

ought to be doing.

5

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 6 of 22

26

25. The RNs and LVNs on the execution team sometimes work in the

27
condemned prisoner area of San Quentin, and condemned inmates are treated by the RNs
28
and LVNs where they work in the prison.

6

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 7 of 22

26. The execution team uses regular saline or water in the syringes during

2
training or practice sessions. The execution team does not practice mixing thiopental.
3

4

27. Between January, 1996 and January 18,2006, five grams of thiopental were

5 used in an execution. A single back up syringe of thiopental was prepared for each

6
execution which contained 1.25 grams.
7
28. Starting with the Siripongs execution and for every execution thereafter, the
8
9 procedure changed to using four syringes of sodium thiopental, each containing 1.25

10
grams of sodium thiopental.
11
29. Prior to the execution, the execution team trains two times a week leading

up to the week before the scheduled execution. The team then comes off post and trains

continuously, eight hours a day, a week before leading up to the execution. The team

goes through it "over, and over, and over," at least seven or eight times in the course of

two hours. It is important that everybody is comfortable with their roles and what they are

18 doing.
19
30. Execution practice sessions consist of meetings and dry runs through the
20
21 procedure exactly as it is expected to proceed at an execution, except that the thiopental is

22 not actually mixed into solution; the catheters are not inserted into anyone's veins; water

23
is used in the syringes and IV bags; the IV lines empty the fluid into a bucket; the RN
24
typically takes the position of the Warden; and team members simulate the position of the
25

26 inmate.

27

3l. There are no documents that are referred to at the training or generated

28

during the training. No one takes down any notes while the training is going on.

7

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 8 of 22

32. For each execution, the lethal drugs are mixed by the medical members of

2
the execution team (RNs and LVNs), along with the person charged with administering
3
the drugs and the team leader.
4

5

33. During the last eight California executions, there were no practice sessions

6
where people practiced mixing Pentothal. Witness #1 has not been trained in mixing the
7
drugs. Witness #1 was responsible to ensure that the drugs are mixed correctly.
8

9

34. The first time Witness #4 mixed Pentothal was on the evening of a

10 scheduled execution. Prior to mixing Pentothal for an execution, Witness #4 had never
11
received any training in doing that. On each of the four occasions when Witness # 4

mixed the lethal drugs, he would mix the drugs with Witness #1. Witness #4 observed

that when the Pentothal is mixed, it is a yellowish, brownish tan color.

35. The packaging material for each 500mg vial of Pentothal states that each

500mg of thiopental sodium is to be dissolved in 20 mL of sterile water. Accordingly,

18 one gram of Pentothal is to be dissolved in 40 mL of sterile water.
19
36. The new Operational Procedure 770, March 6, 2006, provides that 5 Gm of
20
21 Sodium Pentothal will be mixed thoroughly with the 250 mL bag of Sodium Chloride

22 (saline).

23
37. In the new Operational Procedure 770, March 6, 2006, the thiopental drip is
24
set at a rate such that it will last 20 to 30 minutes for all the fluid to run out.
25

26

38. The drip rate for the IV saline bags is set by the team member who

27 administers the drugs.
28

8

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 9 of 22

39. The saline drips are set so that the MTAs can tell from looking at the IV
2
drip whether they have successfully placed the catheters.
3
40. The packaging material for each 500mg vial of Pentothal provides: Store at
4
5 controlled room temperature 15° to 30°C (59° to 86°F). See USP. Keep reconstituted
6
solution in a cool place.
7
41. Under new Operational Procedure 770, March 6, 2006, an IV drip bag
8
9 containing five grams of thiopental sodium is to be hung above the execution chamber
10 with two other IV bags. The drugs are to be mixed sometime after 11 :00 p.m. The IV
11
bag is then placed at a distance of roughly six to nine inches from a lamp fixture

consisting of an incandescent light bulb with red glass and a silver, cylindrical reflective

metal sheath. On the night of a scheduled execution, this lamp is turned on at

approximately 11 :40 p.m.

42. While the execution team attempts to begin the execution fairly close to

18 midnight, the execution sometimes does not start until a little later. The execution team
19
did not begin to administer Pentothal until 12:22 a.m. during the execution of Stanley
20
21 Williams, and until 12: 18 a.m. in the executions of Donald Beardslee and Ciarence Allen.

22

43. The anteroom is the location where the execution team administers the

23
lethal drugs into the IV lines during an execution. The room would "comfortably
24
accommodate" 16 or 17 people, "but certainly not any more than that." Hon. 1. Fogel RT
25

26 3/30/06 at 185; see also 122. During an execution, however, there are a few more than

27 that. Dr. Calvo testified that there are "so many people ... in the room that you didn't
28
even know who they were and [why] they were there." Warden Ornoski reports that he

9

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 10 of 22

would "shuffle from side to side a foot or two, but I mean, it's fairly crowded back there.
2
There's not much room for me to maneuver." During Clarence Allen's execution, "it was
3
4 even more crowded at that time, and I don't believe I could move from my spot much, if
5 any."
6
44. During Stanley Williams' execution, Dr. St. Clair noted that "[s]ome big
7
fellow from Sacramento" "was in [his] way." "[I]f1 recall, I'm holding a clipboard, and
8
9 he kind of hit me ..." The same individual stood in front of Dr. St. Clair during the
10
execution of Clarence Allen. "[0]ne of the problems with the big guy was not only was
11
he [was] blocking -- he'd block this way, but he'd block the light that comes from that

little room that helped to allow me to see what I'm doing."

45. During Stanley Williams's execution, a "rather large" CDCR official was

standing in front of the antechamber window to the execution chamber. The large man

did not take any part or role in the execution of Mr. Williams. Witness #4 was attaching

18 the syringe of lethal drugs from the cart to be administered to Stanley Williams to the
19
stopcock, and the large man "was standing in Witness #4's way. Witness #4 had to nudge
20
21 him a couple of times because it was a territorial imperative. He was a large gentleman,

22 and he was tending to take up more and more space. Dr. St. Clair stood behind this large

23
person.

24

25

46.

It "was a packed house" during the Thompson lethal injection execution.

26

47. The three phones in the anteroom of the execution chamber are dedicated to

27
the clerk at the state Supreme Court, the Attorney General's office, and to the prison's
28
operations center.

10

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 11 of 22

48. The inmate is then restrained on the gurney with restraints on the wrist,
2
shoulders, across the chest, over the waist and through the groin area. Some execution
3
4 team members depart from the chamber before catheters are inserted into the inmate.

5

49. Catheters are regularly set in the inmates' arms by LVNs during executions.

6
Witness #3, a LVN, has set catheters in seven of nine executions since he has been on the
7
execution team. He has set the catheter in the inmate's right arm in, among others, the
8

9 executions of Donald Beardslee, Stanley Williams, and Clarence Allen. Witness#3 only

10

11

o

~ r-- 12

o::~~8

Q '5 g ~ 13 zeow!nSc~~rCn/lo·r~~ .cog~~I'l~'l 14

Z(ijue

tl:la.:3~ 15
~ ~Q) 0

1II ()

.[3iOjl~.r~:.

16

:EUC/lQ)

g.31-

~

17

recalls setting the catheter in the inmate's left arm on one occasion. 50. Witness #4, a LVN, set a catheter in Donald Beardslee's left arm for his
execution, after initially blowing the inmate's vein. 51. Witness #3 and Witness #4 were assigned to set the catheters in Michael
Morales during his scheduled February 21,2006 execution. 52. There were no medically licensed individuals on the execution team for the

18 scheduled execution of Michael Morales other than Witness #3 and Witness #4.
19
53. Witness #4 may have read 10 or 12 pages of Procedure 770, but only once
20
21 and only after Beardslee's execution. Witness #3 never has read Procedure 770. Dr.

22 Calvo, who was present for the executions of Keith Williams, Babbitt, Siripongs,

23
Anderson, Rich, Massey, and Stanley Williams, and perhaps others, has not read
24
Procedure 770.
25

26

54. The doctors present at executions do not have any supervisory

27
responsibilities during the execution. The LVNs do not act under the direction of a
28

11

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 12 of 22

physician during an execution. The setting of these catheters is performed in the execution

2
chamber.
3

4

55.* Witness #3 never has taken any course work or training to become an RN.

5

He was trained to set catheters:'

~"'REDACTED pURSUANT TO COURT" ORDE~Rf~:' over 14 -" .' ___ ,,0'. _.'" _>""_">. '~~_t<lt:",.:.'-'''' -J_~~._:;1-.::l;tJ;'i,;&i:r-~;;:-:>i:.',-'-r;if':':-'~:~-!-~':;:-:~i··;>:;'~i-'

6

~~ . . .

/<::~:;w?'-~'-~{-,-, ,-",~ ~.:2i~>:t~-'J::;' _)~_K.:-;..~:::::0Pi',J£~~::~~~Ji:'~_:~-T.,;,"·:' :~?~T~ .•:-:';' ,.or;(:

years ago. Hisi',,?-1~;t·jnstructional training regarding setting catheters took place all

7

:, /'~o

within a minute. As an LVN at CDCR for the past 11 years, Witness #3 has received no
8

9 medical training from CDCR.

10

11

L0 () VI'-

12

~CDO

a:::Q)00

o~o(")

_:>O)L()
z Cf) .!"!l N

13

en '" W....;<:L()

ro.E~ -L().
caUJ=o

14

zw-aC.ro.

t

3M
w ~
iii

W ~~ <:

15

m .a a:::

Q) 0

u~~~ C).c: ~o",Q) 16

DOtco....!

~

17

56. * LVNs do not set catheters at San Quentin's Treatment and Triage Area

("TTA"); that is the responsibility of a registered nurse or physician. General anesthesia

is not applied in the TTA.
57. * It is very infrequent that an IV line is placed in an inmate in the medical

units at San Quentin other than in the TTA.

58.*

REDACTED PURSUANT TO COURT ORDER

18

59.*

REDACTED PURSUANT TO COURT ORDER

19

60.* Fourteen years ago, Witness #3 practiced setting catheters

20

V.:·"",,··'"W'"

L

"j"

ft

" ' , _i"' -,

~-;:::

::DACTED PURSUANT"TcfcoURTORDER After demonstrating three successful venal punctures or IV starts,

~ I'

.~

22 Witness #3 became certified by CMF to start IVs as a LVN. Witness #3 has no estimate
23
regarding how long his CMF IV training or IV course lasted, and he does not know upon
24
whom he set the catheters.
25

26

6l. An LVN who is training for an execution does not practice setting the

27
catheter in the simulated inmate's arm; they tape the catheter to the outside of the
28
simulated inmate's arm.

12

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 13 of 22

62. Procedure 770 requires that two catheters be properly set in the inmate and

2
operating before an execution begins.
3
63. During the Massie execution, there was a difficulty with one of the IV lines.
4

5

64. For the executions of Keith Williams, Bonin, Siripongs, Thompson, Rich,

6
Babbit, Massie, and Anderson, respirations were measured by Dr. Calvo who has
7
observed and counted respirations for almost 40 years.
8

9

65. For the executions of Keith Williams, Bonin, Siripongs, Thompson, Rich,

10 Babbit, Massie, and Anderson, Dr. Calvo measured respirations by watching the inmate
11
for a full minute and counting the number of respirations.

66. When measuring respirations, Dr. Calvo started when he heard the

instruction for each of the three drugs given.

67. When recording respirations, Dr. Calvo recorded rhythmic breathing

movements at a certain rate.

18

68. When observing the execution of Manuel Babbit, Dr. Calvo noted shallow

19
respirations after the administration of pancuronium that were at the same rate as
20
21 previously noted, but were not deep breaths.

22

69. When observing Manuel Babbit, Dr. Calvo noted spasmodic, jerking

23
movements of the upper abdomen and chest area one minute after the administration of
24
the pancuronium which lasted a minute, after which all breathing stopped.
25

26

70. When observing the execution of Darrell Rich, Dr. Calvo noted that after

27 respirations ceased, Mr. Rich had what Dr. Calvo characterized as agonal breathing
28
movement which was not rhythmic one minute after the administration of the

13

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 14 of 22

pancuronium, that lasted a minute at least but could have been two minutes, which he

2
considered to be unusual.
3

4

7l. The saline flush administered after the sodium thiopental flushes the

5 remaining sodium thiopental in the tubing into the inmate.
6
72. For the executions of Keith Williams, Bonin, Siripongs, Thompson, Rich,
7
Babbit, Massie, and Anderson, Dr. Calvo observed the administration of a saline flush
8
9 before the administration of the pancuronium and before the administration of the

10
potassium chloride, and after the administration of the potassium chloride.
11
73. For the executions of Stanley Williams and Clarence Allen, Dr. St Clair

measured breathing by counting breaths for 15 seconds and multiplying by four.

74. Inmates are evaluated prior to execution to determine if they have useable

veins. They are not evaluated to determine if they have any condition or characteristic that

may alter the effect of any of the drugs administered during the lethal injection process.

18

75. When the Warden orders the execution to commence, the execution team is

19
required to first administer Pentothal to the inmate. To do so, an execution team member
20
21 selects a syringe from the top of a cart where syringes containing Pentothal, pancuronium

22 bromide, sodium chloride, and saline are placed.
23
76. When a syringe is selected, it is inserted into a stopcock on the outside wall
24
of the execution chamber and the syringe's contents are plunged into the stopcock, which
25

26 is attached to an IV line that flows from an IV bag of saline hung on top of the execution

27
chamber to the stopcock and then through the execution chamber wall to a catheter set in
28
the inmate's ann.

14

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 15 of 22

77. Witness #3, the LVN who has participated in seven of the last nine
2
executions, believes that in each instance, he selected the syringe from the cart - including
3
4 during the Stanley Williams and Clarence Allen executions - and passed it to another

5 LVN for insertion into the stopcock, then the empty syringe was returned to him and he

6
made the selection of the next syringe from the cart. Witness #3 has practiced this with
7
the team "over, and over, and over."
8

9

78. Witness #4, the other LVN who has been scheduled to participate in five

10 executions and participated in the Beardslee, Stanley Williams, and Allen executions,
11
believes that in the Williams and Allen executions, he selected the syringes off the cart for

insertion into the stopcock, and then he returned the empty syringes to the cart before

selecting the next syringe.

79. Infiltration is when the IV catheter delivers fluid into the tissue surrounding

the vein. Witness #4 believes the arm will swell up, but not before 10 or 15 minutes.

18

80. Once an RN or LVN places the catheter, they leave the chamber and the

19
chamber door is closed. The left IV - which will need to be used in the event the right IV
20
21 fails - is not monitored by the execution team for infiltration during an execution.

22

81. Only one LVN or RN is positioned in a spot that they are able to see into the

23
chamber area to the right arm where the primary IV is set.
24
82. Witness #4 handled the syringes for both the executions of Stanley Williams
25
26 and Clarence Allen. Witness #4 neither practiced nor was trained by CDCR on how to

27 make a visual inspection of the IV lines during the executions.
28

15

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 16 of 22

83. Witness #3, the LVN who has set catheters in seven of the last nine

2
executions, cannot see the inmate above the waist from where he stands in the anteroom
3

4 during an execution and cannot see the inmates' arms.

5

Li'::; 84. * Witness #4 was trained

REDACTED PURSUANT TO COURT ORDER

6
examine catheters to see whether infiltration was occurring. Catheter inspections were
7
part of his regular routine. These IVs would be the same as used during the execution. In
8

9 every instance, Witness #4 was taught to get as close as you can get to the patient;

10 bedside; no farther than arms length; touching their arm if necessary. In all instances,
11
Witness #4 would get much closer than in the case of an execution. Witness #4 can get

no closer than eight feet from the inmate's catheter during the execution, and is in a

separate room with "subdued lighting" looking through a window.

85. During Stanley Williams's execution, both an RN and Witness #3, a LVN,

inspected a catheter setting while inside the chamber and concluded that it was set

18 properly, when in fact it was not. Standing outside the execution chamber, Witness #4
19
could not tell whether the catheter was set properly - the only way he could tell whether
20
21 or not it was successful was by the way the RN reacted to it. It was not based in any part

22 on his observation of the IV or the catheter itself. Witness #4 was not sure whether it was

23
set properly.

24

;~)~~~

86.* Witness #3 was traineg~~~~o,~I~~2to monitor the flow of an IV by having

25

PURSUANT TO COURT ORDER

26 the IV bag and drip chamber above the person that you're starting an IV on, and then

27 stand right next to it - within a foot. The IV drip bag and the drip chamber during an
28
execution are located above the execution chamber, approximately nine to 10 feet off the

16

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 17 of 22

ground, accessible only in the anteroom to the execution chamber. The catheter, the
2
inmate, and IV tubing are located inside the execution chamber. The length of IV tubing
3
4 is approximately 11 feet for each line inside the chamber, from the point at which the line

5 goes through a hole in the chamber wall to the catheter placed at the inmate's elbow.

6

87. * Witness #5, the former execution team leader, never received any training in

7

8 infiltration. Witness #5 was the person who trained the next team leader, Witness #1, on

9 how to administer lethal drugs. The only other person to train Witness # I in this regard

10

is the same RN who improperly set the catheter in Stanley Williams, failed to recognize it was not set properly, and then failed to advise Witness #5 of this failure until after the execution.

17

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 18 of 22

89. * Witness #5 obtained copies of the depositions of Witness #3 and Witness #4

2
before he appeared for his deposition. When he obtained these deposition transcripts,
3
4 they were both in the possession of Witness #3.

5

90. Witness #1 never has had training on how to feel for a clogged IV when

6 pushing on a syringe nor about instances where IVs can become clogged after they've
7
started dripping.
8

9

91. The execution team does not practice removing bubbles in an IV line during

10 training. There is no procedure that goes into effect should someone note a bubble in the
11
IV line during an execution.

92. No member of the execution team monitors the inmate's anesthetic depth

during an execution.
93. * Anesthesiologist #2 ("A2") was requested by Darc Keller, Assistant

Secretary, Office of Health Care Policy for defendant CDCR, to participate in the

18 scheduled execution of Michael Morales pursuant to the February 14,2006 order of the

19
Hon. Jeremy Fogel.

20

21

94. * A2 was advised by Keller that they needed a "backup" anesthesiologist to be

22 present for the execution. A2 "asked, 'What would that entail?,'" and Keller advised,

23
"That would entail nothing."
24
95. * A2 inquired, "What do you mean by 'nothing'?," and Keller advised that he
25

26 "would simply be there to observe. You would have no responsibilities."

27

96. * A2 "wasn't to go through training" because he "had no responsibilities."

28

18

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 19 of 22

97. * A2 agreed to be present as a backup after confirming his understanding that
2
he would not be in the chamber, that he would have no responsibilities other than to be
3
4 present.

5

98. * A2 never had any understanding that he was ever to give any professional

6
opmIOn.
7
99.* A2 had no understanding that "if there was a problem with the primary
8

9 anesthesiologist, [his] role would escalate to something else."

10
100.* On the Saturday before the scheduled execution of Michael Morales, A2
11
attended an execution rehearsal at San Quentin. A2 never was given a copy of execution

Protocol 770 to read; he didn't know there was such a thing. A2 was not given any

pharmaceuticals to review that were kept at San Quentin, any former execution logs, or

medical devices, and he brought no medical equipment to the prison.

101.* A2 did not provide any advice on how to prepare Pentothal, how to set a

18 catheter, how to operate the IV system, how to use the stopcocks, how they could do an

19
execution better or the amount of Pentothal that should be used.

20

21

102.* A2 never has induced general anesthesia from a remote location, nor seen

22 anyone do it.
23
103.* A2 provided no advice regarding the methods of using the syringes or
24
25 comment on the location of the IV bags.

26

104.* At the rehearsal, A2 was in the anteroom of the execution chamber, and was

27
told to stand in the comer, and he did. As you walk into the anteroom, circle all the way
28
around to the end of the circle, and A2's location was in the far right-hand comer. A2

19

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 20 of 22

could not see into the chamber from where he was standing. He stayed there for an hour,

2
and never relocated himself.

3

4

105.* A2 does not recall what transpired during the rehearsal because he wasn't

5 paying that close attention. A2's observations of the rehearsal were limited because he

6
chose not to pay much attention.
7
106.* It was A2's assessment, based upon his conversations with Darc Keller of
8

9 CDCR, that CDCR was requesting his presence merely as a "warm body." A2 had no

10 plans to do anything but stand there. The only instruction A2 had was to stand there,
11
given by the warden. That's the only order he ever received.

107.* At the rehearsal on February 18, 2006, A2 was handed a headset, and was

told to tell Dr. Singler that he was signaling the patient was unconscious. That was the

first time A2 learned that he was going to be asked to perform this role. This was not

consistent with A2' s role as he understood it, and he refused to perform the role.

18

108.* Thereafter, the warden approved A2's request to be allowed, during the

19
execution, to stand in the small room off the anteroom where the lethal drugs are mixed -
20
21 an area where it would be impossible for A2 to see into the execution chamber.

22

109.* When A2left San Quentin on February 18,2006, it was his understanding

23
that, in attending the execution of Michael Morales scheduled for February 21, 2006, he
24
would have to do nothing other than show up at the prison and stand in that little room.
25

26

110.* Darc Keller, Assistant Secretary, Office of Health Care Policy for defendant

27
CDCR, used CDCR funds to pay A2 his nonnal anesthesiology fee for these services.
28

20

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 21 of 22

Ill. * On February 20, 2006, A2 arrived with Dr. Singler at San Quentin at 8:00
2
p.m., and within the first one minute, before he sat down, Bruce Slavin from CDCR said,
3
"we have a problem." Slavin proceeded to show A2 the first document A2 ever saw in
4

5 writing of a court order describing the expectation of Dr. Singler and A2.

6

112.* After reading two pages of the February 19,2006 order from the Ninth

7

Circuit in this case, A2 immediately stated: "I can't participate -- I can't proceed." Dr.
8

9 Singler concurred.

10

113. * A2 absolutely never gave anyone any reason to believe after 8: 15 p.m. on

11
Monday night, that he was going to be present during the execution.

114.* A2 left San Quentin around midnight or 1:00 a.m. CDCR did not advise

Michael Morales that it was not proceeding with the scheduled 12:01 a.m. execution until

after 2:36 a.m. Neither CDCR nor the Attorney General ever advised Michael Morales's

counsel that CDCR was not proceeding with the scheduled 12:01 a.m. execution until

18 after 2:45 a.m., when counsel was advised by Lt. Vernell Crittendon of CDCR.
19
115.* In response to the Court's February 14,2006 order, a meeting lasting
20
approximately an hour to an hour and a half took place in Sacramento for CDCR to
21
22 review its lethal-injection protocol.
23
116.* The meeting was called by the Governor's legal affairs director, Andrea
24
Hoch, and was attended by Robert Singler, M.D., Dane Gillette, Andrea Hoch, Steven
25
26 Ornoski, Bruce Slavin, Dan Maguire, Tami Bogert, Peter Szkrenyi, and Darc Keller.
27
28

21

Case 5:06-cv-00219-JF Document 163 Filed 09/03/2006 Page 22 of 22

117. * All present had read a copy of this Court's February 14,2006 order, and

2
appeared to be familiar with this Court's respectful suggestion to CDCR that it review its
3
4 lethal-injection protocol.

5

118. * At the conclusion of the meeting, no one was assigned any tasks or

6
responsibilities to take any further action in this regard. Warden Ornoski knows of no
7
other actions taken by CDCR with respect to the Court's suggestion. Warden Ornoski left
8
9 that meeting with the belief that the issue would be resolved at the hearing by this Court

10 and that CDCR would be told by the Court what its new procedure was going to be.
11
119.* Warden Ornoski requested that Dr. Thomas Rosko, the San Quentin Chief

Psychiatrist and a former anesthesiologist, assist in revising Operational Procedure 770.
120. * Dr. Rosko's task was to devise the procedures to employ for the infusion of

sodium thiopental. At that time, Dr. Rosko believed that the initial bolus dose would be

5000 milligrams of sodium thiopental.

18

121. No state other than California uses a bolus dose of sodium thiopental that is

19
less than 2 grams.

20

21

122. Texas uses 3 grams of sodium thiopental during an execution.

22

123. * Dr. Rosko performed 15 minutes of research on the Internet to determine the

23
concentration of sodium thiopental to be in the infusion, and the drip rate.
24
124. * During Dr. Rosko's Internet search, he did not have access to a Medline
25
26 account that would allow him to review entire articles in certain journals.

27

125. Inmates Allen, Anderson, Massie, and Siripongs received a second dose of

28
potassium chloride during their executions.

22

 
 Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 1 of 26

David A. Senior (# 108579) 2 McBreen & Senior
1880 Century Park East, Suite 1450 3 Los Angeles, California 90067 4 Telephone: (310) 552-5300
Fax: (310) 552-1205 5 dsenior@mcbreensenior.com

6
John R. Grele (# 167080) 7 Law Offices of John R. Grele
703 Market Street, Suite 550 8 San Francisco, California 94103 9 Telephone: (415) 348-9300
Fax: (415) 348-0364 10 jgrele@earthlink.net

11
Richard P. Steinken (admitted pro hac vice) 12 Jenner & Block LLP 13 One IBM Plaza
Chicago, Illinois 60611-7603 14 Telephone: (312) 923-2938
15 Fax: (312) 840-7338 rsteinken@jenner.com
16

17 Attorneys for Plaintiff MICHAEL ANGELO MORALES
18

19

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

20

SAN JOSE DIVISION

21
MICHAEL ANGELO MORALES,

) CASE NO. C 06 0219 UF) (RS)

22

)

C 06-926 UF) (RS)

23

Plaintiff,

) ) JOINT PRE-HEARING CONFERENCE

24

vs.

) STATEMENT

)
25
JEANNE WOODFORD, Secretary of the )

26 California Department of Corrections; )

EDDIE YLST, Warden, San Quentin State) HEARING DATE: Sept. 26, 2006

27 Prison, San Quentin, CA; and DOES 1-50,) TIME:

9:00 a.m.

28

) COURTROOM: 3

Defendants.

)

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

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 2 of 26

(2) Disputed Factual Issues (All Facts are Disputed by Defendant, Unless Marked
2
"Disputed by Plaintiff') Defendants' objections are primarily to the form of the
3
4 statements rather than the contents unless otherwise noted.

5

l. The team always includes 2-3 medical personnel consisting of a

6
combination ofRNs and Medical Technical Assistants (MTA), who must be a Licensed
7
Vocational Nurse (LVN) with a state credential authorizing insertion of IVs. Disputed
8

9 by Plaintiff.

10
2. Former execution team leader, Witness #10, was removed from the

11
execution team for misconduct.

3.

° The misconduct by Witness #1 leading to his several month suspension

from work was unrelated to his participation in an execution.

4.

The execution teammates' responsibilities are "awesome" and very stres
20
21 The teammates become very apprehensive during an execution. It is a very intense
22 process; it is the most stressful thing that a person in the Department of Corrections is
23
asked to do. Team members, including the RNs and LVNs are as tense as they ever are.
24
25 It is a surrealistic experience. It does not seem real when it's happening. It seems 26 dreamlike. It is stressful because there is no other place in the world that an LVN is asked
27
to start an IV for that purpose. Warden Steven Omoski was practically beside himself
28
23

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 3 of 26

during the Stanley Williams execution. Wardens have refrained from viewing any part of

2
the condemned inmate save his feet during the last three California executions.
3

4

6. It is a rule that you cannot be working in the condemned area of the prison

5 and be on the execution team. There are no exceptions to the rule.

6
7. Warden Woodford had no inhibitions about assigning a member to the
7
execution team who was known by the inmate who was being executed.
8

9

8. The LVNs claim to prepare the Pentothal by following the instructions.

10
9. The new Operational Procedure 770, March 6, 2006, each one gram of
11
Pentothal is to be dissolved in 50 mL of a solution of sodium chloride of unknown

concentration, rather than in 40 mL of sterile water.

10. During an execution, "it's a bit more crowded" in the antechamber than

16 or 17 people.

II. During Stanley Williams's execution, Witness #4 was tasked with

18 selecting the lethal drugs from the cart to be administered to Stanley Williams, and

19
the large man "was standing in Witness #4's way.
20

21

12. Twenty-six people or so were on the approved list to be present in the

22 anteroom for the scheduled execution of Michael Morales.
23
13. To execute an inmate, officers bring the inmate from a holding cell
24
across the hall from the execution chamber, through the anteroom of the execution
25

26 chamber, and into the chamber. Witness #1 believes that five peace officers walk the

27
inmate into the chamber, while Witness #4 thinks it's four.
28

24

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 4 of 26

14. Catheters are regularly set in the inmates' arms by RNs during

2
executions.
3
15. The setting of these catheters is performed in the execution chamber,
4

5 not in a health care facility.

6
16. During Stanley Williams's execution, an RN was responsible to set one
7
catheter. The vein blew when she started the IV. She attempted again to start the IV
8

9 and the vein blew again.

10

17. The nurse was frustrated and became upset; she was visibly upset to

11
other execution team members.

18. Unbeknownst to the RN and Witness #3, the RN then failed to properly

set the catheter a third time. The RN subsequently taped the catheter to Williams's

arm, and began to exit the chamber.

19. While Witness #3 and RN were exiting the chamber, it was said that "it

18 wasn't flowing, the drip wasn't flowing." The RN couldn't believe that it wasn't
19
running again. After the RN exited the chamber - while the chamber door still was
20
21 open - it was said a second time that "the left wasn't running."

22

20. Warden Omoski was standing in the center of the anteroom, looking at

23
the door. The team leader was present at the chamber door.
24
21. Witness #4 was under the impression that the team leader was
25

26 responsible to monitor the IV drip as a result of all the training he went through for

27 Williams, as well as other executions.
28

25

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 5 of 26

22. The Warden then said, "Proceed," "after the comments were made that
2
the left IV had failed. The execution proceeded without the IV line in the left arm
3
4 properly set or operating.

5

23. After the RNs or LVNs leave the execution chamber, the lights are

6
turned down in the anteroom before the execution begins. The lights are turned very
7
low. Under the anteroom's subdued lighting, the syringes containing the lethal drugs
8

9 are present, taped to a cart.

10

24. The syringes containing the lethal drugs to be used in the execution are

11
taped to a cart in the order they are to be used and on a grid which identifies each

drug by name. The syringes are numbered in the order they are to be used.

Disputed by plaintiff.

25. During an execution, the doctors filling out the execution record cannot

see where their entries are supposed to be without the aid of a small flashlight.

18

26. The RN or MTAILVN who attaches the syringe to the stopcock then

19
stands in the window of the chamber to observe the inmate's right arm. Disputed by
20
21 plaintiff.

22

27. Witness #1 believes that after a syringe has been emptied, the same

23
MTA removes the syringe, places it back on the cart and retrieves the next syringe.

24

25

28. Witness #4 cannot conduct an inspection to see if the catheter is set

26 properly without entering the execution chamber.

27
29. The identity of the execution team leader is known to personnel at San
28
Quentin from all aspects of the institution: maintenance, medical, and custody. For

26

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 6 of 26

Witnesses #1 and #5, their existence on the execution team and as execution team

2 leader was not a secret at the institution. It becomes a known fact.

3
30. If the thiopental sodium drip stops during an execution, there is no
4
procedure for what is to take place next.
5

6

31. Operational Procedure 770 prohibits team members from asking

7 anything that would require an oral response during an execution.
8
(3) Agreed Statement
9

10

The action may not be presented upon an agreed statement.

11 (4) Stipulations Requested or Proposed.
12
Unless objected to below, all exhibits are stipulated by the parties to be
13
14 admitted, except Exhibit Nos. 32-50, 79, 97, 98, 99 and 100 which at this time, are

15 only being marked for identification by plaintiff.
16

17

18

DISPUTED LEGAL ISSUES

19

Points of Law

20
1. California's lethal injection protocol, set forth in Operational Procedure
21
770, as revised March 6, 2006 ("new Procedure 770"), is a regulation or regulations
22
23 subject to California's Administrative Procedure Act ("APA"), Cal. Gov. Code §§

24 11340 et seq. The APA defines a "regulation" to mean "every rule, regulation, order
25
or standard of general application or the amendment, supplement, or revision of any
26
27 rule, regulation, order or standard adopted by any state agency to implement, interpret,

28 or make specific the law enforced or administered by it, or to govern its procedure."

Cal. Gov. Code § 11342.600. To be a rule, regulation, order or standard of "general

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 7 of 26

application," a rule need only apply to all the members of a class of persons; it need

2 not apply to all citizens of the state. See Armistead v. State Personnel Bd., 583 P.2d
3
744,746 (Cal. 1978); Faunce v. Denton, 167 Cal. App. 3d 191,213 Cal. Rptr. 122
4
(1985).
5

6

2. New Procedure 770 unilaterally was adopted by defendants in violation of

7 the APA. A state agency may not issue, utilize, enforce or attempt to enforce any
8
regulation unless the requirements of the APA have been satisfied. Cal. Gov. Code §
9
10 11340.5. The agency must give the public notice of its proposed regulatory action

11 (Cal. Gov. Code §§ 11346.4, 11346.5); issue a complete text of the proposed

regulation with a statement of the reasons for it (Cal. Gov. Code § 11346.2(a), (b));

give interested parties an opportunity to comment on the proposed regulation and to

request a public hearing (Cal. Gov. Code § 11346.8(a)); respond in writing to public

comments (Cal. Gov. Code § 11346.9); and forward a file of all materials on which
17
18 the agency relied in the regulatory process to the Office of Administrative Law (Cal.

19 Gov. Code § 11347.3(b)), which reviews the regulations for consistency with the law,
20
clarity, and necessity (Cal. Gov. Code §§ 11349.1, 11349.3). Defendants have done
21
22 none of these things in adopting New Procedure 770.

23

3. New Procedure 770 is not a binding or properly approved execution

24
protocol that can be utilized by the State of California in light of the state's failure to
25
comply with the APA. Cal. Gov. Code § 11340.5.
26

27

4. The APA provides that "[a]ny interested person may obtain a judicial

28 declaration as to the validity of any regulation or order or repeal by bringing an action

28

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 8 of 26

for declaratory relief in the superior court in accordance with the Code of Civil

2 Procedure." Cal. Gov. Code § 11350(a). In such an action, the regulation or order

3
may be declared to be invalid for a substantial failure to comply with the APA. Id.
4
Plaintiff is entitled to such relief as a matter of law and is seeking such relief in the
5
6 Superior Court of the State of Califomia, County of Marin, Case No. CV 061436.

7 The Superior Court has ordered that the matter be decided by summary judgment, and
8
has calendared same for hearing on December 6, 2006.
9

10

5. California's lethal injection protocol, set forth in Procedure 770, violates

11 the Eighth Amendment's prohibition on the "infliction of unnecessary pain in the

execution of the death sentence." Louisiana ex reI. Francis v. Resweber, 329 U.S.

459,463 (1947); see also Gregg v. Georgia, 428 U.S. 153, 173 (1976) (the

punishment may be not "excessive").

6. The lethal injection protocol impermissibly subjects the inmate "to an
17
18 unnecessary risk of unconstitutional pain or suffering." Cooper v. Rimmer, 379 F.3d
19 1029, 1033 (9th Cir. 2004); see also Cooey v. Taft, 430 F. Supp. 2d 702, 708 (S.D.
20
Ohio 2006) (in view of emerging evidence calling into question the conclusions of
21
Dr. Mark Dershwitz, "Court is persuaded that there is an unacceptable and
22
23 unnecessary risk ... that [plaintiff] could suffer unnecessary and excruciating pain
24 while being executed ....").
25
7. The unnecessary risk of substantial pain imposed by the lethal injection
26
27 protocol renders the method of execution contained therein unconstitutional. Fierro
28

29

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 9 of 26

v. Gomez, 77 F.3d 301,307 (9th Cir.), vacated as moot sub nom. Gomez v. Fierro,

2 519 U.S. 918 (1996) (moot in light of Cal. Penal Code § 3604).
3
8. The protocol involves a "substantial risk" of an extended period of "intense
4
physical pain." Fierro, 77 FJd at 308; see also Rupe v. Wood, 863 F. Supp. 1307,
5

6 1313-15 (W.D. Wash. 1994), vacated in part as moot, 93 F Jd 1434 (9th Cir. 1996)

7 (holding that a "significant" risk (less than 24% probability) of decapitation rendered
8
judicial hanging unconstitutional as applied to an obese inmate).
9

10

9. The records from previous executions demonstrate the inherent, substantial

11 risk the inmate will experience agonizing and prolonged pain, in violation of

"evolving standards of decency," and "contemporary values concerning the infliction

of a challenged sanction." Gregg, 428 U.S. at 173; Beardslee v. Woodford, 395 FJd

1064,1075 (9th Cir. 2005) (California's execution logs "contain indications that there

were problems associated with the administration of the chemicals that may have
17
18 resulted in prisoners being conscious during portions of the executions."); Fierro, 77
19 F.3d at 307 ("the key question to be answered in a challenge to a method of execution
20
is how much pain the inmate suffers. ").
21
1O. The protocol's failure to provide for any meaningful monitoring of
22
23 anesthetic depth by appropriate medical personnel exposes plaintiff to a substantial
24
risk of extreme pain. See Order Denying Conditionally Plaintiffs Motion for
25
Preliminary Injunction, February 14,2006, at 14 (in view of "substantial question" as
26
27 to whether inmate might regain consciousness after administration of sodium
28 thiopental, Court allows State to implement alternative procedure of continuous

30

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 10 of 26
presence of "qualified individual" to independently verify that inmate is unconscious
2 before either pancuronium bromide or potassium chloride is injected).
3
11. The risk of inadequate anesthesia is compounded by the fact that
4
Procedure 770 requires that no personnel be present in the execution chamber when
5
6 any of the drugs are administered thus preventing personnel from visual and tactile 7 verification that the drugs are actually being administered to the inmate, or that the
8
sodium pentothal anesthetic has taken effect. Cooper v. Rimmer, 379 F.3d 1029,
9
10 1033 (9th Cir. 2004) (state prohibited from subjecting inmate "to an unnecessary risk 11 of unconstitutional pain or suffering.").
12. The protocol's failure to anticipate foreseeable events, and to provide
contingency plans for such events subj ects plaintiff to an unnecessary risk of
unconstitutional pain. See id.
13. The execution protocol involves acts by prison personnel which are
17
18 prohibited by law. Cal. Bus. & Prof. Code §§ 2051; 2052; 2860; 2860.5; Magit v. 19 Bd. ofMed. Exam'rs, 57 Cal. 2d 74,366 P.2d 816,17 Cal. Rptr. 488 (1961).
20
14. The protocol is performed by prison personnel with criminal records of
21
misconduct, and who lack skill, competence, professionalism, patience, stability,
22
23 training, qualifications, mental health, and the necessary character to perform
24
executions and the tasks associated with executions. Ford v. Wainwright, 477 U.S.
25
399,410 (1986) (plurality opinion) (the Eighth Amendment "protect[s] the dignity of
26
27 society itself from the barbarity of exacting mindless vengeance."); Taylor v. 28 Crawford, 2006 U.S. Dist. LEXIS 42949, at *20 (W.D. Mo. June 26, 2006) (court is
31

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 11 of 26
"gravely concerned" about condition of physician who mixes the lethal drugs); id. at
2 *21-22 (court concludes it would be "almost impossible" for the physician to monitor
3
the inmate's anesthetic depth in the manner physician described in his deposition).
4
15. The protocol is implemented under unacceptable conditions that
5
6 unnecessarily increase the risk of unconstitutional pain, including overcrowding; 7 obstructed views; inadequate lighting; sound suppression; remote administration of
8
the drugs; insufficient supervision; unqualified management; and the absence of
9
10 meaningful participation by properly licensed medical personnel. Taylor v. Crawford, 11 2006 U.S. Dist. LEXIS 42949, at *21-22 (W.D. Mo. June 26,2006) (darkness and
obstructed view result in inadequate monitoring of anesthetic depth); (Anderson v.
Evans, 2005 U.S. Dist. LEXIS 39407, at *14 (W.D. Okla. Dec. 20,2005), affd, 2006
U.S. Dist. LEXIS 1632 (W.D. Okla., Jan. 11,2006) (court refuses to dismiss Eighth
Amendment challenge where inmate alleges, inter alia, that execution personnel are
17
18 untrained in the use of IV catheters; improper placement and monitoring of catheters 19 can lead to inadequate anesthesia; medical personnel do not oversee the placement of
20
catheters) .
21
16. The use of sodium pentothal, an ultrashort-acting barbiturate anesthetic
22
23 which is extremely sensitive to errors in preparation, to be administered through a
24
high risk failure scenario more than likely will result in "the inmate not [being]
25
properly sedated by the first drug, ... [and] experienc[ing] torturous pain."
26
27 Beardslee, 395 F.3d at 1071; Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949, at 28 *21 (W.D. Mo. June 26, 2006) ("the process of mixing the three different drugs and
32

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 12 of 26

knowing the correct amount of the drugs to dissolve in the correct amount of solution

2 involves precise measurements").

3
17. Pancuronium bromide "paralyzes all skeletal or voluntary muscles, but []
4
has no effect whatsoever on awareness, cognition, or sensation." Beardslee, 395 F.
5

6 3d at 1071. The state has failed to provide any legitimate justification for the use of

7 pancuronium bromide, and apparently uses it merely to prevent witnesses from
8
observing movement "that could be interpreted as ... pain or discomfort." Beardslee,
9
10 395 F.3d at 1076 n.13.

11

18. Administered on their own, pancuronium bromide and potassium chloride

would violate the Eighth Amendment. Morales v. Hickman, 438 F.3d 926,928 (9th

Cir. 2006) ("[t]here is no dispute that in the absence of a properly administered

anesthetic, Morales would experience the sensation of suffocation as a result of the

pancuronium bromide and excruciating pain from the potassium chloride activating
17
18 nerve endings in Morales' veins.").

19

19. The enactment of laws by at least nineteen states that mandate the

20
exclusive use of a sedative or expressly prohibit the use of a neuromuscular blocking
21
agent in the euthanasia of animals provides objective evidence that society's
22

23 "contemporary values" (Gregg v. Georgia, 428 U.S. at 173) render California's lethal

24
injection procedure unacceptable. Beardslee, 395 FJd at 1073.
25
20. Thiopental sodium is a Schedule III controlled substance under the
26
27 Controlled Substance Act. Federal law requires the state to keep accurate logs as to

28 the amount of this drug that it has used, dispensed, or disposed of. 21 U.S.c. § 827;

33

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 13 of 26

21 C.F.R. §§ 1304.03, 1304.04, 1304.11, 1304.21. The violations of specified

2 procedures and federal laws for obtaining, storing, preparing, using, dispensing,
3
disposing, and appropriately labeling the drugs, all affect their efficacy and subject
4
the inmate "to an unnecessary risk of unconstitutional pain or suffering." Cooper v.
5
6 Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004).

7

20. Procedure 770 does not require medically trained personnel to supervise

8
or assist in the medical tasks necessary to prepare for the execution. These tasks
9

10 include mixing the sodium pentothal solution, setting up the IV line and associated

11 equipment, including the "Y" injection site, in order to ensure that fluids do not leak

and are not misdirected, finding a usable vein, properly inserting the IV line in the

proper direction, and verifying that the drugs are flowing into the inmate's vein rather

than into surrounding tissue. These tasks require a high degree of specialized

training. The absence of these tasks subject the inmate "to an unnecessary risk of
17
18 unconstitutional pain or suffering." Cooper v. Rimmer, 379 F.3d 1029,1033 (9th
19 Cir. 2004).
20
21. Procedure 770 creates the unnecessary and unacceptable risk that the
21
drugs will be administered in the wrong order as a result of the improper management
22
23 of the team and the labeling of the syringes. If an error in loading or labeling the
24
syringes occurs, the personnel administering the drugs will have no means of
25
detecting it. In addition, because the drugs are administered from another room, IV
26
27 line extensions must be used, which increases the risk that a flaw or kink in the IV
28 line will disrupt the flow of drugs. Thus, the State cannot establish that "the risk has

34

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 14 of 26

been minimized as much as possible ...." Campbell v. Wood, 18 F.3d 662,687 n.17

2 (9th Cir. 1994).

3

Defendants agree that the above are disputed legal issues without agreeing that

4

all are relevant to or necessarily need to be decided by the Court in this action.
5

6

7

Plaintiffs Conclusions of Law

8
1. The implementation of Operational Procedure 770 contains a substantial
9

10 risk of unnecessary pain in the execution of the sentence of death, thereby depriving

11 plaintiff of his rights under the Eighth and Fourteenth Amendments to be free from

cruel and unusual punishment, in violation of 42 U.S.C. § 1983.

Defendants' Conclusions of Law

1. Conducting a lethal injection execution pursuant to OP 770 does not result

in cruel and unusual punishment or deprive Plaintiff of any right under the Eighth or
17
Fourteenth Amendments. Defendants refer the Court to the pleadings filed in
18

19 opposition to Plaintiff s motion for a Temporary Restraining Order and Injunction.

20

21
WITNESSES TO BE CALLED AND TIME ESTIMATE
22

23

The following witnesses will be called at the hearing by plaintiff, other than

24 solely for impeachment or rebuttal.
25
1. Witness # 1 - execution team leader for scheduled execution of plaintiff. This
26
27 witness will testify regarding team members' qualifications and training, and the

28 execution protocol and practices;

35

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 15 of 26

Plaintiffs time estimate - 4 hours

Defendant's time estimate -

2

3 2. Witness #3 - Licensed Vocational Nurse, execution team member. This witness
4
will testify regarding team members' qualifications and training, and the execution
5
protocol and practices;
6

7 Plaintiff s time estimate - 4 hours
8

Defendant's time estimate -

9
3. Witness #4 - Licensed Vocational Nurse, execution team member. This witness
10
will testify regarding team members' qualifications and training, and the execution
11
protocol and practices;

Plaintiff s time estimate - 1.5 hours

Defendant's time estimate-

4. Witness #5 - execution team leader for last 8 California executions. This witness

17 will testify regarding team members' qualifications and training, and the execution

18 protocol and practices;
19
20 Plaintiff s time estimate - 4 hours

Defendant's time estimate -

21
22 5. Warden Ornoski - warden for last two lethal injection executions and scheduled
23 execution of plaintiff. This witness will testify regarding defendant's management
24
and oversight of execution team members' qualifications, and the execution protocol
25
26 and practices;

27
Plaintiff s time estimate - 2 hours
28

Defendant's time estimate-

36

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 16 of 26

6. Warden Woodford - warden for four lethal injection executions. This witness will

2 testify regarding defendant's management and oversight of execution team members'
3
qualifications, and the execution protocol and practices;
4
5 Plaintiffs time estimate - 30 minutes Defendant's time estimate -

6
7 7. Warden Calderon - warden for four lethal injection executions. This witness will

8 testify regarding defendant's management and oversight of execution team members'
9
qualifications, and the execution protocol and practices;
10

11 Plaintiffs time estimate - 30 minutes

Defendant's time estimate -

8. Anesthesiologist #2 - this witness will testify regarding execution training and compliance with this Court's February 14, 2006 order;

Plaintiffs time estimate - I hour
17

Defendant's time estimate-

18 9. Robert Singler, M.D. - this witness will testify regarding execution training and
19
compliance with this Court's February 14,2006 order;
20

21 Plaintiff s time estimate - 1 hour
22

Defendant's time estimate -

23 10. Donald Calvo, M.D. - CDCR doctor who has attended executions;

24

25 Plaintiffs time estimate - 30 minutes

Defendant's time estimate -

26
27 11. Jack St. Clair, M.D. - CDCR doctor who has attended executions;

28

37

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 17 of 26

Plaintiffs time estimate - 30 minutes

Defendant's time estimate -

2

3 12. Thomas Rosko, M.D. - CDCR doctor who modified execution protocol;

4
Plaintiffs time estimate - 30 minutes
5

Defendant's time estimate -

6
7 13. Darc Keller - CDCR Secretary in charge of plaintiff s scheduled execution;

8 Plaintiff s time estimate - 1.5 hours
9

Defendant's time estimate -

10
14. Lt. Eric Messick - Administrative Assistant of the Warden and spokesperson for
11
San Quentin State Prison;

Plaintiffs time estimate - 30 minutes

Defendant's time estimate -

15. San Quentin Pharmacist - practices and procedures regarding refrigerated storage

of drugs;
17

18 Plaintiffs time estimate - 20 minutes
19

Defendant's time estimate -

20
16. Denise Dull - Legal Affairs Coordinator for San Quentin State Prison and person
21
with knowledge of record retention and preparation;
22

23 Plaintiffs time estimate - 1.5 hours
24

Defendant's time estimate -

25 17. Cindy Adcock - execution witness of North Carolina execution that used 1.5
26
grams of Thiopental;
27

28

38

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 18 of 26

Plaintiff's time estimate - 30 minutes

Defendant's time estimate - 15 minutes

2

3 18. Heather Jarvis - execution witness of North Carolina execution that used 1.5

4
grams of Thiopental;
5
6 Plaintiff's time estimate - 30 minutes

Defendant's time estimate - 15 minutes

7

8 19. Kim Stevens - execution witness of North Carolina execution that used 1.5 grams

9
of Thiopental;
10
11 Plaintiff's time estimate - 30 minutes

Defendant's time estimate - 15 minutes

20. Chuck Patterson - California execution witness;

Plaintiffs time estimate - 30 minutes

Defendant's time estimate - 15 minutes

21. Margo Ricconi - California execution witness;
17

18 Plaintiffs time estimate - 30 minutes
19

Defendant's time estimate - 15 minutes

20 21. William Ebling, Ph.D. - pharmacologist who will present evidence that the
21
administration of thiopental as described in Operational Procedure 770 and the prior
22
23 executions creates a substantial and unreasonable risk that an inmate will be

24 inadequately sedated during an execution;
25
26 Plaintiffs time estimate - 2.5 hours

Defendant's time estimate - l.5 hours

27
28 22. Dr. Kevin Concannon - doctor of veterinary medicine and a diplomat of the

American College of Veterinary Anesthesiologists who will present evidence that

39

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 19 of 26

California's lethal injection protocol is not an acceptable method of euthanasia for

2 animals.

3
Plaintiffs time estimate - 1 hour
4

Defendant's time estimate - 1 hour

5
23. Mark Heath, M.D. - anesthesiologist who will present evidence that California's
6

7 lethal injection protocol is more likely than not to cause extreme and excruciating

8 pain to the inmate.
9
10 Plaintiffs time estimate - 4 hours

Defendant's time estimate - 3 hours

1 1 o
LO
D:: ~ ~ g 12
Q'§a:&l
Cwz/)C..g..f,.j).0Er;:o~~' 13
0/1 w:= 0 Z -to: ~ M 14
CtDtDl::~_~QO~iL-§e; 15
u:ij~~
== ~ .9 ~ 16
.c,.o... 17
18
19

The following witnesses will be called at the hearing by defendant, other than solely for impeachment or rebuttal. 1. Robert Singler, M.D. - anesthesiologist who will testify on the properties and use of the drugs used in a lethal inj ection execution in light of the procedure set forth in a.p.770.

Plaintiffs time estimate - 4 hours

Defendant's time estimate - 3.5 hours

20
21 2. Dr. Brent Ekins - will present evidence on the pharmacological properties of the

22 drugs used in lethal injection execution.
23
24 Plaintiffs time estimate - 1.5 hours

Defendant's time estimate - 2 hours

25

26

The witness list andlor time estimates from plaintiff will be substantially

27 reduced based upon the stipulated facts set forth above. The final best estimates will
28
be modified upon further review of the stipulated facts, disputed facts, and the

40

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 20 of 26

witnesses deposition testimony, and will be submitted to the Court. Defendants will

2 be better able to make time estimates when the parties have agreed upon a final

3
witness list.
4
Should Plaintiff continue to include any current or former members of
5

6 the execution team on their witness list Defendants request that such testimony be

7 taken at San Quentin State Prison under the same terms and conditions as applied to
8
the March 30, 2006 hearing with Witness # 1.
9

10

Defendants intend to move to exclude the testimony of some witnesses

11 as irrelevant.

JOINT EXHIBIT LIST

The following documents and items will be offered as exhibits at the

evidentiary hearing, other than solely for impeachment or rebuttal. The parties have
17
18 conferred with respect to the objections.

19
Exh. Description 20 No.

Sponsoring Objections witness

21

1

Photo of syringe attachment site

22 2

Pentothal mixing instructions

23 3

Photo of door in antechamber

24 4

Photo of saline bags and light

25 5
26

Photo of chamber door, window to mixing room, and drug cart

27 5A Xerox Photo of chamber door, window to mixing room, and drug cart
28

41

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 21 of 26

6
2
7
3
4
8
5

Photo depicting location for delivery of drugs
Handwritten log from Thompson execution
Printed and handwritten log from Siripongs execution

6 8A Printed log from Siripongs execution

7 9
8

Printed and handwritten log from Babbitt execution

9 9A Printed log from Babbitt execution

10 10 Printed and handwritten log from Rich execution
11
lOA Printed log from Rich execution

11 Printed and handwritten log from Massie execution

llA Printed log from Massie execution

l2A Printed and handwritten log from Anderson execution by Calvo

17 12B Printed log from Anderson execution by second doctor
18

13
19

Printed and handwritten log from Beardslee execution

20 13A Printed log from Beardslee execution

21
14 Printed and handwritten log from S.

22

Williams execution

23 l4A Printed log from S. Williams execution

24 15
25

Printed and handwritten log from Allen execution

26 15A Printed log from Allen execution

27 16 Redacted LVN license for Witness #3

28 17 OP 770 dated March 6, 2006

18 Photo of chamber EKG machine

42

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 22 of 26

19 Memo re S. Williams veins

2 20 Memo re Allen veins

3 21 Photo of execution chamber from

4

witness side

5 22 Photo of door to execution chamber from antechamber

6
23 Photo of execution chamber depicting

7

right side of window, IV bags, and light

8 24 Photo of gurney depicting left ann rest

9 25 10 26
11
27

Printed log from K. Williams execution
Photo of closeup on IV bags and light in chamber
Photo of syringes on cart

28 Photo of panel for attachment of syringes

29 Printed log from Bonin execution

30 Redacted LVN license for Witness #4

31 Pages 43-44 from OP 770

17 32 Subpoena for Witness #5

18 33 Dr. Ekins' Report

19 34 20 35
21
22 36 23 37 24 38
25
39
26
27 40 28 41

List of Dr. Ekins' source material Table re pentothal from Dr. Elan's materials
Dr. Singler's report
Dr. Singer's CV
Dr. Dershwitz's declaration from Cooper v. Rimmer Dr. Dershwitz's declaration from Perkins v. Beck Dr. Concannon's CV
Dr. Concannon's report

43

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 23 of 26

42 AVMA Euthanasia Guidelines

2 43 AVMA brochure re: animal euthanasia

3 44
4
5 45

6
46
7

8 47

9 48

10 49

11

50

Dr. Concannon's declaration in Brown v. Beck
AC brief of Dr. Concannon et al. from Hill v. McDonough
Dr. Concannon's declaration in Page v. Beck Limits on use of AVMA Guidelines
Article from DVM Magazine
Dr. Ebling's report
Dr. Ebling's CV

51- OPEN FOR NEW EXHIBITS 74

75 Controlled substance inventory log 2004

76 Controlled substance inventory log dated 114/05

77
17
18
78
19
79
20

Controlled substance inventory log dated 4/10/06
OP 770, issued 10/1192, revised 6/13/03
Robert Singler, M.D. copies oflegal opinions and document

21 80
22 81
23
24 82
25
83
26
27 84
28

3-30-06 Crittendon photo onv bags
3-30-06 Crittendon photo of panel for syringes
3-30-06 Crittendon photo of panel for syringes - from left side
3-30-06 Crittendon photo ofEKG monitor
3-30-06 Crittendon photo of door to death cell

44

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 24 of 26

85 3-30-06 Crittendon photo of antechamber ceiling vent
2
86 3-30-06 Crittendon photo of radiator
3

87 3-30-06 Crittendon photo of radiator
4

5 88 3-30-06 Crittendon photo of execution chamber from witness side - antechamber

6

door open

7 89
8
9
90
10

3-30-06 Crittendon photo of execution chamber from witness side - antechamber door closed
3-30-06 Crittendon photo of window into execution chamber; stopcocks

11 91

3-30-06 Crittendon partial photo of syringes on cart

92 3-30-06 Crittendon photo of gurneyfrom foot

93 3-30-06 Crittendon photo of gurney from right side

94
17

3-30-06 Crittendon photo of gurney depicting right arm rest

18 95 3-30-06 Crittendon photo of gurney

depicting left arm rest

19

96 3-30-06 Crittendon photo of gurney

,

20

depicting both arm rests

21

97

22

March 20, 1978 Court of Appeal Opinion in Civil Case No. 40716

23 98
24

Handwritten execution Log Michael Morales

99 Letter of Jeanne Woodford, March 13,

25

2006, to Senator Thomas McClintock

26 100 Governor's Office Privilege Log

27
101 Execution Team Training Logs (78

28

pages)

45

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 25 of 26

USE OF DISCOVERY
2
The parties have not yet agreed on the use of discovery responses and
3

4 depositions to be used at the hearing, other than solely for impeachment or rebuttal.

5

6
MISCELLANEOUS
7

8

During the course of discovery, including through the depositions of

9

10

11 o
It: 1~0 ~ g 12

Q'5~lri
~ ~ ~ ~ z(J)(\]'
13

caW:=O

:flZ ~~;;; 14

(\]

~

a. gJ- iii

mIt:_~QOiL5e 15

g.3 :uE ~~~~ 16

.c..o.. 17

18

19

20

Anesthesiologist #2, Warden Ornoski, and Witness # 1, plaintiff learned of additional claims against defendants. The facts underlying these claims continue to be investigated. Prior to the September 13, 2006 pre-hearing conference, plaintiff will file a motion for leave to file an amended pleading pursuant to Federal Rule of Civil Procedure lS(a), setting forth additional claims against defendants. The amended pleading will allege that defendants' actions taken vis a vis plaintiff, his counsel, and the Court between February 14 and February 21, 2006, deprived plaintiff of the Eighth Amendment's protection against deliberate government indifference to the risk of pointless suffering, in violation of28 U.S.C. § 1983. See, e.g., Estelle v. Gamble,

21 429 U.S. 97, 104 (1976).

22
The briefing for the basis of this motion has been presented to
23
defendant. Defendant intends to oppose the motion.
24

25

26

27

28

46

Case 5:06-cv-00219-JF Document 164 Filed 09/03/2006 Page 26 of 26

DATED: September 1,2006
2 3 4 5 6 7
8 DATED: September 1,2006
9 10 11

MCBREEN & SENIOR
By: /s/ David A. Senior DAVID A. SENIOR Attorneys for Plaintiff MICHAEL ANGELO MORALES
OFFICE OF THE ATTORNEY GENERAL
By: /s/ Dane R. Gillette DANE R. GILLETTE Attorneys for Defendants

17 18 19 20 21 22 23 24 25 26 27 28
47

 
 Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 1 of 22

David A. Senior (# 108579)
2 McBreen & Senior 1880 Century Park East, Suite 1450
3 Los Angeles, California 90067
4 Telephone: (310) 552-5300 Fax: (310) 552-1205
5 clscniorrq),mc brccnscni or. com

6
John R. Grele (# 167080)
7 Law Offices of John R. Grele

8 703 Market Street, Suite 550 San Francisco, California 94103
9 Telephone: (415) 348-9300
10 Fax: (415) 348-0364 j fIre] c(if'.earthli 11k. net
11

12 Richard P. Steiriken (admitted pro hac vice) Jenner & Block LLP
13 One IBM Plaza

14 Chicago, Illinois 60611-7603 Telephone: (312) 923-2938
15 Fax: (312) 840-7338 16 rsteinken(cilj cnner.com
17 Attorneys for Plaintiff

REFILED DOC. NO. / bS
REVISED PURSUANT TO ORDER OF THE COURT, DOC. NO. 211, SEPT. 14, 2006

18 MICHAEL ANGELO MORALES

19

IN THE UNITED STATES DISTRICT COURT

20

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN .JOSE DIVISION

21

22 MICHAEL ANGELO MORALES,

23

Plaintiff,

) CASE NO. C 06 O~I~ eJF) (RS)

)

C 06-926 (JF) (RS)

)

24
vs.
25

) JOINT PRE-HEARING CONFERENCE ) STATEMENT )

26 JEANNE WOODFORD, Secretary of the ) California Department of Corrections; )
27 EDDIE YLST, Warden, San Quentin State) HEARING DATE: Sept. 26,2006

28 Prison, San Quentin, CA; and DOES 1-50,) TIME: ) COURTROOM:

9:00 a.m. 3

Defendants.

)

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

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 2 of 22

Pursuant to the Court's Order Scheduling Evidentiary Hearing and Pre-
2
Hearing Conference dated August 11, 2006, and the Standing Order re Pretrial
3
4 Preparation, the parties submit the following joint pre-hearing conference statement:

5

6
SUBSTANCE OF THE ACTION
7

8

Whether defendant CDCR's Operational Procedure 770 and the manner in

9 which it is performed by defendants violate plaintiffs rights under the 8th Amendment
10
ofthe U.S. Constitution.
11

RELIEF SOUGHT

Plaintiff seeks an order barring defendants from utilizing Operational

Procedure 770 and barring defendants from employing the manner and method in which

it performs the protocol with respect to his execution.
18

19

20

FACTUAL BASIS OF THE ACTION

~1 (1) Undisputed Facts (Although not disputed, defendants reserve the right to object to the

22
admissibility of all facts marked "*").
23

24

1. No Warden has approved and signed Operational Procedure 770, March 6,

25 2006.
26
2. Defendants concluded that the modifications to Operational Procedure 770,
27
28 March 6, 2006, will allow a lethal injection execution to proceed more quickly and

efficiently. The changes were not made from any concern about the effectiveness or

2

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 3 of 22

constitutionality of the former procedure (Supp. Response to Interrogatory #6).
2
3. Defendant CDCR employs the people who execute inmates for the State of
3
4 California. These people are execution team members. Typically there are up to 14

5 members on the team.
6
4. The teammates select replacement members to the team as needed by
7
8 unanimous vote by the team, and thereafter solicit the new members to join the team.

9

5. There are no doctors on the execution team.

10
6. Currently, there are no Registered Nurses ("RN") on the execution team,
11
and there are no requirements that an RN be on the team.

7. Warden Arthur Calderon presided over four lethal injection executions. At

one time, Calderon claimed he personally selected all the teammates that conducted

executions when he was Warden.

8. Jeanne Woodford was Chief Deputy Warden at San Quentin in 1998 and
18
was responsible for the day-to-day operations of San Quentin. Woodford became
19
20 Warden in 1999. At one time, Warden Woodford claimed she personally assured herself
21 that each member of the execution team had a high degree of skill, competence,
22
professionalism, patience, and stability necessary to be on the team. Warden Woodford
23
24 presided over four lethal injection executions. Woodford was the Secretary of CDCR
25 during the scheduled execution of Michael Morales on February 21,2006.
26
9.* Witness #5, a licensed peace officer employed as a guard at San Quentin
27
28 State Prison, was terminated by defendant CDCR, then reinstated with a five-month
suspension without pay for bringing illegal narcotics into San Quentin State Prison.

3

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 4 of 22

10. Thereafter, Witness #5 was approved by Wardens Calderon and Woodford
2
for membership on the execution team, was selected by Warden Calderon to be the
3
4 execution team leader after Witness #10 was removed from the team. Witness #5 has

5 participated in 10 California executions, and was the team leader for the last eight

6
California executions.
7

8

11. Warden Omoski left it to Witness #5 to select the teammates. Warden

9 Ornoski presided over the executions of Stanley Williams and Clarence Ray Allen, and
10
the scheduled execution of Michael Morales on February 21,2006.
11
12. Witness #5 did not review the personnel files of any team members before

extending invitations to them to join the team. Witness #5 never periodically reviewed the

personnel file of any execution team member while he was the execution team leader.
13.* In 1995, Witness #1 was diagnosed with psychiatric disorders, including

clinical depression and Post-Traumatic Stress Disorder as a result of years of working in
18
the prison system. Witness #1 was found to be mentally disabled and could not attend
19
20 work at CDCR for several months. Witness #1 was treated for these psychiatric disorders

21 from 1995 to 1998.
22
14.* In 1998, Witness #1 was arrested and convicted for driving a vehicle while
23
24 intoxicated in Sacramento County. His blood a1cohollevel was 0.12 - 50 percent over the

25 legal limit. This conviction was reported to defendant CDCR, and thereafter became part

26
of Witness #1 's disciplinary record at CDCR.

27

28

15.* . Witness #1 has participated in the executions of eight inmates between 1999

and 2006.

4

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 5 of 22

16. * In January 2006, Witness #1 again was diagnosed to be clinically depressed,
2
and was prescribed 300 mg of daily anti-depressant medication. At the time, Witness #1
3
4 had been elevated to be the co-team leader of the execution team. Among other things, he

5 was responsible to observe the mixing of the thiopental sodium for the execution of
6
Clarence Ray Allen in January 2006. While clinically depressed and medicated, Witness
7
8 #1 participated in Allen's execution in a learning position to take over as team leader.

9

17. Execution team members are not required, upon entry to the execution team,

10
to undergo psychological testing.
11
18. The team leader gives all directions to the execution team during an

execution; all team members are under his direction. It is important to have an execution

team leader in charge who is able to give clear and concise direction as to what the team

ought to be doing.

19. * In February 2006, Witness #1 became the sole team leader for the execution
18
team, and for the execution of Michael Morales scheduled for February 21,2006. On
19
20 February 20-21, 2006, Witness #1 still was receiving treatment for clinical depression, and

21 was taking his daily dose of 300 mg of prescribed anti-depressant medication as he led the

22
execution team for 24 hours.

23

24

20. * Witness #13 is another execution team member who has been convicted of

25 drunk driving charges. This conviction was reported to defendant CDCR and was known
26
by team leader Witness #1. Neither defendant CDCR nor Witness # 1 took any action to
27
28 preclude Witness #13's subsequent participation in the executions of Donald Beardslee,

5

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 6 of 22

Stanley Williams, Clarence Allen, andlor the scheduled Michael Morales execution as a
2
result of this conviction.
3

4

5

21. * Witness #5, the team leader forthe last eight California executions, regularly

6
worked in the condemned inmate areas of the prison since 1978, including in the
7

8

. Witness #5

9 worked "substantial" hours in all of these areas,
10

11

o

12

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v ....

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~ ~

14

Z iii U e 15

WCL uiiJj
m~ ~~"*g'-§§. 16

(,,) Q)-<.t: Q)
:Eu",Qi
~ .:: I- 17

18

19

20

In that period of time, every condemned H'.llHU~v

S an Q uen'tm StatePns'-on

-including

plaintiff..

23. * Over the past several years, Witness #5 u""rlr<'rI

lUTh,,,.,.,,. plaintiff is housed.

21 working per each watch.
22
24.* Since being the execution team leader, Witness #5 was disabled from work
23
24 - requiring a number of medical appointments for a couple of years - as a result of

25 injuries sustained in a physical altercation with an inmate.
26
25. The RNs and LVNs on the execution team sometimes work in the
27
28 condenmed prisoner area of San Quentin, and condenmed inmates are treated by the RNs

and LVNs where they work in the prison.

6

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 7 of 22

26. The execution team uses regular saline or water in the syringes during

2
training or practice sessions. The execution team does not practice mixing thiopental.
3

4

27. Between January, 1996 and January 18,2006, five grams ofthiopental were

5 used in an execution. A single back up syringe of thiopental was prepared for each

6
execution which contained 1.25 grams.
7

8

28. Starting with the Siripongs execution and for every execution thereafter, the

9 procedure changed to using four syringes of sodium thiopental, each containing 1.25
10
grams of sodium thiopental.
11
29. Prior to the execution, the execution team trains two times a week leading

up to the week before the scheduled execution. The team then comes off post and trains

continuously, eight hours a day, a week before leading up to the execution. The team goes

through it "over, and over, and over," at least seven or eight times in the course of two

hours. It is important that everybody is comfortable with their roles and what they are

18
doing.
19

20

30. Execution practice sessions consist of meetings and dry runs through the

21 procedure exactly as it is expected to proceed at an execution, except that the thiopental is
22
not actually mixed into solution; the catheters are not inserted into anyone's veins; water
23
24 is used in the syringes and IV bags; the IV lines empty the fluid into a bucket; the RN

25 typically takes the position of the Warden; and team members simulate the position of the

26
inmate.
27

28

31. There are no documents that are referred to at the training or generated

during the training. No one takes down any notes while the training is going on.

7

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 8 of 22

32. For each execution, the lethal drugs are mixed by the medical members of
2
the execution team (RNs and LVNs), along with the person charged with administering
3
4 the drugs and the team leader.

5

33. During the last eight California executions, there were no practice sessions

6
where people practiced mixing Pentothal. Witness #1 has not been trained in mixing the
7

8 drugs. Witness #1 was responsible to ensure that the drugs are mixed correctly.

9

34. The first time Witness #4 mixed Pentothal was on the evening of a

10
scheduled execution. Prior to mixing Pentothal for an execution, Witness #4 had never
11
received any training in doing that. On each of the four occasions when Witness # 4

mixed the lethal drugs, he would mix the drugs with Witness #1. Witness #4 observed

that when the Pentothal is mixed, it is a yellowish, brownish tan color.

35. The packaging material for each 500mg vial of Pentothal states that each

500mg of thiopental sodium is to be dissolved in 20 mL of sterile water. Accordingly,

18
one gram of Pentothal is to be dissolved in 40 mL of sterile water.
19

20

36. The new Operational Procedure 770, March 6, 2006, provides that 5 Grn of

21 Sodium Pentothal will be mixed thoroughly with the 250 mL bag of Sodium Chloride

22
(saline).
23

24

37. In the new Operational Procedure 770, March 6, 2006, the thiopental drip is

25 set at a rate such that it will last 20 to 30 minutes for all the fluid to run out.
26
. 38. The drip rate for the IV saline bags is set by the team member who
27
28 administers the drugs.

8

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 9 of 22

39. The saline drips are set so that the MTAs can tell from looking at the IV drip

2
whether they have successfully placed the catheters.
3

4

40. The packaging material for each 500mg vial of Pentothal provides: Store at

5 controlled room temperature 15° to 30°C (59° to 86°P). See USP. Keep reconstituted

6
solution in a cool place.
7

8

41. Under new Operational Procedure 770, March 6, 2006, an IV drip bag

9 containing five grams of thiopental sodium is to be hung above the execution chamber
10
with two other IV bags. The drugs are to be mixed sometime after 11 :00 p.m. The IV bag
11
is then placed at a distance of roughly six to nine inches from a lamp fixture consisting of

an incandescent light bulb with red glass and a silver, cylindrical reflective metal sheath.

On the night of a scheduled execution, this lamp is turned on at approximately 11 :40 p.m.

42. While the execution team attempts to begin the execution fairly close to

midnight, the execution sometimes does not start until a little later. The execution team
18
did not begin to administer Pentothal until 12:22 a.m. during the execution of Stanley
19
20 Williams, and until 12:18 a.m. in the executions of Donald Beardslee and Clarence Allen.

21

43. The anteroom is the location where the execution team administers the lethal

22
drugs into the IV lines during an execution. The room would "comfortably
23
24 accommodate" 16 or 17 people, "but certainly not any more than that." Hon. J. Fogel RT

25 3/30106 at 185; see also 122. During an execution, however, there are a few more than
26
that. Dr. Calvo testified that there are "so many people ... in the room that you didn't
27
28 even know who they were and [why] they were there." Warden Omoski reports that he

would "shuffle from side to side a foot or two, but I mean, it's fairly crowded back there.

9

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 10 of 22

There's not much room for me to maneuver." During Clarence Allen's execution, "it was
2
even more crowded at that time, and I don't believe I could move from my spot much, if
3
4 any."

5

44. During Stanley Williams' execution, Dr. St. Clair noted that "[s]ome big

6
fellow from Sacramento" "was in [his] way." "[I]fI recall, I'm holding a clipboard, and
7
8 he kind of hit me ..." The same individual stood in front of Dr. St. Clair during the

9 execution of Clarence Allen. "[O]ne of the problems with the big guy was not only was
10
he [was] blocking -- he'd block this way, but he'd block the light that comes from that
11
little room that helped to allow me to see what I'm doing."

45. During Stanley Williams's execution, a "rather large" CDCR official was

standing in front of the antechamber window to the execution chamber. The large man

did not take any part or role in the execution of Mr. Williams. Witness #4 was attaching

the syringe of lethal drugs from the cart to be administered to Stanley Williams to the
18
stopcock, and the large man "was standing in Witness #4's way. Witness #4 had to nudge
19
20 him a couple of times because it was a territorial imperative. He was a large gentleman,

21 and he was tending to take up more and more space. Dr. St. Clair stood behind this large

22
person.
23

24

46. It "was a packed house" during the Thompson lethal injection execution.

25

47. The three phones in the anteroom of the execution chamber are dedicated to

26
the clerk at the state Supreme Court, the Attorney General's office, and to the prison's
27
28 operations center.

10

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 11 of 22

48. The inmate is then restrained on the gurney with restraints on the wrist,
2
shoulders, across the chest, over the waist and through the groin area. Some execution
3
4 team members depart from the chamber before catheters are inserted into the inmate.

5

49. Catheters are regularly set in the inmates' arms by LVNs during executions.

6
Witness #3, a LVN, has set catheters in seven of nine executions since he has been on the
7
8 execution team. He has set the catheter in the inmate's right arm in, among others, the

9 executions of Donald Beardslee, Stanley Williams, and Clarence Allen. Witness#3 only
10
recalls setting the catheter in the inmate's left arm on one occasion.
11
50. Witness #4, a LVN, set a catheter in Donald Beardslee's left arm for his

execution"after initially blowing the inmate's vein.

51. Witness #3 and Witness #4 were assigned to set the catheters in Michael

Morales during his scheduled February 21,2006 execution.

52. There were no medically licensed individuals on the execution team for the

18
scheduled execution of Michael Morales other than Witness #3 and Witness #4.
19

20

53. Witness #4 may have read 10 or 12 pages of Procedure 770, but only once

21 and only after Beardslee's execution. Witness #3 never has read Procedure 770. Dr.
22
Calvo, who was present for the executions of Keith Williams, Babbitt, Siripongs,
23
24 Anderson, Rich, Massey, and Stanley Williams, and perhaps others, has not read

25 Procedure 770.
26
54. The doctors present at executions do not have any supervisory
27
28 responsibilities during the execution. The LVNs do not act under the direction of a

11

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 12 of 22

physician during an execution. The setting of these catheters is performed in the execution

2
chamber.

3

4

55. * Witness #3 never has taken any course work or training to become an RN.

5 He was trained to set catheters

over 14

6
years ago. _instructional training regarding setting catheters took place all
7
8 within a minute. As an LVN at CDCR for the past 11 years, Witness #3 has received no

9 medical training from CDCR.

10

56. * LVNs do not set catheters at San Quentin's Treatment and Triage Area

11

("TTA"); that is the responsibility of a registered nurse or physician. General anesthesia

is not applied in the TTA.
57. * It is very infrequent that an IV line is placed in an inmate in the medical

units at San Quentin other than in the TTA.

58. * Witness #3 is a LVN assigned

18

59. * Witness #4 is a LVN assigned t~

19

20

60. * Fourteen years ago, Witness #3 practiced setting catheters_

21

After demonstrating three successful venal punctures or IV starts,

22
Witness #3 became certified by CMF to start IVs as a LVN. Witness #3 has no estimate
23

24 regarding how long his CMF IV training or IV course lasted, and he does not know upon

25 whom he set the catheters.
26
61. An LVN who is training for an execution does not practice setting the
27
28 catheter in the simulated inmate's ann; they tape the catheter to the outside of the

simulated inmate's arm.

12

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 13 of 22

62. Procedure 770 requires that two catheters be properly set in the inmate and

2
operating before an execution begins.
3

4

63. During the Massie execution, there was a difficulty with one of the IV lines.

5

64. For the executions of Keith Williams, Bonin, Siripongs, Thompson, Rich,

6
Babbit, Massie, and Anderson, respirations were measured by Dr. Calvo who has
7

8 observed and counted respirations for almost 40 years.

9

65. For the executions of Keith Williams, Bonin, Siripongs, Thompson, Rich,

10
Babbit, Massie, and Anderson, Dr. Calvo measured respirations by watching the inmate
11
for a full minute and counting the number of respirations.

66. When measuring respirations, Dr. Calvo started when he heard the

instruction for each of the three drugs given..

67. When recording respirations, Dr. Calvo recorded rhythmic breathing

movements at a certain rate.
18
68. When observing the execution of Manuel Babbit, Dr. Calvo noted shallow
19
20 respirations after the administration of pancuronium that were at the same rate as
21 previously noted, but were not deep breaths.
22
69. When observing Manuel Babbit, Dr. Calvo noted spasmodic, jerking
23
24 movements of the upper abdomen and chest area one minute after the administration of
25 the pancuronium which lasted a minute, after which all breathing stopped.
26
70. When observing the execution of Darrell Rich, Dr. Calvo noted that after
27
28 respirations ceased, Mr. Rich had what Dr. Calvo characterized as agonal breathing
movement which was not rhythmic one minute after the administration of the

13

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 14 of 22

pancuronium, that lasted a minute at least but could have been two minutes, which he

2
considered to be unusual.
3

4

71. The saline flush administered after the sodium thiopental flushes the

5 remaining sodium thiopental in the tubing into the inmate.
6
72. For the executions of Keith Williams, Bonin, Siripongs, Thompson, Rich,
7
8 Babbit, Massie, and Anderson, Dr. Calvo observed the administration of a saline flush

9 before the administration of the pancuronium and before the administration of the
10
potassium chloride, and after the administration of the potassium chloride.
11
73. For the executions of Stanley Williams and Clarence Allen, Dr. St Clair

measured breathing by counting breaths for 15 seconds and multiplying by four.

74. Inmates are evaluated prior to execution to determine if they have useable

veins. They are not evaluated to determine if they have any condition or characteristic that

may alter the effect of any of the drugs administered during the lethal inj ection process.
18
75. When the Warden orders the execution to commence, the execution team is
19
20 required to first administer Pentothal to the inmate. To do so, an execution team member

21 selects a syringe from the top of a cart where syringes containing Pentothal, pancuronium

22
bromide, sodium chloride, and saline are placed.
23

24

76. When a syringe is selected, it is inserted into a stopcock on the outside wall

25 of the execution chamber and the syringe's contents are plunged into the stopcock, which
26
is attached to an IV line that flows from an IV bag of saline hung on top of the execution
27
28 chamber to the stopcock and then through the execution chamber wall to a catheter set in

the inmate's arm.

14

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 15 of 22

77. Witness #3, the LVN who has participated in seven of the last nine
2
executions, believes that in each instance, he selected the syringe from the cart - including
3
4 during the Stanley Williams and Clarence Allen executions - and passed it to another

5 LVN for insertion into the stopcock, then the empty syringe was returned to him and he
6
made the selection of the next syringe from the cart. Witness #3 has practiced this with
7
8 the team "over, and over, and over."

9

78. Witness #4, the other LVN who has been scheduled to participate in five

10
executions and participated in the Beardslee, Stanley Williams, and Allen executions,
11
believes that in the Williams and Allen executions, he selected the syringes off the cart for

insertion into the stopcock, and then he returned the empty syringes to the cart before

selecting the next syringe.

79. Infiltration is when the IV catheter delivers fluid into the tissue surrounding

the vein. Witness #4 believes the arm will swell up, but not before 10 or 15 minutes.
18
80. Once an RN or LVNplaces the catheter, they leave the chamber and the
19
20 chamber door is closed. The left IV - which will need to be used in the event the right IV

21 fails - is not monitored by the execution team for infiltration during an execution.
22
81. Only one LVN or RN is positioned in a spot that they are able to see into the
23
24 chan1ber area to the right arm where the primary IV is set.

25

82. Witness #4 handled the syringes for both the executions of Stanley Williams

26
and Clarence Allen. Witness #4 neither practiced nor was trained by CDCR on how to
27
28 make a visual inspection of the IV lines during the executions.

15

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 16 of 22

83. Witness #3, the LVN who has set catheters in seven of the last nine

2
executions, cannot see the inmate above the waist from where he stands in the anteroom
3
4 during an execution and cannot see the inmates' arms.

5

84. * Witness #4 was trained as an LVN

6
examine catheters to see whether infiltration was occurring. Catheter inspections were
7
8 part of his regular routine. These IVs would be the same as used during the execution. In

9 every instance, Witness #4 was taught to get as close as you can get to the patient;
10
bedside; no farther than arms length; touching their arm if necessary. In all instances,
11
Witness #4 would get much closer than in the case of an execution. Witness #4 can get no

closer than eight feet from the inmate's catheter during the execution, and is in a separate

room with "subdued lighting" looking through a window.

85. During Stanley Williams's execution, both an RN and Witness #3, a LVN,

inspected a catheter setting while inside the chamber and concluded that it was set
18
properly, when in fact it was not. Standing outside the execution chamber, Witness #4
19
20 could not tell whether the catheter was set properly - the only way he could tell whether

21 or not it was successful was by the way the RN reacted to it. It was not based in any part

22
on his observation of the IV or the catheter itself. Witness #4 was not sure whether it was
23
24 set properly.

25

86. * Witness #3 was trained_to monitor the flow of an IV by having

26
the IV bag and drip chamber above the person that you're starting an IV on, and then
27
28 stand right next to it - within a foot. The IV drip bag and the drip chamber during an

execution are located above the execution chamber, approximately nine to 10 feet off the

16

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 17 of 22

ground, accessible only in the anteroom to the execution chamber. The catheter, the
2
inmate, and IV tubing are located inside the execution chamber. The length of IV tubing
3
4 is approximately 11 feet for each line inside the chamber, from the point at which the line

5 goes through a hole in the chamber wall to the catheter placed at the inmate's elbow.

6

87. * Witness #5, the former execution team leader, never received any training in

7

8 infiltration. Witness #5 was the person who trained the next team leader, Witness #1, on

9 10

11

o

12

10

~ ~ gg "'" ...... 13
_::10>10
eawzn!(I J~..)~..o..7!2s:i)i:::l:~~r~.o 14

z ~u_e 15 W ~W.aa.~...9e~ln ~0 20 ! 16

()ai~~

:5

U
~

en"iii
31-

17

..-

18

19

20

21

22

23

24

25

26

27

28

how to administer lethal drugs. The only other person to train Witness #1 in this regard was theRN

This is the same RN who improperly

set the catheter in Stanley Williams, failed to recognize it was not set properly, and then

failed to advise Witness #5 of this failure until after the execution;
88. * Witness #5 and Witness #1 are friends. Since Witness #5

communicates with Witness #1 bye-mail and telephone. They discuss what is going on at

San Quentin,

Witness

#1 told Witness #5 that he had his deposition taken in this case, and they discussed his

deposition before Witness #5 appeared for his deposition. Witness #1 and Witness #5

discuss family issues. Witness #1 recently has called Witness #5 from the airport to

discuss a very personal family crises which Witness #5 is unable to share. Witness #5

communicated about the scheduled execution of Michael Morales bye-mail with Witness

#1 on three occasions. Witness #5 does not have access to those e-mails.

17

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 18 of 22

89.* Witness #5 obtained copies of the depositions of Witness #3 and Witness #4
2
before he appeared for his deposition. When he obtained these deposition transcripts, they
3
4 were both in the possession of Witness #3.

5

90. Witness #1 never has had training on how to feel for a clogged IV when

6
pushing on a syringe nor about instances where IVs can become clogged after they've
7

8 started dripping.

9

91. The execution team does not practice removing bubbles in an IV line during

10
training. There is no procedure that goes into effect should someone note a bubble in the
11
IV line during an execution.

92. No member of the execution team monitors the inmate's anesthetic depth

during an execution.
93. * Anesthesiologist #2 ("A2") was requested by Darc Keller, Assistant

Secretary, Office of Health Care Policy for defendant CDCR, to participate in the
18
scheduled execution of Michael Morales pursuant to the February 14,2006 order of the
19
20 Hon. Jeremy Fogel.

21

94. * A2 was advised by Keller that they needed a "backup" anesthesiologist to be

22
present for the execution. A2 "asked, 'What would that entail?,'" and Keller advised,
23

24

"That would entail nothing."
,

25

95. * A2 inquired, "What do you mean by 'nothing'?," and Keller advised that he

26
"would simply be there to observe. You would have no responsibilities."

27

28

96. * A2 "wasn't to go through training" because he "had no responsibilities."

18

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 19 of 22

97. * A2 agreed to be present as a backup after confim1ing his understanding that
2
he would not be in the chamber, that he would have no responsibilities other than to be
3
4 present.

5

98. * A2 never had any understanding that he was ever to give any professional

6 OpInIOn.
7

8

99. * A2 had no understanding that "if there was a problem with the primary

9 anesthesiologist, [his] role would escalate to something else~"

10

100. * On the Saturday before the scheduled execution of Michael Morales, A2

11

attended an execution rehearsal at San Quentin. A2 never was given a copy of execution

Protocol 770 to read; he didn't know there was such a thing. A2 was not given any

pharmaceuticals to review that were kept at San Quentin, any former execution logs, or

medical devices, and he brought no medical equipment to the prison.

101.* A2 did not provide any advice on how to prepare Pentothal, how to set a
18
catheter, how to operate the IV system, how to use the stopcocks, how they could do an
19
20 execution better or the amount of Pentothal that should be used.

21

102.* A2 never has induced general anesthesia from a remote location, nor seen

22
anyone do it.
23

24

103.* A2 provided no advice regarding the methods of using the syringes or

25 comment on the location of the IV bags.
26
104.* At the rehearsal, A2 was in the anteroom of the execution chamber, and was
27
28 told to stand in the comer, and he did. As you walk into the anteroom, circle all the way

around to the end of the circle, and A2's location was in the far right-hand comer. A2

19

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 20 of 22

could not see into the chamber from where he was standing. He stayed there for an hour,

2
and never relocated himself.
3

4

105. * A2 does not recall what transpired during the rehearsal because he wasn't

5 paying that close attention. A2's observations ofthe rehearsal were limited because he

6
chose not to pay much attention.
7

8

106.* It was A2's assessment, based upon his conversations with Darc Keller of

9 CDCR, that CDCR was requesting his presence merely as a "warm body." A2 had no
10
plans to do anything but stand there. The only instruction A2 had was to stand there,
11
given by the warden. That's the only order he ever received.

107.* At the rehearsal on February 18, 2006, A2 was handed a headset, and was

told to tell Dr. Singler that he was signaling the patient was unconscious. That was the

first time A2 learned that he was going to be asked to perform this role. This was not

consistent with A2's role as he understood it, and he refused to perform the role.
18
108.* Thereafter, the warden approved A2's request to be allowed, during the
19
20 execution, to stand in the small room off the anteroom where the lethal drugs are mixed-
21 an area where it would be impossible for A2 to see into the execution chamber.
22
109.* When A2left San Quentin on February 18,2006, it was his understanding
23
24 that, in attending the execution of Michael Morales scheduled for February 21,2006, he
25 would have to do nothing other than show up at the prison and stand in that little room.
26
110.* Darc Keller, Assistant Secretary, Office of Health Care Policy for defendant
27
28 CDCR, used CDCR funds to pay A2 his normal anesthesiology fee for these services.

20

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 21 of 22

111. * On February 20,2006, A2 arrived with Dr. Singler at San Quentin at 8:00
2
p.m., and within the first one minute, before he sat down, Bruce Slavin from CDCR said,
3
4 "we have a problem." Slavin proceeded to show A2 the first document A2 ever saw in
5 writing of a court order describing the expectation of Dr. Singler and A2.
6
112.* After reading two pages of the February 19,2006 order from the Ninth
7
8 Circuit in this case, A2 immediately stated: "I can't participate -- I can't proceed." Dr.
9 Singler concurred.
10
113.* A2 absolutely never gave anyone any reason to believe after 8: 15 p.m. on
11
Monday night, that he was going to be present during the execution.

114.* A2 left San Quentin around midnight or 1:00 a.m. CDCR did not advise

Michael Morales that it was not proceeding with the scheduled 12:01 a.m. execution until

after 2:36 a.m. Neither CDCR nor the Attorney General ever advised Michael Morales's

counsel that CDCR was not proceeding with the scheduled 12:01 a.m. execution until

18
after 2:45 a.m., when counsel was advised by Lt. Vemell Crittendon of CDCR.
19

20

115. * In response to the Court's February 14,2006 order, a meeting lasting

21 approximately an hour to an hour and a half took place in Sacramento for CDCR to

22
review its lethal-injection protocol.
23

24

116.* The meeting was called by the Governor's legal affairs director, Andrea

25 Hoch, and was attended by Robert Singler, M.D., Dane Gillette, Andrea Hoch, Steven
26
Ornoski, Bruce Slavin, Dan Maguire, Tami Bogert, Peter Szkrenyi, and Dare Keller.
27

28

21

Case 5:06-cv-00219-JF Document 215 Filed 09/15/2006 Page 22 of 22

117.* All present had read a copy of this Court's February 14,2006 order, and
2
appeared to be familiar with this Court's respectful suggestion to CDCR that it review its
3
4 lethal-injection protocol.

5

118. * At the conclusion of the meeting, no one was assigned any tasks or

6
responsibilities to take any further action in this regard. Warden Ornoski knows of no
7
8 other actions taken by CDCR with respect to the Court's suggestion. Warden Omoski left

9 that meeting with the belief that the issue would be resolved at the hearing by this Court
10
and that CDCR would be told by the Court what its new procedure was going to be.
11
119.* Warden Ornoski requested that Dr. Thomas Rosko, the San Quentin Chief

Psychiatrist and a former anesthesiologist, assist in revising Operational Procedure 770.

120.* Dr. Rosko's task was to devise the procedures to employ for the infusion of

sodium thiopental. At that time, Dr. Rosko believed that the initial bolus dose would be

5000 milligrams of sodium thiopental.
18
121. No state other than California uses a bolus dose of sodium thiopental that is
19
20 less than 2 grams.

21

122. Texas uses 3 grams of sodium thiopental during an execution.

22
123.* Dr. Rosko performed 15 minutes of research on the Internet to determine the
23
24 concentration of sodium thiopental to be in the infusion, and the drip rate.

25

124.* During Dr. Rosko's Internet search, he did not have access to a Medline

26
account that would allow him to review entire articles in certain journals.
27

28

125. Inmates Allen, Anderson, Massie, and Siripongs received a second dose of

potassium chloride during their executions.

22

 
 Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 1 of 26

David A. Senior (# 108579)
2 McBreen & Senior 1880 Century Park East, Suite 1450
3 Los Angeles, California 90067
4 Telephone: (310) 552-5300 Fax: (310) 552-1205
5 dscniona!mcbrccnscnioLcom

6
John R. Grele (# 167080) 7 Law Offices of John R. Grele
8 703 Market Street, Suite 550 San Francisco, California 94103
9 Telephone: (415) 348-9300
10 Fax: (415) 348-0364 j !lrele({j~earthljnk.net
11

12 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP

13 One IBM Plaza
14 Chicago, Illinois 60611-7603 Telephone: (312) 923-2938

I' REFILED DOC. NO. lj

15 Fax: (312) 840-7338 16 rsteinkenr£ilienner.com

REVISED PURSUANT TO ORDER OF THE COURT,

17 Attorneys for Plaintiff

DOC. NO. 211, SEPT. 14,2006

18 MICHAEL ANGELO MORALES

19

IN THE UNITED STATES DISTRICT COURT

20

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION
21

22 MICHAEL ANDELO MORALES,

23

Plaintiff,

) CASE NO. C 06 0219 (JF) (RS)

)

C 06-926 (JF) (RS)

)

24
vs.
25

) JOINT PRE-HEARING CONFERENCE ) STATEMENT
)

26 JEANNE WOODFORD, Secretary of the ) California Department of Conections; )

:"

27 EDDIE YLST, Warden, San Quentin State) HEARING DATE: Sept. 26, 2006

28 Prison, San Quentin, CA; and DOES 1-50,) TIME:

9:00 a.m.

) COURTROOM: 3

Defendants.

)

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

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 2 of 26

(2) Disputed Factual Issues (All Facts are Disputed by Defendant, Unless Marked
2
"Disputed by Plaintiff') Defendants' objections are primarily to the fonn ofthe
3
4 statements rather than the contents unless otherwise noted.

5

1. The team always includes 2-3 medical personnel consisting of a

6
combination ofRNs and Medical Technical Assistants (MTA), who must be a Licensed
7
8 Vocational Nurse (LVN) with a state credential authorizing insertion of IVs. Disputed by

9 Plaintiff.
10
2. Fonner execution team leader, Witness #10, was removed from the
11
execution team for misconduct.

3. The misconduct by Witness #10 leading to his several month suspension

from work was unrelated to his participation in an execution.

4. The team leader administers the fatal dosages of drugs to the inmate during

the execution. Defendants have never revealed the identity of the team member

18
responsible for delivering the drugs.
19

20

5. The execution teammates' responsibilities are "awesome" and very stressful.

21 The teammates become very apprehensive during an execution. It is a very intense
22
process; it is the most stressful thing that a person in the Department of Corrections is
23
24 asked to do. Team members, including the RNs and LVNs are as tense as they ever are.

25 It is a surrealistic experience. It does not seem real when it's happening. It seems
26
dreamlike. It is stressful because there is no other place in the world that an LVN is asked
27
28 to start an IV for that purpose. Warden Steven Omoski was practically beside himself

23

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 3 of 26

during the Stanley Williams execution. Wardens have refrained from viewing any part of

2
the condemned inmate save his feet during the last three California executions.
3

4

6. It is a rule that you cannot be working in the condemned area of the prison

5 and be on the execution team. There are no exceptions to the rule.
6
7. Warden Woodford had no inhibitions about assigning a member to the
7
8 execution team who was known by the inmate who was being executed.

9

8. The LVNs claim to prepare the Pentothal by following the instructions.

10
.9. The new Operational Procedure 770, March 6,2006, each one gram of
1.1
Pentothal is to be dissolved in 50 mL of a solution of sodium chloride of unknown

concentration, rather than in 40 mL of sterile water.

10. During an execution, "it's a bit more crowded" in the antechamber than

16 or 17 people.

11. During Stanley Williams's execution, Witness #4 was tasked with
18
selecting the lethal drugs from the cart to be administered to Stanley Williams, and
19
20 the large man "was standing in Witness #4's way.

21

12. Twenty-six people or so were on the approved list to be present in the

22
anteroom for the scheduled execution of Michael Morales.
23

24

13. To execute an inmate, officers bring the inmate from a holding cell

25 across the hall from the execution chamber, through the anteroom of the execution
26
chamber, and into the chamber. Witness #1 believes that five peace officers walk the
27
28 inmate into the chamber, while Witness #4 thinks it's four.

24

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 4 of 26

14. Catheters are regularly set in the inmates' arms by RNs during

2
executions.
3

4

15. The setting of these catheters is performed in the execution chamber,

5 not in a health care facility.
6
16. During Stanley Williams's execution, an RN was responsible to set one
7
8 catheter. The vein blew when she started the IV. She attempted again to start the IV

9 and the vein blew again.
10
17. The nurse was frustrated and became upset; she was visibly upset to
11
other execution team members.

18. Unbeknownst to the RN and Witness #3, the RN then failed to properly

set the catheter a third time. The RN subsequently taped the catheter to Williams's

arm, and began to exit the chamber.

19. While Witness #3 and RN were exiting the chamber, it was said that "it

18
wasn't flowing, the drip wasn't flowing." The RN couldn't believe that it wasn't
19
20 running again. After the RN exited the chamber - while the chamber door still was

21 open - it was said a second time that "the left wasn't running."

22
20. Warden Omoski was standing in the center of the anteroom, looking at
23
24 the door. The team leader was present at the chamber door.

25

21. Witness #4 was under the impression that the team leader was

26
responsible to monitor the IV drip as a result of all the training he went through for
27
28 Williams, as well as other executions.

25

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 5 of 26

22. The Warden then said, "Proceed," "after the comments were made that
2
the left IV had failed. The execution proceeded without the IV line in the left arm
3
4 properly set or operating.

5

23. After the RNs or LVNs leave the execution chamber, the lights are

6
turned down in the anteroom before the execution begins. The lights are turned very
7
8 low. Under the anteroom's subdued lighting, the syringes containing the lethal drugs

9 are present, taped to a cart.
10
24. The syringes containing the lethal drugs to be used in the execution are
11
taped to a cart in the order they are to be used and on a grid which identifies each drug

by name. The syringes are numbered in the order they are to be used.

Disputed by plaintiff.

25. During an execution, the doctors filling out the execution record cannot

see where their entries are supposed to be without the aid of a small flashlight.
18
26. The RN or MTAJLVN who attaches the syringe to the stopcock then
19
20 stands in the window of the chamber to observe the inmate's right arm. Disputed by

21 plaintiff.
22
27. Witness #1 believes that after a syringe has been emptied, the same
23
24 MTA removes the syringe, places it back on the cart and retrieves the next syringe.

25

28. Witness #4 cannot conduct an inspection to see ifthe catheter is set

26
properly without entering the execution chamber.
27

28

29. The identity of the execution team leader is known to personnel at San

Quentin from all aspects of the institution: maintenance, medical, and custody. For

26

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 6 of 26

Witnesses #1 and #5, their existence on the execution team and as execution team

2 leader was not a secret at the institution. It becomes a Imown fact.
3
30. I f the thiopental sodium drip stops during an execution, there is no
4
5 procedure for what is to take place next.

6

31. Operational Procedure 770 prohibits team members from asking

7
anything that would require an oral response during an execution.
8
9 (3) Agreed Statement

10

The action may not be presented upon an agreed statement.

11
(4) Stipulations Requested or Proposed.
12

13

Unless objected to below, all exhibits are stipulated by the parties to be

14 admitted, except Exhibit Nos. 32-50, 79, 97, 98, 99 and 100 which at this time, are

15
only being marked for identification by plaintiff.
16

17

18

DISPUTED LEGAL ISSUES

19
Points of Law

20

21

1. California's lethal injection protocol, set forth in Operational Procedure

22 770, as revised March 6, 2006 ("new Procedure 770"), is a regulation or regulations
23
subject to California's Administrative Procedure Act ("APA"), Cal. Gov. Code §§
24
25 11340 et seq. The APA defines a "regulation" to mean "every rule, regulation, order

26 or standard of general application or the amendment, supplement, or revision of any

27
rule, regulation, order or standard adopted by any state agency to implement, interpret,
28
or make specific the law enforced or administered by it, or to govern its procedure."

Cal. Gov. Code § 11342.600. To be a rule, regulation, order or standard of "general

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 7 of 26

application," a rule need only apply to all the members of a class of persons; it need

2 not apply to all citizens of the state. See Armistead v. State Personnel Bd., 583 P.2d
3
744,746 (Cal. 1978); Faunce v. Denton, 167 Cal. App. 3d 191,213 Cal. Rptr. 122
4
5 (1985).

6

2. New Procedure 770 unilaterally was adopted by defendants in violation of

7
the APA. A state agency may not issue, utilize, enforce or attempt to enforce any
8
9 regulation unless the requirements of the APA have been satisfied. Cal. Gov. Code §

10 11340.5. The agency must give the public notice of its proposed regulatory action

11
(Cal. Gov. Code §§ 11346.4, 11346.5); issue a complete text of the proposed

regulation with a statement of the reasons for it (Cal. Gov. Code § 11346.2(a), (b));

give interested parties an opportunity to comment on the proposed regulation and to

request a public hearing (Cal. Gov. Code § 11346.8(a)); respond in writing to public

comments (Cal. Gov. Code § 11346.9); and forward a file of all materials on which

18 the agency relied in the regulatory process to the Office of Administrative Law (Cal.
19
Gov. Code § 11347.3(b)), which reviews the regulations for consistency with the law,
20
clarity, and necessity (Cal. Gov. Code §§ 11349.1, 11349.3). Defendants have done
21
22 none ofthese things in adopting New Procedure 770.
23
3. New Procedure 770 is not a binding or properly approved execution
24
25 protocol that can be utilized by the State of California in light of the state's failure to
26 comply with the APA. Cal. Gov. Code § 11340.5.
27
4. The APA provides that "[a]ny interested person may obtain a judicial
28
declaration as to the validity of any regulation or order or repeal by bringing an action

for declaratory relief in the superior court in accordance with the Code of Civil

28

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 8 of 26

Procedure." Cal. Gov. Code § 11350(a). In such an action, the regulation or order

2 may be declared to be invalid for a substantial failure to comply with the APA. rd.
3
Plaintiff is entitled to such relief as a matter of law and is seeking such relief in the
4
Superior Court of the State of California, County of Marin, Case No. CV 061436.
5
6 The Superior Court has ordered that the matter be decided by summary judgment, and
7
has calendared same for hearing on December 6, 2006.
8
5. California's lethal injection protocol, set forth in Procedure 770, violates
9
10 the Eighth Amendment's prohibition on the "infliction of unnecessary pain in the
11
execution ofthe death sentence." Louisiana ex reI. Francis v. Resweber, 329 U.S.

459,463 (1947); see also Gregg v. Georgia, 428 U.S. 153, 173 (1976) (the

punishment may be not "excessive").

6. The lethal "injection protocol impermissibly subjects the inmate "to an

unnecessary risk of unconstitutional pain or suffering." Cooper v. Rimmer, 379 F.3d

18 1029,1033 (9th Cir. 2004); see also Cooey v. Taft, 430 F. Supp. 2d 702, 708 (S.D.

19
Ohio 2006) (in view of emerging evidence calling into question the conclusions of Dr.
20
21 Mark Dershwitz, "Court is persuaded that there is an unacceptable and unnecessary

22 risk ... that [plaintiff] could suffer unnecessary and excruciating pain while being

23
executed ....").

24

25

7. The unnecessary risk of substantial pain imposed by the lethal injection

26 protocol renders the method of execution contained therein unconstitutional. Fierro v.

27
Gomez, 77 F.3d 301, 307 (9th Cir.), vacated as moot sub nom. Gomez v. Fierro, 519
28
U.S. 918 (1996) (moot in light of Cal. Penal Code § 3604).

29

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 9 of 26
8. The protocol involves a "substantial risk" of an extended period of "intense
2 physical pain." Fierro, 77 F.3d at 308; see also Rupe v. Wood, 863 F. Supp. l307,
3
1313-15 (W.D. Wash. 1994), vacated in part as moot, 93 F.3d 1434 (9th Cir. 1996)
4
5 (holding that a "significant" risk (less than 24% probability) of decapitation rendered 6 judicial hanging unconstitutional as applied to an obese inmate).
7
9. The records from previous executions demonstrate the inherent, substantial
8
9 risk the inmate will experience agonizing and prolonged pain, in violation of 10 "evolving standards of decency," and "contemporary values concerning the infliction
11
of a challenged sanction." Gregg, 428 U.S. at 173; Beardslee v. Woodford, 395 F.3d
1064, 1075 (9th Cir. 2005) (California'S execution logs "contain indications that there
were problems associated with the administration of the chemicals that may have
resulted in prisoners being conscious during portions of the executions."); Fierro, 77
F.3d at 307 ("the key question to be answered in a challenge to a method of execution
18 is how much pain the inmate suffers.").
19
10. The protocol's failure to provide for any meaningful monitoring of
20
21 anesthetic depth by appropriate medical personnel exposes plaintiff to a substantial 22 risk of extreme pain. See Order Denying Conditionally Plaintiff s Motion for
23
Preliminary Injunction, February 14, 2006, at 14 (in view of "substantial question" as
24
to whether inmate might regain consciousness after administration of sodium
25
26 thiopental, Court allows State to implement alternative procedure of continuous
27
presence of "qualified individual" to independently verify that inmate is unconscious
28
before either pancuronium bromide or potassium chloride is injected).
30

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 10 of 26

11. The risk of inadequate anesthesia is compounded by the fact that

2 Procedure 770 requires that no personnel be present in the execution chamber when

3
any of the drugs are administered thus preventing personnel from visual and tactile
4
verification that the drugs are actually being administered to the inmate, or that the
5

6 sodium pentothal anesthetic has taken effect. Cooper v. Rimmer, 379 F.3d 1029,

7
1033 (9th Cir. 2004) (state prohibited from SUbjecting inmate "to an unnecessary risk
8
9 of unconstitutional pain or suffering.").

10

12. The protocol's failure to anticipate foreseeable events, and to provide

11
contingency plans for such events subjects plaintiff to an unnecessary risk of

unconstitutional pain. See id.

13. The execution protocol involves acts by prison personnel which are

prohibited by law. Cal. Bus. & Prof. Code §§ 2051; 2052; 2860; 2860.5; Magit v. Bd.

ofMed. Exam'rs, 57 Cal. 2d 74,366 P.2d 816, 17 Cal. Rptr. 488 (1961).

18

14. The protocol is performed by prison personnel with criminal records of

19
misconduct, and who lack skill, competence, professionalism, patience, stability,
20
21 training, qualifications, mental health, and the necessary character to perform

22 executions and the tasks associated with executions. Ford v. Wainwright, 477 U.S.

23
399,410 (1986) (plurality opinion) (the Eighth Amendment "protect[s] the dignity of
24
25 society itself from the barbarity of exacting mindless vengeance."); Taylor v.

26 Crawford, 2006 U.S. Dist. LEXIS 42949, at *20 (W.D. Mo. June 26, 2006) (court is

27
"gravely concemed" about condition of physician who mixes the lethal drugs); id. at
28
*21-22 (court concludes it would be "almost impossible" for the physician to monitor

the inmate's anesthetic depth in the manner physician described in his deposition).

31

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 11 of 26

15. The protocol is implemented under unacceptable conditions that

2 unnecessarily increase the risk of unconstitutional pain, including overcrowding;
3
obstructed views; inadequate lighting; sound suppression; remote administration of
4
5 the drugs; insufficient supervision; unqualified management; and the absence of
6 meaningful participation by properly licensed medical personnel. Taylor v. Crawford,
7
2006 U.S. Dist. LEXIS 42949, at *21-22 (W.D. Mo. June 26,2006) (darkness and
8
9 obstructed view result in inadequate monitoring of anesthetic depth); (Anderson v.
10 Evans, 2005 U.S. Dist. LEXIS 39407, at *14 (W.D. Okla. Dec. 20, 2005), affd, 2006
11
U.S. Dist. LEXIS 1632 (W.D. Okla., Jan. 11,2006) (court refuses to dismiss Eighth

Amendment challenge where inmate alleges, inter ali~ that execution personnel are

untrained in the use ofN catheters; improper placement and monitoring of catheters

can lead to inadequate anesthesia; medical personnel do not oversee the placement of

catheters ).

18

16. The use of sodium pentothal, an ultrashort-acting barbiturate anesthetic

19
which is extremely sensitive to errors in preparation, to be administered through a
20
21 high risk failure scenario more than likely will result in "the inmate not [being]

22 properly sedated by the first drug, ... [and] experienc[ing] torturous pain."

23
Beardslee, 395 F.3d at 1071; Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949, at
24
25 *21 (W.D. Mo. June 26,2006) ("the process of mixing the three different drugs and

26 knowing the correct amount of the drugs to dissolve in the correct amount of solution

27
involves precise measurements").
28
17. Pancuronium bromide "paralyzes all skeletal or voluntary muscles, but []

has no effect whatsoever on awareness, cognition, or sensation." Beardslee, 395 F. 3d

32

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 12 of 26

at 1071. The state has failed to provide any legitimate justification for the use of

2 pancuronium bromide, and apparently uses it merely to prevent witnesses from

3
observing movement "that could be interpreted as ... pain or discomfort." Beardslee,
4
5 395 F.3d at 1076 n.13.

6

18. Administered on their own, pancuronium bromide and potassium chloride

7
would violate the Eighth Amendment. Morales v. Hickman, 438 F.3d 926,928 (9th
8
Cir. 2006) ("[t]here is no dispute that in the absence of a properly administered
9

10 anesthetic, Morales would experience the sensation of suffocation as a result of the

11
pancuronium bromide and excruciating pain from the potassium chloride activating

nerve endings in Morales' veins.").

19. The enactment oflaws by at least nineteen states that mandate the

exclusive use of a sedative or expressly prohibit the use of a neuromuscular blocking

agent in the euthanasia of animals provides objective evidence that society's

18 "contemporary values" (Gregg v. Georgia, 428 U.S. at 173) render California's lethal

19
injection procedure unacceptable. Beardslee, 395 F.3d at 1073.

20

21

20. Thiopental sodium is a Schedule III controlled substance under the

22 Controlled Substance Act. Federal law requires the state to keep accurate logs as to

23
the amount of this drug that it has used, dispensed, or disposed of. 21 U.S.C. § 827;
24
21 C.F.R. §§ 1304.03,1304.04,1304.11,1304.21. The violations of specified
25

26 procedures and federal laws for obtaining, storing, preparing, using, dispensing,

27
disposing, and appropriately labeling the drugs, all affect their efficacy and subject the
28
inmate "to an unnecessary risk of unconstitutional pain or suffering." Cooper v.

Rimmer, 379 F.3d 1029,1033 (9th Cir. 2004).

33

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 13 of 26

20. Procedure 770 does not require medically trained personnel to supervise

2 or assist in the medical tasks necessary to prepare for the execution. These tasks
3
include mixing the sodium pentothal solution, setting up the IV line and associated
4
equipment, including the "Y" injection site, in order to ensure that fluids do not leak
5
6 and are not misdirected, finding a usable vein, properly inserting the IV line in the
7
proper direction, and verifying that the drugs are flowing into the inmate's vein rather
8
9 than into surrounding tissue. These tasks require a high degree of specialized training.
10 The absence of these tasks subject the inmate "to an unnecessary risk of
11
unconstitutional pain or suffering." Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir.

2004).

21. Procedure 770 creates the unnecessary and unacceptable risk that the

drugs will be administered in the wrong order as a result of the improper management

of the team and the labeling of the syringes. If an error in loading or labeling the

18 syringes occurs, the personnel administering the drugs will have no means of

19
detecting it. In addition, because the drugs are administered from another room, N
20
21 line extensions must be used, which increases the risk that a flaw or kink in the IV line

22 will disrupt the flow of drugs. Thus, the State cannot establish that "the risk has been

23
minimized as much as possible ...." Campbell v. Wood, 18 F.3d 662, 687 n.17 (9th
24
25 Cir. 1994).

26

Defendants agree that the above are disputed legal issues without agreeing that

27
all are relevant to or necessarily need to be decided by the Court in this action.
28

Plaintiffs Conclusions of Law 34

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 14 of 26

1. The implementation of Operational Procedure 770 contains a substantial

2 risk of unnecessary pain in the execution of the sentence of death, thereby depriving

3
plaintiff of his rights under the Eighth and Fourteenth Amendments to be free from
4
cruel and unusual punishment, in violation of 42 U.S.C. § 1983.
5

6

Defendants' Conclusions of Law

7
1. Conducting a lethal injection execution pursuant to OP 770 does not result
8
in cruel and unusual punishment or deprive Plaintiff of any right under the Eighth or
9

10 Fourteenth Amendments. Defendants refer the Court to the pleadings filed in

11
opposition to Plaintiffs motion for a Temporary Restraining Order and Injunction.

WITNESSES TO BE CALLED AND TIME ESTIMATE

The following witnesses will be called at the hearing by plaintiff, other than

solely for impeachment or rebuttal.

18 1. Witness #1 - execution team leader for scheduled execution ofp1aintiff. This

19
witness will testify regarding team members' qualifications and training, and the
20 21 execution protocol and practices;

22 Plaintiff's time estimate - 4 hours
23

Defendant's time estimate-

24
2. Witness #3 - Licensed Vocational Nurse, execution team member. This witness
25
26 will testify regarding team members' qualifications and training, and the execution

27 protocol and practices;

28
Plaintiff's time estimate - 4 hours

Defendant's time estimate-

35

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 15 of 26

3. Witness #4 - Licensed Vocational Nurse, execution team member. This witness

2 will testify regarding team members' qualifications and training, and the execution

3
protocol and practices;
4

5 Plaintiffs time estimate - 1.5 hours

Defendant's time estimate-

6

7 4. Witness #5 - execution team leader for last 8 California executions. This witness
8
will testify regarding team members' qualifications and training, and the execution
9
10 protocol and practices;

11
Plaintiffs time estimate - 4 hours

Defendant's time estimate-

5. Warden Omoski - warden for last two lethal injection executions and scheduled

execution of plaintiff. This witness will testify regarding defendant's management

and oversight of execution team members' qualifications, and the execution protocol

and practices;
18

19 Plaintiffs time estimate - 2 hours
20

Defendant's time estimate-

21 6. Warden Woodford - warden for four lethal injection executions. This witness will
22
testify regarding defendant's management and oversight of execution team members'
23
24 qualifications, and the execution protocol and practices;

25
Plaintiffs time estimate - 30 minutes
26

Defendant's time estimate -

27

28

36

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 16 of 26

7. Warden Calderon - warden for four lethal injection executions. This witness will

2 testify regarding defendant's management and oversight of execution team members'

3
qualifications, and the execution protocol and practices;
4

5 Plaintiffs time estimate - 30 minutes

Defendant's time estimate -

6

7 8. Anesthesiologist #2 - this witness will testify regarding execution training and

8
compliance with this Court's February 14,2006 order;
9

10 Plaintiffs time estimate - 1 hour

Defendant's time estimate -

11

9. Robert Singler, M.D. - this witness will testify regarding execution training and

compliance with this Court's February 14,2006 order;

Plaintiffs time estimate - 1 hour

Defendant's time estimate -

10. Donald Calvo, M.D. - CDCR doctor who has attended executions;

18

19 Plaintiffs time estimate - 30 minutes

Defendant's time estimate -

20
21 11. Jack St. Clair, M.D. - CDCR doctor who has attended executions;

22
Plaintiffs time estimate - 30 minutes
23

Defendant's time estimate -

24
12. Thomas Rosko, M.D. - CDCR doctor who modified execution protocol;
25

26 Plaintiffs time estimate - 30 minutes
27

Defendant's time estimate -

28
13. Darc Keller - CDCR Secretary in charge of plaintiffs scheduled execution;

37

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 17 of 26

Plaintiff s time estimate - 1.5 hours
2

Defendant's time estimate -

3 14. Lt. Eric Messick - Administrative Assistant of the Warden and spokesperson for
4
San Quentin State Prison;
5

6 Plaintiffs time estimate - 30 minutes
7

Defendant's time estimate -

8 15. San Quentin Pharmacist - practices and procedures regarding refrigerated storage
9
of drugs;
10

11 Plaintiffs time estimate - 20 minutes

Defendant's time estimate-

16. Denise Dull - Legal Affairs Coordinator for San Quentin State Prison and person with knowledge of record retention and preparation;

Plaintiffs time estimate - 1.5 hours

Defendant's time estimate -

18 17. Cindy Adcock - execution witness of North Carolina execution that used 1.5
19
grams of Thiopental;
20

21 Plaintiff s time estimate - 30 minutes
22

Defendant's time estimate - 15 minutes

23
18. Heather Jarvis - execution witness of North Carolina execution that used 1.5
24
grams of Thiopental;
25

26 Plaintiffs time estimate - 30 minutes
27

Defendant's time estimate - 15 minutes

28
19. Kim Stevens - execution witness of North Carolina execution that used 1.5 grams

of Thiopental;

38

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 18 of 26

Plaintiff's time estimate - 30 minutes
2

Defendant's time estimate - 15 minutes

3 20. Chuck Patterson - California execution witness;

4
Plaintiffs time estimate - 30 minutes
5

Defendant's time estimate - 15 minutes

6
7 21. Margo Ricconi - California execution witness;

8
Plaintiffs time estimate - 30 minutes
9

Defendant's time estimate - 15 minutes

10
21. William Ebling, Ph.D. - pharmacologist who will present evidence that the
11
administration of thiopental as described in Operational Procedure 770 and the prior

executions creates a substantial and unreasonable risk that an inmate will be

inadequately sedated during an execution;

Plaintiffs time estimate - 2.5 hours
17

Defendant's time estimate - 1.5 hours

18 22. Dr. Kevin Concannon - doctor of veterinary medicine and a diplomat of the
19
American College of Veterinary Anesthesiologists who will present evidence that
20
21 California's lethal injection protocol is not an acceptable method of euthanasia for

22 animals.
23
24 Plaintiff s time estimate - 1 hour

Defendant's time estimate - 1 hour

25

26 23. Mark Heath, M.D. - anesthesiologist who will present evidence that California's

27 lethal injection protocol is more likely than not to cause extreme and excruciating pain
28
to the inmate.

39

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 19 of 26

Plaintiff s time estimate - 4 hours
2

Defendant's time estimate - 3 hours

3 The following witnesses will be called at the hearing by defendant, other than solely
4
for impeachment or rebuttal.
5
6 1. Robert Singler, M.D. - anesthesiologist who will testify on the properties and use

7 of the drugs used in a lethal injection execution in light of the procedure set forth in
8
a.p.770.
9

10 Plaintiff s time estimate - 4 hours

Defendant's time estimate - 3.5 hours

11

2. Dr. Brent Ekins - will present evidence on the pharmacological properties of the

drugs used in lethal injection execution.

Plaintiffs time estimate - 1.5 hours

Defendant's time estimate - 2 hours

17

The witness list and/or time estimates from plaintiff will be substantially

18
reduced based upon the stipulated facts set forth above. The final best estimates will
19

20 be modified upon further review of the stipulated facts, disputed facts, and the

21 witnesses deposition testimony, and will be submitted to the Court. Defendants will
22
be better able to make time estimates when the parties have agreed upon a final
23
24 witness list.

25

Should Plaintiff continue to include any current or former members of

26
the execution team on their witness list Defendants request that such testimony be
27

28 taken at San Quentin State Prison under the same terms and conditions as applied to

the March 30, 2006 hearing with Witness # 1.

40

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 20 of 26

Defendants intend to move to exclude the testimony of some witnesses

2 as irrelevant.
3

4

5

JOINT EXHIBIT LIST

6

The following documents and items will be offered as exhibits at the

7
evidentiary hearing, other than solely for impeachment or rebuttal. The parties have
8
conferred with respect to the objections.
9

10
Exh. Description 11 No.

Sponsoring Objections witness

1 Photo of syringe attachment site

2

Pentothal mixing instructions

3

Photo of door in antechamber

4

Photo of saline bags and light

5

Photo of chamber door, window to

mixing room, and drug cart

18 5A Xerox Photo of chamber door, window to

mixing room, and drug cart
19

20 6

Photo depicting location for delivery of drugs

21
7
22

Handwritten log from Thompson execution

23 8
24

Printed and handwritten log from Siripongs execution

25 8A Printed log from Siripongs execution

26 9
27

Printed and handwritten log from Babbitt execution

9A Printed log from Babbitt execution
28

10 Printed and handwritten log from Rich

execution

41

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 21 of 26

lOA Printed log from Rich execution

2 11 Printed and handwritten log from Massie

3

execution

4 llA Printed log from Massie execution

5 12A Printed and handwritten log from

Anderson execution by Calvo

6

12B Printed log from Anderson execution by

7

second doctor

8 13 Printed and handwritten log from

9

Beardslee execution

10 13A Printed log from Beardslee execution

11 14 Printed and handwritten log from S. Williams execution

14A Printed log from S. Williams execution

15 Printed and handwritten log from Allen execution

15A Printed log from Allen execution

16 Redacted LVN license for Witness #3

17
18

19

18

20 19

21 20

22 21

23
22
24

25 23
26

OP 770 dated March 6, 2006
Photo of chamber EKG machine
Memo re S. Williams veins Memo re Allen veins
Photo of execution chamber from witness side
Photo of door to execution chamber from antechamber
Photo of execution chamber depicting right side of window, IV bags, and light

27 24 28 25

Photo of gurney depicting left arm rest Printed log from K. Williams execution

26 Photo of closeup on IV bags and light in chamber

42

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 22 of 26

27 Photo of syringes on cart

2 28 Photo of panel for attachment of syringes

3 29 Printed log from Bonin execution

4 30 Redacted LVN license for Witness #4

5 31 Pages 43-44 from OP 770

6 32 Subpoena for Witness #5

7
33 Dr. Ekins' Report

8
34 List of Dr. Ekins' source material

9
35 Table re pentothal from Dr. Ekin's

10

materials

11 36 Dr. Singler's report

37 Dr. Singer's CV

38 Dr. Dershwitz' s declaration from Cooper v. Rimmer

39 Dr. Dershwitz's declaration from Perkins v. Beck

40 Dr. Concannon's CV

18 41 19 42 20 43 21 44
22
45
23
24
46
25

Dr. Concannon's report
AVMA Euthanasia Guidelines
AVMA brochure re: animal euthanasia
Dr. Concannon's declaration in Brown v. Beck
AC brief of Dr. Concannon et al. from Hill v. McDonough
Dr. Concannon's declaration in Page v. Beck

26 47 Limits on use of AVMA Guidelines

27 48 Article from DVM Magazine 28 49 Dr. Ebling's report

50 Dr. Ebling's CV

43

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 23 of 26

51- OPEN FOR NEW EXHIBITS 2 74
3 75 Controlled substance inventory log 2004

4 76 Controlled substance inventory log dated 1/4/05

5
77 Controlled substance inventory log dated

6

4/10/06

7 78 OP 770, issued 10/1/92, revised 6/13/03

8 79 Robert Singler, M.D. copies of legal

9

opinions and document

10 80 3-30-06 Crittendon photo oflY bags

11 81 3-30-06 Crittendon photo of panel for syringes

82 3-30-06 Crittendon photo of panel for syringes - from left side

83 3-30-06 Crittendon photo ofEKG monitor

84 3-30-06 Crittendon photo of door to death cell

18 85 3-30-06 Crittendon photo of antechamber ceiling vent
19
86 3-30-06 Crittendon photo of radiator
20

21 87 3-30-06 Crittendon photo of radiator

22 88 3-30-06 Crittendon photo of execution chamber from witness side - antechamber

23

door open

24 89 3-30-06 Crittendon photo of execution

25

chamber from witness side - antechamber

door closed

26

90 3-30-06 Crittendon photo of window into

27

execution chamber; stopcocks

28 91 3-30-06 Crittendon partial photo of syringes on cart

44

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 24 of 26

92 3-30-06 Crittendon photo of gurney -

2

from foot

3 93 3-30-06 Crittendon photo of gurneyfrom right side

4
94 3-30-06 Crittendon photo of gurney

5

depicting right arm rest

6 95 3-30-06 Crittendon photo of gurney

7

depicting left arm rest

8 96
9
97
10
11
98

3-30-06 Crittendon photo of gurney depicting both arm rests
March 20, 1978 Court of Appeal Opinion in Civil Case No. 40716
Handwritten execution Log Michael Morales

99 Letter of Jeanne Woodford, March 13, 2006, to Senator Thomas McClintock

100 Governor's Office Privilege Log

101 Execution Team Training Logs (78 pages)

18

19

USE OF DISCOVERY

20
The parties have not yet agreed on the use of discovery responses and
21

22 depositions to be used at the hearing, other than solely for impeachment or rebuttal.

23

24
MISCELLANEOUS
25

26

During the course of discovery, including through the depositions of

27 Anesthesiologist #2, Warden Ornoski, and Witness #1, plaintifflearned of additional
28
claims against defendants. The facts underlying these claims continue to be

investigated. Prior to the September 13,2006 pre-hearing conference, plaintiff will

45

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 25 of 26

file a motion for leave to file an amended pleading pursuant to Federal Rule of Civil

2 Procedure 15(a), setting forth additional claims against defendants. The amended

3
pleading will allege that defendants' actions taken vis a vis plaintiff, his counsel, and
4
the Court between February 14 and February 21,2006, deprived plaintiff of the
5

6 Eighth Amendment's protection against deliberate government indifference to the risk

7
of pointless suffering, in violation of28 U.S.C. § 1983. See, e.g., Estelle v. Gamble,
8
9 429 U.S. 97, 104 (1976).

10

The briefing for the basis of this motion has been presented to

11
defendant. Defendant intends to oppose the motion.

18 19
20
21 22 23 24 25 26 27 28
46

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 26 of 26

DATED: September 1,2006
2 3 4 5 6 7
8 DATED: September 1,2006
9 10 11

MCBREEN & SENIOR
By: /s/ David A. Senior DAVID A. SENIOR Attorneys for Plaintiff MICHAEL ANGELO MORALES
OFFICE OF THE ATTORNEY GENERAL
By: /s/ Dane R. Gillette DANE R. GILLETTE Attorneys for Defendants

18 19
20
21 22
23 24 25 26 27 28
47

 
 Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 1 of 26

David A. Senior (# 108579)
2 McBreen & Senior 1880 Century Park East, Suite 1450
3 Los Angeles, California 90067
4 Telephone: (310) 552-5300 Fax: (310) 552-1205
5 dscniona!mcbrccnscnioLcom

6
John R. Grele (# 167080) 7 Law Offices of John R. Grele
8 703 Market Street, Suite 550 San Francisco, California 94103
9 Telephone: (415) 348-9300
10 Fax: (415) 348-0364 j !lrele({j~earthljnk.net
11

12 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP

13 One IBM Plaza
14 Chicago, Illinois 60611-7603 Telephone: (312) 923-2938

I' REFILED DOC. NO. lj

15 Fax: (312) 840-7338 16 rsteinkenr£ilienner.com

REVISED PURSUANT TO ORDER OF THE COURT,

17 Attorneys for Plaintiff

DOC. NO. 211, SEPT. 14,2006

18 MICHAEL ANGELO MORALES

19

IN THE UNITED STATES DISTRICT COURT

20

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION
21

22 MICHAEL ANDELO MORALES,

23

Plaintiff,

) CASE NO. C 06 0219 (JF) (RS)

)

C 06-926 (JF) (RS)

)

24
vs.
25

) JOINT PRE-HEARING CONFERENCE ) STATEMENT
)

26 JEANNE WOODFORD, Secretary of the ) California Department of Conections; )

:"

27 EDDIE YLST, Warden, San Quentin State) HEARING DATE: Sept. 26, 2006

28 Prison, San Quentin, CA; and DOES 1-50,) TIME:

9:00 a.m.

) COURTROOM: 3

Defendants.

)

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

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 2 of 26

(2) Disputed Factual Issues (All Facts are Disputed by Defendant, Unless Marked
2
"Disputed by Plaintiff') Defendants' objections are primarily to the fonn ofthe
3
4 statements rather than the contents unless otherwise noted.

5

1. The team always includes 2-3 medical personnel consisting of a

6
combination ofRNs and Medical Technical Assistants (MTA), who must be a Licensed
7
8 Vocational Nurse (LVN) with a state credential authorizing insertion of IVs. Disputed by

9 Plaintiff.
10
2. Fonner execution team leader, Witness #10, was removed from the
11
execution team for misconduct.

3. The misconduct by Witness #10 leading to his several month suspension

from work was unrelated to his participation in an execution.

4. The team leader administers the fatal dosages of drugs to the inmate during

the execution. Defendants have never revealed the identity of the team member

18
responsible for delivering the drugs.
19

20

5. The execution teammates' responsibilities are "awesome" and very stressful.

21 The teammates become very apprehensive during an execution. It is a very intense
22
process; it is the most stressful thing that a person in the Department of Corrections is
23
24 asked to do. Team members, including the RNs and LVNs are as tense as they ever are.

25 It is a surrealistic experience. It does not seem real when it's happening. It seems
26
dreamlike. It is stressful because there is no other place in the world that an LVN is asked
27
28 to start an IV for that purpose. Warden Steven Omoski was practically beside himself

23

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 3 of 26

during the Stanley Williams execution. Wardens have refrained from viewing any part of

2
the condemned inmate save his feet during the last three California executions.
3

4

6. It is a rule that you cannot be working in the condemned area of the prison

5 and be on the execution team. There are no exceptions to the rule.
6
7. Warden Woodford had no inhibitions about assigning a member to the
7
8 execution team who was known by the inmate who was being executed.

9

8. The LVNs claim to prepare the Pentothal by following the instructions.

10
.9. The new Operational Procedure 770, March 6,2006, each one gram of
1.1
Pentothal is to be dissolved in 50 mL of a solution of sodium chloride of unknown

concentration, rather than in 40 mL of sterile water.

10. During an execution, "it's a bit more crowded" in the antechamber than

16 or 17 people.

11. During Stanley Williams's execution, Witness #4 was tasked with
18
selecting the lethal drugs from the cart to be administered to Stanley Williams, and
19
20 the large man "was standing in Witness #4's way.

21

12. Twenty-six people or so were on the approved list to be present in the

22
anteroom for the scheduled execution of Michael Morales.
23

24

13. To execute an inmate, officers bring the inmate from a holding cell

25 across the hall from the execution chamber, through the anteroom of the execution
26
chamber, and into the chamber. Witness #1 believes that five peace officers walk the
27
28 inmate into the chamber, while Witness #4 thinks it's four.

24

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 4 of 26

14. Catheters are regularly set in the inmates' arms by RNs during

2
executions.
3

4

15. The setting of these catheters is performed in the execution chamber,

5 not in a health care facility.
6
16. During Stanley Williams's execution, an RN was responsible to set one
7
8 catheter. The vein blew when she started the IV. She attempted again to start the IV

9 and the vein blew again.
10
17. The nurse was frustrated and became upset; she was visibly upset to
11
other execution team members.

18. Unbeknownst to the RN and Witness #3, the RN then failed to properly

set the catheter a third time. The RN subsequently taped the catheter to Williams's

arm, and began to exit the chamber.

19. While Witness #3 and RN were exiting the chamber, it was said that "it

18
wasn't flowing, the drip wasn't flowing." The RN couldn't believe that it wasn't
19
20 running again. After the RN exited the chamber - while the chamber door still was

21 open - it was said a second time that "the left wasn't running."

22
20. Warden Omoski was standing in the center of the anteroom, looking at
23
24 the door. The team leader was present at the chamber door.

25

21. Witness #4 was under the impression that the team leader was

26
responsible to monitor the IV drip as a result of all the training he went through for
27
28 Williams, as well as other executions.

25

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 5 of 26

22. The Warden then said, "Proceed," "after the comments were made that
2
the left IV had failed. The execution proceeded without the IV line in the left arm
3
4 properly set or operating.

5

23. After the RNs or LVNs leave the execution chamber, the lights are

6
turned down in the anteroom before the execution begins. The lights are turned very
7
8 low. Under the anteroom's subdued lighting, the syringes containing the lethal drugs

9 are present, taped to a cart.
10
24. The syringes containing the lethal drugs to be used in the execution are
11
taped to a cart in the order they are to be used and on a grid which identifies each drug

by name. The syringes are numbered in the order they are to be used.

Disputed by plaintiff.

25. During an execution, the doctors filling out the execution record cannot

see where their entries are supposed to be without the aid of a small flashlight.
18
26. The RN or MTAJLVN who attaches the syringe to the stopcock then
19
20 stands in the window of the chamber to observe the inmate's right arm. Disputed by

21 plaintiff.
22
27. Witness #1 believes that after a syringe has been emptied, the same
23
24 MTA removes the syringe, places it back on the cart and retrieves the next syringe.

25

28. Witness #4 cannot conduct an inspection to see ifthe catheter is set

26
properly without entering the execution chamber.
27

28

29. The identity of the execution team leader is known to personnel at San

Quentin from all aspects of the institution: maintenance, medical, and custody. For

26

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 6 of 26

Witnesses #1 and #5, their existence on the execution team and as execution team

2 leader was not a secret at the institution. It becomes a Imown fact.
3
30. I f the thiopental sodium drip stops during an execution, there is no
4
5 procedure for what is to take place next.

6

31. Operational Procedure 770 prohibits team members from asking

7
anything that would require an oral response during an execution.
8
9 (3) Agreed Statement

10

The action may not be presented upon an agreed statement.

11
(4) Stipulations Requested or Proposed.
12

13

Unless objected to below, all exhibits are stipulated by the parties to be

14 admitted, except Exhibit Nos. 32-50, 79, 97, 98, 99 and 100 which at this time, are

15
only being marked for identification by plaintiff.
16

17

18

DISPUTED LEGAL ISSUES

19
Points of Law

20

21

1. California's lethal injection protocol, set forth in Operational Procedure

22 770, as revised March 6, 2006 ("new Procedure 770"), is a regulation or regulations
23
subject to California's Administrative Procedure Act ("APA"), Cal. Gov. Code §§
24
25 11340 et seq. The APA defines a "regulation" to mean "every rule, regulation, order

26 or standard of general application or the amendment, supplement, or revision of any

27
rule, regulation, order or standard adopted by any state agency to implement, interpret,
28
or make specific the law enforced or administered by it, or to govern its procedure."

Cal. Gov. Code § 11342.600. To be a rule, regulation, order or standard of "general

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 7 of 26

application," a rule need only apply to all the members of a class of persons; it need

2 not apply to all citizens of the state. See Armistead v. State Personnel Bd., 583 P.2d
3
744,746 (Cal. 1978); Faunce v. Denton, 167 Cal. App. 3d 191,213 Cal. Rptr. 122
4
5 (1985).

6

2. New Procedure 770 unilaterally was adopted by defendants in violation of

7
the APA. A state agency may not issue, utilize, enforce or attempt to enforce any
8
9 regulation unless the requirements of the APA have been satisfied. Cal. Gov. Code §

10 11340.5. The agency must give the public notice of its proposed regulatory action

11
(Cal. Gov. Code §§ 11346.4, 11346.5); issue a complete text of the proposed

regulation with a statement of the reasons for it (Cal. Gov. Code § 11346.2(a), (b));

give interested parties an opportunity to comment on the proposed regulation and to

request a public hearing (Cal. Gov. Code § 11346.8(a)); respond in writing to public

comments (Cal. Gov. Code § 11346.9); and forward a file of all materials on which

18 the agency relied in the regulatory process to the Office of Administrative Law (Cal.
19
Gov. Code § 11347.3(b)), which reviews the regulations for consistency with the law,
20
clarity, and necessity (Cal. Gov. Code §§ 11349.1, 11349.3). Defendants have done
21
22 none ofthese things in adopting New Procedure 770.
23
3. New Procedure 770 is not a binding or properly approved execution
24
25 protocol that can be utilized by the State of California in light of the state's failure to
26 comply with the APA. Cal. Gov. Code § 11340.5.
27
4. The APA provides that "[a]ny interested person may obtain a judicial
28
declaration as to the validity of any regulation or order or repeal by bringing an action

for declaratory relief in the superior court in accordance with the Code of Civil

28

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 8 of 26

Procedure." Cal. Gov. Code § 11350(a). In such an action, the regulation or order

2 may be declared to be invalid for a substantial failure to comply with the APA. rd.
3
Plaintiff is entitled to such relief as a matter of law and is seeking such relief in the
4
Superior Court of the State of California, County of Marin, Case No. CV 061436.
5
6 The Superior Court has ordered that the matter be decided by summary judgment, and
7
has calendared same for hearing on December 6, 2006.
8
5. California's lethal injection protocol, set forth in Procedure 770, violates
9
10 the Eighth Amendment's prohibition on the "infliction of unnecessary pain in the
11
execution ofthe death sentence." Louisiana ex reI. Francis v. Resweber, 329 U.S.

459,463 (1947); see also Gregg v. Georgia, 428 U.S. 153, 173 (1976) (the

punishment may be not "excessive").

6. The lethal "injection protocol impermissibly subjects the inmate "to an

unnecessary risk of unconstitutional pain or suffering." Cooper v. Rimmer, 379 F.3d

18 1029,1033 (9th Cir. 2004); see also Cooey v. Taft, 430 F. Supp. 2d 702, 708 (S.D.

19
Ohio 2006) (in view of emerging evidence calling into question the conclusions of Dr.
20
21 Mark Dershwitz, "Court is persuaded that there is an unacceptable and unnecessary

22 risk ... that [plaintiff] could suffer unnecessary and excruciating pain while being

23
executed ....").

24

25

7. The unnecessary risk of substantial pain imposed by the lethal injection

26 protocol renders the method of execution contained therein unconstitutional. Fierro v.

27
Gomez, 77 F.3d 301, 307 (9th Cir.), vacated as moot sub nom. Gomez v. Fierro, 519
28
U.S. 918 (1996) (moot in light of Cal. Penal Code § 3604).

29

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 9 of 26
8. The protocol involves a "substantial risk" of an extended period of "intense
2 physical pain." Fierro, 77 F.3d at 308; see also Rupe v. Wood, 863 F. Supp. l307,
3
1313-15 (W.D. Wash. 1994), vacated in part as moot, 93 F.3d 1434 (9th Cir. 1996)
4
5 (holding that a "significant" risk (less than 24% probability) of decapitation rendered 6 judicial hanging unconstitutional as applied to an obese inmate).
7
9. The records from previous executions demonstrate the inherent, substantial
8
9 risk the inmate will experience agonizing and prolonged pain, in violation of 10 "evolving standards of decency," and "contemporary values concerning the infliction
11
of a challenged sanction." Gregg, 428 U.S. at 173; Beardslee v. Woodford, 395 F.3d
1064, 1075 (9th Cir. 2005) (California'S execution logs "contain indications that there
were problems associated with the administration of the chemicals that may have
resulted in prisoners being conscious during portions of the executions."); Fierro, 77
F.3d at 307 ("the key question to be answered in a challenge to a method of execution
18 is how much pain the inmate suffers.").
19
10. The protocol's failure to provide for any meaningful monitoring of
20
21 anesthetic depth by appropriate medical personnel exposes plaintiff to a substantial 22 risk of extreme pain. See Order Denying Conditionally Plaintiff s Motion for
23
Preliminary Injunction, February 14, 2006, at 14 (in view of "substantial question" as
24
to whether inmate might regain consciousness after administration of sodium
25
26 thiopental, Court allows State to implement alternative procedure of continuous
27
presence of "qualified individual" to independently verify that inmate is unconscious
28
before either pancuronium bromide or potassium chloride is injected).
30

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 10 of 26

11. The risk of inadequate anesthesia is compounded by the fact that

2 Procedure 770 requires that no personnel be present in the execution chamber when

3
any of the drugs are administered thus preventing personnel from visual and tactile
4
verification that the drugs are actually being administered to the inmate, or that the
5

6 sodium pentothal anesthetic has taken effect. Cooper v. Rimmer, 379 F.3d 1029,

7
1033 (9th Cir. 2004) (state prohibited from SUbjecting inmate "to an unnecessary risk
8
9 of unconstitutional pain or suffering.").

10

12. The protocol's failure to anticipate foreseeable events, and to provide

11
contingency plans for such events subjects plaintiff to an unnecessary risk of

unconstitutional pain. See id.

13. The execution protocol involves acts by prison personnel which are

prohibited by law. Cal. Bus. & Prof. Code §§ 2051; 2052; 2860; 2860.5; Magit v. Bd.

ofMed. Exam'rs, 57 Cal. 2d 74,366 P.2d 816, 17 Cal. Rptr. 488 (1961).

18

14. The protocol is performed by prison personnel with criminal records of

19
misconduct, and who lack skill, competence, professionalism, patience, stability,
20
21 training, qualifications, mental health, and the necessary character to perform

22 executions and the tasks associated with executions. Ford v. Wainwright, 477 U.S.

23
399,410 (1986) (plurality opinion) (the Eighth Amendment "protect[s] the dignity of
24
25 society itself from the barbarity of exacting mindless vengeance."); Taylor v.

26 Crawford, 2006 U.S. Dist. LEXIS 42949, at *20 (W.D. Mo. June 26, 2006) (court is

27
"gravely concemed" about condition of physician who mixes the lethal drugs); id. at
28
*21-22 (court concludes it would be "almost impossible" for the physician to monitor

the inmate's anesthetic depth in the manner physician described in his deposition).

31

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 11 of 26

15. The protocol is implemented under unacceptable conditions that

2 unnecessarily increase the risk of unconstitutional pain, including overcrowding;
3
obstructed views; inadequate lighting; sound suppression; remote administration of
4
5 the drugs; insufficient supervision; unqualified management; and the absence of
6 meaningful participation by properly licensed medical personnel. Taylor v. Crawford,
7
2006 U.S. Dist. LEXIS 42949, at *21-22 (W.D. Mo. June 26,2006) (darkness and
8
9 obstructed view result in inadequate monitoring of anesthetic depth); (Anderson v.
10 Evans, 2005 U.S. Dist. LEXIS 39407, at *14 (W.D. Okla. Dec. 20, 2005), affd, 2006
11
U.S. Dist. LEXIS 1632 (W.D. Okla., Jan. 11,2006) (court refuses to dismiss Eighth

Amendment challenge where inmate alleges, inter ali~ that execution personnel are

untrained in the use ofN catheters; improper placement and monitoring of catheters

can lead to inadequate anesthesia; medical personnel do not oversee the placement of

catheters ).

18

16. The use of sodium pentothal, an ultrashort-acting barbiturate anesthetic

19
which is extremely sensitive to errors in preparation, to be administered through a
20
21 high risk failure scenario more than likely will result in "the inmate not [being]

22 properly sedated by the first drug, ... [and] experienc[ing] torturous pain."

23
Beardslee, 395 F.3d at 1071; Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949, at
24
25 *21 (W.D. Mo. June 26,2006) ("the process of mixing the three different drugs and

26 knowing the correct amount of the drugs to dissolve in the correct amount of solution

27
involves precise measurements").
28
17. Pancuronium bromide "paralyzes all skeletal or voluntary muscles, but []

has no effect whatsoever on awareness, cognition, or sensation." Beardslee, 395 F. 3d

32

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 12 of 26

at 1071. The state has failed to provide any legitimate justification for the use of

2 pancuronium bromide, and apparently uses it merely to prevent witnesses from

3
observing movement "that could be interpreted as ... pain or discomfort." Beardslee,
4
5 395 F.3d at 1076 n.13.

6

18. Administered on their own, pancuronium bromide and potassium chloride

7
would violate the Eighth Amendment. Morales v. Hickman, 438 F.3d 926,928 (9th
8
Cir. 2006) ("[t]here is no dispute that in the absence of a properly administered
9

10 anesthetic, Morales would experience the sensation of suffocation as a result of the

11
pancuronium bromide and excruciating pain from the potassium chloride activating

nerve endings in Morales' veins.").

19. The enactment oflaws by at least nineteen states that mandate the

exclusive use of a sedative or expressly prohibit the use of a neuromuscular blocking

agent in the euthanasia of animals provides objective evidence that society's

18 "contemporary values" (Gregg v. Georgia, 428 U.S. at 173) render California's lethal

19
injection procedure unacceptable. Beardslee, 395 F.3d at 1073.

20

21

20. Thiopental sodium is a Schedule III controlled substance under the

22 Controlled Substance Act. Federal law requires the state to keep accurate logs as to

23
the amount of this drug that it has used, dispensed, or disposed of. 21 U.S.C. § 827;
24
21 C.F.R. §§ 1304.03,1304.04,1304.11,1304.21. The violations of specified
25

26 procedures and federal laws for obtaining, storing, preparing, using, dispensing,

27
disposing, and appropriately labeling the drugs, all affect their efficacy and subject the
28
inmate "to an unnecessary risk of unconstitutional pain or suffering." Cooper v.

Rimmer, 379 F.3d 1029,1033 (9th Cir. 2004).

33

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 13 of 26

20. Procedure 770 does not require medically trained personnel to supervise

2 or assist in the medical tasks necessary to prepare for the execution. These tasks
3
include mixing the sodium pentothal solution, setting up the IV line and associated
4
equipment, including the "Y" injection site, in order to ensure that fluids do not leak
5
6 and are not misdirected, finding a usable vein, properly inserting the IV line in the
7
proper direction, and verifying that the drugs are flowing into the inmate's vein rather
8
9 than into surrounding tissue. These tasks require a high degree of specialized training.
10 The absence of these tasks subject the inmate "to an unnecessary risk of
11
unconstitutional pain or suffering." Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir.

2004).

21. Procedure 770 creates the unnecessary and unacceptable risk that the

drugs will be administered in the wrong order as a result of the improper management

of the team and the labeling of the syringes. If an error in loading or labeling the

18 syringes occurs, the personnel administering the drugs will have no means of

19
detecting it. In addition, because the drugs are administered from another room, N
20
21 line extensions must be used, which increases the risk that a flaw or kink in the IV line

22 will disrupt the flow of drugs. Thus, the State cannot establish that "the risk has been

23
minimized as much as possible ...." Campbell v. Wood, 18 F.3d 662, 687 n.17 (9th
24
25 Cir. 1994).

26

Defendants agree that the above are disputed legal issues without agreeing that

27
all are relevant to or necessarily need to be decided by the Court in this action.
28

Plaintiffs Conclusions of Law 34

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 14 of 26

1. The implementation of Operational Procedure 770 contains a substantial

2 risk of unnecessary pain in the execution of the sentence of death, thereby depriving

3
plaintiff of his rights under the Eighth and Fourteenth Amendments to be free from
4
cruel and unusual punishment, in violation of 42 U.S.C. § 1983.
5

6

Defendants' Conclusions of Law

7
1. Conducting a lethal injection execution pursuant to OP 770 does not result
8
in cruel and unusual punishment or deprive Plaintiff of any right under the Eighth or
9

10 Fourteenth Amendments. Defendants refer the Court to the pleadings filed in

11
opposition to Plaintiffs motion for a Temporary Restraining Order and Injunction.

WITNESSES TO BE CALLED AND TIME ESTIMATE

The following witnesses will be called at the hearing by plaintiff, other than

solely for impeachment or rebuttal.

18 1. Witness #1 - execution team leader for scheduled execution ofp1aintiff. This

19
witness will testify regarding team members' qualifications and training, and the
20 21 execution protocol and practices;

22 Plaintiff's time estimate - 4 hours
23

Defendant's time estimate-

24
2. Witness #3 - Licensed Vocational Nurse, execution team member. This witness
25
26 will testify regarding team members' qualifications and training, and the execution

27 protocol and practices;

28
Plaintiff's time estimate - 4 hours

Defendant's time estimate-

35

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 15 of 26

3. Witness #4 - Licensed Vocational Nurse, execution team member. This witness

2 will testify regarding team members' qualifications and training, and the execution

3
protocol and practices;
4

5 Plaintiffs time estimate - 1.5 hours

Defendant's time estimate-

6

7 4. Witness #5 - execution team leader for last 8 California executions. This witness
8
will testify regarding team members' qualifications and training, and the execution
9
10 protocol and practices;

11
Plaintiffs time estimate - 4 hours

Defendant's time estimate-

5. Warden Omoski - warden for last two lethal injection executions and scheduled

execution of plaintiff. This witness will testify regarding defendant's management

and oversight of execution team members' qualifications, and the execution protocol

and practices;
18

19 Plaintiffs time estimate - 2 hours
20

Defendant's time estimate-

21 6. Warden Woodford - warden for four lethal injection executions. This witness will
22
testify regarding defendant's management and oversight of execution team members'
23
24 qualifications, and the execution protocol and practices;

25
Plaintiffs time estimate - 30 minutes
26

Defendant's time estimate -

27

28

36

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 16 of 26

7. Warden Calderon - warden for four lethal injection executions. This witness will

2 testify regarding defendant's management and oversight of execution team members'

3
qualifications, and the execution protocol and practices;
4

5 Plaintiffs time estimate - 30 minutes

Defendant's time estimate -

6

7 8. Anesthesiologist #2 - this witness will testify regarding execution training and

8
compliance with this Court's February 14,2006 order;
9

10 Plaintiffs time estimate - 1 hour

Defendant's time estimate -

11

9. Robert Singler, M.D. - this witness will testify regarding execution training and

compliance with this Court's February 14,2006 order;

Plaintiffs time estimate - 1 hour

Defendant's time estimate -

10. Donald Calvo, M.D. - CDCR doctor who has attended executions;

18

19 Plaintiffs time estimate - 30 minutes

Defendant's time estimate -

20
21 11. Jack St. Clair, M.D. - CDCR doctor who has attended executions;

22
Plaintiffs time estimate - 30 minutes
23

Defendant's time estimate -

24
12. Thomas Rosko, M.D. - CDCR doctor who modified execution protocol;
25

26 Plaintiffs time estimate - 30 minutes
27

Defendant's time estimate -

28
13. Darc Keller - CDCR Secretary in charge of plaintiffs scheduled execution;

37

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 17 of 26

Plaintiff s time estimate - 1.5 hours
2

Defendant's time estimate -

3 14. Lt. Eric Messick - Administrative Assistant of the Warden and spokesperson for
4
San Quentin State Prison;
5

6 Plaintiffs time estimate - 30 minutes
7

Defendant's time estimate -

8 15. San Quentin Pharmacist - practices and procedures regarding refrigerated storage
9
of drugs;
10

11 Plaintiffs time estimate - 20 minutes

Defendant's time estimate-

16. Denise Dull - Legal Affairs Coordinator for San Quentin State Prison and person with knowledge of record retention and preparation;

Plaintiffs time estimate - 1.5 hours

Defendant's time estimate -

18 17. Cindy Adcock - execution witness of North Carolina execution that used 1.5
19
grams of Thiopental;
20

21 Plaintiff s time estimate - 30 minutes
22

Defendant's time estimate - 15 minutes

23
18. Heather Jarvis - execution witness of North Carolina execution that used 1.5
24
grams of Thiopental;
25

26 Plaintiffs time estimate - 30 minutes
27

Defendant's time estimate - 15 minutes

28
19. Kim Stevens - execution witness of North Carolina execution that used 1.5 grams

of Thiopental;

38

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 18 of 26

Plaintiff's time estimate - 30 minutes
2

Defendant's time estimate - 15 minutes

3 20. Chuck Patterson - California execution witness;

4
Plaintiffs time estimate - 30 minutes
5

Defendant's time estimate - 15 minutes

6
7 21. Margo Ricconi - California execution witness;

8
Plaintiffs time estimate - 30 minutes
9

Defendant's time estimate - 15 minutes

10
21. William Ebling, Ph.D. - pharmacologist who will present evidence that the
11
administration of thiopental as described in Operational Procedure 770 and the prior

executions creates a substantial and unreasonable risk that an inmate will be

inadequately sedated during an execution;

Plaintiffs time estimate - 2.5 hours
17

Defendant's time estimate - 1.5 hours

18 22. Dr. Kevin Concannon - doctor of veterinary medicine and a diplomat of the
19
American College of Veterinary Anesthesiologists who will present evidence that
20
21 California's lethal injection protocol is not an acceptable method of euthanasia for

22 animals.
23
24 Plaintiff s time estimate - 1 hour

Defendant's time estimate - 1 hour

25

26 23. Mark Heath, M.D. - anesthesiologist who will present evidence that California's

27 lethal injection protocol is more likely than not to cause extreme and excruciating pain
28
to the inmate.

39

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 19 of 26

Plaintiff s time estimate - 4 hours
2

Defendant's time estimate - 3 hours

3 The following witnesses will be called at the hearing by defendant, other than solely
4
for impeachment or rebuttal.
5
6 1. Robert Singler, M.D. - anesthesiologist who will testify on the properties and use

7 of the drugs used in a lethal injection execution in light of the procedure set forth in
8
a.p.770.
9

10 Plaintiff s time estimate - 4 hours

Defendant's time estimate - 3.5 hours

11

2. Dr. Brent Ekins - will present evidence on the pharmacological properties of the

drugs used in lethal injection execution.

Plaintiffs time estimate - 1.5 hours

Defendant's time estimate - 2 hours

17

The witness list and/or time estimates from plaintiff will be substantially

18
reduced based upon the stipulated facts set forth above. The final best estimates will
19

20 be modified upon further review of the stipulated facts, disputed facts, and the

21 witnesses deposition testimony, and will be submitted to the Court. Defendants will
22
be better able to make time estimates when the parties have agreed upon a final
23
24 witness list.

25

Should Plaintiff continue to include any current or former members of

26
the execution team on their witness list Defendants request that such testimony be
27

28 taken at San Quentin State Prison under the same terms and conditions as applied to

the March 30, 2006 hearing with Witness # 1.

40

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 20 of 26

Defendants intend to move to exclude the testimony of some witnesses

2 as irrelevant.
3

4

5

JOINT EXHIBIT LIST

6

The following documents and items will be offered as exhibits at the

7
evidentiary hearing, other than solely for impeachment or rebuttal. The parties have
8
conferred with respect to the objections.
9

10
Exh. Description 11 No.

Sponsoring Objections witness

1 Photo of syringe attachment site

2

Pentothal mixing instructions

3

Photo of door in antechamber

4

Photo of saline bags and light

5

Photo of chamber door, window to

mixing room, and drug cart

18 5A Xerox Photo of chamber door, window to

mixing room, and drug cart
19

20 6

Photo depicting location for delivery of drugs

21
7
22

Handwritten log from Thompson execution

23 8
24

Printed and handwritten log from Siripongs execution

25 8A Printed log from Siripongs execution

26 9
27

Printed and handwritten log from Babbitt execution

9A Printed log from Babbitt execution
28

10 Printed and handwritten log from Rich

execution

41

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 21 of 26

lOA Printed log from Rich execution

2 11 Printed and handwritten log from Massie

3

execution

4 llA Printed log from Massie execution

5 12A Printed and handwritten log from

Anderson execution by Calvo

6

12B Printed log from Anderson execution by

7

second doctor

8 13 Printed and handwritten log from

9

Beardslee execution

10 13A Printed log from Beardslee execution

11 14 Printed and handwritten log from S. Williams execution

14A Printed log from S. Williams execution

15 Printed and handwritten log from Allen execution

15A Printed log from Allen execution

16 Redacted LVN license for Witness #3

17
18

19

18

20 19

21 20

22 21

23
22
24

25 23
26

OP 770 dated March 6, 2006
Photo of chamber EKG machine
Memo re S. Williams veins Memo re Allen veins
Photo of execution chamber from witness side
Photo of door to execution chamber from antechamber
Photo of execution chamber depicting right side of window, IV bags, and light

27 24 28 25

Photo of gurney depicting left arm rest Printed log from K. Williams execution

26 Photo of closeup on IV bags and light in chamber

42

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 22 of 26

27 Photo of syringes on cart

2 28 Photo of panel for attachment of syringes

3 29 Printed log from Bonin execution

4 30 Redacted LVN license for Witness #4

5 31 Pages 43-44 from OP 770

6 32 Subpoena for Witness #5

7
33 Dr. Ekins' Report

8
34 List of Dr. Ekins' source material

9
35 Table re pentothal from Dr. Ekin's

10

materials

11 36 Dr. Singler's report

37 Dr. Singer's CV

38 Dr. Dershwitz' s declaration from Cooper v. Rimmer

39 Dr. Dershwitz's declaration from Perkins v. Beck

40 Dr. Concannon's CV

18 41 19 42 20 43 21 44
22
45
23
24
46
25

Dr. Concannon's report
AVMA Euthanasia Guidelines
AVMA brochure re: animal euthanasia
Dr. Concannon's declaration in Brown v. Beck
AC brief of Dr. Concannon et al. from Hill v. McDonough
Dr. Concannon's declaration in Page v. Beck

26 47 Limits on use of AVMA Guidelines

27 48 Article from DVM Magazine 28 49 Dr. Ebling's report

50 Dr. Ebling's CV

43

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 23 of 26

51- OPEN FOR NEW EXHIBITS 2 74
3 75 Controlled substance inventory log 2004

4 76 Controlled substance inventory log dated 1/4/05

5
77 Controlled substance inventory log dated

6

4/10/06

7 78 OP 770, issued 10/1/92, revised 6/13/03

8 79 Robert Singler, M.D. copies of legal

9

opinions and document

10 80 3-30-06 Crittendon photo oflY bags

11 81 3-30-06 Crittendon photo of panel for syringes

82 3-30-06 Crittendon photo of panel for syringes - from left side

83 3-30-06 Crittendon photo ofEKG monitor

84 3-30-06 Crittendon photo of door to death cell

18 85 3-30-06 Crittendon photo of antechamber ceiling vent
19
86 3-30-06 Crittendon photo of radiator
20

21 87 3-30-06 Crittendon photo of radiator

22 88 3-30-06 Crittendon photo of execution chamber from witness side - antechamber

23

door open

24 89 3-30-06 Crittendon photo of execution

25

chamber from witness side - antechamber

door closed

26

90 3-30-06 Crittendon photo of window into

27

execution chamber; stopcocks

28 91 3-30-06 Crittendon partial photo of syringes on cart

44

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 24 of 26

92 3-30-06 Crittendon photo of gurney -

2

from foot

3 93 3-30-06 Crittendon photo of gurneyfrom right side

4
94 3-30-06 Crittendon photo of gurney

5

depicting right arm rest

6 95 3-30-06 Crittendon photo of gurney

7

depicting left arm rest

8 96
9
97
10
11
98

3-30-06 Crittendon photo of gurney depicting both arm rests
March 20, 1978 Court of Appeal Opinion in Civil Case No. 40716
Handwritten execution Log Michael Morales

99 Letter of Jeanne Woodford, March 13, 2006, to Senator Thomas McClintock

100 Governor's Office Privilege Log

101 Execution Team Training Logs (78 pages)

18

19

USE OF DISCOVERY

20
The parties have not yet agreed on the use of discovery responses and
21

22 depositions to be used at the hearing, other than solely for impeachment or rebuttal.

23

24
MISCELLANEOUS
25

26

During the course of discovery, including through the depositions of

27 Anesthesiologist #2, Warden Ornoski, and Witness #1, plaintifflearned of additional
28
claims against defendants. The facts underlying these claims continue to be

investigated. Prior to the September 13,2006 pre-hearing conference, plaintiff will

45

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 25 of 26

file a motion for leave to file an amended pleading pursuant to Federal Rule of Civil

2 Procedure 15(a), setting forth additional claims against defendants. The amended

3
pleading will allege that defendants' actions taken vis a vis plaintiff, his counsel, and
4
the Court between February 14 and February 21,2006, deprived plaintiff of the
5

6 Eighth Amendment's protection against deliberate government indifference to the risk

7
of pointless suffering, in violation of28 U.S.C. § 1983. See, e.g., Estelle v. Gamble,
8
9 429 U.S. 97, 104 (1976).

10

The briefing for the basis of this motion has been presented to

11
defendant. Defendant intends to oppose the motion.

18 19
20
21 22 23 24 25 26 27 28
46

Case 5:06-cv-00219-JF Document 216 Filed 09/15/2006 Page 26 of 26

DATED: September 1,2006
2 3 4 5 6 7
8 DATED: September 1,2006
9 10 11

MCBREEN & SENIOR
By: /s/ David A. Senior DAVID A. SENIOR Attorneys for Plaintiff MICHAEL ANGELO MORALES
OFFICE OF THE ATTORNEY GENERAL
By: /s/ Dane R. Gillette DANE R. GILLETTE Attorneys for Defendants

18 19
20
21 22
23 24 25 26 27 28
47

 
 Case 5:06-cv-00219-JF Document 242 Filed 09/22/2006 Page 1 of 6

1

**E-filed 9/22/06**

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

12 Michael Angelo MORALES,

13

Plaintiff,

14

v.

15 James E. TILTON, Acting Secretary of the California Department of Corrections and
16 Rehabilitation, and Robert L. Ayers Jr., Acting Warden of San Quentin State Prison,
17 Defendants.
18

Case Number C 06 219 JF RS Case Number C 06 926 JF RS
DEATH-PENALTY CASE
ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE’S ORDER AND REQUESTS FOR STAYS; ORDER ON OTHER PENDING MOTIONS
[Docs. Nos. 220-21, 224, 234, 237, 2xx]

19

The present action involves a challenge to California’s lethal-injection protocol, which is

20 known as San Quentin Operational Procedure No. 0-770, or OP 770. On September 12, 2006,

21 the magistrate judge to whom this action has been referred for discovery disputes issued an order

22 granting in part and denying in part Plaintiff’s second motion to compel discovery. (Doc. No.

23 209.) The order, inter alia, compelled Defendants and nonparty witness Office of Governor

24 Arnold Schwarzenegger of California (“the Governor’s Office”) to produce certain documents by

25 September 22, 2006, in light of the evidentiary hearing in this action that is scheduled to

26 commence on September 26, 2006.

27

It is the Court’s understanding that most of the discovery ordered by the magistrate judge

28 is proceeding. However, Plaintiff, Defendants, and the Governor’s Office object to discrete parts

Case Nos. C 06 219 JF RS & C 06 926 JF RS ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE’S ORDER AND REQUESTS FOR STAYS; ORDER ON OTHER PENDING MOTIONS (DPSAGOK)

Case 5:06-cv-00219-JF Document 242 Filed 09/22/2006 Page 2 of 6

1 of the magistrate judge’s order. Their objections, along with related requests by Defendants and

2 the Governor’s Office for partial stays of the magistrate judge’s order, now are before the Court.

3 (Docs. Nos. 220, 221, & 224.) “The district judge to whom the case is assigned shall consider

4 such objections and shall modify or set aside any portion of the magistrate judge’s order found to

5 be clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A)

6 (2006).

7

The Court has reviewed the briefs submitted in support of and in response to the

8 objections and has considered the oral arguments of counsel presented during a telephonic

9 hearing on September 21, 2006. In addition, Defendants and the Governor’s Office have lodged

10 with the Court under seal the documents that are the subject of their objections to permit the

11 Court to review the documents in camera.

12

I

13

Plaintiff objects to the magistrate judge’s denial of some discovery regarding possible

14 medical misconduct by members of the execution team and in the units in which such members

15 work. While the magistrate judge did order—and Defendants do not object to—the disclosure of

16 documents regarding investigations of execution team members (including investigations of 17 alleged medical misconduct),1 Plaintiff is concerned that there may have been relevant

18 allegations of misconduct that were not investigated due to a “culture of concealment” in

19 California’s prison system that has been found in the ongoing litigation in Plata v.

20 Schwarzenegger, No. C 01 1351 TEH (N.D. Cal. filed April 5, 2001), whereby the provision of

21 medical care by Defendants has been placed in a federal receivership. (See Doc. No. 225-3.)

22

The magistrate judge appropriately decided not to expand the scope of discovery at this

23 late stage of the present litigation. Plaintiff’s allegations of a lack of professionalism on San

24
1Defendants have submitted to the Court under seal for review in camera one such set of
25 documents regarding an investigation of alleged medical misconduct by an execution team member; the 26 investigation concluded with a finding that the allegation of misconduct was not sustained. Defendants
do not object as such to the disclosure of these documents. Accordingly, Defendants must produce these
27 documents as well as any other such documents. Because the protective order previously issued in this
action necessarily governs such documents, Defendants’ request for a further protective order is denied.
28 2
Case Nos. C 06 219 JF RS & C 06 926 JF RS ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE’S ORDER AND REQUESTS FOR STAYS; ORDER ON OTHER PENDING MOTIONS (DPSAGOK)

Case 5:06-cv-00219-JF Document 242 Filed 09/22/2006 Page 3 of 6

1 Quentin’s medical staff certainly are relevant to the constitutionality of a lethal-injection protocol

2 that relies on members of San Quentin’s medical staff for its implementation. However,

3 considering that Plaintiff has been permitted significant discovery into these matters already, that

4 Defendants may remove and replace individual execution team members at any time, and that the

5 Court may take judicial notice of relevant documents filed including factual findings made and

6 legal conclusions reached in Plata, the Court cannot say that the magistrate judge’s decision not

7 to expand the scope of discovery to the extent sought by Plaintiff was clearly erroneous or

8 contrary to law.

9

II

10

On February 28, 2006, following Defendants’ decision not to proceed with Plaintiff’s

11 execution, a meeting was held at the Governor’s Office to consider revisions to OP 770.

12 Participants at the meeting included Senior Assistant Attorney General Dane R. Gillette, lead

13 counsel for Defendants, and Bruce Slavin, Chief Counsel for the California Department of

14 Corrections and Rehabilitation. Messrs. Gillette and Slavin each took two pages of notes at the

15 meeting. These notes are the documents that Defendants object to producing.

16

Defendants contend that the documents at issue are protected from discovery as attorney

17 work product pursuant to Federal Rule of Civil Procedure 26(b)(3). Specifically, Defendants

18 assert that the magistrate judge’s September 12 order failed to analyze expressly the assertion of

19 the work-product doctrine by Defendants, as distinguished from a similar assertion made by the

20 Governor’s Office.

21

While Defendants’ assertion is correct as far as it goes, it omits the fact that the

22 documents at issue were the subject of a prior order issued on May 2, 2006 (Doc. No. 151), in

23 which the magistrate judge granted in part and denied in part Plaintiff’s first motion to compel 24 discovery2 and to which Defendants did not object.3 It has been more than four months since the

25

26

2In particular, in the September 12 order, the magistrate judge correctly determined that requests

nos. 3 and 5 from Plaintiff’s third set of document requests—seeking “notes generated by any CDCR

27 employee [or] representative . . . at the meeting called by the Governor’s legal affairs secretary . . .” and
“notes generated by any CDCR employee [or] representative . . . that refer to the process concluded upon

28

3

Case Nos. C 06 219 JF RS & C 06 926 JF RS

ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE’S ORDER AND REQUESTS FOR STAYS;

ORDER ON OTHER PENDING MOTIONS

(DPSAGOK)

Case 5:06-cv-00219-JF Document 242 Filed 09/22/2006 Page 4 of 6

1 magistrate judge issued the May 2 order.4 Though the Court may well have sustained a timely

2 and properly presented objection to the production pursuant to the May 2 order of the documents

3 at issue, it is now too late for Defendants to object to their production. See Fed. R. Civ. P. 72(a)

4 (“Within 10 days after being served with a copy of the magistrate judge’s order, a party may

5 serve and file objections to the order; a party may not thereafter assign as error a defect in the

6 magistrate judge’s order to which objection was not timely made.”). Accordingly, the magistrate

7 judge’s September 12 order compelling production of these documents was neither clearly

8 erroneous nor contrary to law.

9

Pursuant to the terms of the magistrate judge’s order, the discovery compelled from

10 Defendants is due on September 22, 2006, the date of the present order. Accordingly,

11 Defendants’ request for a partial stay of the magistrate judge’s order is moot by the present order.

12 Even if the request for a stay were not moot, the Court would deny it because of the overriding

13 importance of proceeding with the evidentiary hearing as scheduled.

14

III

15

In March 2006, Plaintiff sought discovery from Defendants regarding documents in the

16 possession of the Governor’s Office, including documents related to the February 28 meeting.

17 Defendants initially agreed to disclose such discoverable documents. However, on August 8,

18

19 at the meeting called by the Governor’s legal affairs secretary”—were “specific iterations of earlier 20 document requests” that were governed by the May 2 order. (Doc. No. 209 at 3.)

21

3Indeed, Defendants had not even identified the documents in a privilege log so as to preserve

any claim of protection under the work-product doctrine, although Defendants had raised the work-

22 product doctrine in an inadequate attempt to cover the documents at issue in a general way. See

Burlington N. & Santa Fe Ry. Co. v. United States Dist. Ct., 408 F.3d 1142, 1149 (9th Cir. 2005); see

23 also Fed. R. Civ. P. 26(b)(5) (requiring that party claiming protection of attorney work product “shall

make the claim expressly and shall describe the nature of the documents . . . in a matter that . . . will
24 enable other parties to assess the applicability of the . . . protection”). Although Defendants chose not to

rely on the work-product doctrine (instead emphasizing the deliberative-process privilege) in their
25
briefing opposing Plaintiff’s first motion to compel and at oral argument before the magistrate judge on

26 that motion, the nature of the documents was readily apparent, and there is no reason why the work-
product doctrine could not have been asserted properly at that time.

27
4It has been more than six months since Plaintiff initially requested the documents at issue.
28 4
Case Nos. C 06 219 JF RS & C 06 926 JF RS ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE’S ORDER AND REQUESTS FOR STAYS; ORDER ON OTHER PENDING MOTIONS (DPSAGOK)

Case 5:06-cv-00219-JF Document 242 Filed 09/22/2006 Page 5 of 6

1 2006, Plaintiff was informed (on the basis of what counsel for the Governor’s Office at oral

2 argument termed a “judgment call”) that “the Office of the Governor of the State of California is

3 a separate and independent state agency and is not a party to this action,” and that Plaintiff would

4 have to obtain any such documents by subpoena. Soon thereafter, Plaintiff issued a subpoena to

5 the Governor’s Office. In response, the Governor’s Office asserted that some of the requested

6 documents are subject to various privileges, including the attorney-client privilege, or protected

7 from disclosure by the work-product doctrine; the Governor’s Office contends that the attorney-

8 client privilege and the work-product doctrine are applicable because it, like Defendants’ lead

9 counsel and general counsel, in effect is counsel for Defendants because of the Governor’s

10 supervisory rôle in overseeing litigation against the State.

11

The magistrate judge found the positions taken by the Governor’s Office to be internally

12 inconsistent and without merit, and this Court has reached the tentative conclusion that the

13 magistrate judge’s ruling is neither clearly erroneous nor contrary to law. Nonetheless, in the

14 interests of comity and respect for the separation of powers, the Court will defer ruling on the

15 objections asserted by the Governor’s Office until after the impending evidentiary hearing.

16 Having reviewed the documents in camera and having found them to be largely cumulative and

17 not particularly probative with respect to the central issues to be addressed at the evidentiary

18 hearing (cf. Fed. R. Evid. 403), and in light of the Court’s inherent power to permit and order any

19 necessary further development of the factual record following the conclusion of the hearing, the

20 Court finds that Plaintiff will not be prejudiced by not having access to the documents prior to

21 the hearing. Moreover, the Court will be in a better position after the hearing to resolve the

22 instant objections. Accordingly, the Court will grant a stay of the magistrate judge’s order

23 insofar as it applies to the Governor’s Office pending further order of the Court.

24

IV

25

For the reasons set forth herein, and good cause therefor appearing, Plaintiff’s and

26 Defendants’ objections to the magistrate judge’s order granting in part and denying in part

27 Plaintiff’s second motion to compel discovery are overruled; Defendants’ request for a partial

28 5
Case Nos. C 06 219 JF RS & C 06 926 JF RS ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE’S ORDER AND REQUESTS FOR STAYS; ORDER ON OTHER PENDING MOTIONS (DPSAGOK)

Case 5:06-cv-00219-JF Document 242 Filed 09/22/2006 Page 6 of 6

1 stay of such order is denied; the Court will defer ruling on the objections of nonparty witness

2 Office of Governor Arnold Schwarzenegger of California until after the impending evidentiary

3 hearing; the request for a stay of the magistrate judge’s order insofar as it compels discovery

4 from the Governor’s Office is granted subject to further order of the Court.

5

V

6

A number of other pending motions were discussed during the September 21 telephonic

7 hearing. For the reasons stated on the record at the hearing, and good cause therefor appearing,

8 Plaintiff’s motion for a continuance of the evidentiary hearing and a corresponding motion to

9 shorten time are denied; Plaintiff’s motion regarding redactions is granted pursuant to the terms

10 set forth at the hearing; and Defendants are required to make Witness No. 9 available for

11 deposition pursuant to the schedule agreed upon by counsel.

12

IT IS SO ORDERED.

13

14 DATED: September 22, 2006 15

__________________________________ JEREMY FOGEL United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

28 6
Case Nos. C 06 219 JF RS & C 06 926 JF RS ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE’S ORDER AND REQUESTS FOR STAYS; ORDER ON OTHER PENDING MOTIONS (DPSAGOK)

 
 0186

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4 MICHAEL ANGELO MORALES,

) C-06-0219-JF

)

5

Plaintiff,

)

) San Jose, CA

6

vs.

) September 26, 2006

)

7 JAMES TILTON, et al.,

) Volume 2 of 5

) PP. 186-473

8

Defendants. )

____________________________)

9

TRANSCRIPT OF PROCEEDINGS

10

BEFORE THE HONORABLE JEREMY FOGEL

UNITED STATES DISTRICT JUDGE

11

A P P E A R A N C E S:

12

For the Plaintiff:

Law Offices of John R.

13

Grele

By: JOHN R. GRELE

14

703 Market Street

Suite 550

15

San Francisco, CA

94103

16

McBreen & Senior

17

By: DAVID A. SENIOR

1880 Century Park East

18

Suite 1450

Los Angeles, CA 90067

19

Jenner & Block

20

By: GINGER D. ANDERS

601 13th Street, NW

21

Suite 1200 South

Washington, DC 20005

22

23

(APPEARANCES CONTINUED ON THE NEXT PAGE)

24 Court Reporter:

PETER TORREANO, CSR

License Number C-7623

25

0187

1 A P P E A R A N C E S (Continued):

2 For the Plaintiff:

Jenner & Block LLP

By: RICHARD P.

3

STEINKEN

One IBM Plaza

4

330 N. Wabash

Suite 4500

5

Chicago, IL 60611-7603

6 For the Defendants:

Office of the Attorney

General

7

By: DANE R. GILLETTE,

DAG

8

RONALD S. MATTHIAS,

DAG

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9

455 Golden Gate Avenue

Suite 11000

10

San Francisco, CA

94102-7004

11

State of California

12

Department of

Corrections and

13

Rehabilitation

Office of Legal

14

Affairs

By: K. L. McCLEASE

15

1515 S Street

Suite 314 South

16

Sacramento, CA 95814

17

18

19

20

21

22

23

24

25

0188

1

EXAMINATION INDEX

2

HEATHER WELLS JARVIS

3

DIRECT BY MR. GRELE

199

4

CROSS BY MR. GILLETTE

208

5 CINDY ADCOCK

6

DIRECT BY MR. GRELE

214

CROSS BY MR. GILLETTE

229

7

REDIRECT BY MR. GRELE

237

8 MARGO ROCCONI

9

DIRECT BY MR. GRELE

238

CROSS BY MR. GILLETTE

247

10

KEVIN CONCANNON

11

DIRECT BY MR. STEINKEN

250

12

CROSS BY MR. MATTHIAS

272

REDIRECT BY MR. STEINKEN

280

13

WILLIAM F. EBLING

14

DIRECT BY MR. STEINKEN

289

15

CROSS BY MR. MATTHIAS

367

16 MARK HEATH, M.D.

17

DIRECT BY MS. ANDERS

431

18

19

EXHIBIT INDEX

20

MAR / ADM

PLAINTIFF'S

21

145 Affidavit of Kevin Concannon,

272

22

DVM

23

24

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25

0189

1 San Jose, California

September 26, 2006

2

P R O C E E D I N G S

3

THE COURT: At this time we will go on

4 the record in the matter of Michael Angelo

5 Morales versus James Tilton, et al.

6

Would counsel state their appearances,

7 please.

8

MR. GRELE: Good morning, Your Honor.

9

John Grele on behalf of Plaintiff

10 Mr. Morales.

11

MS. ANDERS: Ginger Anders on behalf of

12 Plaintiff Michael Morales.

13

MR. SENIOR: David Senior on behalf of

14 Michael Morales.

15

MR. STEINKEN: Richard Steinken on

16 behalf of Michael Morales.

17

THE COURT: All right.

18

MR. GILLETTE: Good morning, Your

19 Honor.

20

Dane Gillette, senior assistant attorney

21 general, for the Defendants.

22

MR. MATTHIAS: Ronald Matthias,

23 supervising deputy attorney general, for

24 Defendants.

25

MS. McCLEASE: Kelly McClease, staff

0190

1 counsel for CDCR.

2

THE COURT: Welcome. Thank you.

3

This is the time set for the evidentiary

4 hearing in this matter, and because of the great

5 degree of public interest I just have a very

6 brief preliminary comment to make before inviting

7 counsel to begin.

8

The issue that's to be resolved in this

9 evidentiary hearing is actually a very narrow

10 one, and it's whether the protocol for lethal

11 injections that has been proposed by the state

12 meets constitutional standards.

13

The Court has some leeway as to how it

14 resolves that issue ranging from a complete

15 approval of the protocol to a complete rejection

16 of the protocol and perhaps ordering some

17 conditions for the implementation of the protocol

18 subject, of course, to those conditions being

19 carried out and any applicable state law

20 provisions.

21

The hearing, of course, takes place,

22 however, in the shadow of much broader issues,

23 and I just want to be clear at the outset this

24 case is not about the morality or the

25 effectiveness or the desirability of capital

0191

1 punishment. That's a decision for the

2 legislatures of the various states and the US

3 Supreme Court.

4

It is not about lethal injection in the

5 abstract. Lethal injection is the method of

6 execution used by 37 of the 38 states that have

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7 capital punishment. That's not at issue here.

8 The issue is California's implementation of

9 lethal injection.

10

The issue is not about whether it is

11 appropriate or inappropriate for a person being

12 executed to suffer pain in the abstract. There

13 is a constitutional limit on how much pain an

14 inmate can suffer, but it's inaccurate to say

15 that an execution has to be painless. There's no

16 legal authority for that proposition. The

17 question is whether the degree of pain that is

18 likely to occur is so severe that it raises

19 constitutional issues under the Eighth Amendment.

20

And, finally, it's not about whether the

21 suffering of a person who's being executed is

22 more or less important than the suffering of the

23 victims of that person's crime. Obviously,

24 there's no way to compare the two. The suffering

25 of a crime victim in a brutal murder is of a

0192

1 completely different character than the suffering

2 of a person who is executed.

3

Nonetheless, the Constitution forbids

4 punishments which inflict severe degrees of pain

5 and the question in this case is whether

6 California's lethal injection protocol violates

7 that constitutional prohibition.

8

So I just want to be very clear at the

9 outset what issue the Court is focusing on and

10 what issues the Court is not focusing on because

11 it's very understandable that members of the

12 public, the community at large, would care about

13 these other issues that I just identified because

14 those are important issues and important

15 concerns, but the issue in this case is a very

16 narrow one.

17

With that preliminary comment let me ask

18 first if counsel for Mr. Morales want to make a

19 brief opening statement.

20

MR. GRELE: Good morning, Your Honor.

21

John R. Grele on behalf of Mr. Morales.

22

We're going to keep it short. The Court

23 has indicated a desire to keep proceedings short

24 and we're going to try to accommodate that.

25

What the Court is going to hear is a

0193

1 story both disturbing and frightening, and what

2 the Court is going to hear is a story of

3 unnecessary risk of substantial pain to

4 Mr. Morales if this new protocol is used.

5

How the Court is going to hear that is

6 by hearing testimony about what we've seen in the

7 past, what's been changed, what has not been

8 changed in California and what other states have

9 experienced, some other states have experienced

10 under similar conditions where California appears

11 to be going.

12

And I think what the Court is going to

13 be finding at the end, what we're going to be

14 arguing at the end is that the state has to go

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15 back and do it over again; that they spent an

16 hour and a half in a meeting with a series of

17 lawyers in which Governor's counsel was the chief

18 advocate of certain positions, and that's how

19 this protocol was determined.

20

It wasn't determined by thorough vetting

21 by doctors or people who understand thiopental or

22 any of those things that the Court really asked

23 the state to do on February 14th.

24

And as a result we have a protocol that

25 will -- if it is going to be effective, will be

0194

1 effective by chance alone. And I think the Court

2 is going to hear some -- some testimony, but a

3 lot of what the Court is going to receive in this

4 case is going to be by way of stipulated fact.

5 That's our desire and I think it's the parties'

6 desire as well.

7

And so while we may see witnesses

8 testifying to certain aspects of the case, a lot

9 of what the case is going to be about, the nuts

10 and bolts, may be in documentary form. And I

11 hope the Court appreciates that it is no less

12 persuasive and no less meaningful to the case

13 than what the Court is going to hear by live

14 testimony.

15

With that said, I would just ask the

16 Court's -- the Court knows that we've been under

17 a great deal of pressure with the newfound

18 discovery in the case that has revealed a whole

19 new avenue about whether or not inmates were even

20 getting the 5 gram dose that the state has

21 maintained all along they were getting. It's

22 very disturbing information and we're trying to

23 accommodate as best we can under the short

24 notice.

25

We have some exhibit -- mechanical

0195

1 problems with the exhibits and we're going to try

2 to move through this as best we can, and I

3 appreciate the Court's and the Court's staff's

4 patience in this.

5

Thank you.

6

THE COURT: Thank you, Mr. Grele.

7

Mr. Gillette?

8

MR. GILLETTE: Thank you, Your Honor.

9

And I think that your comments

10 highlighted the issues as we see them, that this

11 is a very narrow case involving a question of the

12 validity of the protocol that California is now

13 proposing to use. But it is a part of a larger

14 picture across the country, and, as I'm sure the

15 Court is well aware, there have been hearings and

16 decisions made on this issue across the country,

17 a hearing in Maryland last week on their

18 procedures; a hearing in August in Oklahoma;

19 hearings in June in Missouri; and orders issued

20 even within this month in Virginia, the Georgia

21 State Supreme Court rejecting these claims, and

22 the decision in June after an evidentiary hearing

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23 in Oklahoma.

24

The new protocol that California is

25 proposing, the one that's now before the Court,

0196

1 will, we submit, render the inmate unconscious

2 and he will remain unconscious with a continuous

3 infusion of thiopental until and through the

4 delivery of the other two drugs.

5

We are not suggesting that the protocol

6 that was used in the prior executions was in any

7 way unconstitutional or inadequate. We do not

8 believe there's evidence to support the

9 conclusion that the California procedure has ever

10 violated the Eighth Amendment.

11

The evidence we believe will show that

12 the state uses properly licensed and trained

13 individuals to start the IVs, and that except for

14 a failure of which we must concede occurred with

15 the left arm, the redundant arm in the Stanley

16 Williams case, there has never been a failure to

17 establish the IVs and certainly not in any

18 situation involving the right arm through which

19 the drugs were delivered under the old protocol.

20

Williams was a lesson well learned, one

21 that will never occur again, because the

22 awareness of that has led to an assurance that we

23 will make sure that there is not a problem in any

24 future cases where we're using both the arms.

25

The training of the officer or the

0197

1 person who is responsible for delivering the

2 drugs the evidence will show is sufficient to

3 ensure that it is done properly. There is no

4 evidence that there has been a failure to deliver

5 the drugs in any case.

6

Lethal injection is not a medical

7 procedure. It is a lawful execution and it does

8 not require that -- there is no requirement that

9 the standards for medical care be the ones that

10 are applied.

11

The combination of thiopental,

12 pancuronium and potassium that are used by

13 California in the protocol will result in a

14 quick, painless death consistent with the

15 requirements of the Eighth Amendment.

16

THE COURT: All right. Mr. Grele, you

17 may call your first witness.

18

MR. GRELE: Your Honor, Plaintiff calls

19 Heather Jarvis.

20

MR. GILLETTE: Your Honor, can we have

21 a -- I move to request that witnesses be

22 excluded.

23

THE COURT: All right. The Court will

24 make an order applicable to this entire

25 proceeding that any witnesses who have not yet

0198

1 been called and excused will wait outside the

2 courtroom during the testimony of other

3 witnesses.

4

MR. GRELE: Your Honor, on that matter

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5 we would appreciate it if Dr. Heath could stay.

6

THE COURT: Dr. Heath is your designated

7 expert?

8

MR. GRELE: That's correct.

9

THE COURT: Any objection?

10

MR. GILLETTE: No objection, Your Honor.

11

MR. GRELE: On that matter Ms. McClease

12 from the staff counsel may be a witness in this

13 case. I have no objection if she stays.

14

THE COURT: All right. And she's filed

15 an association of counsel, which the Court has

16 received.

17

MR. GILLETTE: Thank you, Your Honor.

18

HEATHER WELLS JARVIS,

19 being called as a witness on behalf of the

20 Plaintiff, having been first duly sworn, was

21 examined and testified as follows:

22

THE CLERK: Please state your name and

23 spell it.

24

THE WITNESS: Heather Wells Jarvis.

25 H-E-A-T-H-E-R. W-E-L-L-S. J-A-R-V-I-S.

0199

1

DIRECT EXAMINATION

2 BY MR. GRELE:

3 Q Good morning, Ms. Jarvis.

4 A Good morning.

5 Q What is your current position?

6 A I'm an attorney at Equal Justice Works, a

7 non-profit in Washington, DC.

8 Q And what exactly does Equal Justice Works

9 do?

10 A Equal Justice Works promotes public interest

11 opportunities for recent law graduates and

12 assists law schools with public interest

13 programming on their campuses.

14 Q Okay. And what do you do for them?

15 A I'm the program manager for law school

16 advocacy. So I travel to a lot of law schools

17 and speak to law school professionals and law

18 students about public interest career search,

19 ideas and public interest law opportunities.

20 Q And where did you go to law school?

21 A I went to Duke University.

22 Q And what did you do after you graduated from

23 Duke University?

24 A My first position was as a staff attorney at

25 the Center for Death Penalty Litigation in

0200

1 Durham.

2 Q And how long did you -- were you an attorney

3 there?

4 A I was an attorney there for two years.

5 Q And what were your duties there?

6 A I represented clients on state

7 post-conviction and federal habeas corpus review.

8 Q Okay. Did there come a point in time when

9 you worked for the -- subsequently worked for the

10 Death Penalty Information Center?

11 A I did. I went from the Center for Death

12 Penalty Litigation into private practice for

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13 three years representing death row inmates as 14 well as other indigent criminal defendants and 15 other general practice matters, and then I moved 16 to the Washington area and started working at the 17 Death Penalty Information Center. 18 Q Okay. Was one of your clients Edward Ernest 19 Hartman? 20 A Yes. 21 Q Okay. And how long was he your client? 22 A I represented Eddie for five years. 23 Q And were you called upon to witness his 24 execution? 25 A Yes, I was. 0201
1 Q And how did that occur? 2 A I was his counsel and he asked me to attend. 3 Q And as a result did you attend? 4 A Yes, I did. 5 Q Okay. And when you were preparing to attend 6 his execution, did you seek out counsel from 7 other attorneys who had witnessed executions as 8 well? 9 A Yes, I did. 10 Q Okay. 11 A I asked a mentor of mine who worked at the 12 Center For Death Penalty Litigation and had 13 witnessed her client's execution, I asked her 14 what to expect. 15 Q Okay. So you prepared yourself for the 16 event somewhat? 17 A I did, yes. 18 Q Okay. Now, that day, what did you do that 19 day? Did you have an opportunity to talk to 20 Mr. Hartman? 21 A I did. We spent the entirety of the day 22 with him, my co-counsel and I and some of the 23 other defense team members. We sat with him and 24 visited throughout the day. 25 Q Okay. And did there come a point in time 0202 1 when you were removed from your client's 2 presence? 3 A Yes. 4 Q And when did that occur? 5 A It was quite late after the Governor denied 6 clemency. It was about midnight. 7 Q Okay. And then where did you proceed to? 8 A I went to the visitors center and waited for 9 a period of time with my co-counsel until we were 10 called to speak with the warden about the 11 execution and then to the witness chamber for the 12 execution itself. 13 Q Did the warden attempt to prepare you for 14 what you were about to see? 15 A He -- he did -- he told us what to 16 anticipate in terms of being brought into the 17 witness room and told us what would happen. 18 He -- I'm not sure he tried to prepare me. 19 Q And when you were -- when you got to the 20 witness room was Mr. Hartman present?

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21 A No, not initially. 22 Q Okay. Was he eventually brought in? 23 A Yes, he was. 24 Q And how was he brought in? 25 A He was wheeled in on a gurney. 0203
1 Q Okay. Were you able to see his arms? 2 A No, not at all. He was covered from -- from 3 his feet to about his collarbone with a white 4 sheet. 5 Q Okay. All right. And when they wheeled him 6 in, did they station him in any location? 7 A Yes. They pulled him up right in front of 8 the windows. There are glass -- glass windows 9 just -- just in front of the row in which I was 10 sitting. So he was probably two feet from me. 11 Q Okay. And was the light on above him so 12 that you could observe? 13 A Yes. There are very bright lights in the 14 execution chamber. 15 Q Okay. Could you see behind the chamber as 16 to what individuals were doing on the other side? 17 A No. There was like a drape. 18 Q Okay. And what -- what happened then? What 19 happened next? 20 A Well, first, he looked at the ceiling. He 21 blinked, and he did briefly turn to me and 22 mouthed a word. I think he said "hey" or "hi." 23 I can't hear, but I could see that that's what he 24 did, and then he looked away again up to the 25 ceiling. 0204 1 Q Okay. And speaking of looking, what was -2 were his eyes moving? What was he doing with his 3 eyes? 4 A He was staring at the ceiling and he was 5 blinking occasionally and he was crying a bit. 6 Q Okay. And how old was -- was Mr. Hartman 7 when he was executed? 8 A Eddie was 38 years old. 9 Q Okay. Did there come a point in time when 10 they announced that the execution would proceed? 11 A Yes. The captain announced in the execution 12 chamber that the execution would go forward. 13 Q Physical -- physicalwise how large was he? 14 What kind of stature of a man was he? 15 A He was a small -- smallish man. He was 16 thin. Taller than me, but everyone is. He 17 was -- he was slight. 18 Q Okay. And after they announced the 19 execution would proceed, where did the guard go 20 then? 21 A He stood in the corner of the witness 22 chamber. 23 Q And did anything occur soon after that? 24 A Yes. Soon after that I saw Eddie's eyes 25 closed, and I thought to myself, you know, here 0205 1 we go, this is it and -- but then almost 2 immediately his eyes opened again, and they

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3 opened not fully. They opened more than halfway

4 but not completely. So it was an odd sort of

5 look to his eyes.

6 Q Okay. And how long did that last?

7 A His eyes remained open for the entire period

8 of the execution that I witnessed. I think about

9 five minutes, maybe a little bit longer.

10 Q Okay. And then what happened next to

11 Mr. Hartman?

12 A Well, he -- he -- what I first saw that

13 surprised me was that his throat started

14 pulsating outward almost immediately, and it was

15 just moving away from his -- from its regular

16 position quite dramatically in a way I have

17 never -- I have never seen before. I don't think

18 that a person can move their body in that way,

19 and so his throat was shaking and pulsing.

20

And then very soon as well his chest

21 began to heave and it was a rather rapid and

22 violent heaving of his chest. In fact, I -- he

23 was lifting really up off the gurney in his torso

24 and I remember thinking that he was going to fall

25 off. I felt like he was going to crash onto the

0206

1 floor because his chest was heaving so violently.

2 Q And how long did the violent heaving of his

3 chest last?

4 A It was -- it was at least five minutes. I

5 think it was over five minutes.

6 Q By the way, is there a clock in the

7 execution viewing room in North Carolina?

8 A There is. There's a clock just immediately

9 to my right up on the wall, not far from me, but

10 I really didn't look at it.

11 Q Okay. How about his facial features during

12 this time that his chest was heaving and his eyes

13 were halfway open; did you notice any of his

14 facial features?

15 A Yes. His face looked very strange. His

16 muscles looked slack and so his skin was pulling

17 downward from his face, the way that a person

18 looks in death, the way you have seen perhaps in

19 a coffin in a viewing at a funeral. But his --

20 but yet his muscles were moving in a way that

21 didn't seem conscious on the part -- it was -- it

22 was so strange because the muscles were clearly

23 activated, but not in the way that you or I could

24 activate our muscles using our brain.

25 Q Okay. What did you do in response to

0207

1 Mr. Hartman's condition?

2 A Nothing. I just watched. I was very -- I

3 was upset. I was with my co-counsel. We held

4 hands and I just waited for it to be over. I

5 just -- I started praying that it would be over.

6 Q Okay. Did you notice any twitching at any

7 period of time?

8 A Twitching? He moved throughout the process,

9 his chest and his throat. And then eventually it

10 began to slow, and, yes, I would call it an

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11 occasional twitch in his torso.

12 Q Okay. And how long did that condition last?

13 A I think that -- I would say the slowing

14 process where the heaving was lessened was for

15 about a minute.

16 Q Okay. And then what happened after that?

17 A And then at last he became still and his

18 eyes did finally close.

19 Q Okay. Now, did -- do you know about what

20 time the execution was announced that -- do you

21 know about which time it was announced that he

22 had expired?

23 A I think it was about 2:15.

24 Q Okay. By the way, what time do executions

25 begin in North Carolina?

0208

1 A 2:00 a.m.

2 Q Okay. This pulsating and outward thrusting

3 of the throat, did it remind you of any

4 particular animal that you're familiar with?

5 A Yes.

6 Q What animal is that?

7 A There's a certain kind of lizard in North

8 Carolina. I don't know what it's called, but

9 they are everywhere. On my mother's deck you see

10 them really often, and they have the -- I guess

11 it's called a waddle under their chin that they

12 puff up and it turns red. I think it attracts a

13 mate.

14

And that's what I thought when I was

15 looking at Eddie's throat. I thought of those

16 lizards that pooch out their necks because that's

17 what his neck was doing.

18

MR. GRELE: Okay. Thank you very much.

19

THE WITNESS: Sure.

20

THE COURT: Mr. Gillette?

21

MR. GILLETTE: Thank you, Your Honor.

22

CROSS-EXAMINATION

23 BY MR. GILLETTE:

24 Q Good morning.

25 A Good morning.

0209

1 Q You represented Mr. Hartman approximately

2 five years; is that correct?

3 A Yes, that's right.

4 Q And this was in post-conviction challenges

5 to his death judgment?

6 A Yes. I began representing him on state

7 post-conviction and represented him through his

8 execution.

9 Q And became very close to him in the sense of

10 working very hard to avoid his execution; isn't

11 that correct?

12 A Yes, that's right.

13 Q Was it -- I would assume it was an

14 unpleasant experience for you to have to attend

15 his execution; is that correct?

16 A Yes, that's right.

17 Q And I would further assume that it was

18 pretty uncomfortable to have to be there in the

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19 witness room; is that also correct? 20 A It was, yes. 21 Q To the extent that you felt you were 22 prepared, in what sense can you say that? 23 A Well, I -- I -- I don't really say that I 24 was prepared. I tried to be prepared. I asked 25 what to expect so that it wouldn't be unfamiliar 0210
1 to me. 2 Q Now, when you were viewing the execution of 3 Mr. Hartman, were you seated or standing? 4 A I was seated. 5 Q And were any people seated in front of you? 6 A No. I was in the first row. 7 Q Did you have an unobstructed view of him? 8 A Yes. 9 Q And, as I understood your testimony, he was 10 covered in some way; is that correct? 11 A Yes, that's right. They have a sheet 12 covering -- there was a sheet covering his body 13 on the gurney. 14 Q So you would be unable to see his arms; is 15 that right? 16 A Right. I could not see his arms. 17 Q So when you heard the statement that the 18 execution was going to begin, you were unable to 19 observe if, in fact, there was any flow of drugs 20 or anything going into him? 21 A That's right. 22 Q Now, is the -- is the execution chamber 23 soundproof? Were you able to hear anything 24 coming from the room? 25 A I don't know if it's soundproof, but, right, 0211 1 I couldn't hear anything. That's right. 2 Q How large are the viewing windows? 3 A The viewing windows I would say are probably 4 three or four -- maybe four feet in width, if not 5 a little bit longer. No. They must be -- they 6 must be a little bit longer than that because you 7 can really see the entirety of the inmate's body 8 stretched on the gurney. 9 Q But covered up? 10 A Yes, right. 11 Q You're not a physician, are you? 12 A No, sir. 13 Q Have you had any medical training? 14 A No, I haven't. 15 Q Did anybody discuss with you prior to the 16 execution what movements you might see and what 17 that might mean of the inmate? 18 A I was trying to remember if the warden said 19 anything about that, but I don't think that he 20 did, no. 21 Q Now, I think you made a comment in your 22 direct testimony that some of the behavior looked 23 like something that you wouldn't -- it wouldn't 24 be the kind of behavior you would activate using 25 your brain; is that what you said? 0212

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1 A Yes, that was what I said.

2 Q In other words, it did not appear to you to

3 be voluntary movement on the part of the inmate?

4 A Yes, that's right.

5 Q And you described various things you

6 observed. You said twitching; is that correct?

7 A Uh-huh.

8 Q And throat -- his throat was pulsating. You

9 described that in terms of this lizard from North

10 Carolina?

11 A Yes.

12 Q And that you saw him shaking in a very

13 violent way; is that correct?

14 A That's right.

15 Q Do you have any idea -- any basis for

16 concluding whether any of those movements were

17 voluntary on the part of Mr. Hartman?

18 A I don't know.

19 Q Do you have any basis for knowing whether he

20 was or was not conscious when that occurred?

21 A No, except that I saw his eyes opened. They

22 closed and then they opened again. That's the

23 only thing that made me wonder. When his eyes

24 opened again I thought why was he opening his

25 eyes.

0213

1 Q But you don't know whether he was conscious

2 or unconscious?

3 A You're right. I don't know, no, sir.

4 Q And you don't know whether he was or was not

5 suffering pain during the movements that you

6 observed; is that correct?

7 A I don't know. It looked like he was to me.

8 Q It was painful for you to watch it, wasn't

9 it?

10 A Yes. And it looked as if it were painful

11 for him.

12 Q But, again, you're not a physician; right?

13 A Yes, that's right.

14 Q And you don't know, you cannot say whether

15 he was or was not in pain?

16 A You're right. I cannot. No, sir.

17

MR. GILLETTE: Thank you, Your Honor.

18 Nothing further.

19

THE COURT: Any redirect?

20

MR. GRELE: No, Your Honor. Thank you.

21

THE COURT: You may step down. Thank

22 you very much.

23

THE WITNESS: Thank you.

24

THE COURT: Call your next witness.

25

MR. GRELE: Your Honor, Plaintiffs call

0214

1 Cindy Adcock.

2

And, Your Honor, I apologize for that

3 phone. I thought I had it on silent, but I

4 struggle every day with the technology on the

5 phone.

6

THE COURT: You're not the first and

7 won't be the last.

8

MR. GRELE: Right.

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9

THE CLERK: Good morning.

10

THE WITNESS: Good morning.

11

CINDY ADCOCK,

12 being called as a witness on behalf of the

13 Plaintiff, having been first duly sworn, was

14 examined and testified as follows:

15

THE CLERK: Please state your name and

16 spell it.

17

THE WITNESS: Cindy Adcock. C-I-N-D-Y.

18 A-D-C-O-C-K.

19

DIRECT EXAMINATION

20 BY MR. GRELE:

21 Q Good morning, Ms. Adcock.

22 A Good morning.

23 Q Are you an attorney?

24 A Yes, I am.

25 Q And where do you work?

0215

1 A I work currently at Equal Justice Works,

2 which is in Washington, DC.

3 Q And what do you do for Equal Justice Works?

4 A I'm a senior program manager.

5 Q Okay. And, by the way, do you know -- do

6 you work with Ms. Jarvis?

7 A Yes. She's in my office.

8 Q How long have you known Ms. Jarvis?

9 A She was actually a student of mine when I

10 was teaching at Duke Law School.

11 Q Okay.

12 A So I don't know. That's about ten years or

13 something.

14 Q All right. Where did you go to law school?

15 A I went to Duke.

16 Q Okay. And after you graduated from law

17 school what did you do?

18 A I clerked for a federal magistrate judge in

19 the Eastern District of North Carolina.

20 Q And then where did you work?

21 A I worked at Prisoner Legal Services for

22 about nine months.

23 Q And after Prisoner Legal Services where did

24 you work?

25 A I went to work for what was then called the

0216

1 North Carolina Resource Center, and it later

2 became the Center for Death Penalty Litigation.

3 Q Was that when the Resource Centers lost

4 their funding as a result of the Act of

5 Congress?

6 A Yes.

7 Q Where did you work next after that?

8 A Well, I worked at Duke. I went to Duke from

9 there, even though I kept a contract with the

10 center so that I could continue to represent the

11 inmates that I had worked with.

12 Q And what was your official title at Duke Law

13 School?

14 A Senior lecturing fellow.

15 Q And what were your responsibilities?

16 A It began as being the director of the death

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17 penalty clinic and their pro bono coordinator, 18 and then I took a leave for a couple of years and 19 went to DC, and I worked for the Association of 20 American Law Schools as their director of pro 21 bono. I then went back to Duke and taught, and 22 taught the clinic and ethics, legal ethics. 23 Q All right. Now, did you have an opportunity 24 to witness the execution of Mr. Zane Hill? 25 A Yes, I did. 0217
1 Q Okay. Do you recall how old Mr. Hill was? 2 A He was 53. 3 Q Okay. And what kind of shape was he in? 4 What kind of stature was he? Large man? Small 5 man? 6 A He was a large man, but had some health 7 problems. 8 Q Okay. All right. And what year was this? 9 A This was '98. 10 Q 1998? 11 A Yes. 12 Q Okay. Did you -- you were -- at some point 13 in time were you positioned in the witness room? 14 A Yes. 15 Q Okay. And was Mr. Hill brought in? 16 A He was actually -- my recollection he was 17 there already. 18 Q Okay. 19 A But they had curtains. So the curtains were 20 drawn, and we were seated and then they opened 21 the curtains. 22 Q Okay. They opened the curtains. And 23 Mr. Hill was there? 24 A That's my recollection. 25 Q What position was he in? 0218 1 A He was lying on a gurney with his head 2 slightly elevated. He had a blue -- it looked to 3 be a blanket, baby blue blanket up to his neck. 4 Q Okay. Could you see his arms at all? 5 A No. 6 Q Okay. At some point did they announce that 7 the execution -- oh, by the way, what was his 8 physical condition as he was laying there on the 9 gurney about to be executed? 10 A Zane was -- seemed to be completely 11 unconscious. He never looked at us. He never 12 opened his eyes. Never moved his lips in terms 13 of speaking or anything. 14 Q From the minute that you saw him -15 A Right. 16 Q -- until the conclusion of the execution? 17 A What? 18 Q Was he in that condition throughout the 19 period of the execution? 20 A Yes. 21 Q Okay. And during this execution, were 22 you -- was there a clock in the room? 23 A Yes. There's a clock in the witness room 24 that is up to the right. It's a very small room

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25 and so it's just right there.

0219

1 Q Okay. And where were you standing in

2 relation to the window?

3 A I was sitting.

4 Q Okay.

5 A Sitting on the second row. There's two rows

6 of chairs. So I was probably about six feet from

7 the window.

8 Q Okay. And what -- did any -- did you notice

9 any movements or any activity on the part of

10 Mr. Hill?

11 A No.

12 Q Okay. Were you aware that Mr. Hill was

13 previously medicated before the execution?

14 A Yes.

15 Q How were you aware of that?

16 A Well, he took lots of medications for his

17 health conditions. He had an anxiety disorder,

18 but also he told me that he was -- he had taken

19 the drugs they offer. They offer more powerful

20 drugs the closer in time to execution as the

21 anxiety builds. And, also, that day I had spent

22 some time with him, and he was very giddy and

23 very -- almost drunk. He acted very silly.

24 Q Okay. Did you -- did you notice whether or

25 not you were able to see him breathe?

0220

1 A While he was lying there it was very hard to

2 see him breathe. I noticed shortly after they

3 announced the execution would begin just a few

4 breaths, and then it was very hard for me to

5 tell. I was just -- this was my first execution

6 and I was just staring at him trying to figure

7 out whether he was still alive or not, and I

8 really could not tell when he died.

9 Q Okay. Other than it being announced?

10 A Right. At the end they come in and they

11 announce the time of death.

12 Q All right. Did you also attend the

13 execution of Willie Fisher?

14 A Yes, I did.

15 Q And was he your client as well?

16 A Yes.

17 Q Okay. And you represented him throughout

18 the proceedings or --

19 A I represented Willie in federal court.

20 Q Okay.

21 A And in clemency.

22 Q And in clemency? Okay.

23

Now, was Mr. Fisher -- when you

24 witnessed that execution were you able to -- was

25 Mr. Fisher brought into the -- into the execution

0221

1 chamber?

2 A Yes, that's my recollection. He was brought

3 in.

4 Q He was brought in how?

5 A On the gurney.

6 Q Okay.

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7 A Already with the -- again with the baby blue

8 blanket up to his neck.

9 Q Okay. And when you say brought in on the

10 gurney, do they actually wheel the physical

11 gurney?

12 A Correct.

13 Q And at some point in time did they announce

14 the execution was going to proceed?

15 A Yes.

16 Q Okay. Where were you seated or standing at

17 that time?

18 A I was -- this time we were on the front

19 row. For all the other executions I've been on

20 the front row, which they are about two feet from

21 the glass, and I was on the left side of the

22 room.

23 Q Okay. Could you see Mr. Fisher?

24 A Yes.

25 Q Did you have an unobstructed view?

0222

1 A Yes.

2 Q Okay. And after they announced the

3 execution was about to proceed, what did you

4 notice?

5 A Well, Willie had -- unlike Zane, Willie was

6 conscious when they brought him in and he was --

7 but he only looked at us quickly, gave us one

8 glance. Other than that he didn't look at us,

9 and he was kind of staring ahead, sometimes at

10 the ceiling, moving his lips.

11

So that was prior to -- that was the

12 condition for about ten minutes. They have you

13 in there about ten minutes before they start the

14 execution itself.

15

And so when he -- when they announced

16 they were starting the execution I was, of

17 course, expecting it to be pretty much like

18 Zane's, although he was awake. So I wasn't

19 sure. And he was moving his lips. I believe

20 they have them count down or something. And I

21 remember that he yawned and it was kind of odd.

22 I thought that was kind of sweet, you know, like

23 he's going to sleep now. He's going to be okay.

24 He's going to be okay.

25

But he closed his eyes and a couple

0223

1 minutes later he just started -- his chest

2 started heaving really heavily up against the

3 blanket and his neck went back and his mouth

4 opened and it was like he was trying to gasp for

5 breath.

6

You can't hear anything. It's a

7 soundproof room. But he had his mouth open

8 gasping for breath. And I was focusing mostly on

9 his chest and his throat and it was like

10 throbbing and heaving.

11 Q Okay. And how long did that last?

12 A About ten minutes.

13 Q Okay. And were you -- what -- step back a

14 minute.

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15

How old was Mr. Fisher?

16 A I think he was 39.

17 Q And what kind of physical condition was he

18 in?

19 A He was very healthy.

20 Q Was he a large man?

21 A Yes, large man.

22 Q Over 200 pounds?

23 A I'm not very good with weights.

24 Q That's fine. And, by the way, what time was

25 the execution for Mr. Fisher?

0224

1 A Willie's execution actually happened at

2 9:00 p.m. because we got a stay of execution the

3 night before. All the executions in North

4 Carolina generally take place at 2:00 a.m., but

5 because of the stay of execution they couldn't go

6 forward until the next time they set was

7 9:00 p.m.

8 Q Okay. Was the stay eventually lifted?

9 A Yes.

10 Q Who lifted that stay?

11 A The North Carolina Supreme Court.

12 Q And you were describing Mr. Fisher's

13 struggling for breath. Again how long did that

14 last?

15 A About ten minutes in all.

16 Q What was your reaction?

17 A I was extremely upset. I was sitting next

18 to his cousin who I actually did not know, and

19 she became very upset and she jumped up. And, of

20 course, they lecture you ahead of time not to

21 show any emotion or to say anything. She jumped

22 up and put her hands on the glass and was

23 screaming, I think, something like "no" or

24 something, and, of course, that was even more

25 upsetting.

0225

1

And so I jumped up just as a reflex and

2 grabbed her, and we sat back down and then I held

3 her as she cried.

4 Q Okay. This whole time that this was going

5 on his chest was heaving and his throat was

6 pulsating?

7 A Yes, yes.

8 Q Okay. And then after that did you do

9 anything in response?

10 A I saw -- I was sitting there, and I was

11 holding her as she was crying and I just -- I

12 wanted it to be over and he was -- he was -- you

13 know, like I said, he was just gasping for breath

14 so that I felt so helpless. I just wanted to

15 help. So I just started trying to breathe for

16 him. I don't know. I just wanted to help.

17

So I was kind of -- one reason I was so

18 fixated on his gasping is I just wanted to help

19 him breathe, you know, because it seemed he

20 couldn't get air. So I was timing my breaths

21 with his and trying to do that.

22 Q Okay. Did eventually this condition that he

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23 was in, the heaving of the chest and the pulsing

24 of the throat, cease?

25 A Yes.

0226

1 Q Was it an abrupt cessation or was it

2 gradual?

3 A I would say it would be more gradual.

4 Q Okay.

5 A Although in a short period of time.

6 Q Okay. Yeah. That was my next question.

7 How long before they announced that he was dead?

8 A They announced his time of death as 9:21.

9 Q Okay. Approximately how many minutes after

10 the start?

11 A Twenty-one minutes.

12 Q Twenty-one minutes. Okay. All right.

13

And did you also observe the execution

14 of Timothy Keel, I believe it is?

15 A Yes.

16 Q Okay. Is Mr. Keel a large man?

17 A No. Timmy was a smaller man.

18 Q Okay. How old was he?

19 A He was also 39.

20 Q Okay. Did they -- did it proceed at the

21 beginning very similar to the way that

22 Mr. Fisher's execution proceeded?

23 A Except that Timmy was very animated when he

24 came in. He was intent on being able to

25 communicate with us. He told me that he was not

0227

1 going to take any drugs because he wanted to

2 communicate with us and wanted to see us. And so

3 immediately he was trying to communicate.

4

Again, their hands are -- you know, they

5 are restrained under the blanket and so they

6 can't move anything other than their head. So he

7 was, you know, making -- pointing and talking and

8 saying "I love you" and "thank you" and things

9 like that.

10 Q And did there come a point in time where

11 the -- it was announced that the execution was

12 proceeding?

13 A Yes.

14 Q Okay. And what happened after that?

15 A That was at 2:00 a.m. They announced it was

16 proceeding. And Timmy was continuing to mouth to

17 us and he wanted to make sure -- there was four

18 witnesses for him there and he wanted to make

19 sure he spoke to each of us. So he was

20 continuing to try to communicate. He was

21 increasingly very frustrated. He wasn't sure we

22 were understanding him.

23

So he started gasping for breath, but he

24 was still able to talk or at least mouth. Again,

25 we can't hear. So he would take a deep breath

0228

1 and then, you know, mouth to us, you know, and

2 then take another -- you know, mouth to us. And

3 we were just -- or at least I was just trying to

4 keep smiling at him and assuring him it was okay.

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5

And so then he suddenly stopped

6 mid-sentence. He just kind of froze and his eyes

7 just stared and his mouth gaped open. And he

8 started shaking and heaving as well and it just

9 seemed to go on forever. Because, again, I just

10 wanted it to end. I remember Willie. I was just

11 hoping it wouldn't go on so long.

12 Q And I was going to ask you that. The

13 shaking, how long did that go on?

14 A It was about the same amount of time, right

15 at ten minutes the last time.

16 Q Okay. And then how about body twitching;

17 did you notice any body twitching?

18 A Yes.

19 Q And what was that? Can you describe that

20 for us?

21 A He was, as I said, a smaller man, and I

22 didn't get the sense -- with Willie it was like I

23 was afraid he was going to burst out of the

24 restraints he was just jerking so much. Timmy

25 was more shaking rather than just really big

0229

1 heaves and twitching.

2 Q Okay. How about his face; could you see his

3 face?

4 A Yes. I was focused on his face because I

5 wanted to just try to be there if he happened to

6 look at me or -- and his face was also

7 twitching.

8 Q Okay. All right. And this condition went

9 on for about ten minutes you estimate?

10 A Uh-huh.

11 Q Okay. And then did they announce that he

12 had expired?

13 A Yes.

14 Q And do you know what time that was?

15 A That was 2:18.

16 Q Approximately 18 minutes after it began?

17 A Yes.

18

MR. GRELE: Okay. Thank you very much.

19

THE COURT: Mr. Gillette?

20

MR. GILLETTE: Thank you, Your Honor.

21

CROSS-EXAMINATION

22 BY MR. GILLETTE:

23 Q Good morning, Ms. Adcock.

24 A Good morning.

25 Q Am I correct in understanding that with

0230

1 respect to all three of the individuals whose

2 executions you attended, these were people you

3 had represented at one point or another; is that

4 correct?

5 A Yes.

6 Q And it was because of your representation

7 that you were allowed to attend the executions?

8 A Yes.

9 Q Now, with respect to Mr. Zane, that was the

10 first one you saw; is that right?

11 A Yes.

12 Q And apparently there was nothing

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13 particularly significant as you described it?

14 A Right.

15 Q Now, in terms of Mr. Fisher, you indicated

16 that you had represented him in federal court and

17 in challenges to clemency; is that right?

18 A That's right.

19 Q And when you mentioned a stay, was that the

20 result of an effort to prevent the Governor from

21 acting on the clemency request based on a claim

22 that there was a conflict of interest?

23 A No. He had actually already denied clemency

24 and then we filed a collateral proceeding on

25 motion on that conflict of interest.

0231

1 Q That's because the Governor had previously

2 been the Attorney General?

3 A Yeah. He was the Attorney General on

4 Willie's case.

5 Q So you had been working very hard to try to

6 prevent that execution from going forward; is

7 that correct?

8 A Yes.

9 Q You said -- you indicated you were in the

10 front row for the execution of Mr. Fisher; is

11 that right?

12 A Yes.

13 Q But you were not able to see any of his

14 body?

15 A Yeah.

16 Q Well, it was covered, wasn't it? Didn't you

17 say --

18 A Oh, oh, oh. His body was covered, yeah, but

19 you could see his whole, you know, body as it was

20 level with the glass.

21 Q You could see the body, but you couldn't see

22 his arms or the IVs?

23 A Underneath, no.

24 Q And you didn't --

25 A It was underneath the blanket.

0232

1 Q I'm sorry. I didn't mean to interrupt you.

2

And you didn't see the insertion of the

3 IVs or anything of that sort?

4 A No.

5 Q And you couldn't see when the announcement

6 was made that the execution was going to begin

7 whether there was anything actually flowing into

8 the veins at that time?

9 A No.

10 Q Are you a physician?

11 A No.

12 Q Do you have any training as a -- medical

13 training at all?

14 A Just psychiatric.

15 Q In terms of that, have you ever been given

16 any training on how to determine from watching

17 somebody whether they may be conscious or

18 unconscious?

19 A No.

20 Q Or whether movements are voluntary or

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21 involuntary?

22 A No.

23 Q In terms of your description of Mr. Fisher,

24 you talked about his chest heaving and looking as

25 if he were attempting to breathe; is that right?

0233

1 A Uh-huh.

2 Q Do you know whether he was conscious at that

3 time?

4 A I do not.

5 Q Do you have any idea whether his movements

6 were voluntary or involuntary?

7 A I do not.

8 Q I take it it was not a pleasant experience

9 to watch that execution, was it?

10 A No, it wasn't.

11 Q And I would assume that it was even more

12 upsetting when one of his family members became

13 as distraught as they did; isn't that correct?

14 A It was upsetting.

15 Q With respect to Mr. Keel, you were involved

16 in litigation. Was it post-conviction litigation

17 representing him?

18 A With Timmy I only represented him in

19 clemency.

20 Q Were you involved in any litigation

21 challenging whether or not Mr. Keel was mentally

22 retarded?

23 A No.

24 Q Was that an issue in the Keel case?

25 A Yes.

0234

1 Q And you were unsuccessful, I guess, then in

2 the clemency efforts there as well?

3 A Yes.

4 Q Based on what you had -- based on what you

5 saw in the Keel execution, you described him as

6 twitching and shaking; is that right?

7

That was a yes?

8 A Yes.

9 Q I'm sorry.

10

It appeared -- you said you had -- it

11 appeared to you that he was attempting to catch

12 his breath. Do you have any idea whether he was

13 actually breathing?

14 A Well, the first two times when he was still

15 talking with us, I could tell he was definitely

16 trying to catch his breath because he would

17 [demonstrating], and then he would look at us and

18 talk, you know. So he was definitely

19 [demonstrating] catching his breath. After

20 that -- I'm sorry. It was different after that.

21 Q It appeared to be different to you after

22 that?

23 A Yes.

24 Q You couldn't tell whether those were

25 voluntary movements or involuntary reflexive

0235

1 movements of some sort?

2 A Not after he -- again, his eyes, you know,

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3 stopped moving and his mouth gaped open.

4 Q And you could not tell whether he was

5 conscious or unconscious when you observed these

6 movements?

7 A No.

8 Q Were you able to actually hear anything he

9 said?

10 A No.

11 Q Is that because it's a soundproof room?

12 A That's right.

13 Q Was -- was it also an uncomfortable

14 experience for you to watch that execution of

15 Mr. Keel?

16 A Yes.

17 Q Did you attend any other executions other

18 than those three?

19 A Yes.

20 Q And which other ones did you attend?

21 A Last year I attended the execution of Steve

22 McHone.

23 Q And what was your impression of that

24 execution?

25 A Steve was similar in that they rolled him in

0236

1 and he was talking to us. So in that way it was

2 like Timmy. He also was communicating in our

3 view and that. And at the point where they

4 announced the execution would start you could

5 tell that he was mouthing, maybe counting down.

6

And there was this one big jerk where

7 his -- his kind of head went up and his mouth

8 opened and I remember it being in a -- in an odd

9 position because I was hoping he would move one

10 more time so -- because he looked very contorted,

11 his face. His mouth was open. But he didn't

12 move any more other than just minor twitching in

13 the face. It was not the kind of heaving that I

14 had seen before.

15 Q So it would not be like the descriptions you

16 gave of either Mr. Fisher or Mr. Keel?

17 A It would not be as severe as those, that's

18 right.

19 Q And with respect to that execution, you have

20 no idea at what point he may have become

21 unconscious?

22 A No. Except they did announce that his --

23 that he was pronounced dead at 2:10.

24 Q And when did the execution start?

25 A 2:00.

0237

1

MR. GILLETTE: Thank you, Your Honor. I

2 have no further questions.

3

THE COURT: Anything else?

4

MR. GRELE: Just briefly.

5

REDIRECT EXAMINATION

6 BY MR. GRELE:

7 Q Ms. Adcock, what year was Mr. McHone's

8 execution?

9 A That was November 2005.

10

MR. GRELE: November 2005?

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11

Okay. Thank you.

12

THE COURT: Anything else,

13 Mr. Gillette?

14

MR. GILLETTE: Nothing else, Your Honor.

15

THE COURT: You may step down. Thank

16 you.

17

Call your next witness.

18

MR. GRELE: Thank you, Your Honor.

19 Plaintiff calls Margo Rocconi.

20

MR. GILLETTE: Your Honor, before that

21 witness takes the stand, a very brief motion.

22

I would remind the Court that the

23 testimony of the last two witnesses was the

24 subject of a motion in limine, and we would

25 object to the -- or we would ask that the

0238

1 testimony of both witnesses be struck for lack of

2 foundation as we have no idea what amounts of the

3 drugs were being -- particularly the thiopental

4 and its relationship either to California's

5 previous or present protocol.

6

THE COURT: All right. I assume there

7 will be some additional evidence. I will take

8 the motion under submission.

9

MR. GRELE: Thank you, Your Honor.

10

THE CLERK: Good morning. Raise your

11 right hand, please.

12

MARGO ROCCONI,

13 being called as a witness on behalf of the

14 Plaintiff, having been first duly sworn, was

15 examined and testified as follows:

16

THE CLERK: Thank you.

17

Please state your name and spell it.

18

THE WITNESS: Margo Rocconi.

19 R-O-C-C-O-N-I.

20

DIRECT EXAMINATION

21 BY MR. GRELE:

22 Q Good morning, Ms. Rocconi.

23 A Good morning.

24 Q What's your current position?

25 A I'm an assistant federal public defender in

0239

1 Los Angeles.

2 Q And do you work in any particular unit or

3 division?

4 A Yes. The capital habeas unit.

5 Q I'm sorry. I'm speaking too quickly. I'm

6 on a clock.

7

And do you work on capital cases?

8 A Yes, I do.

9 Q How long have you worked on capital cases?

10 A For about 14 years.

11 Q Okay. Where did you graduate law school?

12 A Pepperdine.

13 Q And did you go -- what did you do after

14 Pepperdine?

15 A I went to Georgetown University Law Center,

16 and then I also clerked at the Justice Brennan

17 Project after Justice Brennan had retired.

18 Q Okay. Was it for Justice -- former Justice

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19 Brennan at that point?

20 A He was retired at that point, yes.

21 Q How long did you work for Justice Brennan?

22 A Less -- somewhere less than a year, I would

23 say.

24 Q And after that where did you work?

25 A Then I went to a law firm in Los Angeles,

0240

1 Sedgwick, Detert, Moran & Arnold, and they had a

2 death penalty case there.

3 Q And you started working on that case?

4 A Yes, I did.

5 Q Okay. And then you became a federal

6 defender?

7 A About eleven years ago, yes.

8 Q Did you represent Mr. Anderson?

9 A Yes, I did.

10 Q Stephen Anderson, that is?

11 A Yes.

12 Q Okay. Did you have an opportunity to

13 observe his execution?

14 A Yes, I did.

15 Q Okay. And what position did you have as an

16 observer? Where were you standing in the

17 observing room?

18 A We were standing -- there were three of us.

19 We were standing on the risers, the steps to the

20 left of the -- the execution chamber.

21 Q Okay. How large was Mr. Anderson?

22 A He was close to, I would say, 300 pounds.

23 Q Okay. And did there come a point in time

24 when they announced -- oh, could you see him

25 through the window?

0241

1 A Yes, I could.

2 Q Did you have an unobstructed view?

3 A Yes, I did.

4 Q Okay. All right. Now, what happened when

5 they brought Mr. Anderson in?

6 A They -- he walked in with the -- I guess

7 what you would call the tie-down team, and he was

8 shackled at his waist and his wrists and also at

9 his ankles, and he got up on the table and they

10 strapped him down, took off the shackles,

11 strapped him down and --

12 Q Okay. Did the individuals who were

13 responsible for putting Mr. Anderson on the

14 gurney then depart?

15 A Yes, they did.

16 Q And then somebody else entered the chamber?

17 A Yes. It was a male. He was wearing what I

18 think was a white lab coat. He came in with a

19 tray of medical supplies, and he began to --

20 well, he swabbed his left arm.

21 Q He swabbed whose left arm?

22 A I'm sorry?

23 Q He swabbed the left arm of Mr. Anderson?

24 A Mr. Anderson's left arm, yes.

25

And then he began trying to insert a

0242

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1 catheter or needle into a vein in the left arm.

2 He was having some amount of difficulty with

3 that. It took a while. Mr. Anderson's arm

4 started to bleed and he wiped up the blood with

5 gauze on several occasions.

6

And then --

7 Q I'm sorry. If I could --

8 A Excuse me.

9 Q How many -- how many attempts did it appear

10 that the male technician made?

11 A He -- he attempted -- I'm not sure how many

12 attempts to actually get the vein. I wasn't

13 close enough, but it was a few minutes at least

14 that he was trying to do it and he -- he became

15 frustrated. Stephen was looking over and I

16 imagine wondering what was going on. And so

17 he -- the male technician took his gloves off.

18 He was frustrated and -- and kind of paused and

19 composed himself and put the gloves back on and

20 started again.

21 Q Okay. And was he able to get the vein again

22 that time or did he have continuing difficulty?

23 A He -- he seemed to have -- it took a little

24 more time. Mr. Anderson started pumping his left

25 fist to try to help him -- I guess to help him

0243

1 find a vein. And he found the vein, I guess,

2 eventually and taped everything down including

3 his hands.

4 Q Okay. When you say "taped him down," did he

5 put tape around his -- the site of the catheter?

6 A Yes.

7 Q How much tape; do you know?

8 A I don't know. Several strips.

9 Q Okay. All right. And then did another

10 individual enter the chamber?

11 A Yes. He left and then -- and a woman came

12 in who also had a tray of supplies, medical

13 supplies, and she -- she was responsible for

14 doing his right arm. That seemed to go much more

15 quickly and smoothly, and she was able to get the

16 vein and tape everything down I would say within

17 a couple minutes.

18

MR. GRELE: Your Honor, I believe we're

19 speaking of -- the first individual is witness

20 number 3 and the second individual is witness

21 number 6.

22

THE COURT: Okay. Thank you.

23 BY MR. GRELE:

24 Q And after she was able to get that catheter,

25 did she depart?

0244

1 A Yes, she did.

2 Q Okay. And after -- did the chamber door

3 close?

4 A Yes. Well, actually, there was the -- I

5 think some of the same execution team members

6 came in and turned the table. The gurney was

7 sort of turned like about a quarter turn, and

8 then they -- they hooked up the IV lines to

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9 something in the wall.

10 Q Okay. And then -- and then did they depart?

11 A Yes.

12 Q Okay. And when they departed, did the

13 chamber door close?

14 A Well, where we were standing we couldn't

15 really see the chamber door, but I imagine so.

16 Q Okay. If -- so you were -- as you face --

17 as you face -- if you're standing in the witness

18 area and as you face the glass enclosure that the

19 chamber is in, are you standing on the right or

20 the left?

21 A The left.

22 Q The left. The far left?

23 A Yes.

24 Q Okay. All right. Are you able to see

25 Mr. Anderson from that perspective?

0245

1 A Yes, especially when they turned the table.

2 Q All right. What did you observe then?

3 Well, I'm sorry. I'm going to cut this short.

4 A Okay.

5 Q Did there come a point in time when they

6 announced that they were beginning the execution?

7 A Yes.

8 Q And what did you observe then?

9 A Well, Mr. Anderson had raised his head a few

10 times and he put his head down, and I saw what I

11 thought he was sort of holding his breath or

12 something. And then within I would say a few

13 moments, a few minutes, there were -- he

14 started -- his chest and his stomach area started

15 to heave upwards sort of up against the

16 restraints.

17 Q Okay. And then would that be continuous or

18 were there pauses?

19 A There were pauses. There would be a

20 convulsion and then a pause, and they were

21 irregular, I would say.

22 Q Okay. And how often did this -- how often

23 did this occur?

24 A I would say it went on for quite a while.

25 It seemed like something was going wrong because

0246

1 it was -- I would say it was over three

2 convulsions and -- maybe four or five minutes

3 worth of convulsions.

4 Q Okay. Had you spoken with other individuals

5 about executions, witnessing executions before

6 you saw Mr. Anderson's?

7 A Yes, I had.

8 Q And did this appear -- well, I'll strike

9 that, what they said.

10

And this lasted for four or five

11 minutes. And did the pulsing and convulsing then

12 begin again?

13 A No. Then we waited and eventually he was

14 pronounced dead.

15 Q Okay. So did you do anything in response to

16 this chest heaving?

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17 A You mean say something?

18 Q Or engage in any physical activity yourself?

19 A No.

20 Q Okay.

21 A No. I just watched passively.

22 Q All right. And was it his chest area or his

23 stomach area as well?

24 A Both, yes.

25 Q Okay. Now, can you give an estimate as to

0247

1 how many times his chest heaved?

2 A I would say it was over 30 times. I sort of

3 lost count after about 30, somewhere in that

4 neighborhood, but I think it was more than 30.

5

MR. GRELE: Okay. All right. Thank

6 you very much.

7

THE COURT: Thank you.

8

Mr. Gillette?

9

CROSS-EXAMINATION

10 BY MR. GILLETTE:

11 Q Good morning.

12 A Good morning.

13 Q You were counsel for Mr. Anderson; is that

14 correct?

15 A Yes, sir.

16 Q How long did you represent him?

17 A Six years.

18 Q And that included -- or was that primarily

19 in post-conviction procedures?

20 A Federal post-conviction, yes, sir.

21 Q Would you say you developed a close

22 friendship with him?

23 A Yes. We became friends over the years.

24 Q Did you attend the execution at his

25 invitation or request, I should say?

0248

1 A Yes.

2 Q I take it it was -- it would not be

3 something you would particularly want to do; is

4 that correct?

5 A That's correct.

6 Q Not a particularly pleasant experience

7 either, was it?

8 A No.

9 Q Now, when you described the effort to set

10 the catheter in the left arm, you're certain it

11 was the left arm that was the first one?

12 A Yes, I'm certain.

13 Q To the best of your ability to observe it,

14 did it appear that an IV was eventually

15 established in that arm?

16 A It appeared that it was.

17 Q And with respect to the other arm, I think

18 you said that went very quickly; is that correct?

19 A That was much quicker than the first one.

20 Q Now, with respect to the descriptions that

21 you've given, you talked about some convulsions

22 and then pausing.

23 A Right.

24 Q Now, you're not a physician, are you?

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25 A No, sir.

0249

1 Q Any medical training at all?

2 A I have -- no, no.

3 Q So in terms of what you were describing, you

4 cannot say whether Mr. Anderson was or was not

5 conscious at the time; is that correct?

6 A I -- yeah. I really don't know whether he

7 was or not.

8 Q Could not tell whether any of those

9 movements were voluntary or involuntary on his

10 part?

11 A No. I don't know.

12 Q Are you able to -- were you able to tell

13 when those movements that you described began in

14 relation to when the execution drugs were

15 delivered?

16 A No. I would only know in terms of when they

17 said the -- there was a disembodied voice that

18 said, "The execution shall now proceed."

19 Q And approximately how long did it take

20 before they announced, as best you could

21 estimate, that until they said that Mr. Anderson

22 was dead?

23 A I would say 15 minutes.

24

MR. GILLETTE: Thank you, Your Honor.

25 No further questions.

0250

1

THE COURT: Anything further?

2

MR. GRELE: No, Your Honor.

3

Thank you very much, Ms. Rocconi.

4

THE COURT: Thank you.

5

Call another witness, Mr. Grele.

6

MR. STEINKEN: Kevin Concannon.

7

THE CLERK: Stand right there, please.

8 Raise your right hand.

9

KEVIN CONCANNON,

10 being called as a witness on behalf of the

11 Plaintiff, having been first duly sworn, was

12 examined and testified as follows:

13

THE CLERK: Thank you. Be seated.

14

DIRECT EXAMINATION

15 BY MR. STEINKEN:

16 Q Good morning, Doctor. Can you state --

17

THE COURT: Wait.

18

MR. STEINKEN: I'm sorry.

19

THE CLERK: Go ahead.

20 BY MR. STEINKEN:

21 Q Can you state your name and spell it for the

22 record.

23 A Dr. Kevin Concannon. The last name is

24 spelled C-O-N-C-A-N-N-O-N.

25 Q And, Doctor, you have been retained as an

0251

1 expert to testify on behalf of Mr. Morales in

2 this proceeding; is that correct?

3 A That's correct.

4 Q And in connection with that assignment, were

5 you asked to look at the so-called procedure

6 number 770 of the California Department of

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7 Corrections?

8 A Yes, that is correct.

9 Q Have you, in fact, reached any opinions

10 regarding procedure 770?

11 A Yes, I have.

12 Q Doctor, before we get to those opinions I'd

13 like to talk a little bit about your background

14 and qualifications.

15

Do you have a binder in front of you?

16 A Yes.

17 Q Would you look at an item that's marked

18 Exhibit 40.

19 A Volume 1?

20 Q I believe so.

21 A Okay. I have it.

22 Q Now, is that, in fact, a copy of your

23 curriculum vitae setting forth your background

24 and credentials and qualifications?

25 A That is correct.

0252

1 Q And is that accurate as you sit here today?

2 A Yes, it is.

3 Q Now, Doctor, you are a Doctor of Veterinary

4 Medicine; is that right?

5 A Yes.

6 Q When did you receive your degree in

7 veterinary medicine?

8 A That was in 1987.

9 Q From where?

10 A University of Missouri, College of

11 Veterinary Medicine.

12 Q Did you receive an undergraduate degree?

13 A No, I did not. I was able to enter

14 veterinary school after three years of

15 undergraduate training.

16 Q Is that a program that the University of

17 Missouri has?

18 A If you meet certain qualifications, they

19 will let you into the school early, yes.

20 Q And after you left Missouri with your -- is

21 it a DVM?

22 A Yes. Doctor of Veterinary Medicine, DVM,

23 that's correct.

24 Q What did you do next?

25 A I went into an internship at the University

0253

1 of Pennsylvania, a veterinary hospital at the

2 University of Pennsylvania.

3 Q What was the -- was there a particular focus

4 of that internship?

5 A It was a rotating internship. It was a

6 small animal, meaning you worked in the small

7 animal clinic focusing on the care of dogs and

8 cats. There was various services that you

9 rotated through throughout the hospital.

10 Q You were there for two years; is that right?

11 A One-year internship.

12 Q And where did you go next?

13 A I went to the University of California

14 Davis. I entered a residency in veterinary

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15 anesthesia and critical care.

16 Q And did you continue with your study of

17 anesthesia and critical care after your time at

18 UC Davis?

19 A I actually worked for a year after my

20 residency at the University of California Davis

21 and then another year at the North Carolina State

22 University College of Veterinary Medicine. I

23 worked those two years as an anesthesiologist in

24 the clinics.

25 Q So you were both working in the clinics.

0254

1 Were you also teaching anesthesiology?

2 A To residents, interns and students, yes, for

3 those two years.

4 Q And then from North Carolina --from UC Davis

5 where did you go?

6 A One year at the North Carolina State

7 University College of Veterinary Medicine.

8 Q And was there any area of focus of your

9 study there or your time there?

10 A Well, it was -- it was in anesthesiology. I

11 was a clinical anesthesiologist.

12 Q And from there where did you next go?

13 A I spent two years at Duke University Medical

14 Center working in research in the department of

15 radiation oncology at Duke.

16 Q What do you -- from there did you go to your

17 current position?

18 A After I worked at Duke University I started

19 working at the hospital where I am currently

20 located, yes.

21 Q And what's the name of that hospital?

22 A Veterinary Specialty Hospital of the

23 Carolinas.

24 Q What kind of hospital is it?

25 A It's a referral and emergency hospital.

0255

1 During the day it functions as a tertiary

2 referral center with specialties in internal

3 medicine, surgery, oncology, for example. At

4 night and on weekends it functions as an

5 emergency hospital.

6 Q Doctor, is it fair to say that you've spent

7 18 years in veterinary medicine specializing in

8 anesthesiology and critical care of animals?

9 A Yes.

10 Q On your CV I note there's a reference

11 identifying you as a diplomate of the American

12 College of Veterinary Anesthesiologists. Can you

13 tell me what that is.

14 A Yes. That's a certification, and in order

15 to achieve that certification, you have to meet

16 the requirements set out by that specialty

17 college, which in turn is governed by the AVMA,

18 the American Veterinary Medical Association.

19

And their criteria that you have to meet

20 would include completion of an internship or

21 equivalent experience, completion of an approved

22 residency program in anesthesia. There are

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23 publication requirements, research requirements.

24

And then there's testing requirements, a

25 test that is put on by other members of the

0256

1 college. In my case it involved a two-day

2 written examination followed up several months

3 later by an oral examination. And if you were

4 successful in meeting all those criteria, then

5 you would become a diplomate in the college.

6 Q That is an organization that is run by

7 veterinary anesthesiologists; is that right?

8 A That is correct.

9 Q And how many members worldwide are there in

10 that college?

11 A Approximately 175. Definitely less than 200

12 within that college.

13 Q Doctor, during your 18 years of practice in

14 veterinary medicine, have you had occasion to

15 induce anesthesia in animals?

16 A Yes.

17 Q On how many occasions?

18 A I'd estimate between ten and twenty thousand

19 times.

20 Q And have you had occasion to euthanize

21 animals?

22 A Yes.

23 Q On how many occasions?

24 A I'd estimate less than a thousand. High

25 hundreds.

0257

1

MR. STEINKEN: Your Honor, I would

2 tender Dr. Concannon as an expert in veterinary

3 anesthesiology.

4

THE COURT: Any voir dire,

5 Mr. Gillette -- or Mr. Matthias?

6

MR. MATTHIAS: No objection.

7

THE COURT: Thank you. So ordered.

8

MR. STEINKEN: Thank you.

9 BY MR. STEINKEN:

10 Q Doctor, if you would turn to in your book

11 Exhibit 17.

12

Are you there?

13 A Yes, I am.

14 Q Is that, in fact, procedure number 770 that

15 you were asked to look at in connection with this

16 engagement?

17 A I focused on the -- on the sections which

18 dealt with the preparation for drug injection and

19 drug injection, but, yes, I did take a look at

20 it.

21 Q You looked at the whole thing, but your

22 focus was on the pages that related to the actual

23 lethal injection preparation of drugs and

24 procedures related thereto?

25 A That is correct.

0258

1 Q As a result of your review of 770 and given

2 your background in veterinary anesthesiology,

3 have you formed any opinions to a reasonable

4 degree of medical certainty regarding procedure

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5 770?

6 A Yes, I have.

7 Q What are those opinions?

8 A I would not use those protocol -- that

9 protocol in veterinary patients, nor would I

10 recommend other veterinarians use that protocol

11 in veterinary patients.

12 Q And why not?

13 A There's two -- two broad reasons, the first

14 being that when I perform euthanasia I'm in

15 direct contact with the patient, taking charge.

16 I can monitor what's happening. If there are

17 problems that occur, I can deal with those

18 problems.

19

The second large -- or the second area

20 that I -- that leads me -- the second area that

21 led me to my opinion was the combination of drugs

22 that are used. And I feel that the combination

23 used and the manner in which they are given can

24 lead to pain and suffering in veterinary

25 patients.

0259

1 Q In performing euthanasia in animals are

2 there any guides or information that

3 veterinarians reply upon?

4 A One major guide is the AVMA report on

5 euthanasia.

6 Q Doctor, if you would turn to tab 42 in your

7 booklet.

8 A Okay.

9 Q What is that document, Exhibit 42?

10 A That is what I had just mentioned. It's the

11 2000 report of the AVMA panel on euthanasia.

12 Q It's the report. And then there's a cover

13 page on it; is that right?

14 A That's correct. There's a -- I don't know

15 if you'd call it a preface, but there is a cover

16 page that was added after the original report was

17 made.

18 Q Now, Doctor, you indicated that your

19 opinions were based on what you perceived to be

20 two deficiencies in the procedure, one relating

21 to lack of monitoring, one related to drugs; is

22 that correct?

23 A Yes.

24 Q Is it appropriate to -- in evaluating a

25 euthanasia procedure to focus on both elements?

0260

1 A Can you repeat the question?

2 Q Let me rephrase. In looking at a euthanasia

3 procedure, can you focus only on one element, the

4 drugs or the monitoring, and make an assessment

5 of the process?

6 A No. What I do is I have a -- I have a broad

7 focus because what I -- what I choose to do is --

8 in order to make sure things go well, I take a

9 look at the surroundings. I take a look at the

10 way the injections are given. I take a look at

11 the drugs that are being used. The AVMA report

12 talks about minimizing pain and distress, and

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13 they also mention the fact of minimizing stress

14 before as well as during the procedure.

15 Q Is that, in fact, one of the goals in the

16 euthanasia process, to minimize pain and distress

17 in the patient?

18 A That is probably the primary goal. There

19 are other criteria, but that's the primary goal.

20 Q Doctor, you mentioned both the drugs and the

21 monitoring. Are you familiar with the three

22 drugs that are used in 770?

23 A Yes, I am.

24 Q Have you, in fact, used each of those drugs?

25 A Yes, I have.

0261

1 Q For what purposes have you used potassium?

2 A There's -- the majority of the time I have

3 used and continue to use potassium is as a

4 supplement in intravenous fluids to replace

5 deficits within the patient.

6

The other instance I have used it at

7 times for a euthanasia procedure, and in those

8 cases it would be where an animal is under

9 general anesthesia or a surgical procedure, and

10 the surgeons in concert with the pet's owner have

11 decided not to wake the animal up because of what

12 they found at surgery.

13 Q Have you ever used potassium as the

14 euthanasia agent for an animal that was not

15 already deeply sedated?

16 A I have not used it in an animal that hasn't

17 been anesthetized, that is not under general

18 anesthesia.

19 Q And why are you comfortable using a

20 potassium in that instance?

21 A In general for euthanasia you should strive

22 to have the animal unconscious before you have

23 cessation of brain and heart function. And so in

24 that circumstance when I have them under general

25 anesthesia I feel that when I give the potassium

0262

1 there would be no pain and suffering in the

2 patient.

3 Q Is potassium a painful drug when

4 administered to a patient?

5 A It can be and it depends on the

6 concentration that is being delivered.

7 Q And how do you know that the patient

8 experiences pain upon the administration of

9 potassium?

10 A I have seen a significant portion of my

11 patients at higher concentrations, and this is

12 not when I am euthanizing a patient. This would

13 be when I'm supplementing potassium in the

14 intravenous fluids. I have seen patients react

15 in the manner of pulling back a limb that the

16 fluid is going through or even biting at the

17 limb.

18 Q And, in your opinion, that's a manifestation

19 of pain on the part of the patient?

20 A Yes.

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21 Q Have you ever used pancuronium in your

22 practice?

23 A Yes, I have used it a small number of

24 times. I'm more familiar with other

25 neuromuscular blockers to achieve the same

0263

1 effect.

2 Q Does that drug play any role in euthanasia

3 of animals?

4 A That drug, and I would include other

5 neuromuscular blockers, are -- I don't believe

6 play -- or they don't play a role in euthanasia

7 procedures.

8 Q Is there a reason why they don't -- why

9 veterinarians do not use a neuromuscular blocker

10 in connection with a euthanasia procedure?

11 A The neuromuscular blockers by themselves

12 don't contribute to any analgesia or sedation or

13 a diminishing of consciousness.

14

What they will do is they block the

15 activity of voluntary muscles, and I think what

16 happens is when you give them you run the risk of

17 having a veterinary patient who is aware, yet

18 when you look at them they don't appear to be

19 conscious.

20 Q Have you used thiopental in your practice?

21 A Yes, I have.

22 Q For what purpose is that used in a

23 veterinary practice?

24 A I have used that as an induction agent

25 during anesthesia, meaning after placement of an

0264

1 IV in an animal, giving an injection of

2 thiopental so that the animal becomes

3 anesthetized. And then I intubate or put a tube

4 down the airway and continue the anesthesia

5 procedure with an inhalant gas.

6 Q So thiopental is not used as the sole

7 anesthetic agent in procedures in veterinary

8 medicine; is that correct?

9 A That's correct.

10 Q And I take it thiopental plays no role in

11 euthanasia procedures as well; is that correct?

12 A The AVMA report states that it can be used,

13 but it suggests or recommends that pentobarbital

14 be used. Of the barbiturates, it recommends that

15 pentobarbital more clearly fits the criteria for

16 it and is an acceptable drug.

17 Q Why -- what criteria does the AVMA report

18 find pentobarbital to be more appropriate?

19 A One of the criteria I know they use is that

20 pentobarbital is a longer-acting drug when

21 compared to the thiopental.

22 Q Now, Doctor, in conducting euthanasia, do

23 you prepare the barbiturates yourself?

24 A I usually draw up the solution myself. At

25 times I have asked the veterinary technician to

0265

1 draw them up for me.

2 Q Do you use the same dosage for every

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3 patient?

4 A I will change my dosage. There is a dosage

5 associated with the product insert which comes

6 from the manufacturer. I will change my dosage

7 based on -- based on the state of the patient,

8 for example. An excited patient might require

9 more euthanasia solution than a patient that is

10 not excited.

11 Q Why would an excited patient require a

12 higher dosage of the agent?

13 A In general, any animal who's excited that

14 you want to anesthetize, because of the -- I

15 don't know if you want to call it the state of

16 the brain, the excitation, they will require a

17 higher dose of a drug compared to an animal who's

18 very calm.

19 Q Do you take into account body mass or body

20 size of the patient in determining the dosage?

21 A Yes. The labeled dosage is set according to

22 body weight.

23 Q So there is a variability factor for every

24 euthanasia procedure that you perform; is that

25 right?

0266

1 A There is some variability, yes.

2 Q You also mentioned one of your criticisms of

3 770, the lack of monitoring. Why is monitoring

4 necessary, in your opinion?

5 A When I'm in charge of a euthanasia

6 procedure, I think I'm ethically and morally

7 obligated to minimize pain and distress and to

8 make sure that procedure -- and make sure that

9 procedure goes well. So I don't rely upon any

10 one or any maybe one or two indicators to help me

11 make that decision.

12

What I -- what I do is I look at a

13 variety of indicators of consciousness. The

14 solution I use, the euthanasia solution I use,

15 the active ingredient is pentobarbital. When

16 it's given the patient becomes anesthetized,

17 unconscious, and then is continued on to death.

18

So what I want to do when I'm giving

19 that solution, that's what I expect. If I

20 don't -- if I don't see reactions that are

21 consistent with my expectations, I want to be in

22 direct contact with the patient to make sure and

23 understand why and to resolve those -- and

24 resolve those problems.

25 Q Is it appropriate to simply rely on the --

0267

1 your past experience with the drug and the dosage

2 of a drug to expect that it will have the

3 intended effect?

4 A I don't believe so, and there have been

5 times, particularly with difficult

6 administrations, where problems have arisen. So

7 even though I use the same drug and even though I

8 use the same dosage range, I want to make sure

9 that the surroundings of the euthanasia process

10 are handled appropriately.

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11 Q Now, how do you conduct monitoring when 12 you're performing a euthanasia? 13 A Typically if I have an owner in an 14 examination room and they have asked to be 15 present during a euthanasia procedure, I have my 16 hands on the patient. And I monitor -- there are 17 various things I look at to make sure the process 18 is going well, and these are indicators of 19 anesthesia, muscle relaxation, location of pupils 20 in the orbit, respiratory rate, heart rate. 21 Those are some of the factors I take a look at. 22 Q Now, in your opinion, would it be 23 appropriate or good practice to conduct the 24 monitoring from an adjacent room? 25 A Whether it's anesthesia or euthanasia, I 0268
1 would feel uncomfortable, and I don't think I 2 would be able to assess level of consciousness if 3 I were a distance from the patient, if I couldn't 4 be in contact with the patient. 5 Q Now, do you still believe monitoring would 6 be necessary if a large dose of anesthetic, 7 particularly a large dose, was administered to an 8 animal in euthanasia? 9 A Since that's only one aspect of the 10 procedure, which is making sure -- I mean, which 11 is the knowledge of drug action, I would still 12 rely upon other factors to consider, such as are 13 we sure that that drug is being injected properly 14 and going where it needs to be. So I would still 15 rely upon monitoring. 16 Q Could you use a continuous drip setup to 17 forego the need for monitoring? 18 A I don't believe so, no. 19 Q Why not? 20 A There could be problems with the methods of 21 that administration. 22 Q Why do you think monitoring is still 23 required when the ultimate goal of the procedure 24 is to result in the death of the animal? 25 A I believe I'm ethically and morally 0269 1 obligated to minimize pain and suffering, and 2 whether that be a patient who ultimately wakes up 3 from a surgical procedure or whether that patient 4 is an animal that is presented to me for 5 euthanasia, I hold myself to the same standards. 6 Q Is training necessary in order to adequately 7 monitor anesthetic depth? 8 A Yes. 9 Q What kind of training have you received in 10 that regard? 11 A Well, during -- as a student introduced to 12 the training, and generally that was introduction 13 to various -- the various pieces of data that you 14 collect to help assess the level of 15 consciousness. As time went on, working with 16 mentors during internship and residency who were 17 able to teach the art of medicine, the art of 18 leveling consciousness, since there is no one

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19 thing that will definitively tell you here is the

20 level of consciousness, is this patient at an

21 acceptable level of consciousness.

22

THE COURT: Counsel, any time you're

23 ready to take a break, I think we should.

24

MR. STEINKEN: Your Honor, I have about

25 two more questions and then I'm done.

0270

1

May I approach the witness?

2

THE COURT: Yes.

3

MR. STEINKEN: Doctor, let me show you

4 what's been marked as Exhibit 145.

5

I'll hand one up to the Court.

6

THE COURT: This is not in the binder?

7

MR. STEINKEN: No, it is not, Your

8 Honor. I have one more.

9 BY MR. STEINKEN:

10 Q Dr. Concannon, is this an affidavit that you

11 have prepared?

12 A Yes, it is.

13 Q And does this affidavit reflect additional

14 opinions and reasons for those opinions that you

15 would be competent to testify to on the stand

16 today if asked?

17 A Yes.

18 Q And is that your signature on page 9 of the

19 affidavit?

20 A Yes, it is.

21 Q Doctor, just one more question.

22

Are you aware of any other report or learned

23 treatise besides the AVMA report on euthanasia

24 that addresses issues of euthanasia in living

25 things?

0271

1 A No.

2 Q In your opinion, is that the best source of

3 information on that subject?

4 A I believe so, yes.

5

MR. STEINKEN: Nothing further, Your

6 Honor.

7

THE COURT: All right. Before we have

8 cross-examination we'll take the morning recess.

9 We will stand in recess until 10:45.

10

(Recess taken.)

11

THE COURT: Please be seated. Let the

12 record reflect that we're back on the record in

13 the matter of Morales versus Tilton and that

14 counsel are present, both sides. And at this

15 time Mr. Gillette -- or Mr. Matthias, excuse me,

16 you may cross-examine Dr. Concannon.

17

MR. STEINKEN: Your Honor, before

18 Mr. Matthias begins, I would like to move the

19 admission into evidence of Exhibit 145, which is

20 the affidavit of Dr. Concannon.

21

THE COURT: And pursuant to the protocol

22 we've adopted, I assume that can come in subject

23 to any objections. I know there is an in limine

24 motion with regard to all of Dr. Concannon's

25 testimony.

0272

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1

MR. STEINKEN: That's understood.

2

THE COURT: Subject to that, is there

3 any objection?

4

MR. MATTHIAS: No, not subject to that,

5 Your Honor.

6

THE COURT: Thank you. It will be

7 received subject to the previously filed motion.

8

(WHEREUPON, PLAINTIFF'S EXHIBIT 145 WAS

9 ADMITTED INTO EVIDENCE.)

10

THE COURT: All right. Cross-examine.

11

MR. MATTHIAS: Thank you, Your Honor.

12

CROSS-EXAMINATION

13 BY MR. MATTHIAS:

14 Q Good morning, Dr. Concannon.

15 A Yes.

16 Q Are you an expert in human anatomy?

17 A No, I am not.

18 Q Are you an expert in human physiology?

19 A I know of human physiology, and I've studied

20 it, but I'm not an expert.

21 Q Are you an expert in human anesthesiology?

22 A I have studied and know of human

23 anesthesiology, but I am not an expert.

24 Q Are you an expert on the pharmacokinetic

25 effects of drugs on humans?

0273

1 A No, I'm not.

2 Q You're not an MD?

3 A That's correct. I'm a DVM.

4 Q And, as you pointed out in your direct

5 examination, there's a preface to the AVMA

6 report. And if you'd like to look at that, it's

7 number 42 as we've been referring to it.

8 A Okay.

9 Q And in that preface, does it not say that

10 the guidelines are not intended to apply to

11 humans?

12 A It does say that, but I believe the Court

13 would be doing a disservice if it didn't consider

14 the information contained in that report to form

15 a decision.

16 Q Does the AVMA preface say that, or is that

17 your view?

18 A That's my view.

19 Q Okay. Now, if you would, Doctor, could you

20 also look at from that same binder, I'm sure,

21 Exhibit 47.

22 A Okay.

23 Q You've seen that before?

24 A Yes, I have.

25 Q And by looking at the last paragraph and the

0274

1 contact information from the AVMA, you understand

2 this to be another communication from the AVMA;

3 correct?

4 A Yeah. It appears to be a follow-up to the

5 report.

6 Q And that follow-up specifically states, and

7 I quote: "The report should not be extrapolated

8 to humans." Is that correct?

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9 A It does say that in there.

10 Q Now, by your testimony today and by the

11 opinion you've provided today, do you believe you

12 are extrapolating the guidelines to lethal

13 injection?

14 A What I believe is that without a large body

15 of scientific information in humans -- in human

16 euthanasia to form -- to help inform a decision,

17 that information contained in this report is

18 valuable.

19 Q So you do believe you are extrapolating from

20 the AVMA report to lethal injection executions?

21 A Well, if you mean extrapolation -- if the

22 word -- the way you use "extrapolation" to say

23 that this report can be picked up and you can

24 substitute the word "human" for "animal," I

25 wouldn't say that it needs -- that it should be

0275

1 extrapolated in that manner.

2

But there is valuable information in

3 there as far as, let's say, criteria for -- for

4 instance, criteria for which a euthanasia can be

5 deemed an acceptable method of euthanizing a

6 veterinary patient.

7 Q Well, are you extrapolating in the sense

8 that the AVMA has said you shouldn't?

9 A I guess I don't know specifically what the

10 AVMA means when they say you shouldn't be

11 extrapolating.

12 Q All right. The AVMA report specifies that

13 an entire class of drugs are acceptable as

14 euthanasia agents; is that correct?

15 A When you say "an entire class is

16 acceptable" --

17 Q Barbituric acid derivatives.

18 A They do deem those as acceptable drugs.

19 Q And thiopental is one such drug, is it not?

20 A It is in that classification, yes.

21 Q Now, the AVMA further breaks down methods of

22 euthanasia into essentially three categories,

23 correct, and they are listed in appendices to the

24 report?

25 A Yes, that is correct.

0276

1 Q And the three categories are -- do you

2 recall what they are -- how they are labeled?

3 A The first category is "acceptable," the

4 second would be "conditionally acceptable," and

5 then the third would be "unacceptable methods or

6 protocols."

7 Q And thiopental falls in which of those --

8 falls on which of those lists?

9 A The barbiturates are acceptable drugs to be

10 used during euthanasia procedure.

11 Q Now, that's -- you might want to refer for

12 the next series of questions to that list, the

13 common list. That is to say the acceptable

14 methods according to the AVMA, one of which is

15 barbituric acid derivatives, one of which is

16 thiopental.

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17

THE COURT: Just so I can follow along,

18 where are you, Mr. Matthias?

19

MR. MATTHIAS: I'm sorry, Your Honor.

20 That's in Exhibit 42 at the very end.

21

THE COURT: Okay.

22

MR. MATTHIAS: There are three

23 appendices.

24

THE COURT: I found it. Okay.

25 //

0277

1 BY MR. MATTHIAS:

2 Q So the first listed one is the barbituric

3 acid derivatives; right? Barbiturates?

4 A In Appendix 2, which is labeled "acceptable

5 agents and methods," barbiturates are listed

6 there, yes.

7 Q And, again, that includes thiopental?

8 A Yes.

9 Q According to the AVMA, the method called

10 "blow to the head," what list was that on,

11 acceptable, unacceptable or conditionally

12 acceptable?

13 A That is listed as conditionally acceptable,

14 which means that in certain specific instances

15 and in that particular case it would be in small

16 animals, amenable animals in an experienced

17 individual where unconsciousness is immediate.

18 Then they would consider it conditionally

19 acceptable.

20 Q How about a penetrating captive bolt?

21 A You're asking me where it's listed?

22 Q Yes. What list is that on?

23 A That is listed in a conditionally acceptable

24 manner. Understand that's used in

25 slaughterhouses for killing large animals.

0278

1 Q How about carbon dioxide poisoning?

2 A That is listed under conditionally

3 accepted -- conditionally acceptable.

4 Q You want to look at appendix 2, please.

5 A Yes. It's listed under conditionally

6 acceptable.

7 Q Are you looking at appendix 2?

8 A Oh, wait a second. I'm looking at -- no.

9 Appendix 2 is acceptable. Appendix 3 is

10 conditionally acceptable.

11 Q Correct.

12 A And carbon dioxide is in appendix 3 under

13 "conditionally acceptable."

14 Q Is it also in appendix 2?

15 A Yeah. It's also listed in appendix 2.

16 Q As is carbon monoxide poisoning; correct?

17 A That is listed in appendix 2 as well.

18 Q And potassium chloride is in appendix 2,

19 acceptable?

20 A It's listed in acceptable, although it has

21 to meet certain conditions.

22 Q Which are specified -- I'm sorry.

23 A And that is that a veterinary patient needs

24 to be unconscious, and that an individual has to

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25 assure -- I think they -- I believe they stay at

0279

1 a certain plane of anesthesia before the

2 potassium is used.

3 Q And that's noted in the parenthetical on

4 appendix 2?

5 A I know it's listed in the text when it

6 describes the use of potassium.

7 Q Doctor, on this issue of extrapolating, let

8 me ask you this: If a protocol -- if a

9 particular protocol for human lethal injection

10 execution were to be found constitutional, would

11 you consider that a reason to adopt it in your

12 own practice as a method -- as a method of animal

13 euthanasia?

14 A Can you repeat the question?

15 Q Sure.

16

If a particular method or a particular

17 protocol for executing human beings were to be

18 deemed constitutional, would you consider that a

19 reason to adopt that method in your own practice

20 in euthanizing animals?

21 A By itself, I would not.

22

MR. MATTHIAS: Okay. Thank you. No

23 further questions, Your Honor.

24

THE COURT: Mr. Steinken, do you have

25 any questions? I have some, but I want to make

0280

1 sure you've covered all the ground you want to.

2

MR. STEINKEN: Just two questions, Your

3 Honor.

4

REDIRECT EXAMINATION

5 BY MR. STEINKEN:

6 Q Doctor, you testified that you would

7 consider it a disservice not to consider the AVMA

8 report in evaluating lethal injection protocol.

9 Why do you consider that to be a disservice?

10 A With such an important decision to make, I

11 would think that the Court would look at any --

12 any pertinent information to help them form a

13 decision, and without a large body of scientific

14 data that explores human euthanasia and describes

15 the proper methods prepared by a group of

16 experts, I think that, as in other aspects of

17 medical care, using animal data, animal

18 information is -- is appropriate in helping to

19 form decisions.

20 Q Why do you believe that the use of animal

21 data is useful in evaluating procedures to be

22 used for humans?

23 A There definitely is crossover. There's

24 definite species differences, but also there's

25 definite crossovers in physiology and in

0281

1 pharmacology, which can provide a pretty -- a

2 good model of what happens in humans.

3 Q You also identified at Mr. Matthias's

4 request the fact that barbiturate drugs were in

5 an acceptable category? You saw that?

6 A That's correct.

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7 Q How many drugs are included in the

8 barbiturate drug category?

9 A I think they may -- they may mention three

10 in the text of the report, one in passing and

11 then the thiopental and the pentobarbital.

12 Q Do you consider thiopental to be a less

13 attractive alternative than other drugs in that

14 category?

15

I agree with the report when it says

16 that the pentobarbital is a better option to

17 use. It more closely fits the criteria of a drug

18 that you'd want to use in veterinary euthanasia.

19

MR. STEINKEN: Nothing further, Your

20 Honor.

21

THE COURT: Anything else,

22 Mr. Matthias?

23

MR. MATTHIAS: No. Thank you, Your

24 Honor.

25

THE COURT: All right. Dr. Concannon, I

0282

1 have a few things I wanted to ask you about.

2

In looking -- actually, if you could

3 turn your attention to appendix 1, maybe it would

4 help you follow my questions.

5

There are differences depending on what

6 kind of animal it is you're trying to euthanize;

7 correct?

8

THE WITNESS: That is correct.

9

THE COURT: And in terms of the most

10 closely analogous type of animal to humans, I

11 assume we're talking about larger mammals?

12

THE WITNESS: I would agree compared to

13 amphibians or reptiles, yes.

14

THE COURT: And I note that in

15 appendix 1, with the exception of non-human

16 primates, that the acceptable protocol tends to

17 be barbiturates followed by potassium chloride;

18 is that correct?

19

THE WITNESS: I would say that not

20 necessarily followed by potassium chloride. You

21 can use -- they say that you can use barbiturates

22 by -- or pentobarbital you can use by itself

23 without potassium as a follow-up.

24

THE COURT: Actually, I want to ask you

25 about that.

0283

1

But in terms of what's acceptable with

2 larger mammals, both barbiturates and potassium

3 chloride are considered acceptable by the DVMA;

4 correct?

5

THE WITNESS: Right. What -- I guess

6 the main criteria is production -- that you

7 produce an unconscious state with some type of an

8 anesthetic, and then there can be another drug or

9 other method used to induce death.

10

THE COURT: Right. So you always have

11 to use the barbiturate to get the anesthesia?

12

THE WITNESS: That's one -- that's one

13 of the more commonly used methods.

14

THE COURT: What other methods are

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15 there?

16

THE WITNESS: They do mention in certain

17 circumstances, such as carbon dioxide gas -- I

18 guess part of that is an anesthetic. In certain

19 circumstances, like we had talked about the

20 penetrating captive bolt where it produces

21 unconsciousness at the same time that it produces

22 death in a slaughterhouse.

23

THE COURT: Okay. But in terms of

24 something that would be in any way remotely

25 analogous to humans, are we pretty much talking

0284

1 about barbiturates?

2

THE WITNESS: Yes. I mean, that is the

3 most common -- that is the most common way.

4

THE COURT: And then why if barbiturates

5 are -- well, are barbiturates sufficient in and

6 of themselves to cause death?

7

THE WITNESS: Pentobarbital -- in my

8 experience, pentobarbital, yes.

9

THE COURT: Why then, in your opinion,

10 does the DVMA find acceptable the use of

11 potassium chloride as well?

12

THE WITNESS: What -- and the reason

13 they've got -- they have 17 experts who

14 participated in this, and what they are

15 anticipating is veterinarians finding themselves

16 under differing circumstances.

17

Like in my practice where I'm -- I'm at

18 a -- I'm in a hospital where I have access to

19 many different means, I can create the perfect

20 circumstances. You might find circumstances

21 where the pentobarbital is a controlled -- is a

22 controlled drug, and there's certain legal

23 requirements, of course, in how you purchase and

24 track and monitor that.

25

If you're in a situation where that is

0285

1 limited, you don't have the ability to purchase

2 these solutions, an alternative would be to

3 anesthetize the patient with a general

4 anesthetic, which there could be different drugs

5 that you could use, some of which are not

6 controlled, and you could follow that up with

7 potassium.

8

So a lot of the recommendations are not

9 only based on the drugs, but based on the

10 situation. In fact, the report says that these

11 are guidelines and veterinarians need to use

12 their professional judgment in situations like

13 these.

14

THE COURT: All right. So in a perfect

15 situation where you knew ahead of time that you

16 had the drugs, you had the delivery system and

17 anything else you needed to make sure you had

18 adequate delivery, it would be adequate to use

19 barbiturates?

20

THE WITNESS: That's correct.

21

THE COURT: Is there any reason under

22 those circumstances why you would also use

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23 potassium chloride?

24

THE WITNESS: In my current -- in my

25 clinical practice I don't. I just use a

0286

1 euthanasia solution with the pentobarbital being

2 the primary --

3

THE COURT: Okay. I'm going to ask you

4 more about that in a second.

5

But I also note that in the appendix

6 where it's talking about nauseam in primates, I

7 assume then we're talking about apes and monkeys

8 and gorillas and things like that?

9

THE WITNESS: Correct.

10

THE COURT: That the drug that is

11 acceptable is barbiturates.

12

Do you know why that is, why they don't

13 list other drugs, what the thinking is behind

14 that?

15

THE WITNESS: I'm unclear as to their

16 thinking.

17

THE COURT: Okay. Now, you said that

18 pentobarbital is preferable to thiopental as an

19 anesthetic.

20

Why is that?

21

THE WITNESS: The report lists its

22 longer action or longevity of that drug compared

23 to thiopental as a positive factor.

24

THE COURT: In what dose would

25 pentobarbital be fatal to an average size human;

0287

1 if you know?

2

THE WITNESS: To a human, I'm not sure

3 about that.

4

THE COURT: How about a mammal that

5 weighed approximately 150 pounds?

6

THE WITNESS: The solution that we use,

7 the pentobarbital containing solution, the dose

8 is 1 mill per 10 pounds.

9

So for that 150-pound dog, that would be

10 15 millimeters of this euthanasia solution would

11 be the appropriate dose, according to the label

12 directions.

13

THE COURT: How long would it take that

14 hypothetical dog to die?

15

THE WITNESS: When I do the euthanasia

16 procedure, it's usually a matter of a couple of

17 minutes.

18

THE COURT: Okay. So -- and, again, I'm

19 talking specifically about pentobarbital. Is it

20 true of that drug that it can cause death more

21 quickly than thiopental?

22

THE WITNESS: I don't know if one drug

23 or the other causes death more quickly.

24

THE COURT: All right. So thiopental is

25 a faster-acting drug in the sense that it

0288

1 dissipates more quickly; is that what you mean by

2 that?

3

THE WITNESS: Shorter acting means, yes,

4 the effects wear off sooner than for the

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5 pentobarbital.

6

THE COURT: But in an adequate dosage,

7 in other words, a fatal dosage, you don't know

8 which one would kill a living creature faster.

9

THE WITNESS: No. I don't know that.

10

THE COURT: Are you familiar with any

11 euthanasia protocol in which a barbiturate is

12 combined either with another barbiturate or with

13 a narcotic in order to cause anesthesia?

14

THE WITNESS: I -- I know in my practice

15 what some of our veterinarians will do to calm

16 the patient down beforehand. They may give a

17 sedative beforehand, which might be a narcotic,

18 to make the procedure go somewhat -- to go more

19 smoothly. Combining two barbiturates together,

20 I'm not -- I'm not aware of that.

21

THE COURT: So you're not -- you're not

22 in a position to give me any advice with regard

23 to the pharmacology of combining two barbiturates

24 or combining a barbiturate with a narcotic in

25 terms of what the -- whether there's any synergy,

0289

1 what the timing of death would be or anything

2 like that?

3

THE WITNESS: Not as to specifics.

4

THE COURT: Thank you. I don't have any

5 other questions.

6

Any follow-up by counsel?

7

MR. STEINKEN: No, Your Honor.

8

MR. MATTHIAS: No, Your Honor.

9

THE COURT: Thank you very much,

10 Doctor. You may step down.

11

The Plaintiff may call its next witness.

12

THE CLERK: Good morning. Raise your

13 right hand, please.

14

WILLIAM F. EBLING,

15 being called as a witness on behalf of the

16 Plaintiff, having been first duly sworn, was

17 examined and testified as follows:

18

THE CLERK: Thank you. Please have a

19 seat.

20

Please state your name and spell it.

21

THE WITNESS: My name is William F.

22 Ebling. It's E-B-L-I-N-G.

23

DIRECT EXAMINATION

24 BY MR. STEINKEN:

25 Q Good morning, Dr. Ebling. Sir, you have

0290

1 been retained to provide expert testimony in this

2 case on behalf of Michael Morales; is that

3 correct?

4 A That's correct.

5 Q And that expert opinion is in connection

6 with the procedure number 770; is that correct?

7 A That's correct.

8 Q Have you reached any opinions regarding

9 procedure 770?

10 A Yes, I have.

11 Q We will explore those opinions in a minute,

12 Doctor, but in the meantime I want to talk a

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13 little bit about your background and

14 qualifications to testify in this case.

15

Do you see the binders in front of you?

16 A Yes.

17 Q Would you go to binder volume 1 and document

18 Exhibit Number 50.

19 A Yes.

20 Q Is that, in fact, a copy of your curriculum

21 vitae?

22 A Yes, it is.

23 Q And it reflects your education, background

24 and qualifications?

25 A Yes.

0291

1 Q Is that current through today's date?

2 A There may be an additional publication or so

3 that is not on this at this point.

4 Q But it's largely complete?

5 A Largely complete.

6 Q Doctor, can you tell me a little bit about

7 your educational background.

8 A Sure. I was trained as a -- as a clinical

9 pharmacist. I got my pharmacy degree from Temple

10 University in Philadelphia in 1977. I then went

11 on to graduate school in the department of

12 pharmaceutics at the State University of New York

13 at Buffalo where I studied a field -- studied in

14 the field called pharmacokinetics and

15 pharmacodynamics.

16 Q Doctor, you got your Ph.D. in pharmaceutics;

17 is that right?

18 A Pharmaceutics.

19 Q How does that relate to pharmacokinetics,

20 pharmacodynamics?

21 A Pharmaceutics is a science that studies how

22 drugs are absorbed, distributed and eliminated in

23 the body and how various formulations and drug

24 regimens, administration protocols affect the

25 time course of drug action.

0292

1 Q When you talk about time course of drug

2 action, can you describe what you mean.

3 A Sure. Drugs don't produce an all-or-none

4 effect. Drugs produce over time after -- after

5 administration an increase in the intensity of

6 effect. After the administration of a dose of a

7 drug it will reach a peak effect and then that

8 drug effect will fade away over time.

9

So you can think of drug effect as being

10 a continuous spectrum that is moving over time,

11 and the study of pharmacokinetics and

12 pharmacodynamics and pharmaceutics basically is a

13 science that tries to understand that time course

14 of effect and the implications for therapeutics.

15 Q What was the subject of your Ph.D. thesis?

16 A The subject of my Ph.D. thesis was primarily

17 centered around trying to understand a unique

18 class of pharmacokinetic behavior for compounds

19 that are metabolized, and when those

20 metabolize -- and then those metabolites are

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21 subsequently converted back to the active form.

22

So the archetypical drugs that I studied

23 during my thesis work was the corticosteroids,

24 methylprednisone, methylprednisolone, cortisol,

25 cortisone.

0293

1 Q When you refer to an archetype drug, what do

2 you mean?

3 A Well, in this particular situation, we were

4 primarily focused on understanding the behavior

5 and the mathematical principles of

6 pharmacokinetics, and in this particular

7 situation it was for a compound that deals with

8 reverse -- for a compound that undergoes

9 reversible metabolism.

10

In the process -- so the focus was on

11 the pharmacokinetics. The drug that was being

12 used for this -- for this purpose was the group

13 of corticoids, methylprednisone,

14 methylprednisolone.

15 Q And the techniques that you used in the

16 study that resulted in your Ph.D. thesis, are

17 those the same or similar techniques that you use

18 in the fields of pharmacokinetics and

19 pharmacodynamics?

20 A Yes, absolutely.

21 Q Can you describe those basic principles.

22 A Sure. When we try to understand the

23 pharmacokinetics of a drug we typically will

24 administer the drug to either an animal or to

25 humans, and then we will take blood samples from

0294

1 the -- from the subject over time and then assay

2 those concentrations, the concentrations that are

3 in those blood samples, for drug concentrations.

4

When we do that we are able then to take

5 those concentrations and build mathematical

6 models that will help us understand the time

7 course of drug action as well as understanding

8 the variability that exists in drug action due to

9 differences in the pharmacokinetics and drug

10 action among different individuals.

11

So one of the important things that we

12 try to understand in the area of pharmacokinetics

13 and pharmacodynamics is just not the typical time

14 course or typical behavior, but also the factors

15 that influence the variability in response among

16 different individuals.

17 Q Now, you received your degree. Was it in

18 pharmacy in 1977?

19 A In '77 it was a pharmacy degree.

20 Q And then you received your Ph.D. in '84.

21 What did you do during that interim period?

22 A While I was getting my graduate student I --

23 I practiced as a hospital pharmacist while I was

24 going to graduate school.

25 Q Were you a licensed pharmacist at that time?

0295

1 A Yes, I was. I was a licensed registered

2 pharmacist.

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3 Q What setting did you work in?

4 A I worked in a small hospital in Buffalo, New

5 York where I was the -- where I was the -- on

6 weekends I was the -- the head pharmacist in that

7 hospital and, therefore, participated in

8 supervising the dispensing of drugs and also

9 while I was -- while I was working there and also

10 to help support drug information services for the

11 clinicians that were prescribing drugs at that

12 time.

13 Q Now, after you did receive your Ph.D., what

14 did you do next?

15 A I then went on to -- went on to do a

16 post-doctoral fellowship at Stanford University

17 in the department of anesthesia.

18 Q And you started out as a post-doctoral

19 fellow? How long did that status continue?

20 A I was a post-doctoral fellow for about two

21 years. Then advanced to a research associate

22 within the department and then eventually went on

23 faculty at the department of anesthesia at

24 Stanford University.

25 Q During your time at Stanford did you engage

0296

1 in any particular area of study?

2 A Yes. We were -- the work that I was doing

3 while I was at Stanford was in the laboratories

4 of Dr. Donald Stanski, an anesthesiologist within

5 the department of anesthesia.

6

Don and I formed a team where we were

7 studying the -- studying the pharmacokinetics and

8 pharmacodynamics of anesthetic agents, a variety

9 of different anesthetic agents. We were trying

10 to bring forth a rational understanding of the

11 pharmacokinetic and pharmacodynamic behavior of a

12 variety of different anesthetics.

13

The purpose was to -- was to help

14 anesthesiologists understand how they need to

15 appreciate the complexities of pharmacokinetics

16 and pharmacodynamics in their practice and allow

17 them to develop a better rational understanding

18 of the behavior of the drugs that they were

19 using.

20 Q The anesthetic drugs?

21 A The anesthetic drugs, yes.

22 Q Did the drug that you worked with include

23 sodium thiopental?

24 A Yes. About 60 percent of the effort that I

25 was working on, as well as at the time Don, was

0297

1 centered around the pharmacokinetics and

2 pharmacodynamics of thiopental in a surgical

3 setting.

4 Q Is there a particular reason why so much of

5 your effort was devoted to the study of

6 thiopental?

7 A Well, yes. First of all, in the area of

8 anesthesia, anesthesia is a very, very rich area

9 to understand the pharmacokinetics and

10 pharmacodynamic action of drugs because the

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11 effects can be measured relatively easily with

12 intensive physiological monitoring. So we really

13 don't have difficulties understanding drug action

14 in -- in anesthesia when appropriate monitoring

15 is being used.

16

Secondly, the thiopental I would also

17 say is an archetypical anesthetic, general

18 anesthetic for intravenous use in that it has a

19 lot of the characteristics that other anesthetics

20 exhibit particularly in terms of how the

21 pharmacokinetics of thiopental determine the time

22 course of action of the drug.

23 Q And by that you're referring to what happens

24 in the body once the drug is administered?

25 A Sure. Yes. So, again, we're talking about

0298

1 how the drug is taken up and distributed into

2 tissues and is eliminated and how that relates to

3 drug action as compared to, let's say,

4 understanding the pharmacologic mechanism of the

5 drug at the -- at the molecular cellular level,

6 which I would clarify as pharmacology per se.

7 Q Do you recall what thiopental was typically

8 used for in the medical community back in the

9 period that you were doing research on it?

10 A Thiopental was one of the most commonly used

11 drugs in anesthesia, and it is used to and it

12 still is used today to induce anesthesia. In

13 other words, thiopental is designed to have a

14 very rapid onset of effect and -- so that you can

15 rapidly get someone into a plane of surgical

16 anesthesia.

17

However, it also has features that allow

18 it to very rapidly wear off. It is not used to

19 maintain anesthesia per se. It is used to

20 transition a patient from the awake state into

21 the anesthetized state quickly so that other

22 anesthetic agents can be started that will be

23 more properly used in maintaining a state of

24 anesthesia.

25

So it's really the drug that you use to

0299

1 start anesthesia and it is designed to wear off

2 extremely fast.

3

THE COURT: May I interject a question.

4

Give me an example of a drug that would

5 be used following the injection of thiopental to

6 induce a deeper state of anesthesia.

7

THE WITNESS: Well, you wouldn't go to a

8 deeper state of anesthesia.

9

THE COURT: Or to maintain, rather.

10

THE WITNESS: To maintain anesthesia.

11

Typically something like turning on

12 nitrous oxide or halothane vapor anesthesia would

13 be used, would be typically used.

14

THE COURT: What if you couldn't do that

15 because you couldn't get that close to the

16 patient? Is there some other substance that

17 could be injected?

18

THE WITNESS: Well, you would need to be

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19 close to the patient to inject the thiopental.

20

THE COURT: All right. But I guess

21 close is a relative term. If you inject

22 thiopental through an IV as opposed to a syringe,

23 is there some other longer-acting anesthetic that

24 you could follow it up with, and, if so, what

25 would that be?

0300

1

THE WITNESS: There are a variety of

2 other intravenous anesthetics. It is a very

3 complicated business because there's a -- with

4 intravenous anesthesia we have specific drugs

5 that deal with different aspects of anesthesia

6 because anesthesia itself isn't just falling

7 sleep.

8

Anesthesia has to do with analgesia, has

9 to do with loss of consciousness, has to do with

10 muscle relaxation, has to do with memory loss,

11 and there are specific drugs that are used in

12 combination intravenously to deal with these

13 multiple aspects of surgical anesthesia.

14

THE COURT: Okay. Maybe my question is

15 too simplistic, but if you were doing a surgery,

16 for instance, and you needed the person to be

17 anesthetized for an hour or so, and you injected

18 thiopental intravenously, what is an example of

19 the next drug you might use?

20

THE WITNESS: Again, typically what --

21 what is frequently used would be a nitrous

22 oxide-halothane or a nitrous oxide-isoflorine

23 mixture, which is a vapor anesthetic.

24

THE COURT: Which would not be

25 injected?

0301

1

THE WITNESS: No. That is not an

2 intravenous agent.

3

THE COURT: Is there an intravenous

4 agent you could use instead?

5

THE WITNESS: Yes. There are other

6 intravenous anesthetics, but, again, as I said,

7 you have to use a combination of drugs and as you

8 use the combination of drugs you need to

9 understand the behavior because there's a

10 difference between vapor anesthesia where I turn

11 on vapor anesthesia and let the person come to

12 equilibrium with that gas.

13

When I give intravenous anesthesia I

14 give a dose and then that drug is continually

15 changing over time in terms of its

16 concentration. It's not coming to equilibrium

17 and, therefore, it's a much more complicated

18 process to administer intravenous anesthesia.

19

I need to understand all of the

20 pharmacokinetics. And typically the way this

21 is -- the way this is done in many cases today,

22 there are computer-controlled infusion pumps and

23 so forth that are used to do this because it is

24 too complicated to do or there is complications

25 that make it potentially more robust to do that.

0302

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1

But under the -- under the guidance of

2 an anesthesiologist they will use

3 computer-controlled infusion pumps in order to

4 administer the complexities of these drugs.

5

THE COURT: Okay. And, again -- and I

6 understand what you're telling me, but what --

7 assuming you had those conditions, the

8 appropriate conditions, then is there another

9 intravenous agent you could use after inducing

10 anesthesia with thiopental?

11

THE WITNESS: As I said, there's a

12 variety of different agents. I really don't want

13 to go -- because I'm not qualified as an

14 anesthesiologist.

15

THE COURT: Okay.

16

THE WITNESS: Another issue the

17 anesthesiologists have to deal with is choosing

18 the appropriate drugs for the appropriate

19 surgical condition for the length of surgery

20 for -- all these drugs -- there's a whole tool

21 kit of drugs that are designed and chosen to use

22 under different clinical conditions. So there's

23 a variety.

24

THE COURT: Are you saying this is

25 outside your expertise, the question I'm asking?

0303

1

THE WITNESS: That's getting into, I

2 think, the clinical -- into clinical anesthesia

3 and getting away from my understanding of -- of

4 the pharmacokinetics and pharmacodynamics of

5 those drugs.

6

THE COURT: Okay. Thank you.

7

All right. Thank you, Mr. Steinken. Go

8 ahead.

9

MR. STEINKEN: Thank you, Your Honor.

10 BY MR. STEINKEN:

11 Q Doctor, we're talking about your work at

12 Stanford. What exactly was your role in

13 connection with that work?

14 A Well, I'm a mathematical modeler, number

15 one. So I build mathematical models of drug

16 action.

17 Q What do you mean by "mathematical models"?

18 A Mathematical models of trying to understand

19 the time course of drug effect so that we can

20 understand if you give a particular dose what

21 would be the expected time course of that drug

22 within a patient population.

23

I would -- in order to build those

24 models we would do experiments like I described

25 before by rapidly taking blood samples, analyzing

0304

1 those blood samples, taking that as data and

2 putting it into mathematical models to reduce

3 that to get an understanding of the

4 pharmacokinetics of the drug.

5

We would do that -- because there are

6 certain aspects that you can't understand in

7 humans, for example, what is the brain

8 concentration of a drug, I cannot easily do that

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9 in humans.

10

We also do bridging studies with animals

11 where we will use animals and do pharmacokinetic

12 and pharmacodynamic studies in animal species,

13 and by appropriate modeling techniques taking

14 into account the different physiology and

15 different characteristics of animals, we can

16 blend this data together with humans to

17 understand, for example, what would be the

18 expected brain concentration of an anesthetic to

19 a human without actually having to go in and

20 measure that.

21 Q Is that what you mean when you refer to a

22 bridging study?

23 A Yeah, a bridging study. So it's a

24 combination of animal studies and clinical

25 studies and combining that information together

0305

1 to get a deeper understanding of what is -- what

2 are the behavior -- behavior and attributes of

3 the drug.

4 Q Was there a primary objective in the

5 research that you were doing at Stanford?

6 A One of the most important things we were

7 trying to understand is variability, what

8 determines why one person behaves one way to the

9 same dose of drug as another person. So you

10 could give the same dose of the drug and get

11 different effects, different time course effects,

12 different peak intensities, different durations

13 of effect.

14

We were trying to understand those

15 sources of variability so -- and to incorporate

16 that into our models so that we could then give

17 guidance to anesthesiologists as to how to more

18 appropriately use drugs, these drugs under

19 different situations. In other words, how would

20 a drug behave in a young person versus an older

21 person, how would the drug behave in a person who

22 has normal cardiac function versus a patient who

23 has changed cardiac function or has cardiac

24 disease.

25 Q Now, you talked about animals. Were there

0306

1 particular animals you used in the study?

2 A We primarily focused on the Wistar rat as

3 the primary -- as the primary animal species, but

4 we also -- and the majority of the work was done

5 with the Wistar rat, but we also then had, quote,

6 "bridging studies" into other species, such as

7 dog, sheep and so forth.

8 Q Did the research also involve clinical

9 studies with humans?

10 A Yes, absolutely. So the real value of this

11 research was to basically link together the

12 preclinical or these animal -- these animal

13 studies with the human studies. So just as we

14 were doing studies in animals in my laboratory,

15 we were also doing equivalent studies as best we

16 could in surgical suites.

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17

So we would go in and, you know, induce

18 people with anesthetics, take blood samples from

19 those individuals, monitor their EEG, monitor

20 their response to different types of stimuli to

21 understand the relationship between blood level

22 and how well -- what was the probability that an

23 individual would respond.

24

So a whole range of studies were done in

25 surgical patients and -- surgical patients who

0307

1 were volunteering for these studies as well as

2 corresponding animal studies. We tried to make

3 things as parallel as possible.

4 Q When you say "blood level," are you talking

5 about arterial concentration level of the drug in

6 the blood?

7 A Yeah, yeah. In the area of pharmacokinetics

8 particularly for a drug like thiopental which has

9 such a rapid onset and rapid offset of effect,

10 the important blood levels to understand are

11 actually the arterial blood levels because it's

12 the arterial concentrations that are actually

13 driving the concentrations that are occurring at

14 the site of action in the brain.

15

The venous concentrations are actually a

16 sort of overall body average concentration that

17 represents the drainage of drug concentrations

18 coming from not only the brain but also from

19 other muscles in the body and so forth.

20

So it's a mixed -- the venous

21 concentrations are mixed and, therefore, are not

22 reliable measures in order to understand the

23 relationship between drug concentration and

24 effect. You must use arterial concentrations as

25 the reference.

0308

1 Q Now, earlier you stated that you would do

2 testing with humans to the extent that you

3 could. Are there limitations on what testing you

4 can do with humans?

5 A Sure. You could not put the patient at

6 risk. So, in other words, we were able to study

7 in patients the response of thiopental, the

8 pharmacokinetics and pharmacodynamics of

9 thiopental in normal clinical doses. We weren't

10 able, for example, to ask what if I gave a dose

11 that was ten times higher, what would happen,

12 because that would not be ethical.

13

So we also -- as I stated, we were not

14 able to get tissue concentrations from humans

15 and, therefore, we were able then to rely on

16 these bridging animal studies to make inferences

17 from animal into man.

18 Q Is this use of animal studies and bridging

19 it into human experience typical in research and

20 medical science?

21 A Oh, absolutely. It's the hallmark of all

22 drug research. All drug research is done

23 initially in animals, and the reason why we do

24 animal research is because we know that

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25 animals -- animal studies are predictable. They

0309

1 predict into man.

2

Whenever a drug is developed in the

3 pharmaceutical industry extensive amount of

4 animal studies are used and initially before we

5 are allowed to even go into man the FDA requires

6 that those animal studies be done and the

7 appropriate models be built to bridge between

8 animal and man.

9

So it is -- it is the hallmark of

10 pharmacologic research.

11 Q After you left Stanford -- you were there

12 for seven years; is that right?

13 A I was at Stanford for seven years.

14 Q Where did you go then?

15 A I then went back to the State University of

16 New York at Buffalo.

17 Q What was your position there?

18 A I was an assistant professor at -- in the

19 department of pharmaceutics. I went back to my

20 alma mater.

21 Q When you went back to Buffalo did you

22 continue to do research on anesthesia and

23 anesthetics?

24 A Yes, I did. So I continued to do research

25 on intravenous anesthetics while I was at Buffalo

0310

1 and had several graduate students work -- doing

2 their thesis work on intravenous anesthetics

3 while I was there.

4 Q Now, did that work include sodium

5 thiopental?

6 A At that point there was a limited amount of

7 work that was being done on thiopental. The

8 majority of the work at that point was basically

9 what I will say, you know, mopping up of some of

10 the work that was being done at Stanford.

11

By the time -- in the '90s a new

12 anesthetic had come on to the market that had --

13 that was gradually replacing thiopental, and that

14 was the drug Propofol. So we focused most of our

15 efforts on Propofol.

16 Q Replacing thiopental how?

17 A It was replaced -- replacing thiopental in

18 terms of an anesthetic induction agent, and it

19 also had some desirable properties that it could

20 be -- it could be used to -- to actually maintain

21 anesthesia, at least provide -- from an

22 intravenous standpoint provide, you know, one of

23 the four major hallmarks of anesthesia, the

24 unconsciousness part.

25 Q Now, in working with Propofol and thiopental

0311

1 and other drugs at Buffalo, did you continue to

2 do the same sort of pharmacokinetic and

3 pharmacodynamic research analysis that you had

4 done at Stanford?

5 A Yeah. We basically -- basically we

6 duplicated the labs that we had at Stanford and

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7 moved those over into Buffalo and continued on at

8 Buffalo for another four and a half, five years

9 doing research on the pharmacokinetics and

10 pharmacodynamics of intravenous anesthetics.

11 Q You left Buffalo, I believe, in 1995; is

12 that right?

13 A Yes.

14 Q You went to Dupont?

15 A Yeah. Dupont Merck.

16 Q What -- what was your role at Dupont?

17 A When I joined Dupont Merck -- when I joined

18 Dupont Merck I became a member of a -- of

19 clinical drug development teams. So I worked in

20 the clinical development, the clinical

21 pharmacology development of new drugs that Dupont

22 Merck was developing.

23

My role on the clinical development team

24 was to serve as the lead pharmacokineticist,

25 pharmacodynamics scientist on those teams to help

0312

1 integrate the information coming from the

2 different disciplines and incorporate that

3 information into models to help the development

4 team make decisions in the next steps of

5 development.

6 Q So you continued to do pharmacokinetic work?

7 A Absolutely.

8 Q Did that include work with anesthetics?

9 A Although Dupont Merck wasn't developing

10 anesthetics, when I moved to -- when I moved to

11 Dupont Merck I still had graduate students

12 working with me in Buffalo. So not to abandon

13 them when I moved to Dupont, I negotiated with

14 Dupont that they would pick up my laboratory and

15 move my laboratory into Dupont.

16

So for an additional three and a half

17 years we continued independent of Dupont carrying

18 out the pharmacokinetic/pharmacodynamic research

19 on the intravenous anesthetics in a separate

20 laboratory that I had while I was at Dupont

21 Merck.

22 Q You're currently at a company called

23 Pharsight; is that correct?

24 A That's correct.

25 Q What kind of company is that?

0313

1 A Pharsight is a pharmaceutical consulting

2 organization. We have a collection of world

3 class pharmacokinetic/pharmacokinetic [sic]

4 modelers that serve as consultants to the

5 pharmaceutical industry where we provide support

6 to the pharmaceutical industry in pharmacokinetic

7 and pharmacodynamic modeling to help fortify

8 their own internal pharmacokinetic and

9 pharmacodynamic modeling services.

10

A major -- a major focus of Pharsight is

11 to build models that allow individuals or

12 organizations to understand risk.

13

We build these

14 pharmacokinetic/pharmacodynamic drug and disease

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15 models taking information that the sponsor has as

16 well as information that is available in the

17 literature, model what we -- what the expected

18 behaviors of the drugs would be. We also model

19 the variability that would occur as well as we

20 model the uncertainty. Uncertainty is actually

21 something that is knowable and can be modeled.

22

We then incorporate -- we then

23 incorporate these into what we call large Monte

24 Carlo simulations and simulate out various

25 scenarios for the pharmaceutical industry so that

0314

1 they understand given the state of knowledge that

2 they have, they currently have, what would be the

3 risks of them making certain decisions. If

4 they -- should they move dose X forward or should

5 they move dose Y forward, what would be the

6 toxicity and so forth.

7

So we really do not just -- we try to

8 understand -- go beyond just understanding the

9 drugs, but try to understand the risks associated

10 with those decisions that are made based upon

11 those models.

12 Q And at Pharsight you're continuing to work

13 with issues of anesthetics?

14 A Yes. Anesthetics in the area of pain. As I

15 say, you know, anesthesia does also deal with

16 pain, and I am currently actually involved right

17 now with one of my clients on a -- on a large

18 pain project.

19 Q Doctor, is it fair to say that basically

20 your entire professional life has been spent

21 doing pharmacokinetic and pharmacodynamic

22 research on drugs?

23 A Yes.

24 Q And much of that time has been spent on

25 anesthetic agents including sodium thiopental?

0315

1 A Yes.

2 Q Have you had any articles published in

3 connection with your work?

4 A In my CV I think there's 39 articles right

5 now that are -- that are being -- that are

6 currently in publication.

7 Q And I see those referred to as peer-review

8 articles. What is a peer-review article?

9 A A peer-review article when you -- to have an

10 article published that is peer reviewed the

11 article is submitted to a journal. The journal

12 then puts that article out, selects several

13 authorities within the field, have them review

14 the articles, give them a chance to criticize

15 that article. And if the article was published,

16 it basically has to pass the criteria set by

17 the -- by the peer reviewers before they become

18 published.

19 Q So an article is not published until a

20 number of other experts have passed upon it?

21 A That's correct.

22 Q You, in fact, are a peer reviewer now;

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23 correct?

24 A Yes.

25

MR. STEINKEN: Your Honor, I would

0316

1 tender Dr. Ebling as an expert in the field of

2 pharmacokinetics and pharmacodynamics.

3

MR. MATTHIAS: No objection, Your

4 Honor.

5

THE COURT: So ordered.

6

MR. STEINKEN: Thank you, Your Honor.

7 BY MR. STEINKEN:

8 Q Doctor, in connection with your assignment

9 in this case you were asked to look at procedure

10 770; is that right?

11 A That is correct.

12 Q If you'll turn your attention to tab number

13 17 in the book of exhibits before you.

14 A Yes.

15 Q And is that, in fact, a copy of the protocol

16 you looked at?

17 A Yes, it is.

18 Q Now, in connection with your work you also

19 looked at a number of other items; correct?

20 A Yes.

21 Q Including photos of the execution chamber?

22 A Correct.

23 Q Did that serve any purpose or influence your

24 analysis at all?

25 A Well, understanding the -- the

0317

1 administration setup in the execution chamber

2 allowed me to -- to -- to, you know, formulate an

3 opinion about the -- of how the drugs are

4 actually being administered. So -- and that's an

5 important aspect of my opinion is drug

6 administration.

7 Q Uh-huh.

8

You also looked at execution logs from a

9 number of inmates; is that right?

10 A That is correct.

11 Q And did that information inform your opinion

12 in any way?

13 A Yes, it did.

14 Q How so?

15 A That gave me insight into how -- gave me

16 insight into the timing of the administration of

17 the different drugs in the prior protocol to --

18 to get an understanding about what was the

19 time -- the differences in time from when

20 thiopental was administered, pancuronium was

21 administered, and potassium chloride was

22 administered to understand the variability in

23 that timing.

24 Q And, finally, you reviewed excerpts from

25 testimony taken from a witness who was a member

0318

1 of the execution team; is that right?

2 A That is correct.

3 Q That was witness number 1?

4 A Witness number 1.

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5 Q Doctor, as a result of your work and your 6 review of these materials, did you reach an 7 opinion to a reasonable degree of scientific 8 certainty regarding procedure 770? 9 A Yes, I have. 10 Q What is that opinion? 11 A My opinion is that procedure 770 will not 12 allow one to eliminate the risk of having a -- a 13 painful -- a painful execution given the 14 information that I have from -- from all these 15 different sources. 16 Q Why will it not allow you to eliminate -- to 17 have confidence that you have eliminated the risk 18 of a painful execution? 19 A Part of this has to do with the -- with 20 having an understanding of the unique properties 21 of thiopental itself, and placing the 22 pharmacokinetic characteristics of thiopental 23 within the context of -- of that protocol leaves 24 lots of room for doubt that -- that there is 25 possibilities that patients or I should say 0319 1 inmates could emerge and experience a painful 2 execution. 3 Q Were there any other factors that you 4 identified that inform your opinion regarding the 5 deficiencies in the procedure? 6 A Well, there were -- there were other aspects 7 that -- there were other aspects besides just 8 understanding the pharmacokinetics. Also, the 9 issue that -- the physiological status of 10 patients -- or inmates -- the physiological 11 status of inmates is different than the 12 physiological status of patients who are 13 undergoing thiopental anesthesia. 14 Q How so? 15 A In surgical -- in surgical anesthesia -- in 16 surgical anesthesia we -- we ensure that patients 17 are -- are calm, are not anxious. We do this 18 with using pre -- pre-anesthetic medications. 19 Q So the patients are premedicated? 20 A Patients are generally premedicated if the 21 anesthesiologist, you know, feels that there is a 22 concern that the patient would be, you know, very 23 agitated or anxious. That can have an impact on 24 the action of thiopental. 25 Q Anything else? 0320 1 A In general -- in general, I would say that 2 the protocol itself does not address the 3 variability that is in there. It's sort of a 4 one-size-fits-all protocol, and given -- again, 5 given the nature of thiopental's action and given 6 how thiopental doses must be fine-tuned in 7 clinical anesthesia, I was concerned that there 8 is a lack of appreciation for the variability 9 that can occur in thiopental's action. 10 Q Would it be fair to say that based upon your 11 review of the materials you were led to doubt 12 whether the authors of 770 understood the

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13 pharmacokinetics of thiopental?

14 A I don't think they are fully appreciated,

15 no.

16 Q Well, let's discuss those a little bit.

17 Physiologically what happens in the body after

18 thiopental is injected?

19 A Well, let's first talk about what happens to

20 the time course of blood concentrations.

21 Thiopental is a very unique drug in that its

22 action is -- well, the first -- the first

23 important principle is drug effect is related to

24 concentration. As you increase concentrations,

25 you end up getting greater and greater effect.

0321

1 Okay?

2

And the time course of drug action,

3 okay -- the intensity of effect is very dependent

4 upon the time course of concentrations that are

5 achieved.

6

Thiopental is a rather unique compound

7 in that, although it's a very short-acting

8 drug -- okay?

9 Q When you say "short acting," what do you

10 mean?

11 A It -- the action of this drug lasts in the

12 realm of minutes -- okay? -- rather than hours or

13 days when you use one on -- commonly prescribed

14 medications that we're most used to.

15 Q I'm sorry. Continue.

16 A Thiopental's pharmacologic effect is not

17 determined by the drug being eliminated from the

18 body, but it's determined by the drug

19 distributing and redistributing among different

20 tissues of the body.

21

So initially when thiopental is

22 injected, it comes down a vein. The first thing

23 that happens to those concentrations is as it

24 moves in near the heart the blood that is coming

25 in from all other parts of the body starts

0322

1 diluting that concentration.

2 Q So as the vein takes the drug to the heart?

3 A Takes the heart.

4 Q -- meets up with the blood --

5 A Blood and dilutes. Okay?

6 Q Okay.

7 A And so there's an initial drop in the

8 concentration from the injection. Then as soon

9 as the drug is then -- leaves the heart, it goes

10 through the lung, and the drug starts soaking up

11 into the lung tissue -- okay? -- further dropping

12 the concentrations that are actually available in

13 the blood.

14

The drug goes into the lungs quickly and

15 also comes out of the lungs quickly, and we now

16 have a -- a lower overall plasma concentration

17 wave, you can say, going through the body.

18

And then the drug is then distributed

19 out from the lungs to different organs in the

20 body, and the amount of drug that goes to

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21 different organs is dependent upon the relative

22 amount of blood flow that is going to each one of

23 those organs.

24

So the -- the brain itself is receiving

25 about 20 percent of the total cardiac output that

0323

1 is coming out of the heart. The total amount of

2 flow is actually directed towards the brain.

3

The brain is a very highly perfused

4 organ.

5 Q What does that mean?

6 A It means that the amount of blood flow rate

7 going through the brain or being perfusing the

8 brain's capillaries is very high on a kilogram

9 basis relative -- for a kilogram of tissue it has

10 an extraordinarily high blood flow rate. And

11 that's because it's a very highly metabolic organ

12 and requires a lot of nutrients, a lot of oxygen

13 to survive.

14

Other organs such as muscle and skin and

15 adipose tissue or fat actually are very slowly

16 perfused tissues. So after the initial bolus

17 the drug initially goes to the very highly

18 perfused organs, and those highly perfused organs

19 in the body are the brain, the heart, the kidney,

20 the liver, and I've mentioned the lungs.

21

Thiopental has a very unique property in

22 that it is extremely diffusable. In other words,

23 it can move from blood across tissue, across

24 capillary membranes very rapidly moving into

25 tissues. Okay?

0324

1

It moves so -- this rate is so fast that

2 as blood -- as the drug goes through the

3 capillaries of the brain, basically the brain

4 tissue extracts up most of the drug that is

5 there, that is going through. But because the

6 drug diffuses so easily into the brain it also

7 diffuses very rapidly back. Okay?

8 Q So it leaves the brain?

9 A It can leave the brain.

10 Q Through the vein?

11 A Through the venous flow.

12

So what happens with thiopental and what

13 makes it a very sort of unique drug is that the

14 concentration time profile is determined by the

15 drug first going into highly perfused vessel-rich

16 organs like the brain. Okay? It leaves those

17 organs and gradually moves into organs and

18 tissues that are more moderately perfused like

19 skin and -- like muscle. Okay? And then

20 eventually it comes to rest in adipose tissue or

21 fat and skin.

22

Thiopental is a very oily drug. It has

23 a high fat solubility. So eventually what we're

24 seeing here is that thiopental is actually trying

25 to get into fat, but after an injection it

0325

1 initially goes to the very, very highly perfused

2 organs and it goes to fat more slowly, not

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3 because it's not soluble there, but because those

4 tissues are not perfused with as much -- with as

5 much blood flow as the highly perfused organs.

6

What does all this mean? Okay. It

7 means that after an injection, the initial

8 decline in blood concentrations after injection

9 decline very rapidly.

10 Q The concentrations of the thiopental?

11 A The thiopental in arterial blood decline

12 very rapidly. They decline in what we call an

13 exponential manner.

14 Q What does that mean?

15 A It means it's decaying in a logarithmic

16 fashion. So there's a half -- we call -- we

17 describe this exponential behavior with a half

18 life.

19 Q And in simple terms what --

20 A In simple terms what this means is let's

21 assume that we have a concentration of 100.

22 Okay? In one half life, in one half life, the

23 concentration will be cut in half. So in one

24 half life we will go from 100 to 50.

25

In another time period that is

0326

1 equivalent to that, to one additional half life,

2 it will go from 50 to 25, and then the next half

3 life from 25 to 12 and a half. So each time

4 halving.

5 Q So every half life the concentration level

6 is halved?

7 A Is halved, correct.

8 Q Do we know what the half life is for

9 thiopental?

10 A Well, there are -- as I said, there are

11 these different tissues and there are several

12 half lifes. The most important half life that

13 determines anesthetic action is what we call the

14 rapid distribution half life, which is that

15 associated with going into the initial tissues.

16 Q Into the highly perfused tissues?

17 A The highly perfused tissues.

18

Now, we can talk about a mean value for

19 the population and what that half life is.

20 Okay? And that mean value is around two and a

21 half to three minutes. Okay?

22 Q So that would be a -- that half life value

23 would apply to concentration in the brain?

24 A The brain concentrations are also tracking

25 essentially at that half life with a slight delay

0327

1 of about 30 seconds.

2 Q And how do we know that?

3 A This has been -- this has been demonstrated

4 both in animal studies as well as in human

5 studies by looking at the what we call hysteresis

6 of pharmacologic effect. We can look at the

7 delay in pharmacologic effect relative to the

8 arterial concentrations.

9

And there's about a 30-second delay

10 between when concentrations peak and when peak

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11 effect occurs on electroencephalograms in terms

12 of suppressing the central nervous system. And

13 then if -- those changes occur basically in

14 parallel then with changing concentrations.

15

THE COURT: Can I just make sure I

16 understand what you said.

17

So if someone was given an injection of

18 thiopental, approximately three minutes later you

19 would expect that to have diffused to the point

20 where it was half of the effect that you

21 originally got?

22

THE WITNESS: The concentrations have

23 fallen in half.

24

THE COURT: That's what I meant.

25

THE WITNESS: In order to understand the

0328

1 effect, though, we have to line that up with the

2 relationship that describes what the

3 concentration versus --

4

THE COURT: Okay. But concentration X,

5 three minutes later the concentration is half X.

6

THE WITNESS: That's correct.

7

THE COURT: Six minutes later the

8 concentration is a quarter X.

9

THE WITNESS: Correct.

10

THE COURT: I understand. Thank you.

11 Go ahead.

12

THE WITNESS: Now, when I'm saying it's

13 two and a half to three minutes, that's the

14 estimates from -- from studies that have been

15 performed in anesthetic patients from a variety

16 of different studies compiled together. And

17 we're talking about the mean or the median half

18 life because every individual has a different

19 half life.

20

Typically, these half lifes have a

21 variability around them. We can characterize

22 that with a variance, and that variance is such

23 that about 95 percent of the patients -- okay? --

24 will have a half life that is 60 percent -- plus

25 60 percent and minus 60 percent of the mean

0329

1 value.

2

So there are some individuals that may

3 have half lifes of one and a half minutes and

4 there are other individuals that may have half

5 lifes of four and a half or five minutes

6 depending upon their particular physiological

7 constitution.

8 BY MR. STEINKEN:

9 Q So for a given individual the concentration

10 level at a point in time may be radically

11 different than another individual who received

12 the same -- same amount?

13 A Same amount of drug because of the way they

14 are -- the rate at which they are redistributing

15 the drug.

16 Q How long does this rapid distribution phase

17 last?

18 A As I said, this initial phase is basically

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19 the drug moving from the highly perfused organs

20 to the moderately perfused organs. About 90

21 percent of the peak concentrations that are

22 achieved decays during this initial rapid phase.

23

So about four of these half lifes occur

24 before things start to slow down. Okay? And

25 then break into our next half life phase, which

0330

1 runs around 40 minutes.

2

THE COURT: Mr. Steinken, let me know

3 when you're ready to take a break. If you want

4 to finish a subtopic, go ahead.

5

MR. STEINKEN: Let me -- just a couple

6 questions. Thank you, Your Honor.

7

THE COURT: Sure.

8 BY MR. STEINKEN:

9 Q And what's the next phase that takes place

10 in the body with the thiopental?

11 A Well, that's that -- this is this

12 intermediate phase of drug distribution where the

13 drug is trying to come -- finally coming to

14 equilibrium with muscle and skin, muscle, skin

15 and fat. And, again, that occurs after

16 approximately four half lifes or after the

17 concentrations have dropped 90 percent, we break

18 into this lower phase.

19

The important thing is that based upon

20 the way that thiopental is designed it is

21 designed to basically have its effect terminated

22 during those initial half lifes.

23

It's the drop in the plasma

24 concentration that brings you below the level

25 which is associated with anesthetic -- with

0331

1 adequate anesthesia that allows an individual to

2 recover. Therefore, after a standard clinical

3 dose of 250 to 300 milligrams, an individual will

4 be -- basically be laying with eyes awake in five

5 to eight minutes after getting a dose of

6 thiopental.

7

MR. STEINKEN: Now is a good time to

8 break.

9

THE COURT: Great. We will take the

10 noon recess and we will resume at 1:30.

11

MR. GILLETTE: Your Honor, before we

12 break could I just raise one scheduling issue

13 very briefly?

14

THE COURT: Yes, of course.

15

MR. GILLETTE: We've discussed with

16 counsel the possibility and with the Court that

17 there may be some past or present members of the

18 execution team testifying, and the Court is aware

19 there may be some need to find ways to guarantee

20 their confidentiality.

21

We still do not have any certainty on

22 that. I just want to alert the Court to the

23 possibility that there may be some. Tomorrow

24 they have asked us to make certain people

25 available and we will need some more guidance

0332

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1 before we can tell the Court exactly what's going

2 to need to be done on that.

3

THE COURT: Okay. The message I got

4 yesterday through my clerk was that there might

5 be two confidential witnesses tomorrow. We have

6 made arrangements both with the marshal and just

7 physically so that we can protect the

8 confidentiality of those witnesses.

9

I just need to know as soon as you all

10 know that it's actually going to happen and when

11 it's going to happen. Just let either

12 Mr. Kolombatovich or Ms. Munz know and we will

13 set it up. The marshal is alerted and we've got

14 a room set up, and I can go over this with you at

15 the end of the day, if necessary.

16

MR. GILLETTE: Thank you very much.

17

THE COURT: Okay. Thank you.

18

We will be in recess until 1:30.

19

(Noon recess taken.)

20

21

---oOo---

22

23

24

25

0333

1 San Jose, California

September 26, 2006

2

AFTERNOON SESSION

3

THE COURT: In the matter of Morales

4 versus Tilton. Let the record reflect that

5 counsel are present, and at this time we will

6 continue with the direct examination of

7 Dr. Ebling.

8

MR. STEINKEN: Thank you, Your Honor.

9 BY MR. STEINKEN:

10 Q Dr. Ebling, we spoke a little bit before

11 about the pharmacokinetic effect of thiopental in

12 the body and you talked about what the effect is

13 in the brain.

14

Is the brain -- does that contain fat

15 tissue? Is that a fatty substance?

16 A It doesn't contain fat tissue. It

17 contains -- there are components that make up fat

18 called lipids that are in the brain. And so this

19 is different than, let's say, fat tissue that you

20 may find in your abdomen.

21 Q Like in my midsection?

22 A Right.

23 Q And so does the thiopental behave

24 differently in fat tissue in the brain and the --

25 A Although there are these lipids that exist

0334

1 in the brain, they are of a different nature,

2 different polarity and, therefore, the thiopental

3 will associate with those, but they associate

4 with less of an affinity than they would, say,

5 for deep adipose tissue where people store fat.

6 Q And the effect of that is what?

7 A Pardon?

8 Q And the effect of that is what?

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9 A Oh. Well, that -- that -- because

10 thiopental is a fat soluble drug and because

11 these particular lipids that are in the brain are

12 not quite as oily -- okay? -- it allows

13 thiopental to move into the brain and out of the

14 brain quickly. So thiopental doesn't get into

15 the brain and just stick and stay there like it

16 would, for example, in body fat under your skin.

17 Q Doctor, we've been talking about

18 concentrations, arterial blood concentrations.

19 Is there a relationship between concentrations

20 and depth of anesthesia that the patient

21 experiences?

22 A Sure. There is a relationship between

23 increasing concentrations and increasing depth of

24 anesthesia.

25 Q Now, when we're talking about depth of

0335

1 anesthesia, is anesthesia sort of a

2 black-and-white issue, you're either anesthetized

3 or you're not, or is there more to it than that?

4 A There's much more to it than that. It's

5 the -- particularly around the issue of -- if we

6 focus on the issue of consciousness in

7 anesthesia, the -- what we're doing when we use

8 anesthetic agents to oblate consciousness is

9 we're -- we're using an anesthetic to block the

10 awareness of incoming stimulus to the brain.

11

The brain is an organ that responds to

12 stimulus, and what we're doing when you oblate

13 consciousness is you -- you are diminishing the

14 ability of the brain to organize and recognize a

15 particular stimulus.

16

Now, so when we talk about depth of

17 anesthesia we need to actually put this into a

18 context because it's within a context of how

19 strong is that stimulus.

20

I can give a -- have a low concentration

21 of thiopental and I can have someone laying on

22 the table comfortably asleep. Okay? And they

23 would -- and they -- if you asked them to

24 respond, for example, by saying would you wiggle

25 your toes, for example, they may not do that.

0336

1 Okay? But if -- but if I were to give a stronger

2 stimulus, I could awaken that individual.

3

If I -- if I gave a very noxious stimuli

4 such as passing a tube over the trachea, over the

5 vocal cords to assist in breathing, which is

6 something that's done very, very early in

7 anesthesia -- it's extremely noxious to an

8 individual. You will gag and it's an extremely

9 painful response. Thiopental is given to

10 basically oblate that response, but that's a very

11 noxious stimuli.

12

In between there there are different

13 stimuli that someone could -- different levels of

14 stimuli, and each one of those levels of stimuli

15 will have a different concentration associated

16 with it.

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17 Q So the level of -- the concentration level

18 in part would determine the depth of anesthesia

19 that the individual experiences?

20 A Right. And, again, qualifying what we mean

21 by "depth of anesthesia," you have to specify the

22 strength of the stimulus when talking about depth

23 of anesthesia. Depth of anesthesia doesn't mean

24 anything in the absence of a particular level of

25 stimulus.

0337

1 Q Are there various indicia that are used to

2 determine the depth of anesthesia?

3 A Are there --

4 Q Are there various indicia that you look to

5 to determine the depth of anesthesia?

6 A Well, clinically -- well, in a research

7 setting, if we want to establish depth of

8 setting -- depth of anesthesia, we can -- we can

9 use several different end points.

10

And, in fact, when I was at Stanford we

11 carried out experiments to actually elicit what

12 that concentration-response relationship was.

13 We did that both in humans and in animals.

14 Okay? So we were able to establish the

15 concentration-response relationship for various

16 levels of noxious stimuli.

17

In the humans when this was done we

18 would have individuals, for example, ask them to

19 respond to verbal command and whether or not they

20 would respond. "Could you wiggle your toes?"

21

We could then have them also do

22 something, for example, hold on to a syringe --

23 okay? -- and look at the concentration at which

24 time after -- when you slowly infuse the drug

25 what's the concentration required for that that

0338

1 will occur when the person drops the syringe.

2 They no longer have the ability to keep their

3 concentration on holding that syringe.

4

We would then go up further in

5 concentrations doing -- squeezing their trapezius

6 muscle, do they respond from a trapezius

7 squeeze. A nerve stimulator that you could place

8 on the elbow and give small electric shocks, will

9 they respond to that in terms of movement or

10 blood pressure responses.

11

Continuing going up carrying out

12 laryngoscopy which is where you place a -- a

13 laryngoscope is a special instrument that is used

14 in anesthesia where you place it into the throat

15 to pull back the tongue and put the tip on the

16 edge of the vocal cords to open up the airways so

17 that you can pass an endotracheal tube that will

18 assist in breathing. Very noxious stimuli. And

19 then finally the actual placement of those

20 tubes.

21

As you go through those increasing

22 levels you can find for each one of those types

23 of stimuli will require a different concentration

24 of thiopental in order to oblate response to

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25 those stimuli.

0339

1

In addition to that, from patient to

2 patient there will be a different concentration.

3 So there is interpatient variability,

4 intersubject variability in the relationship

5 between concentration and response. There's

6 intersubject variability in what we would call

7 the pharmacodynamics. And we already talked

8 about the intersubject variability in the

9 pharmacokinetics.

10

So this variability in pharmacodynamics

11 and pharmacokinetics can make it -- make it

12 complex to really understand what depth of

13 anesthesia, but in carefully controlled studies,

14 yes, you can determine those relationships.

15 Q Now, in -- would the administration of, for

16 example, pancuronium bromide in the onset of

17 suffocation, would that be considered a noxious

18 stimuli?

19 A Yes. I mean, again, rising carbon dioxide

20 concentrations in the blood -- okay? -- that

21 would occur because an individual stops breathing

22 due to pancuronium actually is a stimulus from

23 the autonomic nervous system.

24

We breathe because of carbon dioxide

25 levels in our blood. If the carbon dioxide

0340

1 levels get too high, we breathe more rapidly.

2 So -- and we become very much aware of that.

3 Okay? It's a stimulus if those concentrations

4 get too high.

5

So, yes, that can be considered a

6 stimulus. And you could have, for example,

7 someone who would be asleep, but if you started

8 to impair their ability to breathe, that stimulus

9 may be sufficiently high to -- to cause them to

10 awake.

11 Q Have you made determinations of what blood

12 concentration level would be necessary to

13 withstand a highly noxious stimuli?

14 A Yeah. This is -- this is -- there's --

15 there's a level of thiopental that is typically

16 understood to -- and where if we look at the EEG

17 there's so much dissociation in the

18 electroencephalogram, the brain wave pattern,

19 that we can see that the -- the brain itself is

20 not being able to organize, organize a coherent

21 picture of what's going on. We call that --

22 that -- that level of electroencephalogram effect

23 "burst suppression."

24

These are periods where the EEG will go

25 flat -- okay? It looks like brain death -- with

0341

1 periods of -- of volleys or bursts of electrical

2 activity that then quiet down.

3 Q How long is the -- would be the flat line --

4 A Well, again we actually use status --

5

THE COURT: So the question was?

6 BY MR. STEINKEN:

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7 Q How long was the flat line that you would

8 typically associate with the state of burst

9 suppression?

10 A Well, typically we were using in our studies

11 and what is commonly used is a -- is a -- are

12 periods of three seconds of isoelectricity or of

13 no activity between these volleys. So about

14 three seconds. Of course, if I go to higher

15 concentrations, I can extend that to four

16 seconds, five seconds. Eventually it will just

17 be completely oblated.

18

But clinical -- the depth of anesthesia,

19 for example, that is used to -- to block response

20 to -- or block most of the response to, let's

21 say, endotracheal intubation is in the range of

22 where you're creating burst suppression,

23 electroencephalographic burst suppression.

24 Q Is there a level of arterial concentration

25 that you would associate with achieving burst

0342

1 suppression?

2 A Yeah. There's a range of concentrations.

3 It's -- it's between -- and it varies from

4 individual to individual, but it varies from

5 about 43 to 57 micrograms per mL.

6 Q Now, for burst suppression to -- the state

7 of burst suppression to effectively combat a

8 noxious stimuli, when must a patient achieve that

9 level of anesthesia?

10 A One of the -- one of the -- when we've been

11 talking about those studies where we're trying

12 to -- to understand the concentrations that will

13 be required to block response, those are done in

14 a situation where those concentrations were

15 achieved beforehand, before the actual stimulus

16 occurred.

17

One of the challenges that

18 anesthesiologists always have to do, and they are

19 thinking about this as they are going through a

20 surgical case and adjusting depth of anesthesia,

21 they have to anticipate what is going to be the

22 noxious stimuli that is going to apply, and

23 they -- going to be applied to the patient.

24

They know, for example, when an

25 abdominal incision is going to occur in a

0343

1 surgery. In preparation for that, they actually

2 will raise the concentrations of the anesthetic

3 by giving additional doses of drug or increasing

4 an infusion so that they will have that covered

5 beforehand.

6

One of the problems -- one of the

7 challenges in anesthesia is that if a patient

8 starts responding it is much more difficult to

9 catch up. They require higher concentrations to

10 get them calmed down again. So once somebody

11 emerges, sort of the cat is out of the bag and

12 they now have to get the patient calmed down --

13 you know, down to a point where they are not

14 responding, and it takes higher concentrations,

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15 once the stimulus has occurred, than what you

16 would have if you had had the adequate

17 concentrations before the stimulus occurred.

18 Q So it makes it critical that the

19 concentration level be adequate before the

20 noxious stimulant is applied?

21 A The timing of the noxious stimulus shifts

22 the concentration-response relationship, in other

23 words.

24 Q And then once the concentration level is

25 attained, how long would you need to maintain it

0344

1 for?

2 A Typically -- typically in order to maintain

3 that anesthesiologists will -- they need to

4 maintain that throughout the period when the

5 noxious stimuli is applied, and they also want to

6 continue for a period of time after the stimulus

7 is pulled away.

8

You can think of it as, you know, if you

9 have been -- if someone has cut you with a knife,

10 the pain doesn't immediately go away. You still

11 have that pain continuing on even though the

12 stimulus has been pulled away. So you need to

13 cover that stimulus. And so an anesthesiologist

14 doesn't immediately just turn down the anesthetic

15 once, let's say, the surgeon is finished cutting.

16 Q Now, in the situation of a lethal injection,

17 how long would the level need to be maintained

18 then?

19 A Well, you know, assuming that the noxious --

20 where the noxious stimuli here is -- is

21 suffocation coming from the pancuronium or the

22 pain induced by the potassium chloride injection,

23 you'd want to have -- in order to ensure that you

24 do not have arousal, you want to make sure that I

25 have concentrations achieved before those noxious

0345

1 stimuli are -- are applied and throughout that

2 period of time that the stimulus is coming in.

3 And I guess -- in execution I guess that means

4 until death.

5 Q Now, the number that you've identified, the

6 45 to 57 --

7 A 43 to 57.

8 Q -- range, was that -- I think you referenced

9 that that was developed through animal studies

10 and clinical studies; is that correct?

11 A Well, the -- the values that I'm reporting

12 are actually the clinical studies, but

13 interestingly, and this is one of the things

14 about pharmacokinetics and pharmacodynamics and

15 our understanding of these principles in

16 pharmacology, is that in general for most general

17 drug effects the concentration-response

18 relationships, the concentration required to --

19 to produce a particular effect is basically a

20 property of mammalian physiology.

21 Q What do you mean by that?

22 A Well, it basically means the concentrations

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23 required in an animal are very similar to the

24 concentrations that are required in man in order

25 to produce a particular effect.

0346

1

Now, there are some subtle -- subtleties

2 and nuances around this that deal with free

3 concentrations and so forth. But the

4 pharmacodynamics is one of the fundamental

5 principles that we have that is translatable,

6 that relative is basically constant going from

7 animals into man with the proper corrections.

8

The differences in the behavior of the

9 drugs between animals and humans is basically

10 dealing with the -- or a large part of it is due

11 to the pharmacokinetic differences that occur

12 between animals and humans.

13

They have a different time course of

14 drug -- of drug exposure, but if you look at the

15 concentrations that when a particular effect

16 is -- going from animals to man this

17 concentration-effect relationship appears to be

18 conserved.

19 Q Now, the numbers that you've talked about

20 that were developed in clinical settings with

21 human beings, are those numbers readily

22 transferable to, for example, a prison

23 environment for a lethal injection procedure?

24 A Well, that brings us back to this issue

25 about these concentrations are -- that have been

0347

1 established in -- for -- that are established --

2 established for, say, burst suppression and any

3 other level of -- of anesthetic depth are

4 guidelines for clinical medicine.

5

And, again, going back to this -- going

6 back to the clinical anesthesia setting, we're

7 dealing usually with individuals that -- or many

8 individuals that have pre-anesthetic

9 medications. Other CNS depressants have been

10 given to them before they have undergone

11 anesthesia.

12 Q The premedicated individuals that you

13 mentioned earlier?

14 A Yes.

15

THE COURT: Can you give me an example

16 of some of the CNS depressants that are used?

17

THE WITNESS: Well, yes. It would be

18 typical, for example, to administer a mixture of

19 a -- of an opioid narcotic such as Demerol where

20 you would give maybe 50 milligrams of Demerol IM

21 half hour before the case.

22

THE COURT: Morphine?

23

THE WITNESS: Morphine. Maybe in

24 combination with an antihistamine to basically

25 further potentiate the opioid.

0348

1

Now, that premedication exists at the

2 time of the anesthetic induction and it's a CNS

3 depressant, and that interacts with the

4 anesthetic and, therefore, produces an anesthetic

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5 sparing effect, meaning that I can have lower

6 concentrations of the anesthetic to produce the

7 same degree of oblation of noxious stimuli.

8

THE COURT: Is that a scientific way of

9 saying that there's some synergy between the

10 narcotic and the barbiturate?

11

THE WITNESS: Right. So the -- the --

12 when we think about concentrations that are being

13 used clinically we have to put it into the

14 context that there are -- we are not dealing

15 with -- with one drug. We're dealing with

16 thiopental or other anesthetics in the presence

17 of other drugs that are being used, and that can

18 affect the concentration-effect relationship of

19 that for the pharmacodynamics.

20 BY MR. STEINKEN:

21 Q So premedication is a factor that affects

22 concentration level; is that correct?

23 A Yes. No, not concentration level. It

24 will -- it will influence the relationship

25 between a given concentration and its -- and the

0349

1 ability of that concentration to oblate noxious

2 stimuli. It's not a pharmacokinetic

3 interaction. It's a pharmacologic interaction

4 not dealing with how the body is handling the

5 drug. It's dealing with how these two drugs are

6 combining in synergy at the site of action.

7 Q From a pharmacokinetic perspective are there

8 other factors that influence the concentration

9 level?

10 A Sure.

11 Q Would dose be one of those?

12 A Absolutely. Dose is one of those.

13 Q How does dose influence concentration level

14 that's achieved?

15 A Well, thiopental, at least in the clinical

16 range, is a drug that we -- that has what we call

17 linear pharmacokinetics. What that means is that

18 for a given infusion rate, using the same

19 infusion rate, if I double the dose of the drug,

20 I will produce twice the concentrations in the

21 blood.

22

Now, remember when I'm talking about

23 twice the concentrations I'm talking about

24 concentration time profile that's moving. So the

25 whole thing is shifted up. That two-and-a-half

0350

1 minute half life, three-minute half life is still

2 effective. So instead of being at 100 -- if I

3 double the dose, instead of being at 100 I'm now

4 at 200, but during the first half life I fall to

5 100.

6

So there is a dose proportionality

7 between the -- between the dose and the exposure

8 at any -- at any point in time that you would

9 have a nice linear relationship.

10 Q Now, in talking about dose size, are there

11 clinical studies that have addressed the

12 administration of doses of thiopental at high

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13 levels, a gram and a half, 5 grams?

14 A Well, we -- clinically we don't study in

15 that range. One and a half grams of thiopental

16 is pushing us out into this range where we become

17 less certain because we haven't studied massive

18 doses in that range.

19

The -- we certainly haven't studied 5

20 gram doses in terms of what the pharmacokinetics

21 look like, but one and a half grams can be

22 considered in -- you know, at the upper range,

23 maybe -- maybe three to four times the clinical

24 dose that it would be used for -- for induction

25 of anesthesia in a premedicated patient.

0351

1 Q Would increasing the dose alone to a high

2 level guarantee that the concentration level

3 would be achieved and maintained?

4 A We have to put this into the context again

5 of variability that occurs from individual to

6 individual. So we can't basically say if I

7 double the dose, I'm going to -- I can talk about

8 the typical individual, but for any particular

9 individual I need to understand the -- the

10 physiological factors that are -- and their --

11 and their ability to eliminate the drug and to

12 distribute the drug to really understand within

13 an individual, if I doubled the dose, would I go

14 up twice as high.

15

So it's more complex than just dose.

16 Q Well, there are other factors that affect

17 concentration levels; correct?

18 A That's correct.

19 Q Would rate of administration be one of them?

20 A Yeah.

21 Q What influence does rate have on the

22 pharmacokinetics of thiopental?

23 A Well, if we go back to what I was saying

24 about what happens in the time course of

25 thiopental, that there is these -- this

0352

1 distribution that is occurring, every two and a

2 half to three minutes the concentrations are

3 dropping in half, that distribution half life

4 does not start when I finish giving the drug.

5 The drug is being circulated and distributed

6 while I'm -- I'm giving an infusion while I am

7 giving that infusion.

8

So a molecule that enters the body at a

9 particular time is, in fact, experiencing that

10 probability of dropping that -- that distribution

11 half life. After two and a half minutes that --

12 a particular molecule that entered at time zero,

13 let's say, will be -- have a probability of only

14 being there -- being in the blood of 50 percent.

15 It has a 25 percent chance of being there after

16 two half lifes.

17

So what we have happening here is when

18 we're giving an infusion this distribution

19 process that occurs is occurring all during the

20 infusion. So I haven't been able -- if I give

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21 the drug by an infusion rather than a quick sharp

22 push, I am not creating the types of

23 disequilibrium that exist when I rapidly push the

24 drug in.

25

It's already starting to mix, and

0353

1 because it's already starting to mix when I give

2 the infusion, even though I've given the same

3 total dose, the peak concentration will be lower

4 at the end of the infusion.

5 Q And when you talk about infusion, what means

6 of administration would you include within that

7 description? Is a drip part of an infusion?

8 A When we speak of infusion as compared to a

9 bolus -- let's talk about a bolus first.

10

A bolus is just basically a very rapid

11 push. Thiopental is administered over 10 to 15

12 seconds when it's given in clinical anesthesia.

13

When we -- when we talk about an

14 infusion, it -- it's anything that's longer than

15 that bolus. It's giving the drug slower than

16 the -- than -- than a rapid push. An infusion

17 can be done by -- just by simply very carefully

18 pushing on a syringe, a plunger, watching the

19 rate going in. It can also be set up by mixing

20 drug in a bag with a constant rate drip going

21 into a patient. It could be governed by using an

22 infusion pump. That would control the rate.

23

But an infusion is -- is administering

24 the drug over a specific set prescribed period of

25 time.

0354

1 Q So do I understand you correctly that if you

2 have a dose that's administered at two different

3 rates, the concentration levels produced by those

4 two rates will be different?

5 A Yes. Very much so.

6 Q And is that -- that's because of the time

7 course relationship that we talked about?

8 A That's because the -- during the infusion,

9 the distribution is already occurring and

10 allowing the drug to move out of the blood.

11 Okay? So you can -- you can think that -- as a

12 rough rule of thumb you can think that

13 the concentration -- the peak concentrations will

14 be reduced by half every distribution half life

15 that the infusion goes on.

16

So if I take -- if I take a drug and

17 infuse it over two and a half to three minutes,

18 the expected peak concentrations would be half of

19 what we would have during a rapid push.

20 Q If you were to administer both a bolus and a

21 drip, what effect would that have on

22 concentration levels?

23 A If they were administered simultaneously,

24 the -- if they were administered simultaneously,

25 you would have an initial drop, the rapid drop

0355

1 that you would get from the bolus that would be

2 coming down in this exponential fashion, but with

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3 the infusion you would have a slow rise that

4 would come up. And the observed concentrations

5 that you would get would be basically the

6 summation of the rising concentrations coming

7 from the infusion plus the falling concentrations

8 that are coming from the bolus.

9

In other words, depending upon the

10 infusion rate and the bolus dose, you can

11 actually have concentrations drop, hit a nadir or

12 a minimum and then start to rise again. So it

13 can be a -- a time course that would have

14 actually a minimum.

15 Q And when -- when it hits the nadir, is it

16 possible that the patient would regain

17 consciousness?

18 A Well, that depends upon the concentration

19 that occurs. The patient is going to -- as I

20 said before, the concentration at which the

21 patient will be awake will be dependent upon the

22 concentration for wakefulness or whether someone

23 will arouse from a noxious stimuli will be

24 dependent upon the concentration in the brain

25 that will be required to oblate that noxious

0356

1 stimuli.

2 Q Is it fair to say that timing is a key

3 component in determining concentration levels?

4 A Timing is everything in pharmacokinetics.

5 It's about time. It's about movement. Yes,

6 it's -- the regimen, the protocol of the way that

7 you administer drugs has a profound influence on

8 the time course of thiopental plasma

9 concentrations, also will have -- correspondingly

10 will have a profound influence on the

11 concentration time course in the brain.

12 Q Is it fair to say to draw any conclusions

13 about the time course you need to know with

14 precision the issue -- the element of timing in

15 the administration?

16 A Sure. You need to understand the dose. You

17 need to understand the dose and the rate and the

18 timing of when those -- when the infusions were

19 administered. All this is information that is

20 necessary to appreciate what the plasma

21 concentration time profile will be.

22 Q Are there any other variables that affect

23 the concentration levels?

24 A Well, we've talked about the dose. We've

25 talked about the infusion rate. Infusion rate

0357

1 can influence.

2

There are components that are associated

3 with the physiological status of the individual.

4 For example, we discussed that thiopental's

5 uptake into the brain and distribution to tissues

6 is primarily determined by the rate of blood flow

7 to those tissues.

8

Overall the amount of blood circulation

9 that is going on in the body is a thing called

10 cardiac output, how many liters of blood per

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11 minute is coming out of your heart, and, of

12 course, each organ has its flow rate that takes a

13 fraction of that cardiac output.

14

If the -- given that thiopental is a --

15 has blood flow-limited distribution

16 characteristics, if I increase the rate of blood

17 flow in an individual or if I have an individual

18 with a high rate of blood flow, the distribution

19 clearance of that individual will be higher than

20 someone with, let's say, a normal cardiac

21 output.

22

So you can think of changes in

23 cardiovascular status as changing the rate of

24 distribution. The faster -- the higher the rate

25 of cardiac output, the faster the rate, the

0358

1 shorter it takes to do a halving of the plasma

2 concentrations and the brain concentrations.

3 Q Will that shorten the half life?

4 A It will shorten the half life. So instead

5 of halving every two and a half minutes, you may

6 have someone who with a high cardiac output

7 having a half time of one and a half, one and

8 three-quarters minutes, it cuts in half.

9 Q And in affecting the concentration level

10 obviously it affects the level of anesthetic

11 depth?

12 A At any particular time it will then affect

13 the level of anesthetic depth.

14 Q Does -- does body composition have any

15 impact on concentration levels achieved?

16 A Well, yes. It's been established that there

17 are several other things that are important. One

18 is body composition. Body composition -- what I

19 mean by that is, you know, how much muscle mass

20 does someone have, what percentage muscle mass,

21 is someone very robust, very muscular versus

22 someone who is small and frail. This is -- and

23 the changes in the type of body composition.

24

So even given -- even given the same

25 weight people can have a different amount of fat,

0359

1 lean body mass and so forth. Well, that changes

2 the distributions of blood flow. Okay? Because

3 different organs, different tissues have

4 different flow rates.

5

So body size is important, but not only

6 body size but body composition affects these

7 blood flow rates and, therefore, can affect -- is

8 an important determinant of the -- of the time

9 course of thiopental concentrations.

10 Q Doctor, I've -- given this background

11 information, I'd like to turn our attention back

12 to 770.

13

Are there specific concerns that you

14 have about 770 and its ability to produce a

15 humane execution or an execution without pain?

16 A Well, yeah. There are several. One of my

17 first concerns about the protocol is there is

18 really no specification of the infusion rate.

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19 It's given as a -- as "slow."

20 Q Is "slow" a scientific term?

21 A No, it's not. "Slow" is relative and it's

22 going to be -- it's going to be relative to how

23 the person who is administering it determines

24 what "slow" is.

25

Stepping back -- stepping back and

0360

1 putting on my pharmacist hat, "slow" would not be

2 a valid prescription. It would be a

3 prescription -- instructions that I would have to

4 reject as a pharmacist as not being a valid -- as

5 not being a valid protocol, valid prescription in

6 order to administer drugs.

7 Q In examining the execution logs, did you, in

8 fact, see variability in the rates of

9 administration of drugs?

10 A We didn't see variability in the rates.

11 What is listed in the execution logs are the

12 times when different injections were started. So

13 if I make an assumption that what was happening

14 between, let's say, the time the thiopental was

15 started and when the pancuronium was started,

16 that that -- the time period between -- that is

17 recorded on the logs, what was happening is

18 thiopental was being administered, what we find

19 is that there is a ninefold range in the rates

20 of -- or the duration of thiopental

21 administration.

22

Of course, that's an assumption I'm

23 making. That's what -- I translate that into a

24 rate. I'm assuming that -- that the reason why

25 the pancuronium was not given is that they were

0361

1 still completing the thiopental infusions.

2 Q Are there other factors that give you

3 concern? For example, does the protocol provide

4 for a mandatory premedication of inmates?

5 A No, it doesn't.

6 Q And what impact does that have on your

7 analysis?

8 A Well, that can impact, again, the

9 concentration-response relationship. It changes

10 the concentration -- it could change the

11 concentration required to produce adequate

12 anesthesia.

13 Q And as we discussed changing the

14 concentration --

15 A It can do another thing, too, because the

16 reason -- part of the reason why the

17 premedications are being given is to have the

18 patient in a calm state.

19

You don't want patients who are going to

20 receive a drug which is so highly dependent upon

21 blood flow to have a highly variable blood flow

22 rate. You would like to have that individual

23 stabilized so that they have a typical blood flow

24 rate.

25

I would -- based upon looking at some of

0362

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1 the heart rate data that is -- that was recorded

2 in the execution logs the -- you know, one

3 conclusion you could draw is that the -- several

4 of the individuals were in a very highly anxious

5 state in a -- in a fight-flight syndrome where

6 they would be probably very anxious and they

7 would have all the autonomic responses of

8 fight-flight where you would ramp up your cardiac

9 output to -- to actually allow you to run or get

10 into a fight.

11

So that itself would then change --

12 could then, as we talked before, change the

13 pharmacokinetic characteristics and effectively

14 reduce the effective dose or the effectiveness of

15 a given dose.

16 Q Doctor, given the failure to address these

17 various variable factors, can you make any

18 determination as to what concentration levels

19 would be after administration of the 1.5 gram

20 dose and starting the drip?

21 A Well, given -- given the -- you know, we

22 would expect to have more highly variable

23 concentration time profiles between individuals

24 than you would in the clinical setting. We would

25 also expect to have for those individuals that

0363

1 have high cardiac output that they would have

2 lower -- lower concentrations than would be

3 expected if they had normal cardiac output.

4

Then there's the whole issue about the

5 timing and the sequence. Given that thiopental

6 has such a short distribution half life, you have

7 to act with haste to -- after you administer the

8 thiopental and have the thiopental oblate

9 consciousness, you have to act with haste to then

10 apply the stimuli to make sure that the plasma

11 concentrations have not declined by the time

12 you -- to a level that would be unacceptable by

13 the time you actually apply the pancuronium and

14 the potassium chloride.

15

Given my examination of the logs, I see

16 this as a very -- you know, as a very major area

17 where tremendous amounts of variability could

18 occur that would allow some individuals who were

19 receiving execution by this protocol to

20 potentially emerge from anesthesia before the --

21 before the noxious stimuli are applied.

22 Q Given this level, high level of variability,

23 can you draw any conclusions as to the likelihood

24 of any individual obtaining a painfree execution?

25 A Well, we don't have a -- first of all, we

0364

1 don't have a -- you know, a -- we don't have a

2 model right now to deal with that issue, but for

3 any individual right now just taking -- no

4 information about the individual, you really

5 cannot make predictions because of the

6 variability, what someone will actually

7 experience.

8

If we had a model, you could potentially

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9 make some statements about what percentage of the

10 population would experience, you know, a painful

11 execution, but that's a major effort to actually

12 go through and integrate and pull all the pieces

13 together.

14

The situation is very complex and

15 affixing one of these variables is -- you know,

16 with all the other things that are in play is not

17 necessarily going to be sort of a magic balm that

18 will resolve the issues.

19 Q Do you think it's fair to say that in order

20 to correct any problems with the protocol, you

21 would need to address all of these variable

22 issues and address the interaction between them

23 in order to come up with an acceptable protocol?

24 A A lot of serious thought would have to be

25 put in to understanding these -- these issues,

0365

1 and taking all these things into account to come

2 up with a protocol that would with very high

3 levels of probability prevent the occurrence of a

4 painful execution.

5 Q Based upon your review of the protocol and

6 your knowledge and experience, do you think that

7 that sort of an exacting scrutiny of the protocol

8 has been conducted?

9 A Absolutely not.

10 Q And given these variable factors and the

11 interaction of them, would we need to have a

12 trained, medically trained individual, an

13 anesthesiologist, for example, on premises to

14 monitor the inmate in order to determine if the

15 drugs were having their intended effect?

16 A I would -- I would argue that, yes, that

17 would be required. But more importantly beyond

18 that, you need to be able to have the

19 anesthesiologist to interact and adapt to the

20 situation to be able to determine what the dose

21 would be, to determine what to do if some mishap

22 occurred and I'm two minutes late on the

23 pancuronium, to be able to make judgment at that

24 point.

25

This is the way clinical anesthesia is

0366

1 done and it's the reason why -- it's not just

2 because someone is trained, but because they can

3 actually integrate this information together and

4 figure out what is the appropriate step to do at

5 that time in order to -- to ensure that the

6 individual is not experiencing pain.

7 Q In the absence of that sort of input, can we

8 be sure that the protocol is working?

9 A Well, we can't be sure that -- well, from

10 just observing the individual we can't be sure

11 that the protocol is working. We could have some

12 situations where, I guess, you would have

13 individuals wake up, and, you know, you would see

14 that, but, unfortunately, the pancuronium

15 bromide, okay, being a muscle relaxant basically

16 blocks all ability for an individual to give

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17 physical signs that they are experiencing pain.

18

It's a muscle relaxant. You can't

19 breathe. You can't move. You can't grimace.

20 You can't blink. You are paralyzed. That

21 doesn't mean that you are not experiencing

22 sensations and you're not registering those

23 sensations.

24

In other words, what we've done in that

25 situation is we've blocked the ability for that

0367

1 individual to communicate to the outside world

2 that they are experiencing potentially a very

3 painful death.

4

MR. STEINKEN: I have nothing further,

5 Your Honor.

6

THE COURT: All right. Cross-examine?

7

MR. MATTHIAS: Thank you, Your Honor.

8

CROSS-EXAMINATION

9 BY MR. MATTHIAS:

10 Q Dr. Ebling, I think we can all appreciate

11 that anesthesiology is a very tricky enterprise;

12 is that correct? Do you agree with that?

13 A That's correct.

14 Q And that's largely because in a clinical

15 setting you're concerned about two things, making

16 sure you give enough and making sure you don't

17 give too much; is that correct?

18 A That is correct.

19 Q So there's really no much as erring on the

20 side of caution in that context because there are

21 two sides to the caution. There are two things

22 to be concerned about. So you need to do all

23 this fine-tuning and take into consideration all

24 of the factors of variability that you've

25 outlined for us in great detail.

0368

1 A Right.

2 Q You do appreciate, do you not, that an

3 execution is a very different context?

4 A Absolutely.

5 Q And it is for that reason alone perhaps

6 twice as simple or at least not half as hard?

7 A That is correct.

8 Q Doctor, from my observation of your -- of

9 your CV, you haven't done any published studies

10 involving thiopental for 14 years; is that

11 correct?

12 A That is correct.

13 Q Now, with respect to those funded research

14 projects that you've lifted -- or that you've

15 listed, rather, on your CV, how many of those

16 involved human subjects?

17 A Of the funded -- of the funded projects?

18 Q Yes.

19 A Okay. The -- the NIH grant from the

20 National Institute of Aging was involving human

21 subjects. There were other grants that I was

22 working on that I was not a co-investigator with,

23 but I was getting funding from Dr. Stanski's --

24 Dr. Stanski's funding when I wasn't listed as an

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25 investigator, but I was working on those grants

0369

1 where we were looking at a variety of different

2 anesthetics, not just thiopental, but narcotics

3 and Propofol and so forth.

4

So of the ones that I have been listed

5 as an investigator on there is one NIH grant

6 where I am -- which was primarily focused on

7 human subjects.

8 Q What I'm asking you about are the funded

9 projects listed on page 4 of your CV. That's

10 what I'm asking about. How many of those

11 involved human subjects?

12 A One of those, but it was a major, major,

13 multi-year grant that covered a five-year period.

14 Q One study?

15 A No. It was a grant that included several

16 studies within it. So there were several

17 clinical studies that were included in that.

18 Q One project?

19 A One project.

20 Q Okay. Thank you. And that was completed 14

21 years ago?

22 A Yes.

23 Q And all your studies involving thiopental

24 involved experimentation with what could be

25 called clinical doses; right? You explained that

0370

1 earlier?

2 A Yes.

3 Q And because of the difficulties and in some

4 cases the utter impossibility of studying it at

5 any higher?

6 A That's correct.

7 Q Or at least grossly higher?

8 A Right.

9 Q By the way, a clinical dose -- I realize

10 it's difficult to generalize, but it's done every

11 day in medicine. What is a -- what is a

12 typical --

13 A Currently now with -- currently -- currently

14 the doses are running around 250 to 350

15 milligrams as -- for the induction doses.

16 Q Okay. Now, you described pancuronium -- the

17 administration of pancuronium as a noxious

18 stimuli, and you mentioned some other noxious

19 stimuli like that resulting from intubation or

20 something else. And you told us it was noxious,

21 but you didn't tell us where on the continuum of

22 noxiousness the administration of pancuronium

23 bromide would fall.

24

Could you help us out on that, plug it

25 in somewhere for us?

0371

1 A Yeah. Again, what you actually have here

2 with the pancuronium is a stimulus that is

3 continuing to increase over time because you stop

4 breathing. It's not because I stopped breathing

5 that creates the stimulus. It's the hypercarbia

6 that is building, the acidosis that is building.

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7

So in a situation where there is a

8 continual increasing rise in the level of the

9 noxious stimuli, clearly if we were in a burst

10 suppression range, my opinion is that patients

11 would not become aware of that or could not be

12 aroused because of the hypercarbia.

13

But at lower levels that, let's say,

14 are -- that would be -- lower levels of -- of

15 anesthesia such as being able to respond to a

16 muscle squeeze or so forth, that someone may be

17 aroused by that.

18

But, again, this is very highly

19 speculative because we simply don't do studies

20 like this and figure out, you know, let's

21 suffocate somebody and find out what -- you know,

22 when they will wake up.

23 Q I appreciate that. But there's a lot of

24 daylight between the two end points you just

25 described, burst suppression on the high end --

0372

1 A Right.

2 Q -- and the minimal level of anesthesia that

3 would, say, not oblate consciousness when there

4 is some form of physical stimulation. There's a

5 lot of room in between.

6 A There's a lot of room there.

7 Q And where does pancuronium fall, if -- to

8 the extent you can tell us. If you can't, that's

9 fine.

10 A There's a lot of room there, but

11 concentrations for being awake are down around 5

12 to 7 micrograms per mL, and given that -- given

13 that we are dealing with these rapid distribution

14 half lifes, that's only three distribution half

15 lifes away in time. So we have to put it into

16 context.

17

We have a dose, a steep dose

18 concentration-response relationship and a steeply

19 falling set of plasma concentrations that are

20 being dissipated.

21

THE COURT: Can I just make sure I

22 understood you again.

23

You're -- at what dose are you making

24 that assumption? At the 1.5 grams?

25

THE WITNESS: The -- the assumption

0373

1 that --

2

THE COURT: That you have a very

3 steep --

4

THE WITNESS: Well, the dose-response

5 relationship is independent -- the

6 concentration-response relationship is

7 independent of the dose.

8

THE COURT: That's true. You said

9 that. So it doesn't matter what the dose is,

10 but, hypothetically if the dose were 1.5 grams,

11 you're still going to have a steep dropoff.

12

THE WITNESS: Yes.

13

THE COURT: And the question is has the

14 dropoff been too steep before you induce the

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15 pancuronium.

16

THE WITNESS: Right.

17

THE COURT: But I think, if I understood

18 Mr. Matthias's question, he's saying, well,

19 what -- where does the pancuronium fall into the

20 spectrum of noxious stimuli.

21

THE WITNESS: And I would put it between

22 the 5 microgram per mL and the 43 microgram per

23 mL.

24

THE COURT: Where in that spectrum?

25

THE WITNESS: Again, I don't think we

0374

1 can speculate.

2

THE COURT: And then one other question

3 about it before counsel continues, and that is at

4 the dose of pancuronium that's specified in the

5 protocol, how long would you expect that dose to

6 suppress breathing?

7

THE WITNESS: The pancuronium?

8

THE COURT: Yes.

9

THE WITNESS: Pancuronium for all

10 intents and purposes is irreversible. It's such

11 a massive dose.

12

THE COURT: It's long acting and from

13 that dose there's no coming back from it?

14

THE WITNESS: Right.

15

THE COURT: Okay.

16

MR. MATTHIAS: Thank you, Your Honor.

17 BY MR. MATTHIAS:

18 Q Doctor, what I would like to do now is

19 address some of those specific concerns about 770

20 that you just identified. The first one was that

21 it fails to specify the rate of infusion, opting

22 only for the word "slow," which is a relative and

23 I think you said imprecise term.

24 A Right.

25 Q What's an ideal rate of infusion? Ideal

0375

1 meaning to maximize the duration of the

2 effectiveness of the anesthetic agent being

3 injected.

4 A Well, there's an interplay there between

5 rate and dose. Rate is just as important as

6 dose. So there are two pieces of the equation

7 that you need to put together so that there is a

8 duration of effect, a time to onset a peak

9 concentration and a -- time to onset peak

10 concentration, time to offset that would be

11 associated with any two dose rate pairs.

12

Rate is just as important as dose. So

13 without having the context of what the dose is,

14 you can't state what would be the optimal rate.

15 Q 1.5 grams; what's the ideal infusion rate?

16 A I don't -- I -- I could not speculate on

17 that based upon -- because I don't -- the

18 situation is so complex that what we really need

19 to understand from my perspective is not what

20 happens in the typical patient or typical

21 individual. There's some type of a criteria that

22 we need to understand that is what is the risk

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23 that we're willing to take.

24

Is it okay to have one in ten

25 individuals experiencing pain? One in five? One

0376

1 in twenty? Each one of those levels or criteria

2 of what is my risk aversion criteria would have a

3 different optimal rate.

4

So you can't talk about what optimal is

5 without saying what am I willing to risk.

6 Q Well, you observed that there was a ninefold

7 difference in evidence in the execution logs, by

8 which I assume you meant to say that from the --

9 from your observation it looks as though the time

10 between the administration of the thiopental and

11 the administration of the pancuronium was as

12 short as one minute --

13 A Yes.

14 Q -- and as long as nine minutes.

15 A That's correct.

16 Q As between the two, which is better? One

17 minute or nine minutes?

18 A Faster infusion rate will be better because

19 with faster infusion rates you will achieve

20 higher peak plasma concentrations. If I cut the

21 rate in half, I'm essentially cutting the peak in

22 half. So it is better to administer the drug

23 fast and in that context you need to administer

24 the follow-on drugs fast.

25

Thiopental, again, is being -- if you

0377

1 look at the characteristics of thiopental, it's

2 basically used to get the endotracheal tube in

3 and then start the other anesthetics and do that

4 quickly.

5 Q So faster is better?

6 A Faster is better.

7 Q And if a minute is good, then a half minute

8 is better?

9 A You get to a point where you start running

10 into physical constraints. How rapidly can I

11 push an infusion.

12 Q Uh-huh.

13 A How much fluid can I push down an arm vein.

14 These -- these issues need to be considered and

15 would be the -- I believe to be the -- what would

16 limit effectively the rate that you could

17 maximally go to.

18 Q Well, would it be fair to say, then, the

19 optimal answer or the answer to the question of

20 what would be optimal would be as quickly as

21 possible without risking blowing a vein?

22 A What is that?

23 Q That's my question. Would that be the

24 description?

25 A I would say that's the description of the

0378

1 problem.

2 Q Right. You can't tell me --

3 A I can't tell you the answer and, you know, I

4 think that's something that we'd have to -- you

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5 know, has to be figured out, what is that rate.

6 Because there's consequences to blowing a vein.

7 Q Indeed. Which may be the reason that the

8 Department of Corrections has taken more time in

9 some instances than others. Has that thought

10 occurred to you? That it was aversion to blowing

11 a vein that explains the variance that you were

12 so critical of.

13 A Well, that's -- that is -- that may be what

14 the issue is, and it -- and -- well --

15 Q You also were critical because the protocol

16 does not provide for premedication?

17 A It doesn't require premedication.

18 Q Right.

19

And the benefit of premedication in a

20 clinical context is that it allows less -- a

21 smaller quantity of anesthesia end would achieve

22 a greater anesthetic effect or an equivalent

23 anesthetic effect to a larger dose without the

24 premedication; is that correct?

25 A I would state it another way.

0379

1 Q I'm sure you would and it would be a lot

2 better. So please do it.

3 A I would state you would give premedication

4 to reduce the variability that you would expect

5 to have from patient to patient by normalizing

6 people to, you know, a common set of

7 characteristics. I would have a much more

8 predictable response to a given dose and less

9 variability from subject to subject.

10

The subject with the high cardiac

11 output versus -- you wouldn't see that patient or

12 that subject because you would move them into --

13 Q But it would allow the clinician to more

14 confidently give a slightly lower dose, which is

15 a good thing; you don't want to give more than

16 you have to?

17 A Well, in this context I'm not sure less is

18 better.

19 Q No. I'm talking about in surgery.

20 A In surgery?

21 Q One of the benefits of the premedication is

22 that you can comfortably ease up on the amount of

23 anesthesia and be confident that anesthesia would

24 be achieved?

25 A That's right.

0380

1 Q Okay. Thank you. When you talk about high

2 cardiac output, you're not equating that with

3 pulse rate, are you?

4 A No.

5 Q There's a difference between the two?

6 A Absolutely.

7 Q And why is that?

8 A Cardiac output has to do with how much --

9 how many liters per minute are actually being

10 pumped out of the heart, and cardiac output or

11 the flow rate is dependent upon many factors, one

12 of them being heart rate, but it has to do with

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13 the force of contractility of the heart, how

14 strongly does the heart squeeze, which is

15 enhanced in the presence of adding energic

16 stimulation. It has to do with -- it has to do

17 with the intrinsic ability of an individual to

18 raise their heart rate.

19

So heart rate is not a -- a direct --

20 it's a very indirect measure of -- of cardiac --

21 of cardiac output, and it may not necessarily

22 represent high cardiac output. There are

23 clinical situations where high heart rate

24 actually leads to lower cardiac output as when

25 people are going through cardiac failure.

0381

1 Q Maybe I misunderstood you earlier then in

2 the direct testimony, but I thought you said you

3 suspected that there may have been some evidence

4 in the execution logs or in the records of

5 executions in California that some of the inmates

6 were in a state of high cardiac output.

7 A Well, I base that upon looking at heart

8 rates such as 140 beats per minute while the

9 individual is laying on the table. Now, I want

10 to make an assumption that the person was not in

11 a state of cardiac failure, okay, and was trying

12 to compensate.

13

I'm assuming that an individual with a

14 heart rate of 140 beats per minute, that that is

15 not a typical, normal resting heart rate, and

16 that there is something driving that, and to me

17 thinking about what the environment is it would

18 probably be anxiety and fright would lead to

19 cardiac heart rates of 140 beats per minute.

20 Q But it's not the pulse rate itself that

21 suggests that to you?

22 A It's the -- that suggests what?

23 Q There's a difference between high pulse rate

24 and high cardiac output, and you've explained it

25 very ably.

0382

1 A Right. And -- yes. I'm assuming that that

2 was an indicator of stress, of anxiety, of

3 fright. And one of the -- one of the attributes

4 of fright is to increase cardiac output. So if

5 the expectation would be if someone was fearful

6 and anxious that they would have a higher blood

7 flow rate than someone who was calm and sedate, I

8 don't think that's unreasonable.

9 Q You also said that the protocol does not

10 take into account the excitability of the inmate

11 and the vice of not taking into excitability --

12 well, if it were a surgical context, you would

13 take into account excitability and would

14 compensate for that by increasing the dose?

15 A Or premedicate the patient.

16 Q Right. Here you can compensate in part for

17 any of the effects of excitability by increasing

18 the dose?

19 A That's correct.

20 Q And the dose is very high here?

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21 A Well, it is high, but we have to take a look

22 at it in terms of several issues. When you

23 combine them together, it could be bringing us

24 into a range where we are dealing with doses that

25 are as effective as clinical doses.

0383

1

In other words, high cardiac output,

2 prolonged infusion rates to lower the

3 concentrations down. Okay? And a delay in time

4 giving the pancuronium. Those come together

5 synergistically to increase the risk of

6 awareness.

7

So, again, any one of those factors you

8 can't deal with. You know, it's like you can

9 compensate, but bringing these together, you

10 know, opens up the possibility that with this

11 reduced dose, rather than a 5 gram dose, this

12 reduced dose, now we're bringing ourselves into

13 the range of potentially clinical doses.

14 Q But you would feel that 5 grams would take

15 care of the absolute worst case scenario, but 1.5

16 does not; is that your testimony?

17 A No. I wouldn't state that either because

18 now -- I have a problem with very high doses.

19 Okay? First of all, with very high doses we're

20 going to be in a situation where we may put the

21 patient into such cardiovascular shock from such

22 a massive dose where the individual's blood

23 pressure falls so far that what they do is that

24 they constrict all their blood vessels in the

25 periphery, in their muscle beds, and try to keep

0384

1 the brain going and try to keep the kidneys and

2 the heart, which is what we do when we go into

3 shock, that subsequent administration of other

4 drugs, such as pancuronium, never get out of the

5 vein because there's no blood flow going out to

6 the arms. And for pancuronium to come down the

7 arm vein there has to be viable blood flow going

8 down the arm, and a patient in shock does not

9 have good peripheral blood flow.

10 Q So 5 grams is too much?

11 A Five grams will -- is 5 grams too much?

12 What I'm saying is that 5 grams puts us into

13 another area of complexity.

14 Q And 1.5 might be too little?

15 A It could be in certain individuals given

16 an -- and timing issues that are not specified --

17 you know, that are not controlled in the

18 protocol.

19 Q But could be controlled?

20 A We're talking about this particular

21 protocol.

22 Q Right. And I'm asking you how we might

23 improve it, specifying a rate, for example, going

24 back to an earlier question, what's the ideal

25 rate, what's the ideal dose, what's the ideal

0385

1 combination of the two.

2 A Sure. I have been asked to comment about

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3 the issues around this particular protocol --

4 okay? -- and whether this particular protocol is

5 placing individuals at risk of a painful

6 execution. It is my belief that -- that there is

7 sufficient cause to suspect that this protocol

8 could lead to in some individuals painful

9 execution.

10

I have not been asked to -- I have not

11 been asked to optimize and design and engineer a

12 protocol for the State of California.

13 Q No, you haven't. But you are subject to

14 cross-examination on your opinions. You

15 understand that?

16 A Right.

17 Q And to the extent you identify something as

18 an imperfection, I am entitled to ask you what

19 might make it less of an imperfection or how it

20 might be more perfected.

21 A The way that I would answer that is that an

22 extensive amount of modeling would have to occur

23 that deals with our uncertainties, what our

24 beliefs are in terms of our uncertainties, our --

25 what the expected variation is, models that are

0386

1 dealing with the complexities of destabilized

2 physiology during death.

3

In order to adequately discuss this and

4 address this it would require an extensive

5 investigation into the properties of different

6 protocols very similar to, you know, with -- you

7 would optimize other things in pharmacology.

8

And it's -- you know, the reason why

9 those efforts are very involved is because the

10 problem is very involved and we don't --

11 without -- without integrating all this

12 information together in a -- in a model, you

13 know, I think it is unwarranted to make any

14 recommendations at this time.

15 Q So if 1.5 might be too little and 5.0 might

16 be too much, I'm guessing somewhere around 3

17 might be either, but you won't tell me which?

18 A No. I am suggesting that there may not be

19 given your -- your risk aversion policy. Okay?

20 Thiopental might not even be the drug that you

21 want to use. So it's not trying to figure out

22 what is the dose of thiopental, but it's about

23 maybe the entire protocol needs to be rethought

24 and revised because given the properties of

25 thiopental it may not be possible to do this in

0387

1 an effective, safe way. Well, an effective way

2 without risking painful anesthesia or aberrant --

3 painful execution or an aberrant execution.

4 Q Do you know what a medically induced coma

5 is?

6 A Yes.

7 Q Do you know what agents are used to induce a

8 medically induced coma?

9 A You use thiopental to do that with

10 monitoring, always with monitoring.

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11 Q Pretty good drug?

12 A It's actually not a very good drug for that,

13 but it is used as sort of a last resort.

14 Q Because nothing else is on the shelf?

15 A No. Because, you know, you can do it also

16 with Propofol.

17 Q You said that the 770 has room for doubt and

18 there is a possibility that it will result in a

19 painful death. You also said that your opinion

20 was that 770 would not allow one to eliminate the

21 risk of a painful execution.

22 A Yeah.

23 Q Do you know of a protocol that would

24 eliminate the risk, all risk?

25 A As I said before, that is a -- in order to

0388

1 do that requires serious -- a serious examination

2 of the various factors that come -- to come up

3 with such a protocol.

4 Q How -- can you quantify the risk that you

5 think exists under 770?

6 A Those modeling aspects that I was talking

7 about would be actually focused on understanding

8 the risk of this protocol and alternative

9 protocols, and, therefore, by understanding the

10 risk of various scenarios, you can choose the

11 most appropriate scenario that would minimize

12 risk.

13

So what I'm saying there is no, I don't

14 know the risk. What I'm stating in my opinion is

15 that there is sufficient concern to say that

16 these things could be possible and they need to

17 be understood. Otherwise, we're flying blind.

18 Q Well, it could be possible?

19 A It could be --

20 Q It could be possible that the protocol will

21 result in a painful death?

22 A Yes.

23 Q Okay. And that's the most you can say?

24 A Yes.

25 Q You've looked at the execution logs. Do you

0389

1 have an -- is it your view that any of those

2 inmates -- can you say to us that it's your

3 belief that any of those inmates suffered a

4 painful death?

5 A I can't tell from the data. It only

6 includes times and heart rates.

7 Q If an ordinary dose of thiopental is between

8 250 and 500 -- is that about right?

9 A Five hundred is today high.

10 Q Okay.

11 A It used to be up to 750.

12 Q Would you ordinarily expect -- taking into

13 account all issues of patient variability, would

14 you ordinarily expect 1.5 grams administered

15 over, say, two and a half minutes would induce

16 unconsciousness?

17 A Yes.

18 Q And how soon?

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19 A At -- at -- would be unconscious at the end

20 of that infusion.

21 Q And how long would you expect that state of

22 unconsciousness to last?

23 A Are you asking me about -- I don't want

24 to -- I don't want to discuss the typical. Are

25 you asking me about the typical?

0390

1 Q Well, give me a range. If you need -- if

2 that's the only way you can answer the question

3 by taking into account all of the possible issues

4 of variability, give me a range.

5 A Okay. Given all the variability, given all

6 the situations that we talked about before in

7 terms of changes in pharmacodynamics -- okay? --

8 changes in cardiovascular function -- okay? --

9 under those particular situations the variability

10 is now in what the pharmaco -- what's going on

11 with the pharmacokinetics is clearly above the 30

12 percent variability that we're seeing in the

13 clinical situation. We're probably exceeding

14 100 percent variability from subject to subject.

15

One of the features of

16 pharmacokinetics -- okay? -- is that the -- as

17 you go out in time the range of times where

18 someone will hit a particular level will keep

19 getting wider and wider because you can think of

20 people declining down on different slopes. So

21 there is a -- without doing the appropriate

22 robust analysis, I don't think you could off the

23 cuff state what that would be given the fact that

24 the conditions that we were talking about are not

25 anesthetic sparing. They actually lead to a

0391

1 greater anesthetic need.

2 Q You said that --

3 A So maybe one and a half grams is equivalent

4 to 750 milligrams. Maybe it's equivalent to 650

5 milligrams. I don't know under those

6 circumstances.

7 Q You said that if 1.5 were administered over

8 the course of two and a half to three minutes,

9 the subject would be unconscious at the end of

10 the administration?

11 A At the end of the administration.

12 Q Worst case scenario, when is the soonest

13 he's going to wake up?

14 A I cannot state that.

15 Q So it could be immediately?

16 A No. It won't be immediately.

17 Q All right. So help me out. We know it's

18 not immediate.

19 A I will put it -- I will put it into the

20 clinical range as probably the lower lid, which

21 puts me at five minutes.

22 Q So under the worst case scenario, we're good

23 for at least five minutes?

24 A That's someone becoming awake.

25 Q Right.

0392

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1 A We're not talking -- in terms of 2 experiencing painful death, it's not about 3 whether someone is awake. It is about whether 4 someone experiences the excruciating pain of the 5 potassium chloride injection. 6 Q All right. 7 A And whether they can be aroused so that the 8 level required to oblate that response will be 9 much, much higher. 10 Q Would the 1.5 administered over two and a 11 half minutes oblate consciousness well enough for 12 a surgical procedure? 13 A You don't use thiopental in -- for 14 intubation? Yes. Not -15 Q Well, thiopental has been used in surgical 16 applications. 17 A Yes. And it's been abandoned because it has 18 undesirable properties. 19 Q Right. And you've studied it for a good 20 part of your life. So it's a fair question. If 21 it were -- just think back to the time when it 22 was used in surgery and tell me whether or not 23 1.5 administered over two and a half minutes 24 would be good enough to start doing surgery. 25 A You could probably do surgery, but we are 0393 1 also -- you know, you could probably do 2 surgery under -- initiate surgery, but I -- you 3 know, the issue is is that just that infusion 4 would not be sufficient because in anesthesia 5 practice it's not one dose and then go on. 6 Q I understand. 7 A It's a continual -8 Q But would it be good for five minutes? That 9 is what you said. I'm not trying to replow the 10 ground. I'm just asking. 11 A I said it would be good for five minutes 12 before someone would awaken. But that's 13 different from surgery. 14 Q If we cut the administration time from -15 from -- two, two and a half minutes down to one, 16 one and a half minutes, would we get ten minutes 17 of being asleep? As I understand, that's the 18 dynamic if you -- if you doubled the rate of 19 administration, you'd get more bang for your 20 buck, so to speak, and a better -- and a better 21 peak. 22 A You don't get longer duration. 23 Q You don't get longer half life, but you get 24 a better peak? 25 A You may have a higher peak, but you don't -0394 1 increasing the rate gives you a higher peak, but 2 it actually shortens the duration. 3 Q It shortens the duration? 4 A It shortens the duration. 5 Q So you'd have shorter half lives? 6 A No. It's because all the drug -- because 7 you're getting -- you're getting some effect 8 during the infusion. It's not that the person

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9 goes -- becomes unconscious at the end of the 10 infusion. 11 Q I understand. 12 A So you've got -13 Q So it's trade-offs? 14 A It's a trade-off. 15 Q Right. So quick bolus injections give you 16 huge peaks quickly, and slower administrations 17 give you a softer, sloped curve but tapering off? 18 A But tapering off rapidly after the end of 19 the infusion still. 20 Q After the end of the infusion? 21 A Yes. 22 Q Wouldn't that depend on the -- wouldn't that 23 depend on the dose? 24 A It depends upon the duration, how far you 25 fall. So, as I said, you know, with increasing 0395
1 duration, the -- the number of half lifes that 2 you fall in the rapid elimination phase decreases 3 before you enter into the slower middle 4 distribution phase. So you become just as rapid 5 initially, but you may only fall two distribution 6 half lifes versus four. 7 Q So this -- when this dynamic occurs and the 8 blood concentration starts to lower, that's not 9 when the patient necessarily comes out of 10 unconsciousness. Those events do not coincide. 11 A mere drop in concentration does not mean 12 consciousness is being restored. 13 A If it goes low enough, it will. 14 Q Yes, but not immediately. At the moment 15 that it starts to go down, looking at your -16 A It depends on -- it depends where you are 17 starting from. If I am on the edge of 18 consciousness when I turn off the infusion, I 19 will have immediate recovery as soon as I turn 20 off the infusion. 21 Q And if you're nowhere near that edge, you've 22 got a very large margin of safety? 23 A At very high levels, yes. 24 Q Like 1.5? 25 A No. That's a dose. 0396 1 Q Right. 2 A Okay? In order to talk about, you know -3 Q Well, high doses result in high 4 concentrations? 5 A High doses result in high concentrations and 6 everything else being equal, but everything else 7 is not equal here. 8 Q Could you address all problems of patient -9 interpatient variability just by increasing the 10 dose? I mean, can you compensate for it? 11 A As long as the drug remains linear in terms 12 of its bite -- you know, of doubling the dose, I 13 get double the concentrations, you know, 14 theoretically, yes, you can come up to a level 15 that I will capture the -- I will capture the 16 90th, I will capture the 95th, I will capture the

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17 99th percentile of those individuals over a

18 particular period of time.

19 Q Who aren't we capturing with 1.5?

20 A I told you I can't address that unless you

21 actually do the work.

22 Q So you'd just be speculating if you gave an

23 answer?

24 A Absolutely. But I'm not speculating as to

25 the determinants that can cause us to believe

0397

1 that there -- that we're not dealing -- you know,

2 that cardiovascular function is not affecting

3 things, that pre-anesthetic, that is not an

4 assumption; that it's because of these things

5 that it puts us into a realm where we may be

6 approaching clinical doses. So 1.5 may not seem

7 quite as high as 1.5 in this situation.

8 Q Because?

9 A Because of cardiovascular, because of

10 premedication, because of variable infusion

11 rates.

12 Q So for all of those reasons our 1.5 might

13 really only be what? .5?

14 A Again, until you put it together -- these

15 interact in a non-linear way. What I am raising

16 here is that there is a risk that you cannot say

17 absolutely with certainty that, oh, this is safe

18 or this is good.

19 Q Will thiopental ever disrupt respiratory

20 function?

21 A It does -- it does depress respiratory

22 function, and it depresses respiratory function

23 to a greater extent the higher concentrations you

24 go.

25 Q Will it ever disrupt respiratory function

0398

1 before it induces unconsciousness?

2 A No.

3 Q In your report you said that you thought the

4 continuous drip described in 770 might have

5 absolutely no effect at all. Can you explain

6 that?

7 A Sure.

8

THE COURT: Actually, if this is going

9 to be a new line of inquiry, maybe we should do

10 it after the break. So let's recess for about 15

11 minutes to approximately 3:15 and restart the

12 examination.

13

(Recess taken.)

14

THE COURT: In the matter of Morales

15 versus Tilton. Let the record reflect that

16 counsel are present.

17

And, Mr. Matthias, you may continue your

18 examination of Dr. Ebling.

19

MR. MATTHIAS: Thank you.

20 BY MR. MATTHIAS:

21 Q Doctor, I was about to turn to some

22 questioning about the continuous drip that I know

23 you're familiar with, but before I do that I want

24 to just back up and ask you something else.

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25

Would Valium be a suitable

0399

1 premedication?

2 A I would -- Valium is a drug that can be used

3 to treat anxiety. I am not an anesthesiologist.

4 Whether Valium would be the ideal or suitable or

5 what dose of Valium would be used as a

6 pre-anesthetic --

7 Q I appreciate that. Let me just ask it in a

8 way that I think you'll be more comfortable

9 with. Is Valium one of those drugs that is

10 sometimes used pre-anesthetically clinically?

11 A It can be, yes.

12 Q Going back also to your review of the

13 execution logs where you attempted to tease out

14 some information from the data that was set forth

15 there, and you got that on the low estimate of

16 perhaps a minute?

17 A Right.

18 Q A minute's duration of administration of the

19 thiopental to as much as --

20 A Nine minutes.

21 Q -- nine minutes.

22

And I think you said you -- you assumed

23 that that might -- that entire period of time

24 might equal the amount of time that the

25 thiopental was administered? If you saw -- you

0400

1 know, if it said 12:01 and then it said -- "12:01

2 thiopental," and then it said "12:05

3 pancuronium," you assume a four-minute

4 administration?

5 A If -- if I were to take that data and come

6 up with an estimate of infusion rate -- okay? --

7 that is potentially one way to get a handle on

8 what the infusion rates could have been with the

9 caveat that they were infusing over that time

10 period.

11

I would say that we really cannot make a

12 statement about what the infusion rates were.

13 Okay?

14 Q Because they may have varied within that

15 window of time?

16 A Or they could have infused for one minute

17 and then waited for eight minutes before giving

18 the -- so in that case it could just be a

19 protocol violation.

20 Q I'm sorry?

21 A It could be a protocol -- it could be --

22 well, it could be a protocol violation.

23 Q What provision of the protocol are you

24 imagining this to be --

25 A Well, immediately after giving the flush --

0401

1 Q Oh, I see what you mean.

2 A -- then you're supposed to administer the

3 pancuronium. Maybe, you know -- maybe they did

4 something else.

5 Q Of course, the flush itself takes time.

6 A Sure.

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7 Q So we know that if it said a minute between

8 the two drugs, the thiopental was something less

9 than a minute?

10 A Right.

11 Q And if it said nine, it was something less

12 than nine?

13 A Something less than nine, right.

14 Q Let's turn to the drip. You did say that

15 you felt that that would be completely

16 ineffective?

17 A Sure, yes.

18 Q And I'd like you to -- it's a very

19 open-ended question -- explain that, please.

20 A Sure. Now, this is based upon my

21 understanding of how these -- how the infusion

22 lines are set up. The thiopental drip is coming

23 into the other arm. There is a line that runs

24 from the patient's arm to outside the -- the

25 execution chamber to the -- the stopcock manifold

0402

1 where the drip is turned on.

2

The infusion line is primed, at least

3 from my reading of the protocol, is primed with

4 saline. Okay? The IV sets, I believe, were

5 six-foot-long sets of standard gauge tubing.

6 Okay?

7

Standard gauge tubing I'm using as an

8 estimate of what the -- based upon, you know,

9 manufacturer specifications, 1.8 mL per foot of

10 tubing. With two IV sets we have 12 feet of

11 tubing times 1.8 mil per foot -- okay? -- which

12 means that I have 21 point something mL of,

13 milliliters of saline in the line that goes from

14 the manifold to the -- to the patient's injection

15 site.

16

The protocol describes that the -- after

17 the -- describes that after the pancuronium is

18 injected they will turn on the -- the IV drip at

19 75 drops per minute, which corresponds to a flow

20 rate of 5 milliliters per minute. That means

21 that the sodium thiopental that is in the bag

22 takes -- with my shortest estimate of 12 feet

23 with two IV sets takes four minutes to run from

24 the manifold to the end of the catheter.

25

There's a four-minute dead time.

0403

1 There's a -- there's a -- there's a six-minute --

2 close to a six-minute dead time if there are

3 three IV sets that are used in terms of turning

4 on the infusion because the saline that is

5 preloaded in the syringe has to -- preloaded in

6 the line has to come out of that line before it

7 gets to the patient.

8

So the infusion actually doesn't start

9 until the thiopental gets to the tip of the

10 catheter in the inmate's arm. Okay? That's when

11 the infusion starts. So it -- approximately four

12 minutes after based upon my calculations. The

13 other drugs are already being given.

14

So it's basically we're chasing in a

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15 thiopental infusion after, according to the

16 protocol, the pancuronium and the -- and the

17 potassium chloride injections are already

18 administered. So, therefore, it doesn't

19 contribute to helping to oblate consciousness

20 that may be regained because of those noxious

21 stimuli.

22 Q And your four-minute estimate is based on an

23 assumption about the length of the tubing from

24 two critical points and your assumption about the

25 volume --

0404

1 A Right.

2 Q -- occupying the interior of that length of

3 tubing?

4 A It is not specified -- it is -- it is not

5 specified -- these are issues that are not

6 specified in the protocol. And so I'm going with

7 standard IV tubing that would be the type of

8 tubing that would be required to give the fast

9 flow rates that are being used for the other

10 injections.

11

We're not using the -- I'm assuming --

12 it's not specified that we're using the pediatric

13 microtubing with very low dead volume.

14 Q Well, isn't the simple answer to that then

15 to simply delay the injection of the pancuronium

16 until the benefits of the drip infusion can be

17 realized?

18 A That may be a solution. I'm just raising

19 the issue that the current protocol does not

20 address or -- that that -- that the infusion that

21 follows is not really -- would be effective

22 given -- in the way that it's currently given,

23 just because of the way the IV sets are set up.

24 Q Okay. Based on that rate that you

25 identified, which you state in the protocol is 75

0405

1 drips per minute, knowing as you do the

2 concentration of the 250 cc bag containing 5

3 grams, you can tell us how much --

4 A One hundred milligrams per minute being

5 infused into the individual once it gets to the

6 end of the catheter.

7 Q Right.

8

And that's -- that's a maintenance dose -- a

9 pretty good one on top of someone who's already

10 received 1.5. Yes or no?

11 A It is a -- it would be a maintenance -- it

12 would be a high maintenance dose. Okay?

13 However, when we talk about maintenance doses,

14 when we're talking about maintenance, we have to

15 basically be in the terminal elimination phase

16 which does not occur until about twelve hours

17 after thiopental is injected. That will -- is

18 what will produce a stable maintenance.

19

In order to maintain constant -- in

20 order to maintain concentrations stable, we have

21 to deal with the polyexponential nature of

22 thiopental's behavior, and a simple single rate

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23 infusion will not be able to compensate for the

24 polyexponential decay.

25

We need to have a complex infusion

0406

1 regimen that would basically be infusing --

2 infusing and changing over time to stop the

3 plasma concentrations and brain concentrations

4 from falling.

5

In clinical anesthesia practice this can

6 only be done by computer-controlled infusion

7 pumps that contain pharmacokinetic models of

8 thiopental in them, and it continually will

9 change the infusion rate to, quote,

10 "concentration clamp thiopental."

11

With a single infusion, we will have

12 a -- a dip, hitting a nadir, and then a slow rise

13 and, again, the start of that infusion occurs

14 four minutes after the actual stopcock is turned

15 on. So there's another timing delay there.

16 Q Well, you could construct a model or you

17 could construct a protocol where there's no dip

18 at all where if the infusion is started soon

19 enough that it peaks and then the infusion is --

20 A But that's not what's being done here.

21 Q The bolus dose -- the bolus dose could get

22 you to a fixed point?

23 A Right.

24 Q And the infusion rate could be engineered so

25 that it kicks in at the perfect moment and keeps

0407

1 you straight line --

2 A That's what's done currently in anesthesia

3 practice. That's the state of the art. This is

4 archaic.

5 Q And you're confident that people are waking

6 up from the 1.5?

7 A I told you before what I -- what I am

8 raising is that there is enough concern because

9 of timing issues, blood flow issues,

10 pre-anesthetic issues, that it warrants a serious

11 look at whether or not 1.5 is adequate to capture

12 whatever fraction of the patient execution

13 population that you wish to capture as not having

14 a painful execution.

15

THE COURT: You're talking about

16 protocol 770 as you've reviewed it without the

17 continuous drip; correct?

18

THE WITNESS: It has the continue -- it

19 has -- well, the one that I have is dated

20 March --

21

THE COURT: It does have a continuous

22 drip, but the continuous drip doesn't satisfy

23 your concerns for other reasons because of the

24 delay?

25

THE WITNESS: Well, there's the delay,

0408

1 and also a single constant infusion rate cannot

2 compensate for the polyexponential behavior.

3 Thiopental is not a monoexponential single phase

4 decay. It's got three phases and you need

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5 complex infusion paradigms in order to

6 concentration clamp.

7 BY MR. MATTHIAS:

8 Q And it needs to be more complex the longer

9 it needs to go on, but it can --

10 A Actually, it becomes less complex. It's the

11 most complex in the early phases where all of

12 these phases are actually acting. You're in the

13 most complex part of thiopental's disposition.

14 Q But a constant rate infusion can compensate

15 in all material ways if you -- if the period of

16 time is short enough. If we're only dealing with

17 a 10-, 12-, 15-, 20-, 30-minute period of time,

18 you could devise -- you could devise a constant

19 single rate infusion that would compensate for

20 all practical purposes?

21 A No, no. In order to -- in order to -- with

22 a single rate infusion by the time you end up

23 getting a constant concentration, you need to go

24 four half lifes -- four half lifes -- you need to

25 go four half lifes and it has to be four half

0409

1 lifes of the later phase.

2

So you're now talking about you'd have

3 to infuse for 48 hours before you would have a

4 non-changing plasma concentration with

5 thiopental. It would be -- if you wanted to have

6 it constant.

7 Q If you wanted to have it constant, but if

8 you just wanted it to be sloped so

9 nonprecipitously as to ensure that consciousness

10 would remain oblated for a fixed period of time,

11 you could do that?

12 A If you give a high enough infusion rate,

13 yes, but the infusion rate that is currently

14 being given is about one-quarter the rate of

15 infusion that is -- that you would use in

16 anesthetic induction.

17 Q It's 100 milligrams a minute on top of --

18 A Right. But we're giving -- in anesthetic

19 induction we're dealing with 350 milligrams over

20 15 seconds.

21 Q Not on people who have received 1.5.

22 A I don't know anybody who receives 1.5 in

23 clinical anesthesia.

24 Q Exactly. Let me ask you this: You referred

25 earlier to the concentration of the thiopental in

0410

1 the arterial blood supply as disappearing over

2 the course of time. Where does it go?

3 A The concentrations dissipate. The

4 concentrations fall. Where the thiopental, the

5 mass of the drug that is creating those

6 concentrations, so many milligrams per milliliter

7 of volume, that massive drug is primarily

8 going -- of course, it depends upon what time

9 frame we're talking about, but, as I stated

10 before, initially it is going to the high -- the

11 bulk, the majority of the drug is going to the

12 highly perfused organs.

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13

During the first four half lifes of the

14 rapid distribution phase it's rapidly coming out

15 of those tissues and moving in to the moderately

16 perfused organs, and then eventually -- and

17 including fat, and then eventually the final

18 terminal phase of the drug, the terminal half

19 life of twelve hours is when the enzymes that are

20 in the liver actually chemically destroy the drug

21 and metabolize it off.

22 Q As the blood concentrations drop, as the

23 concentrations of thiopental in the blood drop,

24 they don't disappear, they go to tissue, which is

25 where you want them to go; right? That's where

0411

1 it has its effect?

2 A You want them to go -- yes, you want them to

3 go to tissues, but you want them to go to the

4 appropriate tissues. The tissues -- the -- since

5 the brain is such a highly perfused organ --

6 okay? -- there -- and this has been demonstrated

7 both from -- in animals by doing time series

8 sacrificing of animals and looking at brain

9 concentration data and arterial plasma

10 concentration, by looking at animals and looking

11 at the time course of the EEG changes that are

12 occurring, and by looking at human data, by

13 looking at the time courses of human EEG changes

14 in conjunction with the arterial plasma, brain

15 concentrations are lagging behind by about 20

16 seconds of the arterial.

17

So you can think of the arterial

18 concentrations as basically representing the

19 brain concentrations with a slight 20-second

20 shift as they move down.

21 Q So declining blood concentrations are a sign

22 of success, the anesthesia is working, it's going

23 to tissues and doing its job. It doesn't have

24 any anesthetic properties in the blood system, in

25 the bloodstream?

0412

1 A No. It's telling -- it's telling -- the

2 declining plasma -- blood concentrations are a

3 very good surrogate for the concentrations that

4 are in the brain and the concentrations that are

5 at the site where the thiopental is -- is

6 designed to work.

7

Thiopental moving into muscle, moving

8 into fat, moving into skin doesn't anesthetize

9 muscle, it doesn't anesthetize skin, it doesn't

10 anesthetize fat.

11 Q And neither does staying in the blood;

12 correct?

13 A That's right.

14 Q Okay. We understand.

15 A But it's in the brain, too.

16 Q And that's where we want it?

17 A Right. And you can essentially replace

18 arterial plasma concentrations for brain

19 concentrations with a slight -- slight shift in

20 time.

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21 Q Doctor, is it your view that California 22 could not devise a satisfactory protocol without 23 first doing the kind of modeling studies that 24 your company does for pharmaceutical firms and 25 your clients are required to do by the FDA before 0413
1 bringing drugs to market? 2 A No. What I'm saying is that at least -- the 3 type of modeling doesn't need to be done, but 4 there needs to be a consideration of all the 5 factors rather than just saying, oh, 1.5 6 milligrams -- 1.5 grams of thiopental is enough 7 because it's a high dose. 8 Q But when all is said and done someone will 9 come up with a number? 10 A I would argue that if it was seriously 11 thought about, you may end up coming up with a 12 totally -- a radically different protocol that 13 may not even include thiopental because 14 thiopental may not be the ideal drug to do this 15 with. There may be other drugs that are more 16 suitable that place you at more risk.

17 Q Can you think --

18 A Less risk.

19 Q Can you think of one?

20 A Again, my -- my -- I don't want to speculate

21 about what is the best. There are other drugs.

22 Q Well, not the best. Just tell us one that's

23 better.

24 A Well, I can just list off all the other

25 intravenous anesthetics.

0414

1 Q No. Because some of them may not be better;

2 some of them may be worse. Why don't you tell

3 us --

4 A And I don't want to make a statement about

5 which ones are better. So I can list off all of

6 the intravenous anesthetics that are being used.

7 Q Okay. Name one.

8 A Fentanyl, Alfentanil, Sufentanil,

9 Remifentanil.

10 Q Okay. If we use Fentanyl, you would

11 essentially be testifying today exactly the same

12 way only saying "for all that we know thiopental

13 is better"?

14

MR. STEINKEN: Objection, Your Honor.

15 He's arguing with the witness.

16

THE COURT: Sustained.

17

MR. MATTHIAS: I'm done. Thank you,

18 Your Honor.

19

THE COURT: Let me just ask -- I have

20 some questions, but, Mr. Steinken, do you want

21 to --

22

MR. STEINKEN: I have no questions.

23

THE COURT: All right. Then let me

24 weigh in with the questions I have. And,

25 actually, I was going to go into a similar area

0415

1 to the one Mr. Matthias just did, but let me ask

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2 you about one area first.

3

You reviewed the execution logs that are

4 in evidence; is that right?

5

THE WITNESS: Uh-huh, yes.

6

THE COURT: Do you have an opinion as to

7 whether any of the data in those logs that you

8 observed are reflective of any of the potential

9 problems that you've testified about?

10

THE WITNESS: I am not sure what they

11 reflect. Okay? If I assumed that they are

12 accurate and that people aren't just making up

13 numbers and putting numbers in, what it is

14 telling me is that there is a -- there are timing

15 issues that are occurring.

16

THE COURT: What do you mean by that?

17 You've testified about a difference in time

18 between one minute and nine minutes.

19

Is that what you're talking about?

20

THE WITNESS: Right. So what that

21 indicates to me is that the infusion rates are

22 not being controlled, and since infusion rate is

23 as important as dose in determining the effect,

24 we have something that could be highly variable.

25

THE COURT: All right. So there's

0416

1 evidence of a variation in time. Presumably

2 there's no variation in dose. So the variation

3 would have to be in infusion rate; correct?

4

THE WITNESS: It either has to be in

5 terms of infusion rate or if the drug was -- or

6 if I make the assumption that during that entire

7 period what was happening was infusion. I mean,

8 the infusion could have been stopped at two

9 minutes and then they waited for --

10

THE COURT: Because there could have

11 been a problem --

12

THE WITNESS: Problem.

13

THE COURT: -- in the delivery of the --

14

THE WITNESS: Right.

15

THE COURT: -- dose to the inmate?

16

THE WITNESS: Right.

17

THE COURT: All right. But did you see

18 any indicia in the log that there actually --

19 logs, rather, that there were any such problems,

20 any notations that were consistent with any such

21 problems?

22

THE WITNESS: No. There was no notation

23 concerning what was happening.

24

THE COURT: Some of the logs reflect

25 that inmates were observed to be respirating some

0417

1 minutes after the infusion of the thiopental. Is

2 that remarkable in any way?

3

THE WITNESS: Of the thiopental?

4

THE COURT: Yes.

5

THE WITNESS: No, I don't believe so.

6 Thiopental is a -- will depress respiration. It

7 will depress respiratory drive. It is -- as far

8 as anesthetics go, it is not the most potent at

9 doing that. It doesn't have the behavior, for

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10 example, of high dose narcotic which basically

11 blocks respiratory drive.

12

THE COURT: We're going to get there,

13 but let me ask you one other question about

14 respiration. There's been testimony in this case

15 in earlier proceedings that a 5 milligram dose of

16 thiopental would cease respirations in virtually

17 everyone within a minute.

18

Do you have an opinion as to whether

19 that's accurate? Do you agree with that,

20 disagree with that?

21

THE WITNESS: I think -- well, again, I

22 think I'm going out of my area, but there's one

23 thing to stop respiration because I have shifted

24 the carbon dioxide exposure response

25 relationship, which is actually what drives

0418

1 respiration, but it is not unusual to have a

2 transient apnea and then as the -- as the carbon

3 dioxide builds up in the blood it rises to

4 sufficient levels to become a sufficient stimulus

5 now to start driving breathing.

6

So just like thiopental reduces the --

7 the magnitude of the -- of the stimulus that is

8 required for consciousness, it also decreases --

9 it also requires a higher stimulus to breathe.

10 And, as I said, if someone is not breathing,

11 carbon dioxide levels will be rising over time

12 and then that stimulus would be high enough

13 potentially to start breathing.

14

THE COURT: Okay. But I guess my

15 specific question is there is testimony in the

16 record that 5 grams of thiopental will stop

17 virtually 100 percent of all people from

18 breathing within one minute, and I'm just asking

19 whether you agree with that as a clinical matter.

20

THE WITNESS: From a clinical matter I

21 would say that you would get immediate -- you

22 know, acutely you would get apnea, whether or not

23 you would be able to sustain that apnea.

24

THE COURT: So it could be true, but it

25 could be not the entire truth is maybe another

0419

1 way of saying it.

2

In other words, you probably would

3 observe cessation of respirations given that dose

4 of thiopental, but it doesn't mean that the

5 person wouldn't resume breathing at some point a

6 minute or two later depending on what was going

7 on?

8

THE WITNESS: Right. That is what I

9 would believe. Now, as you increase the

10 concentration how long it takes before that

11 happens.

12

THE COURT: Okay. All right. Is

13 thiopental in and of itself sufficient to cause

14 death?

15

THE WITNESS: Sure.

16

THE COURT: Does it matter what the dose

17 is?

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18

THE WITNESS: Yeah. You have to give a

19 sufficiently high dose basically to cause

20 sufficient respiratory and cardiovascular

21 collapse. It will -- it will kill because of

22 circulatory -- circulatory and respiratory

23 collapse, not because of its anesthetic action.

24

THE COURT: Right. I understand. But

25 what would be a fatal dose of thiopental, a

0420

1 range? I realize it's going to be different

2 depending upon the person.

3

THE WITNESS: You know, I do believe

4 that potentially one and a half grams to three

5 grams is a -- could be potentially a lethal

6 dose. The issue about lethality here is not

7 will -- if I give 3 grams of thiopental, will

8 someone be dead in 30 minutes. I think the

9 question would be, well -- you know, and that --

10 it would be -- it would be a -- sort of an agonal

11 death that would take a while to go forward.

12

So the higher the dose, the faster it

13 would actually --

14

THE COURT: Well, all right. Let's say

15 someone was given 5 grams of thiopental and that

16 they were given it at a -- at a relatively rapid

17 rate. How long would it take someone to die? I

18 mean, what would be --

19

THE WITNESS: I have no experience in

20 killing people. So I don't know what it is.

21

THE COURT: No. I understand that, but

22 just based on what you know about thiopental.

23

THE WITNESS: I can tell you what we do

24 with animals. Okay? If -- if thiopental were

25 used, we never would rely on a barbiturate

0421

1 alone. We always would come along with another

2 intervention to ensure death. So, you know, I

3 have never euthanized animals with barbiturate

4 alone.

5

THE COURT: All right. What other type

6 of drug would you combine with the barbiturate?

7

THE WITNESS: To?

8

THE COURT: To kill an animal.

9

THE WITNESS: Well, the -- to tell you

10 honestly the way -- you know, to go into the

11 details about how we would euthanize animals if

12 thiopental were used, it would be basically a

13 high dose of thiopental -- okay? -- you know, 200

14 milligrams of thiopental to a rat, and then once

15 the animal was unconscious we would basically do

16 a thoracotomy, basically open the chest up, break

17 all the ribs open so that the animal would

18 physically not be able to breathe, and that

19 ensures death.

20

THE COURT: Sure. But if we're talking

21 about a combination of drugs, do you have any

22 expertise in that regard?

23

THE WITNESS: I don't have any expertise

24 in that, but I understand -- and I've -- I've

25 also used these -- these cocktails. There's a

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0422

1 cocktail that they use in -- in veterinary

2 medicine that is a combination of drugs and I

3 know a barbiturate is one of those drugs in that

4 combination. I don't know the details, but in my

5 experience in using that cocktail at the

6 recommended doses, that is very quick and with --

7 with no agonal signs, a very clean viewing like

8 a --

9

THE COURT: Do you know what type of

10 drug? I'm not asking you what drug it is, but do

11 you know whether it's a barbiturate or narcotic

12 or a paralytic? What category of drug is the

13 other drug?

14

THE WITNESS: I -- I can only -- I can

15 only speculate. I believe that there was some

16 drug in there that actually acted as a cellular

17 poison that actually stopped cellular metabolism.

18

THE COURT: Okay.

19

THE WITNESS: It wasn't a -- but I

20 would --

21

THE COURT: You're outside your area. I

22 appreciate your candor about that. I won't push

23 the point.

24

Let me ask you about barbiturates. As I

25 understand your testimony, you believe that

0423

1 thiopental is a unique barbiturate, that it has

2 properties which are unique to the class of drugs

3 to which it belongs; is that right?

4

THE WITNESS: There's a tool kit of

5 barbiturates as there's a tool kit of narcotics,

6 a tool kit of muscle relaxants, a tool kit of

7 anesthetic agents. Okay? Thiopental is at one

8 end of the spectrum of that tool kit as being the

9 ultra short-acting barbiturate. So it is unique

10 in the respect that it is sort of the extreme

11 example of a barbiturate that is used in

12 anesthesia.

13

THE COURT: Okay. And it's used in

14 clinical settings because it's short acting and

15 it's immediately followed by some other type of

16 anesthetic; correct?

17

THE WITNESS: And you want the effect of

18 the thiopental to wear off very quickly so that

19 the other -- you don't have complications with

20 the other anesthetics.

21

THE COURT: All right. I believe you

22 testified this morning that Propofol, which is a

23 drug that you've studied extensively, has the

24 advantage of not being as short acting; is that

25 right?

0424

1

THE WITNESS: Actually, it's --

2 actually, it is more short acting than

3 thiopental, but the important feature of

4 thiopental is that thiopental has a relatively

5 high rate of metabolism, and because it has a

6 high rate of metabolism it allows the

7 anesthesiologist to effectively use intravenous

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8 infusions to -- to establish levels of

9 anesthesia.

10

The anesthesiologists are very familiar

11 with using gasses and they dial gasses up and

12 down during a case and individuals basically come

13 to equilibrium with whatever level they set the

14 gas at. So it's a very controlled type of

15 anesthesia.

16

Propofol as an intravenous anesthetic

17 agent gives the anesthetist the ability to dial

18 the levels up and down.

19

THE COURT: Of the Propofol?

20

THE WITNESS: Of the Propofol. And

21 allows the -- but in order to use that

22 effectively you need to have the feedback of the

23 anesthetist.

24

THE COURT: You need some type of

25 monitoring.

0425

1

THE WITNESS: And someone making a

2 decision to go up or down.

3

THE COURT: When you say "dial up" and

4 "dial down," you're talking about the infusion?

5

THE WITNESS: Right.

6

THE COURT: Okay. But, actually, it's

7 at that short-acting end of the spectrum as well,

8 Propofol?

9

THE WITNESS: It's in the short acting

10 so that when you terminate that infusion of

11 Propofol, even after a long surgical case, the

12 patients emerge from anesthesia very quickly.

13

THE COURT: What about pentobarbital?

14

THE WITNESS: Pentobarbital is a

15 sluggish barbiturate that has slow onset and slow

16 offset.

17

THE COURT: When you say "slow," that's

18 a word you didn't like earlier. So let me ask

19 you to define it.

20

THE WITNESS: You know, I'm a little --

21 I'm a little reluctant to go into it because I

22 haven't used pentobarbital, you know, as a drug

23 per se, but the -- the -- you're not dealing with

24 two two-minute distribution half lives. We're

25 probably dealing with -- once you've achieved the

0426

1 concentration, you're dealing with distribution

2 phases that are, you know, on the order of ten

3 minutes --

4

THE COURT: All right.

5

THE WITNESS: -- or so.

6

THE COURT: And I realize this may be an

7 uncomfortable area for you to go into, and I'm

8 not trying to push you in an uncomfortable

9 position. I'm really at this point trying to

10 understand the chemistry. That's pretty much

11 it.

12

If you use a slower action barbiturate

13 such as pentobarbital, I take it it takes longer

14 to get to the same anesthetic depth; is that

15 right?

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16

THE WITNESS: It will take longer, but

17 that rate at which you get to unconsciousness, of

18 course, will be dependent upon the dose.

19

THE COURT: Sure.

20

THE WITNESS: The pentobarbital, if you

21 stopped administering pentobarbital, would be

22 more forgiving in terms of -- you know, it won't

23 boil off.

24

THE COURT: It's not going to dissipate

25 as fast. And, again, I appreciate the

0427

1 sensitivity of this, but I'm really asking this

2 question as abstractly as I can.

3

If you gave somebody a very large dose

4 of pentobarbital, say twice or three times the

5 clinical dose, and it were properly delivered,

6 that person would be out, to use a very

7 scientific term, for quite a while, 15, 20

8 minutes?

9

THE WITNESS: Again, I -- I can't make

10 quantitative statements. What I would be able to

11 say is that -- and, again, to really understand

12 that, you would, you know, really have to look at

13 the implications of the pharmacokinetics of

14 pentobarbital.

15

THE COURT: Sure.

16

THE WITNESS: What I would say is unlike

17 thiopental it would be much more forgiving in

18 terms of -- of -- of timing issues.

19

THE COURT: Right. Well, that's what I

20 understood you to say. I just want to make sure

21 I heard you correctly.

22

THE WITNESS: How forgiving, I don't

23 know.

24

THE COURT: Because that's -- you've

25 not -- you haven't written scientific articles

0428

1 about it.

2

THE WITNESS: Correct.

3

THE COURT: In terms of the effect of

4 premedication with a slower acting drug like

5 pentobarbital, does it make any difference?

6

THE WITNESS: The interactions should be

7 the same. It's a barbiturate.

8

THE COURT: But if you -- would it help

9 to premedicate a patient if you were going to

10 give them pentobarbital in terms of getting a

11 more efficient reaction?

12

THE WITNESS: Well, again, the

13 premedication context -- the premedication

14 context would be -- is an issue that is

15 particularly acute because of thiopental's blood

16 flow limited nature. Pentobarbital is less blood

17 flow dependent. Okay?

18

So my expectation would be that the

19 variability in pentobarbital response would be

20 reduced or not -- I shouldn't -- the variability

21 in pentobarbital is -- the variability -- the

22 variability in pentobarbital dose response

23 between individuals should not be as great as the

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24 variability of this -- those lightening drugs.

25

THE COURT: So the premedication issue

0429

1 is a less critical one?

2

THE WITNESS: From an issue of the -- of

3 the cardiovascular.

4

THE COURT: For all the things you worry

5 about, you don't premedicate people.

6

THE WITNESS: Right.

7

THE COURT: You have less risk with a

8 slower acting drug.

9

And I think the last question in this

10 direction is is a drug like pentobarbital also

11 fatal in a high enough dose?

12

THE WITNESS: Barbiturates are

13 barbiturates.

14

THE COURT: Any barbiturate. You know,

15 back in the day that's the way people used to

16 commit suicide. They would take too many of

17 them.

18

THE WITNESS: Right. They would take a

19 long time to die.

20

THE COURT: Well, that's the other

21 thing. And how long would it take?

22

THE WITNESS: You know --

23

THE COURT: Thirty, forty minutes, an

24 hour?

25

THE WITNESS: You know, it's --

0430

1 that's -- it's actually an ugly death because

2 what you're dealing with is basically slow

3 respiratory collapse, people not being able to

4 clear their airways. You know, it's not pretty

5 to watch, you know, someone die with barbiturate.

6

THE COURT: They wouldn't necessarily be

7 in pain, but they would suffer in other ways; is

8 that what you're saying?

9

THE WITNESS: I don't want to go and

10 talk about pain because barbiturates are not

11 analgesics. Barbiturates are central nervous

12 system depressants, which is different than

13 analgesia.

14

THE COURT: But people are asleep. They

15 are not awake. They are not conscious if they

16 have a high enough concentration.

17

THE WITNESS: You can be unconscious --

18 you can be sort of in that never-never land

19 between wakefulness and sleep with an obstructed

20 airway bubbling away and not being able to -- you

21 know, with all kinds of secretions and so forth

22 going -- you know, it's not pretty.

23

THE COURT: Okay. Again, I appreciate

24 your answers. I think that's all I have.

25

Anything else that counsel want to

0431

1 follow up on?

2

MR. MATTHIAS: Nothing, Your Honor.

3

MR. STEINKEN: Nothing, Your Honor.

4

THE COURT: All right. Thank you very

5 much, Doctor.

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6

We have time for another witness, if

7 there is one.

8

MS. ANDERS: Plaintiff will call

9 Dr. Mark Heath.

10

THE CLERK: Raise your right hand,

11 please.

12

MARK HEATH, M.D.,

13 being called as a witness on behalf of the

14 Plaintiff, having been first duly sworn, was

15 examined and testified as follows:

16

THE CLERK: Please state your name and

17 spell it.

18

THE WITNESS: My name is Mark Heath.

19 M-A-R-K. H-E-A-T-H.

20

DIRECT EXAMINATION

21 BY MS. ANDERS:

22 Q What is your occupation, Dr. Heath?

23 A I'm an anesthesiologist.

24 Q And how long have you worked as an

25 anesthesiologist?

0432

1 A I began my training in anesthesiology in

2 1988.

3 Q Are you board certified?

4 A I am, yes.

5 Q What does that mean?

6 A It means I have completed medical school

7 four years and then four years of post-graduate

8 training with three years of that in the

9 specialty of anesthesiology, and then I passed a

10 written exam and then an oral exam that was

11 designed to test one's ability in anesthesiology.

12 Q So do you induce general anesthesia in the

13 operating room at Columbia?

14 A Routinely, yes.

15 Q And what is anesthesia?

16 A Anesthesia can be divided up into two main

17 areas. There's regional anesthesia, which isn't

18 really germane to this -- isn't at all germane to

19 the discussion here, but that's where part of the

20 body is numbed, for example, a spinal anesthetic

21 that produces anesthesia in the lower part of the

22 body for a cesarean section. And that's

23 completely irrelevant to this discussion.

24

What is at issue here is the phenomenon

25 of general anesthesia, which is a reversible

0433

1 state that's induced by drugs in which a person

2 or an animal is unconscious and is insensate of

3 any stimulation.

4 Q And just to back up a second because I don't

5 think I actually asked you this, but you have a

6 faculty position at Columbia University; is that

7 correct?

8 A Yes.

9 Q And could you explain that a little bit.

10 A It's a teaching hospital and -- a university

11 teaching hospital, and the philosophy behind that

12 is it's divided into three main

13 responsibilities. First and foremost is clinical

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14 care of patients, second is teaching of medical

15 students and residents, and then third is

16 research.

17 Q And as part of your responsibilities at

18 Columbia, you perform animal research?

19 A I have, yes. I do.

20 Q Have you euthanized animals?

21 A Yes.

22 Q Does Columbia require certification to

23 euthanize animals?

24 A Yes. I believe all US institutions require

25 certification.

0434

1 Q And are you certified?

2 A I am, yes.

3 Q And so when you and other researchers at

4 Columbia euthanize animals, do you abide by the

5 recommendations in the AVMA report?

6 A Yes. Columbia follows the AVMA guidelines.

7 Q And if you could take a look in the binders

8 at Exhibit 59. It should be your CV.

9 A Exhibit 15?

10 Q Yeah. 59. I'm sorry.

11 A 59?

12 Q Yes.

13 A This only goes up to 52.

14

THE COURT: Yes. There's a second

15 volume.

16

MS. ANDERS: It's in the second volume.

17 Sorry about that.

18

THE WITNESS: Yes.

19

MS. ANDERS: Actually, could we take a

20 minute?

21

THE COURT: Sure. Go ahead.

22

MS. ANDERS: Thanks.

23 BY MS. ANDERS:

24 Q So, Dr. Heath, do you have your CV in front

25 of you?

0435

1 A Yes.

2 Q And have you seen that before?

3 A Yes.

4 Q Did you prepare it yourself?

5 A Yes.

6 Q Is it an accurate reflection of your

7 training, your credentials, your background?

8 A Yes.

9 Q Have you previously participated in cases

10 involving lethal injection?

11 A I have, yes.

12 Q How many have you testified in?

13 A I'd say about eight or nine.

14 Q And how many -- are there other ones in

15 which you've submitted affidavits and

16 declarations?

17 A Yes, there are.

18 Q About how many cases would you say?

19 A Somewhere between 20 and 40, I would

20 estimate.

21 Q And what research have you done in

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22 connection with your participation in these

23 cases?

24 A A lot of research. I've reviewed protocols

25 from virtually every state that's conducted

0436

1 lethal injection or at least descriptions of the

2 protocol from every state, and then in many of

3 the litigations there's been a lot of discovery

4 material that's been produced, sometimes stacks

5 and stacks of that, and I've reviewed large

6 amounts of that.

7

I've reviewed photographs from

8 executions both before and after. I've reviewed

9 autopsy reports that include toxicology of

10 thiopental. I've attended hearings where I've

11 heard testimony of wardens and executioners.

12 I've read depositions of wardens and executioners

13 and other participants in lethal injection,

14 testimony of physicians that participated in

15 lethal injections.

16

I've read many articles about the drugs

17 that are involved trying to better understand

18 what's going on in lethal injection.

19 Q Have you also inspected execution chambers?

20 A Yes, I have.

21 Q In other states besides California?

22 A Yes.

23 Q And have you also reviewed reports of other

24 experts besides yourself both on the plaintiff's

25 side and the defendant's side?

0437

1 A I have, yes.

2 Q And so you're familiar with other states'

3 practices?

4 A Yes.

5 Q Are you able to make comparisons between

6 states?

7 A Yes.

8 Q And specific practices of states?

9 A Yes.

10 Q So have you reviewed and studied the

11 specific practices used and the protocols

12 followed in many of the states across the

13 country?

14 A I have, yes.

15

MS. ANDERS: At this point, Your Honor,

16 I'd like to tender Dr. Heath as an expert.

17

THE COURT: Any objection?

18

MR. GILLETTE: No objection, Your Honor.

19

MS. ANDERS: And just to be clear,

20 that's in anesthesiology and in lethal injection.

21

THE COURT: Yes. So ordered.

22 BY MS. ANDERS:

23 Q When did you first become interested in

24 lethal injection?

25 A I saw an article in a newspaper describing

0438

1 or listing the drugs that they were planning to

2 use with the Timothy McVeigh execution, which I

3 think was around 2000 or 2001, about five years

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4 ago. 5 Q At that time did you have a position on the 6 death penalty? 7 A It just wasn't something I thought about 8 very much at all. It wasn't on my radar. 9 Q And now are you for or against the death 10 penalty? 11 A Having been involved in a number of these 12 litigations and learned more about -- about the 13 world of capital punishment, I'm opposed to it. 14 Q Have you ever been a member of any 15 anti-death penalty organizations? 16 A No. 17 Q Do you think that lethal injection can be 18 performed humanely? 19 A I'm quite certain that it can be. It's 20 performed humanely on dogs and cats all the time 21 in this country. 22 Q Have you ever concluded that a state's 23 lethal injection protocol reasonably ensures that 24 executions will be performed humanely? 25 A Well, I would say that Missouri came -- is 0439 1 coming very close to it. The protocol isn't 2 finalized there, but the general landscape of it 3 is one that is, you know, going to foster an 4 environment for humane injections, lethal 5 injections. 6 Q What makes you say that? 7 A The judge wants to make sure that there's 8 somebody present who can assess anesthetic depth 9 and provide an assurance for the prisoner, for 10 the guards, for the citizens of Missouri that the 11 prisoner is unconscious, properly anesthetized 12 when they receive potassium. 13 Q And does the case that you're referring -14 you're referring to a case I think it's with the 15 judge. Is that case Taylor v. Crawford? 16 A Yes. 17 Q And why did you agree to testify in this 18 case? 19 A Because the way that lethal injection is 20 being done in California, the way it has been 21 done and the way they are proposing to do it in 22 the future doesn't comply or comport with 23 veterinary standards. I think that people 24 deserve an execution that is as good as what we 25 provide for animals when they get euthanasia. 0440 1 Q Does California have a written execution 2 protocol? 3 A It does, yes. 4 Q Was that revised in March 2006? 5 A It was, yes. 6 Q So have you reviewed both the older version, 7 the pre-2006 version, and the 2006 version? 8 A There's a number of versions, but, yes, I've 9 reviewed them before and after that March 10 revision. 11 Q Okay. And so I guess just so we're clear,

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12 when you and I talk about procedure 770 we'll be 13 referring to the current version, the 2006 14 version. 15 A Yes. 16 Q So have you reviewed the documents produced 17 by the Defendants in discovery in this case? 18 A Yes. 19 Q Have you reviewed deposition testimony that 20 has been elicited in the case? 21 A Yes. 22 Q Did you attend an inspection of the 23 execution facility at San Quentin? 24 A I did, yes. 25 Q And based on your review of all this 0441
1 material, have you reached any conclusions 2 regarding whether California's lethal injection 3 protocol adequately ensures that executions will 4 be performed humanely? 5 A I have, yes. 6 Q And what is that conclusion? 7 A That there are many fortuitous risks, easily 8 correctable risks that are present in the 9 procedure. And it's inevitable, if it hasn't 10 happened already, that there will be an inhumane 11 execution unless several things change or several 12 things are changed. 13 Q Did you also believe that the older version 14 of procedure 770 was inadequate to ensure humane 15 executions? 16 A Yes. It didn't comply with veterinary 17 standards. 18 Q So I think this is already implied by your 19 answers, but you believe that the 2006 version 20 does not effectively address the problems that 21 you saw in the older version? 22 A It's -- it's worse than the one before they 23 changed it. 24 Q And have you reached any conclusions with 25 respect to the process of revising the protocol? 0442 1 A I have, yes. 2 Q And what is that -- what are those 3 conclusions? 4 A This is a very important thing and it needs 5 to be done in a considered way and it needs input 6 from people who understand these drugs, and 7 probably most importantly, it needs them to 8 establish their goals and priorities. They need 9 to sit down and say, okay, how do we achieve a 10 humane death, and that from -- based on the notes 11 of the meeting that I saw is not what they were 12 doing at all. 13 Q And have you reached any conclusions with 14 respect to the competence of the execution team 15 to assure that inmates are adequately 16 anesthetized? 17 A Yes, I have. 18 Q And what is that conclusion? 19 A The individuals on the team don't understand

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20 the drugs and they are not adequately familiar 21 with the protocol. They don't adequately adhere 22 to the protocol. They don't follow numerous 23 other procedures that really are important, and, 24 therefore, as currently constituted it's the 25 wrong group of people. 0443
1 Q Do you think that they can effectively react 2 to problems that might arise during an execution? 3 A No. If you don't understand how the drugs 4 work and you don't know what to look for and 5 you -- and they don't -- you specifically don't 6 discuss contingency plans, then you're not 7 prepared to do something that's important when 8 using high risk drugs like this. 9 Q And do you have any opinions about the 10 effect of the execution facility itself on the 11 safety of the procedure? 12 A You mean the design of the facility? 13 Q Yeah, the design of the facility. 14 A Well, there's a big problem. They are using 15 tubes and they are trying to induce and monitor 16 anesthesia from a remote location, and unlike 17 some other states where it's two separate rooms 18 but one can easily open it up so that you could 19 communicate easily between them or effectively be 20 in the same room, here they are actually sealing 21 the prisoner into a chamber and they actually 22 close the door and seal them off as much as they 23 can from, you know, any outside observer. 24 Q And does the drug delivery system that's 25 used also affect the safety of the procedure? 0444 1 A It does, yes. It's needlessly complex. 2 It's poorly located, bizarrely located, in fact. 3 And, again, because it goes from one room into 4 another that adds a very major degree of risk, 5 and it's fortuitous risk. There's no reason to 6 do it that way. 7 Q So overall, then, do you think that the 8 execution procedure suffers from systemic 9 failures? 10 A There's problems with the leadership. 11 There's problems with the training of the 12 individuals. There's problems with the attitude 13 of the individuals. There's a problem with the 14 attitude of the folks who are designing it, where 15 they are coming from, and there are multiple 16 mechanical features that are very problematic. 17 There are layout features that are problematic 18 and then the drugs themselves are ill advised. 19 Q And all these problems or failures, they 20 create a risk that the CDCR will not be able to 21 perform executions humanely? 22 A Absolutely. 23 Q And when we talk about a serious risk or an 24 unnecessary risk here, are we talking about 25 accidents or flukes? 0445 1 A No human endeavor is devoid of accidents.

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2 We all make mistakes, and the more complex it is,

3 the more -- the higher the chance there will be a

4 mistake.

5

But what you have here are foreseeable

6 set-ups for errors and problems, foreseeable and

7 changeable, and the CDCR has been very resistant

8 or unwilling to change those things.

9 Q Okay. So I'd like to talk with you briefly

10 about your general understanding of the

11 components of the execution process in

12 California, but before we start I've got a

13 demonstrative exhibit up here.

14

Did you prepare this for the aid of the

15 Court in this part of the discussion?

16 A I e-mailed it to you and then somebody got

17 it into this form here.

18 Q And this has been marked as Plaintiff's

19 Exhibit -- or Exhibit 141.

20

So could you explain what this

21 demonstrates.

22 A Yes. I find it helpful to break the

23 procedure up into four distinct phases, each of

24 which achieves a distinct purpose. The first

25 phase is the intravenous access, and, as I noted

0446

1 there, that can happen in different ways and

2 does -- in executions it does happen in different

3 ways.

4

It can be done through a peripheral IV,

5 which is the kind that goes into the arm

6 typically near the hand, or a central IV, which

7 goes much closer to the heart, a very large

8 vein. And then that central IV can be achieved

9 either through one of two procedures, generally

10 either a cut-down or a percutaneous approach.

11

Once IV access has been established and

12 determined to be effective IV access, then one

13 moves into the second phase, which is the

14 delivery of -- or the induction of general

15 anesthesia. And in executions that's done by

16 thiopental, which is also called pentothal.

17

The third phase of the procedure is one

18 that does not contribute to the judicial intent,

19 which is to produce a dead person, and it does

20 not contribute to the need for the procedure to

21 be humane. It's the administration of a cosmetic

22 drug, pancuronium, which causes paralysis but has

23 no anesthesia effects.

24

And the final stage or the final phase

25 is the actual execution itself, the ending of the

0447

1 person's life. And that occurs in the great

2 majority of executions by cardiac arrest that's

3 caused from potassium administration.

4 Q Okay. So let's go through this in a little

5 bit more detail. Let's start with potassium, the

6 last phase you mentioned. So how do you know

7 that the potassium is the actual cause of death?

8 A From reviewing EKG records of executions I

9 can see that there will be what we call a normal

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10 sinus rhythm or sometimes a sinus tachycardia,

11 which is a rapid rate in an otherwise normal

12 heart rate.

13

And then as the first drug is

14 administered, the thiopental, and the second drug

15 is administered there's typically not very much

16 change in the EKG activity. There might be a

17 little bit of slowing or a little bit of

18 acceleration, but nothing dramatic and certainly

19 nothing that would -- would cause a cardiac

20 collapse.

21

But then shortly after the potassium

22 goes in there will be a very sudden change in the

23 EKG wave form going from that normal wave form

24 where the heart would be beating to usually

25 ventricular fibrillation or other very

0448

1 disorganized rhythm that's inconsistent with

2 cardiac pumping, and that's the cardiac arrest,

3 and that's death.

4 Q And those conclusions are based on

5 California EKGs as well as those of other states?

6 A Yes.

7 Q Does potassium cause pain on injection?

8 A It depends on the concentration of it. The

9 concentrations that are being used in California

10 and other lethal injection procedures, which are

11 on the order of 100 times higher than what's

12 being given in a clinical setting, it would be

13 excruciating, yes.

14 Q How is potassium administered in a clinical

15 setting?

16 A Sometimes patients are -- are depleted in

17 their potassium, and that's dangerous because

18 just as high potassium can stop the heart, a low

19 potassium value can interfere with the heart

20 function or even stop the heart. So in patients

21 who have severe depletion we like to get it

22 restored by the intravenous route.

23

What we do is dilute the potassium, say,

24 one of the bottles that would be used for an

25 execution into a large bag of saline-type fluid,

0449

1 say, normal saline, and then give that over a

2 period of hours. Even when we do it that way

3 patients frequently complain of pain from that.

4 They sometimes complain quite bitterly. We have

5 to slow the rate down.

6 Q So that's -- when you do it clinically

7 that's a pretty low venous concentration of

8 potassium?

9 A That would be a normal amount. It's very

10 low compared to what's happening in executions

11 where you're suddenly giving a very large amount

12 of concentrated potassium. There's not much time

13 for it to mix with any blood that's flowing

14 through the vein. They will achieve extremely

15 high concentrations, and we know sometimes --

16 sometimes that happens by mistake in hospitals.

17

The nurses forget to dilute the

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18 potassium and just give it in concentrated form,

19 and people scream and then they die.

20 Q And have you seen people even getting the

21 lower clinical -- the standard clinical

22 concentration you mentioned, have you seen those

23 patients express pain?

24 A Yes. They don't scream. They more -- they

25 call the nurse. They say, "Someone has to do

0450

1 something about this. I can't take it much

2 longer." But it's a different order of pain than

3 what one would get if one were to accidentally

4 inject concentrated potassium.

5 Q What is the dose of potassium currently

6 administered in California?

7 A For -- for the revision?

8 Q Yes.

9 A Three bottles of 80 milliequivalents each,

10 240 milliequivalents -- excuse me, three

11 syringes.

12 Q And what is the concentration of that dose?

13 A I'm actually blocking right now whether it's

14 one or two milliequivalents. It's actually one

15 milliequivalent per mL and 240 cc.

16

THE COURT: What's a lethal dose?

17

THE WITNESS: Of potassium?

18

THE COURT: Yes.

19

THE WITNESS: I'm not sure. It depends

20 on how fast it's given. If I accidentally gave a

21 patient -- suddenly gave him 10 milliequivalents,

22 I'd be extremely afraid that they would be about

23 to drop dead, but I can't promise you that they

24 would. I'm very confident that 240

25 milliequivalents, which is what is in the current

0451

1 protocol, when rapidly given it is going to be a

2 lethal dose. I'm certain of that.

3

THE COURT: You don't know how much

4 below that threshold is for 100 percent

5 certainty?

6

THE WITNESS: We do what are called

7 LD-50 studies on animals, lethal dose 50

8 studies. And so the way you would do the study

9 is you would take a series of dogs, for example,

10 and you'd inject them first with 10

11 milliequivalents and see what percent died, 20

12 milliequivalents to see what percent died, and

13 that would be a higher percent. And at some

14 point you would get up to a point where 100

15 percent of them die, and at some point you would

16 be at the level where 50 percent of them die, and

17 that would be the LD-50 value.

18

I don't know that that's -- whether

19 there would be any clinical interest in doing

20 that experiment. I've tried to look it up and

21 haven't found a number. So it would be

22 conjecture with humans, but concentrated

23 potassium is very effective at stopping the

24 heart, and this dose is far in excess of

25 what's -- what the minimum is. I can't really

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0452

1 tell you.

2

THE COURT: Okay. Thank you.

3 BY MS. ANDERS:

4 Q So in terms of injecting potassium into a

5 peripheral vein, how would the resulting venous

6 concentration in an execution compare to the

7 resulting concentration in a clinical setting?

8 A Lower by a couple of factors of ten. It

9 depends on how fast it's dripping in the clinical

10 setting and how much blood is flowing in that

11 vein.

12

So, for example, if the drip rate were

13 one-tenth of the flow of the rate of flow of

14 blood in that vein, then the concentration in the

15 vein would be reduced by a factor of ten.

16

But I can just say that the

17 concentration used in executions is many times

18 higher than what's used in a clinical setting.

19 That's why people die from it in executions, but

20 don't die from it in the clinical setting.

21 Q Do you believe to a reasonable degree of

22 medical certainty that in an execution setting,

23 if the potassium were injected into a conscious

24 inmate, it would be excruciatingly painful?

25 A I'm certain of that, yes.

0453

1 Q Could you describe how it would feel in the

2 vein?

3 A It's described as causing an intense

4 excruciating burning sensation.

5 Q Would the person scream?

6 A Yes.

7 Q What about if they are paralyzed?

8 A No. They couldn't -- obviously, they

9 couldn't scream. If they were paralyzed they

10 wouldn't be able to move in any way.

11 Q And have you reviewed the opinions of

12 Dr. Singler who will be testifying for the

13 Defendants as an expert witness?

14 A I have, yes.

15 Q And have you reviewed his opinion as to

16 whether potassium hurts on injection?

17 A I have, yes.

18 Q And do you agree with his opinion?

19 A No. He's factually incorrect when he says

20 that potassium wouldn't be particularly painful.

21 He even says that a tiny dose of thiopental, 75

22 milligrams of thiopental, would be sufficient to

23 address the pain that would be caused by this

24 concentration, this amount of potassium, and he's

25 completely incorrect about that.

0454

1 Q Did Dr. Singler give a reason for holding

2 this opinion?

3 A He talked about --

4 Q He said 75 milligrams would be -- sorry.

5 A He gave an example of -- he discussed the

6 one example I can think of where we do

7 deliberately give high potassium, concentrated

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8 potassium to people in a clinical setting, and

9 that's during open heart surgery when we need to

10 stop the heart because the surgeons have to

11 operate on the heart and a beating heart -- they

12 would be unable to operate on it.

13

And so in that setting we do administer

14 concentrated potassium directly into the coronary

15 arteries, and he gave that as an example saying

16 those patients don't seem to show evidence of

17 pain.

18

But I don't think it's a very helpful

19 example because it should go without saying that

20 a person who's having open heart surgery where

21 their sternum is cut in half and their chest has

22 been pulled wide open is under a very -- a deep

23 plane of anesthesia. So we could not expect them

24 to show pain from the potassium. They are

25 anesthetized to the point where they are not, we

0455

1 hope, showing any pain in response to the

2 sternotomy and the surgery that's ongoing.

3 That's not a contributory or a helpful example.

4 Q Okay. So let's move on to the third phase

5 of the execution process, the administration of

6 pancuronium. Is it possible to paralyze someone

7 to the point where they won't move even with

8 excruciatingly painful stimuli?

9 A Absolutely. That's why we have this problem

10 with interoperative awareness where patients wake

11 up in the middle of surgery, and they don't move,

12 and people may not realize, therefore, that they

13 are awake.

14 Q So are there dangers of using pancuronium in

15 an execution setting?

16 A Yes. There is a major attendant risk of

17 using pancuronium.

18 Q And what is that?

19 A If the prisoner is not properly

20 anesthetized, they could be in pain or discomfort

21 or suffering, including extreme pain, extreme

22 suffering, but the folks who are responsible for

23 their care, for performing a humane execution,

24 would be unaware of that.

25

THE COURT: Can I just interrupt here

0456

1 and let me ask a question.

2

I take it if you were designing the

3 right way to do it, there would never be a death

4 penalty; correct?

5

THE WITNESS: Could you ask the question

6 again?

7

THE COURT: It is late in the day.

8

THE WITNESS: Sorry.

9

THE COURT: If -- the premise is if a

10 person is not properly anesthetized and they are

11 given pancuronium bromide, then they couldn't cry

12 out in pain and you wouldn't know if they had

13 been properly anesthetized.

14

But if one were trying to design the

15 ideal manner of carrying out an execution, you

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16 would provide for a method of anesthesia so that

17 you never had that problem in the first place;

18 correct?

19

THE WITNESS: The real way to do it is

20 to have -- is to ensure that they really have

21 been properly anesthetized because if you try to

22 design a protocol or a system that will do it,

23 protocols aren't foolproof. You have to have

24 people who -- and when I use the word "fool," I

25 include people who aren't properly trained.

0457

1

THE COURT: Right.

2

THE WITNESS: So you need to have some

3 way of knowing that the person really is properly

4 unconscious.

5

THE COURT: But it goes back to the

6 question of whether the person is unconscious or

7 not; correct?

8

THE WITNESS: In a theoretical

9 construct, if they were unconscious, it wouldn't

10 matter whether they had pancuronium or not and it

11 wouldn't matter how much potassium they got.

12 They'd be unconscious.

13

THE COURT: You would never give them

14 potassium unless you were sure that they were

15 unconscious?

16

THE WITNESS: Correct.

17

THE COURT: If you mistakenly gave

18 someone potassium and they weren't unconscious,

19 at that point there really wouldn't be a lot you

20 could do about it.

21

THE WITNESS: You'd give them more

22 thiopental.

23

THE COURT: But they would suffer

24 excruciating pain before the thiopental could get

25 into their system --

0458

1

THE WITNESS: Yeah. You treat them as

2 quickly as you could, but you're absolutely

3 right. Sometimes in surgery a person isn't at

4 the depth we think that they need to be or the

5 surgeon suddenly does something that is more

6 painful than we're expecting them to do, and

7 we'll see evidence that the patient is too

8 light. And you're right, we can't fix that after

9 the fact. It's happened. All we can do is

10 rapidly deepen them.

11

THE COURT: But if you give someone a

12 lethal dose of potassium chloride and they are

13 not properly anesthetized and you're not masking

14 with the pancuronium, there's not really anything

15 you can do as a practical matter other than

16 realize that you've made a mistake.

17

THE WITNESS: If I saw that in an

18 animal, let's say, because I wouldn't be present

19 for an execution, but if an animal were

20 undergoing euthanasia and if the potassium were

21 injected and the animal, a dog, let's say,

22 started to bark or growl or flinch and show all

23 the signs that the animal is in pain, the best I

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24 could do would be to try to rapidly administer

25 thiopental into another IV and get them deepened

0459

1 as quickly as I could.

2

But you're right, they may well have a

3 cardiac arrest before that time.

4

THE COURT: Before that happened.

5

THE WITNESS: Yes. And then that just

6 means I did a bad euthanasia and I can't undo

7 that.

8

THE COURT: So really the logic of what

9 you're testifying to is that the focus in looking

10 at the adequacy of the protocol has to be on the

11 anesthesia.

12

THE WITNESS: I hope everybody would

13 agree that you have to be anesthetized to have a

14 humane execution. If you're not properly

15 anesthetized, then it's not going to be a humane

16 execution.

17

THE COURT: I don't mean my question to

18 be unduly abstract or tricky or anything like

19 that. It seems to me logically that that's what

20 this is about. It almost doesn't matter what

21 drug you use to execute somebody. The question

22 is whether they are anesthetized properly before

23 you induce that drug.

24

THE WITNESS: That's exactly right. 100

25 percent right.

0460

1

THE COURT: So that's really what we're

2 focusing on medically and pharmacologically.

3

THE WITNESS: Yes. That's the exact

4 right focus to have, yes.

5

THE COURT: Okay. All right.

6 BY MS. ANDERS:

7 Q So to go back to pancuronium for a moment,

8 do you know why pancuronium is included in

9 procedure 770?

10 A Well, pancuronium was in the original

11 protocol that was devised in Oklahoma, and then

12 that was copied by other states, including Texas,

13 and that was then copied by other states

14 including California. So to get to the why of

15 it, I don't know if you're asking it -- an intent

16 or a process.

17

In terms of what it achieves, it is said

18 to be exerting an effect along the lines of

19 stopping what we call agonal movements, death

20 movements or movements associated with death that

21 the Department of Corrections say would be

22 disturbing to witnesses, and I'm inclined to

23 agree that those things could be disturbing to

24 witnesses.

25 Q Is that a rationale or a justification that

0461

1 Dr. Dershwitz who is retained by CDCR as an

2 expert witness in previous California cases, is

3 that something he's expressed in previous cases?

4 A Yes. He's made exact -- maybe not exactly

5 that, I'm paraphrasing, but there would be

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6 convulsive or other movements that could be

7 misinterpreted by witnesses as indications of

8 pain or suffering, and that's justification for

9 using it.

10 Q And is that a justification that Dr. Singler

11 has expressed as well?

12 A Yes.

13 Q And if I told you that witness number 1, the

14 team leader until recently, testified that he

15 thought pancuronium was necessary to stop an

16 inmate's breathing, would you agree with that

17 statement?

18 A That's completely wrong.

19 Q And why is that?

20 A If thiopental is administered in the proper

21 dosage, they successfully get it in, the prisoner

22 won't be breathing.

23 Q So they won't need any other drug to help

24 stop their breathing if they have been

25 successfully injected with the dose of

0462

1 thiopental?

2 A If you successfully deliver 5 grams of

3 thiopental into human circulation, they will stop

4 breathing and they will not resume breathing

5 unless you medically support them for quite a

6 while until the thiopental wears off.

7

THE COURT: So you agree with

8 Dr. Dershwitz as far as that point goes;

9 correct?

10

THE WITNESS: This -- this specific

11 point, 5 grams of thiopental, again, if

12 effectively delivered into the circulation --

13

THE COURT: It will stop everyone from

14 breathing?

15

THE WITNESS: I can -- I can only think

16 of extreme theoretical possibilities where it

17 might not do that, but I don't believe they

18 actually exist.

19 BY MS. ANDERS:

20 Q So I'd like to turn your attention to the

21 use of neuromuscular blocking agents and end of

22 life care. Are there -- if you could look at

23 Exhibits 63 and 64 in the binders.

24

And have you seen these before?

25 A Yes.

0463

1 Q What are these articles? Could you just

2 state the titles and briefly what they are

3 about.

4 A The first article is in the New England

5 Journal of Medicine from the year 2000. It's

6 entitled "Pharmacologic Paralysis and Withdrawal

7 of Mechanical Ventilation at the End of Life."

8

And the second article is -- it's a

9 publication that's the result of work by the

10 ethics committee of the American College of

11 Critical Care Medicine. That's published in the

12 Journal of Critical Care Medicine in 2001 and

13 it's entitled "Recommendations for End-of-Life

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14 Care in the Intensive Care Unit: The ethics

15 committee of the Society of Critical Care

16 Medicine."

17 Q And what are the recommendations in these

18 articles with respect to normalcy of doctors?

19 A What they are talking about here is a sad

20 but not uncommon situation where a patient just

21 received a lot of care in the ICU, is

22 determined -- it's determined that further

23 medical care would be futile. There's no hope of

24 saving the person's life.

25

And so they are going to die in the ICU,

0464

1 and the priority has changed from trying to

2 prolong, to save their life, to assuring that

3 they are -- that they are comfortable, that they

4 have dignity and that their families have dignity

5 during the process that's going to unfold.

6

And then once everybody has agreed that

7 this is the right thing to do we withdraw

8 supportive care. For example, some patients need

9 drugs to maintain their blood pressure or their

10 heart pumping functions. Those drugs are being

11 continuously dripped and we will turn them off.

12

Some patients -- all patients virtually

13 in this situation are patients who can't breathe

14 on their own. So they are connected to a

15 ventilator that's been breathing for them. So we

16 withdraw that care.

17

Usually the family likes to sit, you

18 know, around the bed while we do that and it's --

19 when I used to work in the ICU I always -- all my

20 colleagues did, it's standard practice to explain

21 to the family what's going to happen. They will

22 ask how long is this going to take, and we

23 usually can't give them an exact number, just

24 like I can't tell you exactly what the lethal

25 dose of potassium is for a patient, but we give

0465

1 them our best estimate.

2

And we explain to them that when a

3 person dies that there are movements in nature

4 that naturally occur. We call those agonal

5 movements. It might be a misnomer, but there's

6 nothing agonizing about them, but they occur

7 around the time of death.

8

And we explain to the patients that we

9 are focusing very hard on the comfort of the

10 patient, and that we know the patient is

11 comfortable because we're giving them medications

12 that will keep them comfortable. And they are --

13 that they are not suffering in any way and that

14 these movements don't represent suffering. They

15 should not be interpreted that way because we as

16 professionals can assess anesthetic depth and

17 levels of comfort and are confident that they are

18 not experiencing discomfort.

19

What these articles address is the issue

20 of whether or not it is acceptable to -- or

21 appropriate to use paralyzing drugs like

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22 pancuronium to conceal those kinds of end of life

23 movements as naturally occurring movements. And

24 the articles very forcibly state that that's not

25 appropriate or acceptable, that that -- those

0466

1 movements, while they can be disturbing to family

2 members, the way to address that is not by

3 concealing them, but by explaining to people what

4 they represent if they -- should they occur.

5 Q And I take it from what you said before that

6 the recommendations in these articles, those are

7 recommendations that -- that your conduct was in

8 accord with when you were working in the ICU?

9 A Yes. These articles came out after the time

10 I finished my time working in the ICU, but it was

11 the same as my practice. It's just common sense

12 practice not to paralyze people in this setting.

13 Q And you heard some testimony earlier today

14 from three witnesses who had witnessed

15 executions; is that right?

16 A Yes.

17 Q And based on the testimony you saw, were

18 they disturbed by what they saw?

19 A Yes. And I think on cross-examination, it

20 was elicited that to some extent they were

21 disturbed by witnessing the execution of a client

22 and a person who sometimes they developed a

23 friendship with, but on top of that they were

24 clearly talking about movements that they found

25 troubling.

0467

1 Q And you've participated in North Carolina

2 lethal injection litigation as well as California

3 lethal injection litigation?

4 A Yes.

5 Q And does North Carolina use pancuronium?

6 A It does, yes.

7 Q So was pancuronium, then, an effective way

8 of preventing lay witnesses from -- from being

9 disturbed by movement during an execution in any

10 other state?

11 A Clearly not. It clearly didn't do the job

12 that they were hoping it would do because people

13 saw movements that disturbed them. I think

14 it's -- as we heard testimony before, thiopental

15 is a very complex drug, and you have to give the

16 pancuronium in such a way that it has time to

17 exert its effects.

18

If you wanted to block these agonal

19 movements -- which is, again, as I said, that's

20 inappropriate to do at the end of life. The

21 appropriate thing is to explain to people that

22 these movements can occur and that because we

23 know the patient is anesthetized they don't

24 represent suffering. That is the way care should

25 be given.

0468

1

THE COURT: Is this a good place to

2 stop, Ms. Anders?

3

MS. ANDERS: Sure.

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4

THE COURT: It's the agreed time for

5 breaking for the day. For those of you who are

6 not involved in the litigation but are observers,

7 we have a different schedule tomorrow. We'll be

8 starting the hearing at 10:00 and ending at 5:30

9 with the lunch recess between 1:00 and 2:30.

10 Tomorrow is the only day that it's going to be

11 like that. Thursday and Friday will be the same

12 as today.

13

If there's any housekeeping, Counsel, we

14 can take that up now.

15

Just in terms of time, we've got 4:39

16 left for the Plaintiff and 6:38 left for the

17 state.

18

And -- Counsel, Mr. Grele?

19

MR. GRELE: Yes, Your Honor. This

20 doesn't come off my time, does it?

21

THE COURT: No.

22

MR. GRELE: Okay. Thank you.

23

THE COURT: We're done for the day.

24 We're just doing administrative matters.

25

MR. GRELE: All right. Thank you.

0469

1 Thank you, Your Honor. I'm sorry. I didn't mean

2 to be glib.

3

One issue we had, Your Honor, is in

4 light of the notes that were disclosed and some

5 of the testimony we've had, we are certainly

6 going to renew our application to see the

7 Governor's notes, but also we had told --

8 informed Mr. Gillette that there's a good --

9 there's a possibility that Mr. Slavin and

10 Ms. Hoch may be called as witnesses in this

11 proceeding depending on how the testimony falls

12 out between the cross-examination and whether

13 certain statements are qualified or accepted or

14 denied and those kinds of things.

15

And we were informed that -- that we

16 would have to subpoena them separately because

17 they are separate entities now. First they went

18 from being separate to being the same and now

19 they are separate again.

20

THE COURT: Both Ms. Hoch and Mr. Slavin

21 personally will require subpoenas; is that --

22

MR. GRELE: That's what I hear from

23 Mr. Gillette. I understand that that's their

24 position, not necessarily -- I don't know if it's

25 necessarily Mr. Gillette's position, but it's

0470

1 certainly their position.

2

I don't have -- we might be able to get

3 subpoenas to them for Friday; we might not at

4 this point.

5

THE COURT: All right. I think we'll

6 just have to see and hopefully counsel will

7 continue to cooperate on the matters like that.

8

MR. GRELE: I don't know if without a

9 subpoena the Court can order their presence. I

10 mean, I guess Mr. Slavin is now technically

11 associate counsel now that his office has been

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12 associated in. So I don't see why he's not

13 within the jurisdiction of the Court as an

14 officer of the court.

15

THE COURT: All right. Mr. Gillette, do

16 you want to be heard on that?

17

MR. GILLETTE: The only point I want to

18 make, Your Honor, is that the first time we heard

19 any suggestion that either of these individuals

20 would be called as a witness was after 5:00

21 o'clock on Friday, at which time I advised

22 counsel that it would be necessary to serve the

23 Governor's legal affairs secretary and

24 Mr. Slavin, if they wanted them to appear as

25 witnesses, and told them that there were

0471

1 procedures to do so by serving them at their

2 office.

3

They've had an opportunity to do so. We

4 certainly weren't in court yesterday and they

5 certainly have an opportunity to do so. My

6 understanding is that a subpoena is required. I

7 see no reason why they shouldn't be obligated to

8 go get one.

9

THE COURT: I mean, you know, this is

10 hitting me as a brand new matter, obviously. I

11 think that Mr. Morales's legal team should try to

12 obtain their presence with subpoenas. If there's

13 a problem, let me know, but at this point I think

14 that's the easiest course to take.

15

I don't know what the authority is to do

16 anything else at this point. I'm not saying I

17 have any. I just don't know what it is.

18

MR. GILLETTE: If I could just say one

19 other thing to make sure the record is clear. I

20 am not authorized to accept subpoenas for either

21 of those individuals.

22

THE COURT: Like I say, I think the --

23 what will ultimately be the path of least

24 resistance will be to try to serve subpoenas. I

25 think it will cause the fewest problems.

0472

1

MR. GRELE: We're trying, Your Honor.

2 As Your Honor knows, we're under -- we have some

3 constraints on us.

4

THE COURT: You've got other things

5 going on.

6

MR. GRELE: Yeah.

7

THE COURT: And I appreciate that.

8 We're starting late tomorrow. Maybe there will

9 be some additional time tomorrow morning.

10

MR. GRELE: Okay. Thank you.

11

THE COURT: Anything else?

12

Where are we on the confidential

13 witnesses? Do we know yet?

14

MR. GILLETTE: No, we do not, Your

15 Honor. I'm advised that Mr. Senior anticipates

16 having some information to me a little later this

17 evening --

18

THE COURT: Okay.

19

MR. GILLETTE: -- that he and I are

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20 hoping to discuss together maybe even to avoid

21 the whole problem.

22

THE COURT: Right. And you know who to

23 contact in the marshal's office regarding that?

24

MR. GILLETTE: We have been -- yes, Your

25 Honor. We've been given that information and, if

0473

1 it turns out they are not necessary, we will let

2 the witnesses know and advise the marshal's

3 office as well.

4

THE COURT: Okay. Great. Thank you

5 very much. We will resume at 10:00 o'clock

6 tomorrow.

7

(Whereupon, the proceedings adjourned

8 for the day.)

9

10

---oOo---

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

0474

1

CERTIFICATE OF REPORTER

2

3

4

5

I, Peter Torreano, Official Court

6 Reporter of the United States District Court for

7 the Northern District of California, 280 South

8 First Street, San Jose, California, do hereby

9 certify:

10

That the foregoing transcript is a

11 full, true and correct transcript of the

12 proceedings had in Morales v. Tilton, Case Number

13 C-06-0219-JF, dated September 26, 2006; that I

14 reported the same in stenotype to the best of my

15 ability, and thereafter had the same transcribed

16 by computer-aided transcription as herein

17 appears.

18

19

20

21

22

23

_______________________

PETER TORREANO, CSR

24

License Number C-7623

25

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0474

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4 MICHAEL ANGELO MORALES,

) C-06-0219-JF

)

5

Plaintiff,

)

) San Jose, CA

6

vs.

) September 27, 2006

)

7 JAMES TILTON, et al.,

) Volume 3 of 5

) PP. 474-772

8

Defendants. )

____________________________)

9

TRANSCRIPT OF PROCEEDINGS

10

BEFORE THE HONORABLE JEREMY FOGEL

UNITED STATES DISTRICT JUDGE

11

A P P E A R A N C E S:

12

For the Plaintiff:

Law Offices of John R.

13

Grele

By: JOHN R. GRELE

14

703 Market Street

Suite 550

15

San Francisco, CA

94103

16

McBreen & Senior

17

By: DAVID A. SENIOR

1880 Century Park East

18

Suite 1450

Los Angeles, CA 90067

19

Jenner & Block

20

By: GINGER D. ANDERS

601 13th Street, NW

21

Suite 1200 South

Washington, DC 20005

22

23

(APPEARANCES CONTINUED ON THE NEXT PAGE)

24 Court Reporter:

PETER TORREANO, CSR

License Number C-7623

25

0475

1 A P P E A R A N C E S (Continued):

2 For the Plaintiff:

Jenner & Block LLP

By: RICHARD P.

3

STEINKEN

One IBM Plaza

4

330 N. Wabash

Suite 4500

5

Chicago, IL 60611-7603

6 For the Defendants:

Office of the Attorney

General

7

By: DANE R. GILLETTE,

DAG

8

RONALD S. MATTHIAS,

DAG

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9

455 Golden Gate Avenue

Suite 11000

10

San Francisco, CA

94102-7004

11

State of California

12

Department of

Corrections and

13

Rehabilitation

Office of Legal

14

Affairs

By: K. L. McCLEASE

15

1515 S Street

Suite 314 South

16

Sacramento, CA 95814

17

18

19

20

21

22

23

24

25

0476

1

EXAMINATION INDEX

2

MARK HEATH

3

RESUMED DIRECT BY MS. ANDERS . 477

4

CROSS BY MR. GILLETTE . . . . 655

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

0477

1 San Jose, California

September 27, 2006

2

P R O C E E D I N G S

3

THE COURT: We are on the record once

4 again in the matter of Morales versus Tilton.

5 Let the record reflect that counsel are present.

6

I understand that at this point it is

7 not expected that there will be any confidential

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8 witnesses; is that correct?

9

MR. GILLETTE: That's correct for today,

10 Your Honor, yes.

11

THE COURT: Great. Okay. Thank you,

12 Counsel, for working that out.

13

When we left off we were still hearing

14 the direct testimony of Dr. Heath. So why don't

15 we pick up from there.

16

MS. ANDERS: I'd like to call Dr. Heath

17 back to the stand.

18

MARK HEATH,

19 being called as a witness on behalf of the

20 Plaintiff, having been previously duly sworn, was

21 examined and testified as follows:

22

RESUMED DIRECT EXAMINATION

23 BY MS. ANDERS:

24 Q Good morning.

25 A Good morning.

0478

1 Q So, Dr. Heath, I believe when we left off

2 yesterday we were -- we had just finished

3 discussing the potential dangers of pancuronium,

4 potassium and their use in the execution

5 procedure; is that correct?

6 A Yes.

7 Q So because the CDCR chooses to use

8 pancuronium and potassium in its procedures, is

9 it necessary that the inmate be placed in the

10 surgical plane of anesthesia first?

11 A Well, yes. Anytime you use potassium you

12 have to be at a surgical plane of anesthesia, but

13 particularly if you're choosing to use potassium

14 when you have other choices I think is even more

15 important.

16 Q So the second phase of the execution

17 procedure that you described yesterday, the

18 induction of general anesthesia, that's a crucial

19 component of the execution process?

20 A If you want it to be humane, that's

21 essential.

22 Q We'll come back to this statement in more

23 detail later, but I'd like to draw your attention

24 right now to a statement made by witness

25 number 6. She is the RN who had -- she is one of

0479

1 the RNs who was on the execution team.

2

Is it your understanding that she had

3 primary responsibility for mixing and preparing

4 the syringes of thiopental?

5 A Yes.

6 Q When asked if she had ever done any research

7 on thiopental or asked a doctor or pharmacist

8 about thiopental, she answered on page 153 of her

9 deposition, quote: "Other medication, yes, daily

10 I have to use. I need to know so I can teach my

11 patients, but this I don't need to know. I don't

12 ever use it. So I don't need to know it."

13

In your opinion, is this way of thinking

14 about the anesthesia portion of the procedure

15 problematic?

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16 A Yes. She's being negligent. It's the most

17 important part of the procedure and she needs to

18 have informed herself about this drug. She said

19 she basically doesn't even care to inform

20 herself.

21 Q And what procedures are necessary to ensure

22 that an inmate is in a surgical plane of

23 anesthesia?

24 A You have to assess and monitor anesthetic

25 depth.

0480

1 Q What does monitoring anesthetic depth

2 entail?

3 A It's an integration of multiple streams of

4 information that's performed usually by one

5 person or sometimes a couple of people if you

6 have two anesthesiologists working together. But

7 usually it's one person who's at the bedside.

8 It's a bedside procedure, as it were, and who is

9 observing monitors and able to physically examine

10 the patient to integrate all of that information

11 and make a determination about what the

12 anesthetic depth is.

13

It also involves observing the stimulus

14 that's being done. The surgical stimulation

15 varies in intensity through a procedure. Some

16 parts hurt a lot more than others. And so the

17 anesthesiologist needs to be aware of what the

18 surgeons are doing, how much that would hurt and

19 what the anticipated physiological response would

20 be for a given depth of anesthesia.

21

And so we're constantly reviewing those

22 things to come up with our best determination of

23 what the depth is.

24 Q And is it your understanding that the CDCR

25 briefly planned to have Dr. Rosko, a San Quentin

0481

1 psychiatrist and anesthesiologist, monitor

2 Mr. Morales's anesthetic depth during the

3 execution?

4 A Yes. He testifies that they discussed that.

5 Q And I'd just like to draw your attention to

6 that testimony, his deposition as page 33. I'll

7 just read it to you.

8

"Again, thinking back, I can say that I

9

felt that if I or anyone else was going

10

to monitor an individual's condition

11

with regard to state of consciousness,

12

et cetera, you'd actually have to do

13

that being in there with the patient.

14

You couldn't do that from another room

15

outside because it's a clinical

16

evaluation. So I guess it's fair to say

17

as this is being discussed, it kind of

18

included the idea that, if I were to do

19

it, I would have to actually be in there

20

next to the inmate."

21

Do you agree with that statement?

22 A Yes, he's absolutely correct.

23 Q What training is necessary to monitor

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24 anesthetic depth?

25 A It's a mixture of art and science. The

0482

1 science part comes from understanding how the

2 drugs work and how the nervous system works and

3 how the drugs interact with the nervous system,

4 and since we're using hemodynamic indicators we

5 have to understand how the nervous system

6 interacts with things like blood pressure and

7 heart rate and how the drugs interact with those

8 things.

9

So you have to have a scientific

10 foundation, and then on top of that foundation,

11 one has to have experience. One has to have been

12 in an operating room or some such setting where

13 anesthesia is being induced and maintained and

14 where the depth is being varied and where the

15 stimulation is being varied and seeing what --

16 how patients respond to drugs, what that does to

17 depth and integrating all of that.

18

When one's done that a number of times,

19 then one gradually accrues proficiency in

20 assessing depth.

21 Q Has Dr. Orin Guidry, the president of the

22 American Society of Anesthesiologists, did he

23 write a letter to the Society of

24 Anesthesiologists weighing in on whether the

25 assessment of anesthetic depth is necessary in

0483

1 the context of an execution?

2 A He did, yes.

3 Q And did Dr. Guidry state to your

4 understanding that the only way to ensure humane

5 executions would be to have an anesthesiologist

6 prepare and administer the drugs, carefully

7 observe the inmate and all pertinent monitors and

8 finally integrate all of this information?

9 A That's what he said, yes.

10 Q And does the American Veterinary Medical

11 Association's panel on euthanasia make a

12 recommendation with respect to euthanasia by

13 potassium?

14 A It does, yes.

15 Q And briefly what is that recommendation?

16 A Basically it says that, as Dr. Concannon

17 testified, potassium can be used as a method of

18 euthanasia, but if it is going to be used, then

19 it has to be done by a person who is experienced

20 in assessing anesthetic depth and who takes

21 various measures to actually assess the

22 anesthetic depth.

23 Q And do you think that the veterinary

24 standard of care with respect to euthanizing

25 animals by potassium is relative to the execution

0484

1 of inmates by potassium?

2 A If one wants the execution of inmates to be

3 humane, then it's definitely relevant.

4 Q Turning back to the execution procedure now,

5 as you said before, the execution team does

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6 attempt to induce general anesthesia before

7 administering the pancuronium and potassium; is

8 that right?

9 A That's the only imaginable role for giving

10 thiopental would be to induce anesthesia, yes.

11 Q And what dose of thiopental is specified

12 under the 2006 protocol?

13 A The new protocol? 1.5 grams followed by an

14 infusion.

15 Q Is 1.5 grams plus whatever is delivered

16 through the infusion larger than the clinical

17 dose used for inducing anesthesia?

18 A Yes.

19 Q And, by the way, when we talk about

20 unconsciousness in an execution context, are we

21 talking about a deep plane of anesthesia?

22 A If you're going to give potassium, then you

23 need a surgical plane of anesthesia, yes.

24 Q And what measure of unconsciousness does

25 Dr. Dershwitz use in creating his models of the

0485

1 time course of thiopental?

2 A So earlier in -- I don't know if it's in

3 these hearings, but in this litigation he

4 provided graphs calculating probabilities of

5 consciousness. He uses -- there are varying

6 definitions of consciousness that scientists use

7 or experimentists use to study this, and the

8 definition that he uses is whether or not a

9 person correctly follows verbal commands.

10

So a person's lying there, they've been

11 given some pentothal, they've been told to raise

12 their right hand. If they don't raise their

13 right hand, then they're unconscious. If they

14 raise their left hand, they are defined as being

15 unconscious. If they don't move at all, they

16 would be unconscious. It's a very light level of

17 consciousness that he's talking about.

18 Q Is it necessary to assess anesthetic depth

19 even if one is administering a dose that should

20 be larger than necessary to induce anesthesia?

21 A Yes, it is, if you're going to do something

22 very painful like giving potassium.

23 Q And why is that? Why is it necessary?

24 A Because these drugs don't always deliver the

25 effect that we're anticipating.

0486

1 Q Have you ever given a dose of thiopental of

2 several grams?

3 A I have, yes.

4 Q And for what purpose?

5 A Sometimes we need to induce what's called a

6 thiopental coma or barbiturate coma. It's

7 helpful we think in some cases in preserving --

8 stopping the brain from being injured at times

9 when we can't have blood flow going to it.

10 There's some times when surgery is done on

11 cerebral blood vessels where we think that's

12 helpful to do.

13 Q And do you monitor anesthetic depth when you

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14 do that?

15 A Yes.

16 Q And is it necessary to assess anesthetic

17 depth before applying a painful stimulus even

18 when there's no need to later bring the patient

19 out of anesthesia, or the inmate?

20 A Yes. At some times we'd have a terminal

21 patient. There is no anticipation of ever being

22 able to emerge them from anesthesia, but we do

23 not, therefore, just abandon our efforts to

24 assess anesthetic depth. We continue to do that.

25 Q So assessing anesthetic depth isn't

0487

1 necessary only when one is moderating the dose in

2 an attempt to limit the aftereffects of

3 anesthesia?

4 A If you want to make sure someone is not

5 suffering, you have to know what their level of

6 consciousness is.

7 Q And is it necessary to monitor anesthetic

8 depth regardless of the drug delivery system?

9 A Yes, it is.

10 Q So would changes in the drug delivery system

11 such as the addition of a continuous drip, would

12 they obviate the need for monitoring?

13 A Giving potassium, as the AVMA says, you have

14 to assess anesthetic depth. And I really agree

15 with them and, in fact, apply it in my own

16 practice. It's very clear-cut.

17 Q So to sum up this line of questioning,

18 reasonably ensuring that inmates are adequately

19 anesthetized would require monitoring by an

20 individual trained in anesthesiology?

21 A Yes.

22 Q Do you think it would be possible for the

23 CDCR to recruit such an individual?

24 A I definitely think it's possible. I think

25 the only way to find out is to make a good faith

0488

1 attempt to try to do that. I'm certain that it's

2 possible.

3 Q Have surveys been done on the willingness of

4 physicians to participate in various aspects of

5 the execution procedure?

6 A Yes, they have.

7 Q And are you thinking of the two articles by

8 Neil Farber that are --

9 A The Farber articles, yes.

10 Q Those are Exhibits 65 and 66.

11

Could you briefly summarize the findings of

12 those articles?

13 A It is two separate studies. The first was a

14 survey asking physicians from a variety of

15 specialties what acts they thought would

16 constitute participation in lethal injection

17 procedures.

18

So, for example, would designing a

19 protocol -- would a physician be designing a

20 protocol, would that constitute participation?

21 What about starting the IVs? What about

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22 injecting the drugs? There was a series of

23 questions. And they are asking physicians'

24 opinions about what would constitute

25 participation.

0489

1

That article was a little bit -- and it

2 shows that many physicians thought that it was

3 okay to do everything including injecting the

4 drugs. The article received, I think, some

5 criticism because it was not asking the

6 physicians what they were actually willing to

7 do. It was more asking in general terms what do

8 you think is okay to do.

9

The second article actually asked the

10 physicians what do you, Doctor, think is okay to

11 do. And many physicians were willing to do many

12 things in -- in lethal injection procedures,

13 including, I believe, 18 percent were willing to

14 inject the drugs themselves.

15 Q So do physicians currently participate in

16 execution procedures across the country?

17 A Yes, they do.

18 Q And are they from a variety of specialties?

19 A Yes, they are. Surgeon, OB/GYN, internal

20 medicine, critical care, a variety of specialties

21 have participated.

22 Q Do you have any reason to think that

23 anesthesiologists would be different and wouldn't

24 be willing to participate?

25 A I don't think we're fundamentally in our

0490

1 views on the death penalty or any other -- are

2 our ethics fundamentally different from other

3 types of specialties.

4 Q And, to your knowledge, has any physician

5 lost their license or been otherwise sanctioned

6 because of their participation?

7 A I'm not aware of anybody who has.

8 Q Would you want -- strike that. Sorry.

9

So do you think that if the Court

10 ordered an anesthesiologist to monitor anesthetic

11 depth, would that effectively shut down

12 executions?

13 A Again, I think that's unlikely. It's

14 something happening in the future. So I can't

15 say for sure what happens, but I think -- just as

16 other states have found specialized physicians to

17 participate in executions I don't see why

18 California would be unable to find an

19 anesthesiologist.

20 Q Would you want any anesthesiologist who was

21 going to participate to understand the nature of

22 the execution procedure, the nature of the drugs

23 used, things like that?

24 A Sure. They'd have to familiarize themselves

25 with the environment. Any anesthesiologist is

0491

1 going to be completely proficient with these

2 drugs.

3

They'd have to understand that -- they

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4 have to think about it, understand that potassium

5 is a very painful thing and requires adequate

6 anesthesia. They'd have to understand who it was

7 who was injecting the drugs and the conditions in

8 which they were working so that they could adjust

9 their expectations. But they couldn't just walk

10 in and do it, but certainly with adequate

11 planning it would be a feasible thing.

12 Q Does procedure 770 provide for assessment of

13 anesthetic depth?

14 A It doesn't mention that anywhere, no.

15 Q Do any of the execution team members attempt

16 to monitor anesthetic depth?

17 A They don't, no.

18 Q And even if they were to attempt to do so,

19 would they have the necessary equipment?

20 A No. They don't have good monitors necessary

21 to meaningfully do that.

22 Q And would they have the training necessary?

23 A No. They say they lack the training.

24 Q Do any of the execution team members have

25 any training in anesthesiology?

0492

1 A None of them do.

2 Q How about the doctors who have been present

3 to observe CDCR executions and declare death?

4 A One of the doctors who testified was an

5 anesthesiologist and then became a psychiatrist

6 and started working in the prison, but he has no

7 active role in the executions.

8 Q Right.

9

So, to your understanding, Dr. Rosko doesn't

10 actually observe executions?

11 A No. That's right. But he's involved in the

12 CDCR's -- he's amongst their personnel, but he's

13 not involved in the executions.

14 Q And in terms of Dr. St. Clair and Dr. Calvo,

15 do they have training in anesthesiology?

16 A They don't.

17 Q Were you here yesterday when people who

18 witnessed executions testified?

19 A Yes.

20 Q And do you remember that they were asked on

21 cross-examination whether they were physicians?

22 A Yes.

23 Q And whether they were qualified or had the

24 background necessary to assess anesthetic depth?

25 A None of them, do.

0493

1 Q Is the same true of the execution team in

2 California?

3 A Yes.

4 Q And based on your review of the deposition

5 testimony of execution team members, did you

6 reach any conclusions with respect to the team

7 members' levels of understanding of the drugs

8 used, and thiopental in particular?

9 A Yes, I did.

10 Q Did any of the team members have any

11 understanding of the ways thiopental works or

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12 pharmacology, anything like that?

13 A No, they don't.

14 Q Is it your opinion that procedure 770's

15 failure to provide for assessment of anesthetic

16 depth creates a significant and unnecessary risk

17 that inmates will suffer pain during their

18 executions?

19 A Absolutely. Particularly when they are

20 using pancuronium and potassium.

21 Q So does the danger of inadequate anesthetic

22 depth flow in part from the likelihood of a

23 failure to deliver the full intended dose of

24 thiopental to the inmate's circulation?

25 A Yes.

0494

1 Q So are you saying that 5 grams or 1.5 grams

2 or whatever the dose is is insufficient to render

3 a prisoner unconscious?

4 A No. 5 grams, if it were effectively

5 delivered into the circulation, would reliably

6 produce a level of -- a deep level of

7 unconsciousness that would last beyond what the

8 duration is of any execution I've seen.

9 Q Are there a number of foreseeable errors or

10 occurrences that could result in the failure to

11 deliver the full dose of thiopental?

12 A Absolutely.

13 Q And briefly could you -- could you describe

14 some types of errors or misconduct or

15 contingencies that, in your opinion, would result

16 in such a failure?

17 A Sure. Errors in mixing the drugs.

18 Diversion of the drugs. Leaking of the tubing.

19 Injecting retrogradely. Infiltration of the drug

20 in the tissue. Those are some of the things that

21 can stop the effective delivery of the drug into

22 the circulation.

23 Q Do these same errors occur in clinical

24 practice?

25 A Yes.

0495

1 Q Can you always prevent them?

2 A No. No human endeavor can be performed with

3 perfection every time. What you have to do is

4 try to -- try to set things up so that

5 foreseeable error is addressed and that

6 unforeseen errors you have the ability as best

7 you can to intervene and correct.

8 Q Okay. So now I'd like to talk with you

9 about some of the problems that actually are

10 occurring in California.

11

Based on your discussion of the four

12 phases of the execution process yesterday, is it

13 your opinion that it's very important for the

14 execution team to understand the second phase,

15 the induction of general anesthesia?

16 A Yes. As a whole the team needs to

17 understand that.

18 Q Do the members of the execution team agree

19 on how many syringes of thiopental they are

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20 supposed to administer? 21 A No. They are all over the map on what's 22 been done and what they are supposed to do. 23 Q And just to be clear since we're talking 24 about previous executions, are we talking about 25 the old protocol, the pre-2006 version? 0496
1 A The new protocol hasn't been used. So we 2 can't really comment on their ability to follow 3 it. 4 Q And do some of the execution team members 5 not know the dose of thiopental to be 6 administered? 7 A Yes. 8 Q So to go into more detail about that, did 9 the older protocol specify a certain dose of 10 thiopental? 11 A Yes. It specifies 5 grams to be delivered 12 to be mixed into 25 cc. 13 Q And did the protocol provide a particular 14 number of syringes to be used? 15 A One syringe that has 25 cc of solution which 16 contains 5 grams of pentothal. 17 Q So are these pieces of information, which I 18 guess are the dosage, the concentration and the 19 number of syringes, are they important for 20 execution team members to know? 21 A That's the central thing that you would want 22 to know. 23 Q And was there conflicting testimony from 24 execution team members on these subjects? 25 A Very conflicting, yes. 0497 1 Q At the hearing at San Quentin last March did 2 witness number 1, the execution team leader, 3 testify in order to provide information about the 4 execution procedure? 5 A Yeah, I think -- yes, he did. 6 Q Was he presented as a knowledgeable witness 7 on the issues? 8 A He was presented kind of as the go-to guy, 9 the guy who knew what was going on. He had 10 prepared for this and set up the chamber in a way 11 that would show -- try to show us what was going 12 on. 13 Q Did he testify about the number of syringes 14 of thiopental to be used? 15 A He did. 16 Q Did he say that four syringes were used to 17 make up the 5-gram dose? 18 A Yes. 19 Q But the protocol provides for just the one 20 syringe, I believe you said that? 21 A Yes. 22 Q And did he later testify that at one point 23 syringes had been used instead and that at some 24 point they had switched to four syringes because 25 the thiopental packaging changed? 0498 1 A Can you say that again? You said "1.2"

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2 syringes?

3 Q I'm sorry. That at one point, at some

4 point, two syringes had been used, and that had

5 changed --

6 A At one point two syringes had been used, and

7 it's a change, that's correct, but neither of

8 those are consistent with what the protocol says.

9 Q Does it concern you that the execution team

10 was left to deal with this apparent issue, the

11 packaging changing on its own?

12 A Well, yes. Initially, to my understanding,

13 this is what I can infer from all of this, it

14 initially came as a 5-gram bottle of pentothal,

15 and then at some point because of the supply

16 issue they couldn't get those bottles anymore,

17 and they switched to kits that have half-gram

18 kits. And that obviously had significant

19 implications for carrying out the protocol and

20 the mixing and all of those things, but it wasn't

21 addressed in any meaningful way.

22 Q And looking at other team members' accounts

23 of the number of syringes, did witness number 3,

24 an MTA, agree with witness 1 that the thiopental

25 is loaded into four syringes?

0499

1 A Yes.

2 Q And did witness number 5 in his testimony

3 state that a minimum of one syringe of thiopental

4 is used and that the number of syringes stayed

5 constant for all executions?

6 A I'm sorry. Can you repeat that?

7 Q Sure. Did witness number 5 say that a

8 minimum of one syringe is used?

9 A Yes.

10 Q And did he say that that number stayed

11 constant during all executions in which he

12 participated?

13 A Yes, that's what he said.

14 Q And was witness number 6, the RN, was she

15 present for executions through the last one that

16 California performed, the Allen execution?

17 A Yes.

18 Q Did witness number 6 remember how many

19 syringes of thiopental were used?

20 A I'm sorry. I'm trying to find her testimony

21 here.

22

She says two, two 50 CC syringes.

23 Q Was she certain of that?

24 A She says, "I think it's two, two syringes."

25 Q Thanks. And did witness number 7 who is an

0500

1 RN on the team until 2003, did she say that there

2 was one syringe with 25 cc of solution for all

3 executions that she participated in?

4 A Yes. She is the one who says they are

5 following the protocol all the way through.

6 Q And did witness number 9, the team leader in

7 training, testify that one syringe of thiopental

8 was used for all executions through Allen?

9 A Yes. One syringe is the same every time, he

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10 says.

11 Q Does this conflicting testimony concern you?

12 A They don't seem to have a handle on what's

13 going on. You certainly can't have confidence

14 that they have a handle on what's going on. This

15 is -- the most important thing is getting the

16 right amount of thiopental in and checking that

17 you have the effect that you're looking for, and

18 they are all over the map on this. It's not

19 good.

20 Q And does it also concern you that they may

21 have been deviating from the specifications in

22 the protocol?

23 A They are testifying that they are deviating

24 from the protocol, from the most important part

25 of the protocol.

0501

1 Q If a team member is unsure how many syringes

2 of thiopental to administer in an execution, can

3 they ensure that they are administering a

4 sufficient amount to adequately anesthetize the

5 inmate?

6 A No. If they are not confident about the

7 number, they have the wrong numbers of syringes,

8 I don't see how they can know how many milligrams

9 are in those syringes and how much they think

10 they are delivering.

11 Q And is this confusion compounded by the

12 team's uncertainty with respect to how to mix the

13 thiopental?

14 A Yes.

15 Q Is it possible that the team was unable to

16 properly mix the thiopental or may have mixed a

17 dose that was less than the intended 5 gram dose?

18 A Sure. We can all make mistakes. It's

19 certainly possible that they did.

20 Q So does thiopental have to be mixed?

21 A It does have to be mixed, yes. It comes as

22 a powder form and you have to add water or

23 diluent to dissolve it.

24 Q And have you reviewed the execution team

25 members' testimony with respect to how they

0502

1 accomplished that combination?

2 A I have, yes.

3 Q Can you say with confidence how much

4 thiopental was administered in any previous

5 execution?

6 A No. We have no idea.

7 Q And you've reviewed the testimony of witness

8 number 6, the RN who had primary responsibility

9 for mixing the thiopental?

10 A Yes, I have.

11 Q Okay. If you could turn to Exhibit 67.

12

Have you seen this before?

13 A I have, yes.

14 Q Is this the so-called formula or guidelines

15 that witness number 6 used to prepare the

16 thiopental?

17 A It is, yes.

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18 Q And what does this document say about how to 19 prepare the thiopental? 20 A It says that there will be -- the setup is 21 25 cc of -- she has it spelled wrong, 22 "penthotal," I assume she means pentothal, and 23 later on down she calls it "pentolal," 5 grams 24 and 25 cc. 25 Q Is this document kept in the anteroom of the 0503
1 execution chamber? 2 A That's where they say they keep it, yes, but 3 it's not anywhere on the actual protocol. 4 Q All of the information on this document? 5 A None of this is in the protocol. 6 Q But is the specification about 5 grams and 7 25 cc, that's -8 A I'm sorry. Yes. But this page -- I'm 9 saying this page is not in the protocol. 10 Q So what's the concentration of the thiopental 11 solution at 5 grams and dissolved in 25 cc? 12 A If you put 5 grams in 25 cc, that would be 13 20 percent. 14 Q And does the package insert of thiopental 15 list the range of clinical concentrations? 16 A I've never heard of anybody making up 17 pentothal at 20 percent. That's an 18 off-the-charts concentration of pentothal in my 19 experience, in clinical experience. 20 Q Are you aware of any other states using 21 concentrations this high for executions? 22 A No. 23 Q Does the high concentration raise concerns 24 in your mind? 25 A It's reckless. IVs infiltrate. It's a fact 0504 1 of life. And if thiopental of that concentration 2 were to extravasate or leave the vein and go into 3 the tissue, then that would be very injurious. 4 There's no advantage in making it up like this, 5 and there's significant disadvantage. 6 Q Did witness number 6 testify at length about 7 the mixing process? 8 A Yes. 9 Q And having read her testimony, do you come 10 away with a clear sense of how she actually mixed 11 the thiopental? 12 A I don't think she knows what she's doing. 13 Q Did she appear confused about whether her 14 goal was to mix the thiopental in a clinical 15 concentration or in the concentration provided by 16 Exhibit 67? 17 A Yes, she's confused about that. 18 Q Did witness number 6 recall how many grams 19 of thiopental are supposed to be administered in 20 an execution? 21 A She's confused about it I think is the best 22 description. 23 Q And does that concern you given that she had 24 primary responsibility for mixing the drugs? 25 A Of course. That's appalling.

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0505

1 Q Does witness 6 state that at least some of

2 the time she mixed the thiopental from one big

3 package?

4 A Yes. She talks about the 5 gram bottle that

5 I infer that in the old days that's what they

6 had, and then at some point they switched.

7 Q Did she know how much thiopental was in that

8 one big package?

9 A No. She doesn't really seem to care about

10 the doses or anything.

11 Q Did she also testify that she never drew the

12 entire mixture of thiopental and diluent into the

13 syringes for administration?

14 A Yeah. She testified that she would leave

15 some in the bottle. She would take out one

16 syringe -- she would put the fluid into the

17 bottle where the powder is, take out one syringe

18 with some fluid in it and presumedly drug in it,

19 take out another syringe, but then she would

20 always be leaving some in the bottle, and she

21 didn't know how much she was leaving in the

22 bottle.

23 Q Does that mean that witness 6 prepared less

24 than 5 grams for executions?

25 A By definition she wasn't preparing the full

0506

1 amount. That's the best we could possibly say

2 about it.

3 Q And I'd like to draw your attention to her

4 testimony at page 135. I'll just read you the

5 quote.

6

"Question: Am I understanding you

7

correctly when I say that you would take

8

the diluent that was provided by the

9

manufacturer, mix it up in the vial and

10

draw out 25 cc; is that correct?

11

"Answer: Yeah, draw out the needle."

12

"Question: "Do you only put in 25 cc to

13

mix it up, or do you just draw out the

14

25 cc? Do you understand the

15

difference?"

16

"Answer: Whatever the package come

17

with, we put everything in that. If we

18

need 25 cc, we draw out 25 cc or

19

whatever milligram required. That's

20

what we do."

21

Is witness 6 describing two different

22 ways of mixing thiopental here?

23 A Yes. It's hard to tell what she's doing.

24 Q Could you briefly explain what she might be

25 talking about?

0507

1 A Well, the important thing is the number of

2 milligrams that go in. The volume is also

3 important. You don't want it to be too

4 concentrated or too diluted, but the important

5 thing is the number of milligrams. But she seems

6 to be conflating those two issues, whether it's

7 the number of cc that are important, which it

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8 isn't, or the number of milligrams, which is

9 important.

10 Q Would it be problematic if witness number 6

11 mixed the thiopental by mixing the clinical

12 concentration and then drawing out 25 cc?

13 A Yes. She needs to be giving everything in

14 that bottle if she wants to give 5 grams. If

15 she's putting in, for example, 100 cc into the

16 bottle and drawing out 25 cc, then he's getting a

17 vastly lower dose than what she thinks he is.

18 Q Does it appear that she knows precisely how

19 much she's giving?

20 A No. As she said and, as described

21 elsewhere, she's leaving some in the bottle. She

22 does not know how much, therefore, that he has.

23 Q Is there any way for us to recreate how much

24 she may have given?

25 A No. In good practice what they need to be

0508

1 doing is actually keeping a record of how much

2 they are injecting into the person, how much they

3 are taking out, how much they are wasting, how

4 much they are injecting, and there's no record

5 like that that I've been provided with. So we

6 have no idea what they did, and since they were

7 paralyzed, we can't tell if they gave enough.

8

THE COURT: How many cc would you need

9 to make a clinical concentration of 5 grams?

10

THE WITNESS: There's a rate of clinical

11 concentrations, but if you wanted -- I wouldn't

12 try to do this in my head, but it's a range I'm

13 not used to working in. But if you wanted, say,

14 a 5 percent solution --

15

THE COURT: But a 5 percent solution

16 would be within the clinical range?

17

THE WITNESS: Yes. That's not too

18 concentrated and that's not too diluted. We

19 often use 2.5 percent, 5 percent. 20 percent is

20 way out. I can't tell you what the clinical

21 range is.

22

THE COURT: But if it was 5 percent

23 solution, am I right then you would need 100 --

24 100 cc, or am I doing the math wrong?

25

THE WITNESS: That's right.

0509

1

THE COURT: You need 100 cc?

2

THE WITNESS: Yes.

3

THE COURT: And if you add 1.5 grams,

4 then presumably you would need proportionally

5 less?

6

THE WITNESS: Yes.

7

THE COURT: All right.

8 BY MS. ANDERS:

9 Q So it's possible that witness 6 prepared

10 something very close to 5 grams or 5 grams for

11 executions?

12 A It's possible.

13 Q We just don't know?

14 A We can't tell.

15 Q Now, if I told you that witness number 3

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16 testified that when he assisted in the mixing

17 process, the team prepared four syringes of

18 thiopental each with 1.25 grams, would you view

19 that testimony as consistent with witness

20 number 6?

21 A It's obviously completely contradictory.

22 Q And is the preparation of four syringes

23 containing 1.25 grams each detailed anywhere in

24 the older version of the protocol?

25 A No, it's not. It's not even in the new

0510

1 protocol. Nowhere does it say that they should

2 be doing it that way.

3 Q And how about on Exhibit 67, the formula?

4 A No, it's not there either. It's in

5 contradiction to that.

6 Q Does the CDCR's failure to train or

7 supervise execution team members in mixing the

8 thiopental create a serious risk that inmates

9 will not be adequately anesthetized?

10 A Yes, it does.

11 Q In your opinion, is that risk alleviated now

12 that witness number 6 has retired?

13 A No. This is not the fault of these people.

14 They are working in a system that is not

15 providing them with the proper goals, the proper

16 resources. Evidently one assumes that when the

17 new packaging came, they didn't feel comfortable

18 going to the warden and saying, "We need a new

19 protocol. We need a new mixing plan. We'd

20 appreciate having input from somebody who can

21 give us good guidance on that."

22

They are trying to figure it out for

23 themselves, and they are sort of adrift. I think

24 they are doing the best they can within a very

25 dysfunctional system.

0511

1 Q In addition to uncertainty about whether

2 execution team members have been able to prepare

3 and administer the intended dose of thiopental,

4 are there gaps in the chain of custody of

5 thiopental and unaccounted-for quantities of the

6 drug?

7 A Yes, there are.

8 Q So is thiopental a controlled substance?

9 A It is, yes.

10 Q And what does that mean?

11 A There are some drugs that are addictive or

12 very pleasurable to use and subject to being

13 abused, and so the Federal Government has put

14 them in a classification where they are subject

15 to very strict standards of handling and tracking

16 and all that kind of stuff.

17 Q Is drug diversion a concern in hospitals?

18 A Absolutely.

19 Q Does it happen?

20 A Absolutely.

21 Q And is it your understanding that the

22 pharmacist in charge at San Quentin was recently

23 deposed in this case?

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24 A Yes, he was.

25 Q And he testified that as the head of the

0512

1 pharmacy, quote, "I'm obviously concerned about

2 drug diversion issues."

3

In your experience, are pharmacists

4 generally concerned about drug diversion issues?

5 A That's one of the important features of

6 their job.

7 Q In a clinical setting can drug diversion

8 contribute to interoperative awareness?

9 A Yes, it can.

10 Q How so?

11 A So an anesthesiologist who's addicted to a

12 narcotic or some other substance may check out

13 the bottle or syringes of that substance and

14 write on the chart that he has administered --

15 her or she has administered it to their patient

16 when, in fact, they've pocketed it or diverted it

17 for their own use either in the OR right then and

18 there or that day while they are in the hospital

19 or taking it home.

20 Q In your practice what, if any, records do

21 you have to keep of your use of thiopental?

22 A To just understand, thiopental is rarely

23 used, but if we're talking about scheduled

24 substances or controlled substances in general,

25 where I practice there's a machine that you have

0513

1 to put a password into, and you check out the

2 drug, and it keeps track of the fact that you as

3 an individual took that drug out or those drugs.

4

And then you mix them up and you use

5 them in the operating room, and you keep a chart

6 of what you used. And if you have any unopened

7 bottles, you would put them back in the machine

8 at the end of the day. The machine would keep

9 track of that.

10

And if you have any syringes that you

11 didn't fully empty, then you'd have to get a

12 witness and you'd squirt the empty -- the rest of

13 the syringe into a waste disposal container and

14 have that witness sign off that they witnessed

15 you disposing of that drug.

16

And then the pharmacists take all that

17 information and make sure that it all adds up,

18 that what you took out is equal to the sum of

19 what you used, what you've returned and what was

20 witnessed to be wasted. It's a tracking system.

21 Q Does the execution team keep similar records

22 of their thiopental use?

23 A It's similar, yes.

24 Q Do they keep records of how much they

25 actually prepare and administer and discard?

0514

1 A It's similar. They have some features of

2 that. It's an attempted tracking system, but

3 it's missing essential features of it so that you

4 can't really tell what exactly is going on.

5 Q So are there any records showing how much

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6 thiopental is actually put into a syringe, used

7 or flushed?

8 A No. We have no idea what's actually -- what

9 is actually being mixed up and used, how much is

10 being wasted, if any. We don't know that.

11 Q I'd like to show you Exhibit 76.

12

THE COURT: Actually, before you go

13 there, is there any known recreational use for

14 thiopental?

15

THE WITNESS: All barbiturates are, if

16 you're that kind of person, pleasurable and

17 addictive.

18

THE COURT: So what -- and this is not

19 just a matter of idle curiosity, but thiopental

20 has been described as a short-acting barbiturate

21 what. Would happen to a person who used it

22 recreationally?

23

THE WITNESS: It depends how they

24 administered it. If they swallowed it, then

25 they'll have a longer profile. It's short acting

0515

1 in intravenous form. And if they inject it, then

2 they would have -- depending on how much they

3 inject, they would either get a transient period

4 that would feel a lot like being very drunk.

5 Barbiturate -- the sensation of barbiturates is a

6 depressant.

7

THE COURT: So in that sense it would

8 work just like somebody taking what's

9 colloquially called reds? They are the same

10 idea?

11

THE WITNESS: I don't know reds. People

12 call barbiturates downers.

13

THE COURT: Yeah.

14

THE WITNESS: I don't know.

15

THE COURT: But it's kind of a -- you

16 know, I do a lot of drug cases. So I'm just

17 curious about this. There would actually be a

18 reason for people to want to do this?

19

THE WITNESS: The sensation of

20 barbiturates is I think -- I would expect very

21 similar between barbiturates. The differences

22 between barbiturates mostly are due to their

23 different kinetic profiles, how long they last

24 for.

25

Any of them, if you take a lot, you'll

0516

1 die. If you take a little, you'll get

2 intoxicated in a way that some people would

3 enjoy. It depends on what kind of person you

4 are.

5

THE COURT: Okay. All right. Sorry for

6 the diversion. Go ahead.

7 BY MS. ANDERS:

8 Q So looking at Exhibit 76 in one of those

9 binders. Have you seen this before?

10 A I have, yes.

11 Q And what is this page in your understanding?

12 A It's entitled on the upper left drug --

13 "Controlled Substance Inventory Log."

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14 Q Is it kept by the pharmacy at San Quentin? 15 A Yes, it is. 16 Q Does it record the amount of thiopental 17 dispensed? 18 A Yes, it does. 19 Q And does it record who or what position 20 that -- the thiopental is dispensed to? 21 A Yes. It's blacked out on this chart, but 22 it's -23 Q Is it your understanding -24 A There's a name under there. I see one of 25 the names underneath there. It's there. 0517
1 Q It's all redacted here? 2 A Now it's all redacted, yes. 3 Q So given that I think you have a partially 4 redacted copy in front of you, if you could just 5 please be careful not to say the name. 6 A I won't. Of course. 7 Q So is it your understanding that the -- that 8 name wasn't redacted out, it would be witness 9 number 1? 10 A That's what I was told, yes. 11 Q And did the pharmacist testify regarding the 12 meaning of these entries on the document? 13 A He did, yes. 14 Q Have you reviewed his testimony? 15 A Yes. 16 Q And based on that testimony, is it your 17 understanding that witness number 1, the co-team 18 leader, periodically checked out quantities of 15 19 or 25 vials of thiopental for the purposes of 20 practice? 21 A That's correct, yes. That's what it says 22 here, also. 23 Q And according to this log, were any of those 24 vials that were checked out returned to the 25 pharmacy? 0518 1 A They were not returned. 2 Q When the execution team practices or 3 rehearses for execution, do they actually mix the 4 thiopental? 5 A They testify that they don't. 6 Q And, in fact, do they simply use water to 7 put into the syringes to practice? 8 A That's right. 9 Q And for purposes of practicing the injection 10 itself, would there be any point in actually 11 mixing the drug? 12 A For practicing the syringe work, the pushing 13 of the drugs, it doesn't matter what fluid you're 14 using so long as it's water based. 15 Q Did the pharmacist know that the team 16 doesn't actually use the thiopental to practice? 17 A No. I doubt he would have given it to them 18 for practice if he knew that. 19 Q Do you understand why they are taking all 20 this thiopental for practice and then not 21 returning it?

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22 A I don't.

23 Q Did witness number 1 also check out

24 quantities of 25 vials for the purposes of each

25 execution?

0519

1 A Yes.

2 Q And just to be clear, was this duty also

3 handled by the former team leader, witness

4 number 5, in less recent executions than we have

5 on this log?

6 A Yes.

7 Q Was witness number 5 once suspended as a

8 disciplinary measure?

9 A He was, yes.

10 Q What for?

11 A Bringing illegal drugs into the prison.

12 Q In anesthesiology, are people who have a

13 history of drug use at increased risk of drug

14 diversion?

15 A Yes.

16 Q How many 500-milligram vials of thiopental

17 are needed to make a 5 gram dose?

18 A Ten vials.

19 Q So how many vials were necessary for an

20 execution under the old protocol?

21 A The testimony is vague about a backup about

22 whether they mixed it up or whether it was there,

23 but my general understanding is that they had 5

24 grams to inject and then 5 grams that were not

25 made up or a backup dose, which would be 5

0520

1 grams. That would be a total of 20 bottles. You

2 don't need 25 bottles or vials.

3

And he stated that he never had to use

4 the backup drugs. So it's unclear what they

5 did -- that means for each execution there's 15

6 vials missing.

7 Q And, according to Exhibit 67, the formula,

8 was the backup mixed or not mixed?

9 A Supposedly it's not mixed. That's the best

10 we can tell.

11 Q And based on this log and the pharmacist's

12 testimony, were any of the vials checked out ever

13 returned to the pharmacy?

14 A They were not.

15 Q The execution team members testified that

16 they did return vials; is that correct?

17 A They did, yes.

18 Q Does the protocol state that any unused

19 drugs should be returned?

20 A Yes.

21 Q So does there appear to be some thiopental

22 that is unaccounted for?

23 A Yes. There's a lot of thiopental that is

24 not properly tracked here.

25 Q According to the pharmacy log and the

0521

1 pharmacist's testimony?

2 A According to this log, yes.

3 Q Is it possible to know whether any of the

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4 thiopental was actually diverted for unauthorized 5 use? 6 A You can't tell from this what happened to 7 it. It's just bad recordkeeping. 8 Q Is it possible to know whether any inmate 9 received less than a 5 gram dose because of drug 10 diversion? 11 A We can't know for sure. We have -- given 12 that they got pancuronium, we are now just left 13 to wonder what happened. 14 Q Do any states maintain records of the amount 15 of thiopental that they actually prepared, 16 administered and discarded during executions? 17 A Yes, they do. 18 Q Is Missouri an example of one of those 19 states? 20 A Yes, it is. 21 Q And if those records are correctly kept, is 22 that a good practice in your view? 23 A It's important practice, yes, to keep track 24 of how much you took out, how much you used, how 25 much you wasted and how much you returned, and 0522 1 those things all have to reconcile. 2 Q Can such a log if kept properly be helpful 3 in ensuring that the correct dose of thiopental 4 is administered during an execution or prepared 5 and given? 6 A Sure. That's how -- it was from reviewing 7 logs that were properly kept in Missouri that it 8 became apparent to us -- to me that -- and I 9 think then to the warden that they weren't giving 10 the amount of drug that the warden thought they 11 were. 12 Q And you could tell that from the drug log? 13 A That's how that emerged, yes. The drug log 14 showed that they were only taking out enough for 15 2 and a half grams, and so it wasn't possible 16 that they were giving 5 grams. And ultimately 17 the surgeon who was in charge of the protocol and 18 the mixing conceded that he didn't know how much 19 he had been given, but it wasn't 5 grams. 20 Q In sum, based on these logs and testimony, 21 are you confident that the execution team had on 22 hand and prepared the correct dose for any 23 particular execution? 24 A You just can't tell. 25 Q And we'll never know? 0523 1 A They gave pancuronium, so we don't know what 2 the prisoner got. 3 Q And I think before in discussing the drug 4 delivery failures that could occur during an 5 execution, you mentioned failure to obtain 6 reliable venous access; is that right? 7 A Yes. 8 Q Have IV problems occurred in past California 9 executions? 10 A Yes, they have. 11 Q Is there one example in particular that

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12 sticks out in your mind? 13 A The Stanley Williams execution. 14 Q And, according to witness number 3's 15 testimony, can you briefly tell us what happened 16 or what he says happened. 17 A I think there are two people who are 18 supposed to put an IV in, one in each arm, and 19 the person -- one of the persons was having 20 considerable problem getting the IV in and kept 21 attempting and found it stressful. And 22 Mr. Williams who was initially very cooperative 23 with this apparently became -- became -- began to 24 object to what was happening to him, and 25 ultimately an IV was placed and connected to the 0524
1 tubing, but it wasn't a working IV. It was known 2 to not be a working IV. 3 Q And just to be clear, the two people placing 4 IV access, were those witnesses number 3 and 5 number 6? 6 A Yes. 7 Q And when they came out of the chamber, was 8 anything said? 9 A One person said something to another person, 10 but there was no -- the team leader didn't know 11 that -- the team as a whole, the warden, did not 12 know that this was a situation. 13 Q What did witness number 3 say was said? 14 What did he hear at that point? You don't have 15 to give the exact words. 16 A Pardon me? 17 Q You don't have to give the exact words. 18 A "It's not working." 19 Q And did the warden then say to proceed with 20 the execution? 21 A Yes. 22 Q So is there never -- just to clarify, the IV 23 that wasn't working, that was the left IV; is 24 that right? 25 A Correct. 0525 1 Q And is the left IV used as the backup IV? 2 A It is, yes. 3 Q So is there never a working backup IV in 4 that execution? 5 A That's correct, but the folks there didn't 6 know. 7 Q Was witness number 5 the team leader at that 8 point? 9 A Yes. 10 Q Was he informed of the IV problem before the 11 execution began? 12 A He didn't find out until they -- until after 13 it was all over. 14 Q And if I told you that the person injecting 15 the drugs didn't know that the left IV had not 16 been properly started during the execution while 17 he was injecting the drugs, would that be a 18 problem? 19 A It's a huge problem.

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20 Q Why is that?

21 A Well, for example, imagine if you're

22 injecting the thiopental, the first drug, and you

23 have some kind of problem and you feel back

24 pressure on the syringe, you don't think it's

25 going right or whatever, but you've injected

0526

1 all -- all 25 cc of it or whatever and you switch

2 over to the -- I'm sorry.

3

If you're injecting that IV and the

4 thiopental is, in fact, infiltrating and you

5 switch over and try to inject him with the other

6 IV, you're going to give pancuronium and

7 potassium into one IV, but the thiopental will

8 have infiltrated and not reached the circulation.

9 Q I'm just going to draw your attention to

10 something that Dr. Singler testified to. In your

11 understanding, was he prepared to assist in the

12 Morales execution?

13 A Yes.

14 Q Had he testified, quote -- this is on page

15 285 of his deposition -- "I can't speak to what I

16 would have done had one of the IVs infiltrated,

17 but I think that might have posed a real

18 roadblock for me to continue as planned. If

19 there was an ineffectual second line prior to

20 when the door was closed, I probably would have

21 turned right around and walked back out that door

22 and said, 'Guys, we have a problem.'"

23

BYRNE: Do you agree with Dr. Singler

24 that informing the execution team of the faulty

25 IV would have been the right course of action in

0527

1 that scenario?

2 A He's absolutely correct.

3 Q So was there a complete failure of

4 communication during the Williams execution?

5 A Total breakdown in communication of critical

6 information.

7 Q And I'd just like to draw your attention to

8 something that witness number 3 testified to.

9

In response to the question whether if

10 he observed another team member improperly place

11 an IV, he, witness number 3, would take any

12 action about that, he stated, quote: "Well, the

13 person setting it would know it. So they would

14 have to restart it. I'm not for sure. It's not

15 directly my responsibility to say no, it's not

16 good, but that person that's doing it would know

17 that it's not."

18

Does this attitude exacerbate the risk

19 of unsuccessful IV placement?

20 A Sure. People who are working together on a

21 team need to be cooperative and supportive. And

22 you see if someone else has had a problem, and

23 you know their IV isn't working, you ought to,

24 you know, help them out and make sure everybody

25 else knows and, you know, figure out a plan.

0528

1 Q And when witness number 5 was asked whether

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2 he should have been told about the IV problem in

3 the Williams execution, he said, quote: "I would

4 say that the warden and/or myself should be made

5 aware of it."

6

Do you agree that that's basically what

7 happened?

8 A Of course. They are the ones in charge.

9 Q Was any reporting procedure put into place

10 as a result of the IV problems?

11 A No. After this kind of procedure, an

12 execution, they should always have a debriefing,

13 but particularly when something like that goes

14 wrong and they become aware that something went

15 wrong, they should have a debriefing and identify

16 the systematic problems and -- and figure out how

17 to fix them and track that they are fixing them.

18 Q So would you agree with Mr. Gillette's

19 statement yesterday that, quote -- I believe this

20 is a pretty close quote: "Williams is a lesson

21 well learned"?

22 A It may have been learned by Mr. Gillette,

23 but the execution team hasn't -- you know, hasn't

24 responded appropriately to it.

25 Q Are errors in mixing the thiopental and

0529

1 obtaining IV access dangerous in themselves?

2 A Yes.

3 Q Can these problems arise in clinical

4 setting?

5 A Yes.

6 Q And are they also examples or symptoms of

7 systemic problems in California's execution

8 procedure?

9 A Yes.

10 Q In your opinion, is there evidence that

11 inmates may have been inadequately anesthetized

12 in previous executions?

13 A There's evidence that they continue -- that

14 they did not receive the full 5- ram dose of

15 thiopental.

16 Q Is it your understanding -- strike that.

17 A There's no one there to assess anesthetic

18 depth. So I can't be sure what their level of

19 anesthesia was.

20 Q What effects would you expect to see in a

21 person who had successfully received 5 grams of

22 thiopental into their circulation?

23 A If 5 grams of thiopental is effectively

24 delivered into the circulation, it will result in

25 rapid attainment of a deep level of

0530

1 unconsciousness.

2

It will shut down all electrical

3 activity in the brain. The brain will be in a

4 state that we call EEG flat line,

5 electroencephalographic flat line. There won't

6 be any electrical events at all. Breathing will

7 be completely stopped. All movement will be

8 completely stopped.

9

While it's going in the person might

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10 cough or sigh or snort or sneeze or hiccup, a

11 couple of respiratory cycles like that, but that

12 will rapidly stop, and they will be still.

13 Q Has Dr. Mark Dershwitz expressed an opinion

14 on whether the successful delivery of 5 grams of

15 thiopental will stop respiration?

16 A He has, yes.

17 Q And what is his opinion?

18 A It's the same as mine. 5 grams of

19 thiopental, if you get it into any human being,

20 it's going to stop consciousness, stop movement,

21 stop respiration.

22 Q So I'd just like to draw your attention to

23 the affidavit that Dr. Dershwitz filed earlier in

24 this case in support of the Defendants.

25

He stated, quote: "All of the standard

0531

1 textbooks in anesthesiology state that following

2 a dose of 300 to 400 grams of thiopental,

3 breathing will cease within a minute and the

4 patient will remain apneic without breathing for

5 five minutes."

6

Do you agree with that statement?

7 A I'm not sure about the five minutes, but

8 certainly they will cease breathing very rapidly

9 and they will -- there's variance between

10 individuals, but for several minutes, he's

11 right.

12 Q And later in the same affidavit he states,

13 quote: "The duration of apnea depends on the

14 total dose of thiopental. The larger the dose,

15 the longer the duration of apnea."

16

Do you agree with that statement as

17 well?

18 A Yes, I do. He's correct.

19 Q So would you expect that a 5 gram dose of

20 thiopental successfully delivered would cause an

21 inmate to drop breathing for the duration of an

22 execution?

23 A Absolutely.

24 Q How certain are you about that?

25 A Completely certain.

0532

1 Q Does prolonged breathing raise concerns

2 about the level of anesthesia?

3 A Yes. A person who's breathing is not in a

4 deep plane of anesthesia.

5 Q I'd just like to look at -- I'd just like to

6 talk to you about the execution logs now. Does

7 the CDCR keep execution logs?

8 A It does, yes.

9 Q Could you briefly describe what they are,

10 what they look like.

11 A It -- it's got notations for when the drugs

12 are delivered and then recordings of vital signs

13 and other information.

14 Q Were these logs reported by the doctors who

15 observed the executions?

16 A Yes.

17

Could you just tell me which exhibit?

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18 Q This is Exhibit 11.

19 A 11. Thanks.

20

MR. GILLETTE: Your Honor, if I may for

21 just a moment, I know -- I assume we're going to

22 be going through a variety of the execution

23 logs. They are scattered throughout the

24 exhibits. We do have a set of the printed

25 execution logs that are in the order of the

0533

1 executions with the numbers that might be easier

2 than flipping through all of the --

3

THE COURT: That would be very helpful,

4 actually.

5

MS. ANDERS: Actually, we're just going

6 to use this one as an example.

7

MR. GILLETTE: Okay.

8

THE COURT REPORTER: Oh, okay.

9

MR. GILLETTE: I will -- if I could --

10

THE COURT: It would be helpful to the

11 Court. I think all of this is in the materials

12 from February.

13

MS. ANDERS: This is all in the binders.

14

MR. GILLETTE: Yes. This is a

15 complete -- if I can approach the witness?

16

THE COURT: Sure.

17

MR. GILLETTE: In case it becomes

18 necessary, and for the witness as well.

19

THE COURT: Thank you. I appreciate it.

20

All right. Right now we're looking at

21 Exhibit 11?

22

MS. ANDERS: This one.

23 BY MS. ANDERS:

24 Q So did you review some of the execution logs

25 prior to Mr. Morales's scheduled execution?

0534

1 A Yes.

2 Q And were others provided after that date?

3 A Yes.

4 Q And you reviewed those subsequently?

5 A Yes.

6 Q Did you discuss the -- before Mr. Morales's

7 scheduled execution, did you discuss the logs you

8 currently had in your declaration?

9 A Yes.

10 Q On reviewing these logs, what did you

11 notice?

12 A Well, several things, but one thing of

13 concern is that breathing continues for quite a

14 long period, several executions after the time of

15 pentothal, and it doesn't stop until after the

16 pancuronium is administered.

17 Q And does that raise doubts about the level

18 of anesthesia?

19 A Yes. It's very concerning. I don't know

20 whether the breathing stops because of pentothal

21 or because of pancuronium, but when somebody is

22 breathing like that they are not in a deep plane

23 of anesthesia. They may not even be unconscious.

24 Q Did you review the testimony of the doctors

25 who recorded the observations on these logs?

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0535

1 A I did, yes.

2 Q And what, if any, effect did the doctors'

3 testimony have on your interpretation of the

4 logs?

5 A When I first looked at the logs I didn't

6 know who had recorded them and -- in some cases

7 and what their confidence was about what they are

8 seeing, but the doctors are confident that what

9 they recorded is accurate. So it bolsters the

10 interpretation.

11 Q So I just draw your attention to the

12 testimony of Dr. Calvo, one of the physicians who

13 observed executions. On page 161 of his

14 deposition he described the breathing movements

15 he observed as, quote, "rhythmic" and, quote, "at

16 a certain rate."

17

Do these descriptions conform to your

18 understanding of chest movements that are

19 consistent with respiration?

20 A Yes.

21 Q Do you know how Dr. Calvo was -- sorry.

22

How do you know that Dr. Calvo was

23 measuring respiration as supposed to agonal

24 movement?

25 A He talks about knowing the difference

0536

1 between agonal movements and respiration, and

2 he's clearly discriminating between those two

3 types of observations.

4 Q And if I told you that --

5

THE COURT: If I could just interpose,

6 you may recall, Dr. Heath, in the proceedings

7 back in February Dr. Dershwitz opined that the

8 references to respirations might well be

9 descriptions of what he termed involuntary chest

10 wall movements.

11

What is your opinion as to whether

12 Dr. Calvo's testimony rebuts that or what's your

13 interplay, your expert opinion as between what

14 Dr. Dershwitz surmised and what Dr. Calvo said?

15

THE WITNESS: The doctors' observations,

16 they reinforced that they were observing

17 respiratory type of movements. Dr. Dershwitz

18 wasn't there when these executions occurred and

19 these doctors were present observing it.

20

Dr. Dershwitz is basically saying -- he

21 was presupposing his conclusion that they got 5

22 grams. He's saying since they got 5 grams, these

23 movements had to be some sort of reflex or agonal

24 chest wall movement.

25

THE COURT: They can't be breathing

0537

1 because they got 5 grams.

2

THE WITNESS: Because they got 5 grams.

3 He's presupposing the conclusion that he was

4 supporting. One has to be open-minded. You have

5 the doctors saying that there was breathing and

6 you can't be breathing after getting 5 grams of

7 thiopental.

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8

THE COURT: And you're satisfied that

9 Dr. Calvo saw breathing?

10

THE WITNESS: There's two doctors who

11 said they saw breathing. They are right there.

12 They say they know the difference between

13 breathing and other types of movements. I have

14 to respect their judgment. I would prefer to

15 have been there myself to observe it, but this is

16 the next best thing I have and I think it's a

17 good thing to rely upon.

18 BY MS. ANDERS:

19 Q Can you tell from the logs and the doctors'

20 testimony whether these inmates were successfully

21 pulling air into their lungs?

22 A No. Sometimes when people are asleep or

23 lightly unconscious their tongue falls into the

24 back of their mouth and that obstructs the

25 airway. We hear snoring if they are partially

0538

1 pulling air in and out, but if it completely

2 obstructs, then there's no actual movement of

3 air.

4 Q So from the perspective of -- of determining

5 whether these inmates -- whether someone is in a

6 deep plane of anesthesia, does it matter if

7 you're seeing respiratory movements whether they

8 are successfully pulling air into their lungs?

9 A The important thing is that you see rhythmic

10 respiratory type movements. If you're seeing

11 that in somebody, then they haven't received 5

12 grams of thiopental.

13

They can be in a light level of sleep

14 just like somebody who has sleep apnea. They are

15 asleep in bed. They obstruct their airway. They

16 don't breathe for a period of time, but their

17 chest keeps on trying to bring air in and out.

18 Q And if I told you that Dr. Calvo and

19 Dr. St. Clair, the other doctor during

20 executions, both stated that they measured the

21 rate of respirations by counting the number of

22 respirations in either a minute or fraction of a

23 minute, would you think that that's a proper way

24 to measure the rate of respiration?

25 A Yeah. Usually what you do is you count the

0539

1 number of breaths in 15 seconds, 30 seconds. If

2 you see five breaths in 30 seconds, then you note

3 a respiratory rate of 10. That's a very normal

4 way of recording that. I don't think anybody

5 actually watched for a full minute.

6 Q Does the fact that they were recording a

7 rate or looking for a rate, does that indicate

8 anything about what they may have been seeing?

9 A Yeah. Nobody would write down a rate of

10 agonal chest wall movements. It's not something

11 that you record under a column of respiratory

12 movements.

13

THE COURT: Would they be rhythmic?

14

THE WITNESS: They can be rhythmic,

15 yes. They can be sort of a cyclical, rhythmic

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16 type of movement, absolutely. But they look

17 different from breathing movements.

18

THE COURT: To a trained eye.

19

THE WITNESS: Yeah. It's hard to

20 describe. It's sort of ineffable. You can't

21 read it from a book. You've got to learn how to

22 observe that vital sign, respiratory activity.

23 BY MS. ANDERS:

24 Q Do any of the logs record that the inmates

25 stopped breathing and then started breathing

0540

1 again?

2 A No. There's no evidence of that whatsoever.

3 Q Did Drs. Calvo and St. Clair testify that

4 they observed inmates stop breathing and then

5 start again?

6 A That was never seen.

7 Q And if I were to tell you that Dr. Singler

8 rendered an opinion that inmates might stop

9 breathing after receiving 5 grams and then start

10 breathing again, would you agree?

11 A That's just factually wrong. Not within the

12 time frame of these executions. If you gave

13 somebody 5 grams of thiopental, put them on a

14 ventilator and mechanically ventilated them so

15 that their lungs were being oxygenated, after

16 some period of time the thiopental would wear off

17 and they would then resume breathing on their

18 own. But since you're not going to do that

19 that's not going to happen.

20

THE COURT: Well, let me just pursue

21 that, if I might.

22

Dr. -- I think it was Dr. Ebling talked

23 about the half lifes. And you were present

24 during that testimony; correct?

25

THE WITNESS: Yes.

0541

1

THE COURT: At some point even a 5 gram

2 dose would wear off; correct?

3

THE WITNESS: If you kept the person

4 alive.

5

THE COURT: Would a 5 gram dose be

6 sufficient to kill someone?

7

THE WITNESS: Absolutely. If it's

8 effectively delivered into their circulation.

9

THE COURT: Well, how would death occur

10 if you would give them a 5 gram dose

11 effectively?

12

THE WITNESS: I think anybody who

13 comments upon this, including me, is conjecturing

14 in the sense that we're having to base it upon

15 what we'd expect. We've never done it.

16

THE COURT: You don't have clinical

17 studies?

18

THE WITNESS: Right. Anybody who

19 comments upon it is under those terms, I think,

20 and I'm placing myself under those terms.

21

What I would expect would happen -- so

22 they certainly would stop breathing, and when one

23 stops breathing several things occur. The level

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24 of oxygen in the blood goes down because our

25 cells our consuming oxygen and the level of the

0542

1 carbon dioxide in the blood goes up because those

2 cells -- they consume that oxygen. The carbon is

3 metabolized to make carbon dioxide.

4

When carbon dioxide goes into the blood,

5 it acidifies the blood. From those things many

6 other physiological things start to happen,

7 including the dysfunction and death of cells in

8 the brain, brain death, and including dysfunction

9 and then death of the cardiac cells that pump --

10 that allow the heart to pump.

11

Along the way what will probably happen

12 is that the cells and the heart will be so

13 impaired they won't have their normal electrical

14 activity because every cell in the heart

15 participates in spreading the waves of electrical

16 activity through the heart. And if those cells

17 get sick, they will start to send out screwy

18 electrical signals and that will at some point

19 cause the heart to stop, pending any electrical

20 activity.

21

THE COURT: So you'd be brain dead and

22 your heart would stop within a certain amount of

23 time after an effective dose of 5 milligrams of

24 thiopental?

25

THE WITNESS: Five grams.

0543

1

THE COURT: Five grams.

2

THE WITNESS: But that's certain, yes.

3

THE COURT: But even with the half life

4 deterioration of its effects, it would not happen

5 soon enough for the person to come back?

6

THE WITNESS: That's correct.

7

THE COURT: Can you give physically that

8 amount of thiopental in a bolus?

9

THE WITNESS: Sure. The protocol is

10 saying to give 25 -- 5 grams in 25 cc, yes.

11 That's a high concentration, but you can give it

12 in -- you calculate it at 100 cc at 5 percent.

13

THE COURT: You could give it all at

14 once, though. You wouldn't have to give it in a

15 drip.

16

THE WITNESS: When you're giving 100 cc

17 that takes a finite amount of -- some frame of

18 time to inject that, some number of seconds, but

19 it's what we would call a bolus. It's a

20 continuous amount that's being given in a

21 relatively rapid flow rate. But, you're right,

22 no drug ever occurs -- no injection is ever

23 instantaneous.

24

THE COURT: You can't get all 5 grams in

25 at the same instant, but it would be a matter of

0544

1 seconds and not a matter of minutes?

2

THE WITNESS: Correct.

3

THE COURT: And then how long --

4

THE WITNESS: As long as you had a good

5 IV.

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6

THE COURT: I understand. And, again,

7 being hypothetical because no one has ever tested

8 this, how long would it take a person to die?

9

THE WITNESS: Again, it's conjecture and

10 it would -- I believe it would take -- it would

11 depend on the individual. Some individual would

12 have a rapid cardiovascular collapse. It's

13 unusual, but some would have that. Some would go

14 on for -- I think people can surpass ten minutes,

15 but, again, I'm just conjecturing about this.

16

THE COURT: If you had a proper delivery

17 system and you gave someone 5 grams of

18 thiopental, the range of time within which

19 somebody would die, that is, to be brain dead and

20 their heart would stop, the outer limit would be

21 what?

22

THE WITNESS: It's hard to know, and

23 I've asked a lot of colleagues about this in this

24 context to try to get a sense of what the best

25 answer would be. It's unimaginable to me that it

0545

1 could be an hour or to anybody that it could be

2 an hour. So that's beyond the outer limit.

3

My expectation, I would be very

4 surprised if it took longer than 20 minutes in

5 anybody, but it might. It's very hard to know.

6 It's conjecture.

7

THE COURT: Would the process be

8 hastened by adding another drug such as an

9 opiate?

10

THE WITNESS: No. I don't think that

11 would hasten the process because the process is a

12 result of what we call apnea, the cessation of

13 breathing, and the 5 grams of thiopental will

14 cause that very rapidly. Adding other drugs will

15 not add to that apnea. You're already apneic,

16 you're already at zero breathing, so it will

17 not -- I don't think that would make any

18 difference.

19

THE COURT: Are there other barbiturates

20 that would cause death faster than thiopental?

21

THE WITNESS: I don't believe so. I

22 believe the mechanism of death -- when you give

23 an animal thiopental, the mechanism of death is

24 from the lack of breathing in the great majority

25 of cases. Again, looking at EKG records I see

0546

1 some where I think there's collapse from the

2 pentothal, but that's the unusual result.

3

THE COURT: Would premedication with a

4 narcotic, an opioid, work in the way that

5 Dr. Ebling testified to, that is, that it would

6 create a calmer person -- calmer person receiving

7 the drug?

8

THE WITNESS: Premedication does calm

9 people. So to give a meaningful dose then that

10 would -- it depends on how anxious the person

11 is. Different people require different amounts

12 to calm them, but if you tied it in to effect,

13 then you'll have a calm person by definition.

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14

THE COURT: And that would in most

15 people speed the process of the perfusion of the

16 thiopental?

17

THE WITNESS: If you take -- I think

18 what Dr. Ebling was saying, because he's got

19 expertise that I don't have, he has a level of

20 proficiency in these cases that exceeds mine and

21 exceeds virtually everybody's, my interpretation

22 of what he's saying is that if -- the starting

23 population of people will have a wide range of

24 levels of anxiety and a wide range of hemodynamic

25 statuses. Some people will be very charged up

0547

1 with lots of adrenaline flowing and some won't.

2

By giving a sedating drug ahead of time,

3 you'll narrow that variance, that range, so

4 you'll have a more homogenous population and

5 that, therefore, when one narrows the attributes

6 of your starting population, you intend to narrow

7 the range of results that you get. That's what I

8 think he was saying or my interpretation of it.

9

THE COURT: Would -- and I think I know

10 the answer to this, but I just want to make it

11 clear for the record.

12

Would a person given a massive dose of a

13 barbiturate such as thiopental experience any

14 pain?

15

THE WITNESS: No.

16

THE COURT: Would they experience any

17 other type of suffering that would be sensible to

18 them?

19

THE WITNESS: No. Once you're in EEG

20 flat line, you can't have any experience

21 whatsoever.

22

THE COURT: I believe Dr. Ebling said

23 that if you kill someone with -- I think I wasn't

24 asking him about thiopental. I was asking about

25 another barbiturate that was slower acting, that

0548

1 it would be messy death. I think that was the

2 phrase he used.

3

Do you have an opinion about that?

4

THE WITNESS: It gets a little

5 uncomfortable talking -- in this context talking

6 about exactly what would happen to people. I'm

7 trying to be helpful, but --

8

THE COURT: I appreciate that.

9

THE WITNESS: If I could talk about

10 animals.

11

THE COURT: Okay.

12

THE WITNESS: And I think he's --

13 Dr. Concannon was exactly right that we have a

14 lot of scientific information about animals that

15 is undoubtedly very completely applicable to what

16 one would anticipate in humans.

17

In animals veterinarians use large doses

18 of barbiturates and it is not perceived by the

19 pet owners to be a cruel or unpleasant or a

20 distressing appearance.

21

THE COURT: Not hard to watch, in other

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22 words, if they're there.

23

THE WITNESS: Right. As part of my

24 interest in this area -- I'm not a dog owner

25 myself, but it comes up in conversation. Many

0549

1 people I've talked with had their pets put down

2 by lethal injection and they are all very

3 impressed by how peaceful it is, and I'm

4 confident that the veterinarians are not

5 achieving that effect through the illusion of

6 pancuronium. I'm confident that they are doing

7 it with something like a barbiturate or a

8 barbiturate.

9

THE COURT: I have a lot of questions to

10 ask you, but I know Ms. Anders is in the middle

11 of her examination. So I'm going to save the

12 rest of them. And, actually, why don't we take

13 the morning recess and we'll pick up with the

14 rest of your examination. So we'll stand in

15 recess for 15 minutes.

16

(Recess taken.)

17

THE COURT: In the matter of Morales

18 versus Tilton. Let the record reflect counsel

19 are present. And we will continue with the

20 direct examination of Dr. Heath.

21

MS. ANDERS: Thank you.

22 BY MS. ANDERS:

23 Q So now I'd like to take a look at the

24 execution log of Robert Massey, which is up on

25 the screen. Exhibit 11.

0550

1

To go through it, did Dr. Calvo testify

2 that there was difficulty in setting one of the

3 IVs in this execution?

4 A Yes.

5 Q Did he remember whether it was the right or

6 the left IV?

7 A He wasn't sure which one it was.

8 Q And looking down at the bottom at the

9 "respiration ceased" column, what time does it

10 indicate?

11 A 0025. So 12:25 a.m.

12 Q And what time was the administration of the

13 thiopental?

14 A At 0020. It's at 12:20 a.m.

15 Q So how long after the administration of

16 thiopental did respiration cease?

17 A Five minutes.

18 Q And how does the respiration cease time

19 relate to the time of the pancuronium injection?

20 A The pancuronium was given at 0021. So one

21 minute after the thiopental, four minutes prior

22 to the cessation of respiration.

23 Q So what stopped Mr. Massey from breathing,

24 was it the thiopental or the pancuronium?

25 A You can't tell from this.

0551

1 Q Is it concerning that the team injected

2 pancuronium into an inmate that was breathing?

3 A Yes.

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4 Q Why is that?

5 A They don't know his depth of anesthesia, but

6 for sure he's not deeply anesthetized.

7 Q And in the "pancuronium bromide started"

8 portion of the form over on the right-hand

9 column, it says "twitching."

10

Would you expect to see twitching in a

11 deeply anesthetized person upon administration of

12 pancuronium?

13 A In a deeply anesthetized person there should

14 be no significant movement, certainly not what

15 one would call twitching.

16 Q What does a person who is conscious but

17 weakened and largely paralyzed by pancuronium

18 do? What would that look like?

19 A I haven't seen this with pancuronium, but

20 I've seen it with drugs that are essentially

21 identical in their effects, other neuromuscular

22 blockers. As the weakness rapidly ensues they

23 try to move, but they can't. So it's just a

24 small jerk or twitching movement. So they'll try

25 to breathe, but it will just be sort of a

0552

1 twitching of the chest.

2 Q So the notation of the log is consistent

3 with that type of movement?

4 A Right. It doesn't prove it, but it's

5 consistent with it.

6

THE COURT: Does pancuronium cause

7 pain?

8

THE WITNESS: So -- if you give a

9 conscious person, if you start an IV in a

10 person --

11

THE COURT: That's what I meant to ask.

12

THE WITNESS: Yes. And you start an IV

13 and you inject a paralytic dose of pancuronium

14 into them, what will happen is first nothing will

15 happen because it has to travel through the

16 circulation and reach their muscles, which is

17 where it exerts its effects. And then rather

18 suddenly they will feel incredibly weak and they

19 will try to move, they will try to draw a breath

20 or whatever and they might be able to draw a

21 small breath, but then as the pancuronium effects

22 solidify they won't be able to move at all.

23

There will be no pain whatsoever, but

24 there will be a sensation of suffocation. First

25 of all, it's very distressing not to be able to

0553

1 draw a breath. If you let all the air out of

2 your lungs and then sit there and do nothing and

3 don't breathe again, it very rapidly becomes very

4 unpleasant. And then as the level of carbon

5 dioxide builds up you suffocate, and that's

6 excruciating.

7

And I think that it's worth talking

8 about whether it's pain or not. I don't believe

9 that it would fall under a definition of pain.

10

THE COURT: It not pain in the sense

11 that potassium causes pain?

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12

THE WITNESS: Exactly.

13

THE COURT: It doesn't cause the burning

14 sensation that potassium causes, but it causes an

15 experience of suffocation?

16

THE WITNESS: It causes agony, but it's

17 not an agony from pain. It's the agony of --

18 that would be with drowning or strangulation or

19 some kind of suffocation like that.

20

THE COURT: All right. Thank you.

21 BY MS. ANDERS:

22 Q And from the log can you tell how long the

23 twitching may have lasted?

24 A All I can see is that at 25 past 12:00, it

25 says "all motions ceased." So it would appear

0554

1 that movement of some kind continued up until

2 12:25, but I don't know if that was twitching or

3 not.

4 Q It's hard to tell exactly from the log?

5 A I can't say.

6 Q And did Mr. Massey receive a second dose of

7 potassium chloride?

8 A Yes, he did. At 33 minutes past midnight.

9 Q Do you know why it was necessary to

10 administer a second dose?

11 A They weren't seeing the EKG flat line that

12 they were looking for, the inference from that.

13 Q Do you have any way of knowing how much

14 thiopental was given to Mr. Massey?

15 A We talked -- from all the issues we talked

16 about before, no, you can't know for sure.

17 Q So from this log is it your opinion that a

18 number of unexpected effects occurred during the

19 Massey execution?

20 A Yes.

21 Q Are these effects consistent with a drug

22 delivery failure leading to inadequate anesthetic

23 death?

24 A They are consistent with it, yes.

25 Q And we spoke about this before, but is there

0555

1 any way to find out for sure whether Mr. Massey

2 in particular, any inmate was adequately

3 anesthetized?

4 A If he hadn't been given pancuronium, we

5 would know because the potassium would make him

6 scream if he were not properly anesthetized. If

7 they had drawn post-mortem thiopental toxicology

8 in a scientifically sound manner, which I believe

9 can be done, then that can provide useful

10 information in that regard. But it's my

11 understanding that that has not been done and

12 it's now too late to find out.

13 Q Is there any basis for the Defendant's

14 assertions that all executions have gone

15 humanely?

16 A You just can't say that. It's just -- it

17 will forever be an unknown in California's

18 history whether or not they have reliably

19 performed a humane execution.

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20 Q And are there several other execution logs

21 that indicate that inmates continued breathing

22 for several minutes longer than expected after

23 the thiopental injection?

24 A You don't see this in all of them, but it's

25 a mixed bag, if you look at the full picture.

0556

1 Q And this is Exhibit 74.

2

THE COURT: I don't think I have a hard

3 copy of this one.

4

MS. ANDERS: Oh, I'm sorry.

5

THE CLERK: I think there should be a

6 group of exhibits together like after tab 66, I

7 believe.

8

THE COURT: What page? Oh, I see it. I

9 found it.

10

MS. ANDERS: Great. Thank you.

11 BY MS. ANDERS:

12 Q Have you seen this before, Dr. Heath?

13 A Yes, I have.

14 Q And could you explain what it shows or

15 represents?

16 A So a list of names of individuals who were

17 executed by lethal injection on the vertical

18 access, and at the bottom it shows the time

19 elapsing in minutes, and the solid blue lines

20 show the time during which respirations persist.

21 "PB" stands for pancuronium bromide. So it shows

22 the time when pancuronium bromide was

23 administered.

24 Q Did you prepare this yourself?

25 A I didn't prepare it myself, but I reviewed

0557

1 it and verified that the data are correct.

2 Q So you compared it against the execution

3 logs?

4 A I used the execution logs and recorded the

5 times for each of those things.

6 Q And so is it your opinion that this chart

7 illustrates the observations in the logs about

8 the -- both the continued respiration and the

9 time of administration of the pancuronium?

10 A Yes. That -- with the caveat that there are

11 some time discrepancies. So there's a compromise

12 there to show the best guess of what's happened.

13 Q When you say "discrepancies," what do you

14 mean?

15 A Some of these execution logs have

16 accompanying handwritten logs that don't always

17 comport exactly. So in one instance there the

18 graph is a little bit of a compromise, but I

19 think it's a best effort to show what's going on.

20 Q And just to be clear, which --

21 A That's the Williams.

22 Q And what did the handwritten log record

23 about the time that respiration ceased?

24 A In that execution?

25 Q Yes.

0558

1 A It showed it going for a lot longer after

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2 the pancuronium was given. That's the

3 handwritten one and then the execution log is

4 unclear when the respiration stopped. So there's

5 a discrepancy there.

6 Q So this -- so the Stanley Williams bar in

7 this graph represents the execution log, the one

8 that --

9 A We know that one log says breathing was zero

10 at the time pancuronium was given and another

11 said it was continued. So the bar showing

12 respiration stops there.

13 Q I see. Does this chart also show a

14 variation in times of the pancuronium injections,

15 how long they were after the thiopental?

16 A Yeah. If you look at it, it's very

17 strange. In several executions the pancuronium

18 goes in one minute after the thiopental goes in,

19 and in other executions it's many more minutes

20 than that, several or five. One is six. One is

21 nine. I don't understand why they are waiting so

22 long between the pentothal and the pancuronium in

23 those executions.

24 Q And you haven't seen any explanation for

25 that?

0559

1 A No. And I haven't seen -- I can't recall

2 seeing anything like that in other states either.

3 Q Is it possible that it was a variation in

4 the number of syringes used or -- to prevent

5 something like that?

6 A Of course, this is just total conjecture.

7 So one possibility is that, for example, in the

8 execution at the very bottom there where you see

9 breathing lasts for one minute and pancuronium is

10 given after one minute, that they were just

11 injecting 25 cc as is specified in the protocol,

12 although we don't know how much pentothal was in

13 those 25 cc. But given that it's a small volume,

14 it wouldn't take much time to inject.

15

And, again, it's pure conjecture in the

16 execution where it's taking nine minutes to get

17 the pancuronium. It may be that they have much

18 larger volumes that they are injecting. So --

19 but I have no evidence to support that either

20 way.

21 Q So given the observations recorded in these

22 logs combined with the evidence that the team

23 members may not have prepared the full dose of

24 thiopental, do you have concerns as to whether

25 the CDCR can reasonably ensure that executions

0560

1 are carried out humanely?

2 A I think -- absolutely I have concerns, yes.

3 If you look at this overall system, it's -- if it

4 hasn't already happened, it's inevitable that it

5 will deliver -- or fail to deliver a humane

6 execution.

7 Q And just to go back to the Massey execution

8 for a moment, do you think it's acceptable that

9 after the Massey execution with these

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10 observations, nobody investigated -- nobody

11 investigated why these effects occurred?

12 A Yeah. They need to figure out what's going

13 on, but they don't seem to have that as the

14 priority.

15 Q Okay. Now that we've spoken about confusion

16 within the execution team, I'd like to discuss

17 the team itself and its training with you.

18

I know we spoke about the fact that the

19 team doesn't have training in anesthesiology, but

20 aside from anesthesiology training specifically

21 is it your opinion that the team members are well

22 versed in the execution procedure?

23 A No, they are not.

24 Q Is it important that a state have a written

25 execution protocol?

0561

1 A I think that's very important. That's what

2 documents -- that protects the prisoner -- those

3 are the steps that when followed will result in a

4 humane execution and it protects the state from

5 conducting an inhumane execution. It protects

6 the executioners from conducting a botched

7 execution.

8 Q So is it also important for execution team

9 members to have read the execution protocol?

10 A Obviously, yes.

11 Q Based on your review of the testimony, have

12 all of the members or the present and former

13 members who were deposed, have they all read the

14 protocol?

15 A No, they have not all read the protocol.

16 Q Witness number 6, the RN who mixed the

17 thiopental, when asked whether she was aware that

18 there was a written procedure for how to do

19 lethal injection executions said that she didn't

20 know that there was such a procedure. Does that

21 concern you?

22 A It's extremely concerning. It's almost hard

23 to believe.

24 Q And is it your understanding that witness

25 number 9, team leader in training, does not know

0562

1 the names of the second two drugs that are used?

2 A It's astonishing.

3 Q Does that also show a lack of familiarity

4 with the protocol?

5 A Yes. He was able to say that there were

6 three drugs and he -- he said that the first one

7 was pentothal, but he didn't know what the other

8 drugs were. It's appalling that he's giving two

9 drugs that have the potential to cause extreme

10 suffering and he doesn't know it.

11 Q Now, the parties have stipulated that the

12 MTAs who were designated as witnesses 3 and 4 are

13 currently the only medical personnel on the

14 execution team and under the protocol would have

15 been the only medically trained personnel on the

16 team at the time of the Morales execution.

17

So based on your review do you have an

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18 opinion as to whether the MTAs understand the

19 nature of the drugs used?

20 A Yes, I do.

21 Q And overall what is that conclusion?

22 A They don't have an adequate understanding of

23 those drugs.

24 Q Okay. So specifically let's -- I'd like to

25 look at witness number 4's testimony.

0563

1

So is witness number 4 the only member

2 of the execution team who is responsible for --

3 or who does look into the execution chamber and

4 observe the inmate?

5 A Yes. He's the one standing in front of the

6 window.

7 Q Now, he testified on page 126, quote: "I

8 can tell you this. If you were to inject 40

9 milliliters of potassium chloride into your vein

10 right now, you'd probably be dead before you had

11 any serious pain."

12

Do you agree with the statement that the

13 potassium would kill the inmate before he felt

14 any pain?

15 A That's completely incorrect. It doesn't

16 comport at all with what one would obviously

17 expect and also what is described as occurring

18 when accidental administration of concentrated

19 potassium occurs in clinical settings.

20 Q And witness number 4 on page 69 also

21 testified that he believed that infiltration

22 becomes detectable only after 10 or 15 minutes.

23 Do you agree with that statement?

24 A No. He's completely incorrect.

25 Infiltration is when fluid is being administered

0564

1 from an IV but it's not fully or at all going

2 into the vein, and it collects in the tissues

3 surrounding the vein.

4

And while he's correct in a sense that

5 sometimes it might not be visible for 15 minutes

6 or longer, it can also be basically immediately

7 visible -- immediately visible as soon as the

8 drug starts to accumulate outside the vein. It

9 depends on the exact anatomy of the leaking,

10 what's going on inside there, but he's completely

11 wrong to say that it wouldn't be visible for 15

12 minutes.

13 Q So you would think that you would always

14 have to be observing the catheter site from the

15 moment the injection started in order to ensure

16 that there wasn't infiltration?

17 A Or from even before the time the injection

18 starts if one wants to see if the dripping fluid

19 is causing filtration. If he doesn't think it

20 can happen, he's probably not looking for it.

21 Q And that was going to be my next question,

22 whether you thought that someone who believes

23 that you wouldn't be able to detect infiltration

24 for that long anyway would be looking for it.

25 A No. You only monitor for things that you

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0565

1 think are possible.

2 Q Are most executions over in 15 minutes?

3 A Yes.

4 Q So are you confident that witness number 4

5 would be trying to or would be able to detect

6 infiltration within that time frame?

7 A Well, he seemed to have a disregard for the

8 possibility of it occurring during an execution,

9 and then there are all the other issues affecting

10 his visibility. Even if he did think it could

11 happen and was looking for it, his ability is

12 hindered by other factors.

13 Q So based on your review of witness number

14 4's testimony, have you reached any overall

15 conclusion with respect to his level of medical

16 training?

17 A I don't know exactly about his training, but

18 I can say that he is -- doesn't appear to be --

19 doesn't appear to recognize critical issues that

20 are -- that you would need to recognize in order

21 to be properly supervised and participating in a

22 lethal injection procedure.

23 Q And witness number 3 is the other MTA on the

24 team; correct?

25 A Yes.

0566

1 Q And so looking at a portion of his

2 testimony, page 138, I'll just read it to you.

3

"Question: Do you know whether

4

pancuronium bromide does anything to the

5

brain?

6

"Answer: I don't know.

7

"Question: Do you know whether it can

8

make you sleepy?

9

"Answer: I don't know.

10

"Question: Do you know what it would be

11

like if someone just received an

12

injection of pancuronium bromide?

13

"Answer: No."

14

So, in your opinion, does witness number

15 3 understand how pancuronium works?

16 A Of course not.

17 Q Does he understand the danger created by the

18 use of pancuronium in an execution?

19 A No. You can't understand or appreciate the

20 danger if you don't know how the drug works.

21 Q Now, he also testified on page 35 of his

22 deposition in response to questioning about

23 problems that could hinder IV flow. He testified

24 that he thought that the only two possible

25 problems that could affect IV flow were, quote,

0567

1 "if the vein was to blow or somehow the IV was

2 occluded."

3

Do you agree that these are the only

4 possible problems that could hinder IV flow?

5 A No. That's an unacceptable short list.

6 There are many things that could interfere. He's

7 not talking about leaking or retrograde

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8 injections or other problems that could occur.

9 Q In your opinion, does witness number 3's

10 lack of understanding hinder his ability to

11 detect IV problems?

12 A Sure. You have to appreciate the things

13 that are going to go wrong in order to be able to

14 meaningfully detect and intercept and correct.

15 Q And as with witness number 4, have you

16 reached an overall conclusion about witness

17 number 3's level of understanding?

18 A Both of these folks need specific training

19 to help to get them up to a level where they

20 should be participating in a lethal injection

21 procedure.

22 Q And is it your understanding that although

23 there aren't any RNs, registered nurses, on the

24 execution team right now, there have been at

25 times in the past?

0568

1 A There were two that there were depositions

2 from.

3 Q Did the RNs exhibit any greater

4 understanding of the execution process than the

5 MTAs?

6 A They are equally insufficiently prepared to

7 do this.

8 Q So just looking at witness number 6's

9 testimony, page 142, when she was asked what

10 would happen if pancuronium were injected into a

11 conscious person, she stated, quote: "I don't

12 study. I just do the job. I don't want to know

13 about it. This is not something we use daily, so

14 I don't even bother to study about it."

15

Does that answer raise any concerns in

16 your mind?

17 A I'm not sure what to say. Yes, it's not --

18 it's very bad.

19 Q Did witness number 6 have any knowledge

20 about the pharmacology of thiopental?

21 A No.

22 Q Its recommended concentrations clinically?

23 A No. We talked about that with all the

24 mixing stuff.

25 Q And I suppose it's implicit in your

0569

1 testimony, but is it important that the person

2 mixing the thiopental understand the pharmacology

3 of thiopental?

4 A Yes. They have to understand what this drug

5 is going to do.

6 Q And witness -- I'm sorry.

7

So overall while the RNs were on the

8 execution team, were they the members with the

9 most medical training?

10 A Yes. A doctor or doctors are present at

11 various times, but they are strictly neutral

12 observers or observers. They are not

13 participants. They don't interact with any of

14 the actual things that occur.

15 Q Do the team leaders have any medical

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16 training based on your review of the testimony? 17 A No. 18 Q For instance, witness number 9, team leader 19 in training, testified that thiopental doesn't 20 stop breathing. It's on page 69. 21 A Yes. As I testified before, that's 22 completely incorrect. Although given what he's 23 experienced watching executions, one can 24 understand how he might have that conclusion 25 because he thinks he's been giving it and yet 0570
1 breathing persists. 2 Q And if I told you that witness number 5, a 3 former team leader, testified that he relied on 4 the medical staff on the execution team to ensure 5 that most elements of the execution procedure 6 went smoothly, would you be confident that the 7 medical personnel on the team were able to ensure 8 that everything went smoothly? 9 A No. They don't have the experience, and 10 they don't recognize the issues for them to be 11 able to do that. 12 Q Is it your understanding that the execution 13 team performs run-throughs or rehearsals in 14 preparation for an execution? 15 A Yes, they do. 16 Q Is this the primary means of training for 17 the team? 18 A Yes, it is. 19 Q And, in your opinion, are rehearsals one 20 useful means of attempting to ensure that team 21 members are aware of their responsibilities? 22 A I think rehearsals are extremely important 23 for any complicated thing where you only have one 24 chance to make it work right. 25 Q Can rehearsals compensate for a lack of 0571 1 medical training? 2 A No. 3 Q Can rehearsals obviate the need to monitor 4 anesthetic depth? 5 A No. 6 Q And would the utility of rehearsals be 7 limited if certain elements of the execution 8 procedure aren't actually practiced or aren't 9 realistically recreated during the rehearsals? 10 A A rehearsal is sort of a simulation, and the 11 more accurate or realistic the simulation is, the 12 more meaningful it is. By contrast, if there are 13 major departures between the simulation and the 14 actual act, then that can cause problems. 15 Q And so the fact that the execution team is 16 not actually practicing the -- does not actually 17 practice mixing the thiopental, does that 18 possibly contribute to the confusion surrounding 19 the mixing process? 20 A Sure. 21 Q And the party -- if I told you that the team 22 practices pushing drugs through the tubing, but 23 there's no catheter attached to the end of the

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24 tubing, would that be a useful way to acclimate

25 the person who actually injects the drugs to the

0572

1 feeling that they would have when injecting the

2 drug?

3 A No. They are making a big mistake there.

4 If you want to -- I think you do want to

5 simulate. I think their intentions are good.

6 They are trying to simulate for the injector what

7 it would feel like during an execution to

8 inject -- to push the plunger and inject the

9 fluid, but the catheter at the end is responsible

10 for the great majority of the resistance to the

11 flow of fluid.

12

If there's no catheter there, then you

13 can press and the plunger will go down very

14 quickly. When you put a catheter on the end,

15 it's utterly different flow characteristics and

16 utterly different back pressure from the syringe

17 plunger.

18 Q And did witness number 1 testify that he was

19 trained to push the syringes by a medically

20 trained team member who watched him push the

21 plunger?

22 A Yes.

23 Q And, in your opinion, does that type of

24 instruction provide the team leader with the

25 expertise necessarily to ensure that the drugs

0573

1 are flowing properly during the actual execution?

2 A No. In some sense it's worse than no

3 instruction or rehearsal at all because it's

4 conveying a misunderstanding or misapprehension

5 of what something should feel like.

6 Q Does the execution team rehearse or plan for

7 what they would do in the event of a problem

8 arising during an execution?

9 A No, they don't.

10 Q And could you give some examples of

11 contingencies that would be foreseeable that

12 could arise during an execution?

13 A Detection of an infiltration in the midst of

14 an injection or notice of a leaking IV. These

15 are things that have occurred in midstream in

16 executions in other states and occur in clinical

17 care with IVs, and it's foreseeable and

18 inevitable that they will happen during

19 executions in California.

20 Q So I just draw your attention to witness

21 number 1's testimony.

22

When asked about whether he rehearsed

23 contingencies, he stated, quote: "Those are

24 what-ifs that we monitor the site and we couldn't

25 figure them all out. So we would have to

0574

1 evaluate it at that point with the medical staff

2 who are there."

3

So based on the testimony are you

4 confident that witnesses number 3 and number 4

5 would be able to react effectively to unforeseen

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6 contingencies?

7 A Not at all. If one of these things occurs,

8 they have to understand what the properties and

9 effects are of the drugs so they can decide,

10 okay, this much of this drug got in and we think

11 part of that drug got in, where are we, what's

12 going to be happening with the prisoner, and

13 what's the corrective action.

14

If you don't know about your drugs, then

15 you can't troubleshoot in a meaningful fashion.

16 Q Could any human activity be made completely

17 foolproof?

18 A Of course not.

19 Q So how do you ensure to the extent possible

20 that a procedure will be performed properly?

21 A You've got two choices. Either you come up

22 with every single possibility that could go wrong

23 and you put it in the protocol, or you have a

24 person on hand who's experienced with and

25 proficient with recognizing what can go wrong,

0575

1 has positioned themselves so that they can see if

2 this thing or these things are occurring,

3 understands the fundamentals of the protocol, the

4 scientific underpinnings of how the drugs work so

5 that they can rapidly devise some corrective

6 action and then implement it.

7

In the absence of that person, then you

8 have to gain out every single realistic

9 possibility, and they've declined to do that.

10 Q So along those lines, would you agree with

11 Warden Vasquez's statement on page 231 of his

12 deposition that, quote: "Making an execution

13 seem humane and dignified is up to the people

14 that carry it out. You can't legislate it or

15 write it down. You have to practice it"?

16 A Well, I agree that to make an execution

17 humane you have to have personnel present who

18 thought about it and who are proficient in these

19 drugs and these techniques and these systems

20 who's supervising it and who's hands on right

21 there.

22

I think it would be very hard to try to,

23 as I say, look around, see around the corners of

24 all the things that could possibly go wrong and

25 have a plan for that. Generally when one thing

0576

1 goes wrong you have branch points from there,

2 kind of a like a chess game or whatever. You

3 can't map out every future position.

4 Q So is it acceptable to neither plan all

5 these things out in the protocol nor provide a

6 trained person who could react to these

7 contingencies?

8 A Yes. The combined absence of both of those

9 elements is unacceptable.

10 Q So in sum, does the execution team's lack of

11 adequate training create a significant risk that

12 inmates will be inadequately anesthetized?

13 A It does, yes.

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14 Q Now I'd like to talk about the CDCR's

15 screening of members of the execution team.

16 Based on your review of the testimony, does the

17 CDCR use a rigorous screening process?

18 A No, it does not.

19 Q Does that process consist of an interview

20 with the warden?

21 A It does, yes.

22 Q Does that interview address issues of

23 training or willingness to learn the procedure?

24 A It seems to mostly focus on psychological

25 attributes, you know, are you able to handle

0577

1 this, how do you feel about doing this. That's

2 the warden's focus.

3

And I think that's an important thing to

4 ask, but it's clearly not sufficient in terms of

5 selecting folks who will do this.

6 Q So, for instance, did witness number 7, the

7 RN, did her interview consist of any discussion

8 other than whether her religious beliefs would

9 allow her to participate?

10 A Her testimony is that's the sole content of

11 the interview.

12 Q In your opinion, is it important that

13 individual members of the execution team be

14 carefully selected?

15 A Yes, it is. This is a very important

16 thing. The procedure is very important.

17 Q And there are some people who wouldn't be

18 suitable for the procedure, for participation in

19 the procedure?

20 A I think that's right, yes.

21 Q Is it important that the execution team

22 members be able to handle stress well?

23 A I think that's important because clearly

24 this is a very stressful thing for the folks who

25 participate. So you would not want to have

0578

1 somebody doing this who had problems with

2 handling stress greater than the normal problems

3 of handling stress that we all have.

4 Q So if I told you that witness number 1 was

5 treated for post-traumatic stress disorder as a

6 result of his years working in the prison and

7 that he was on leave from the CDCR for several

8 months because of his condition, would you think

9 that he would be appropriate to place him on the

10 execution team?

11 A I think it would be almost cruel to him to

12 allow him to participate.

13 Q And witness number 1 testified on page 68 of

14 his deposition that, quote: "Being involved in

15 executions are, in my opinion, the most stressful

16 thing that a person in the Department of

17 Corrections is probably asked to do."

18

So should someone who has trouble

19 dealing with stress be placed in this kind of

20 situation?

21 A I think it reflects poor judgment.

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22 Q And we touched on this before, but the

23 parties -- if I told you that witness number 5

24 who's a team leader for many executions was

25 placed on the execution team even though he had

0579

1 previously been suspended without pay for

2 bringing illegal narcotics into San Quentin,

3 would you think that that also indicated poor

4 judgment on the part of the CDCR?

5 A Yes, it does reflect poor judgment.

6 Q And is it your impression from the testimony

7 that the membership of the execution team is a

8 bit in flux right now, retirements and --

9 A I think it's always in flux, but I think at

10 this particular time there's a higher rate of

11 flux than has been normal over the past years.

12 Q If the team were reconstituted in the future

13 in the same manner as it has been in the past,

14 would that be problematic?

15 A Yes. They need to completely change their

16 recruiting or selection staffing procedures.

17 Q And given that many team members apparently

18 don't read the protocol, how is information about

19 the procedure passed down from one member to

20 another?

21 A I think it's little analogous to an oral

22 tradition. Before the time of writing people

23 would pass on stories through oral tradition, or

24 "institutional memories" is another term for it,

25 I think.

0580

1 Q And is it your understanding that witness

2 number 1, the former team leader, now former team

3 leader, is responsible for training his

4 replacement?

5 A Yes.

6 Q Do you have confidence in his ability to

7 train subsequent members of the team?

8 A Not at all.

9 Q Are there a number of customary practices

10 employed by the execution team that, in your

11 opinion, evidence a lack of judgment or a lack of

12 ability to effectively solve problems?

13 A Yes, there are.

14 Q Does the execution team turn off the lights

15 in the anteroom during an execution?

16 A They turn them off except for one

17 darkroom -- a deep red darkroom type of bulb.

18 Q And just to look at -- this is Exhibit 26.

19

Is that the red bulb that you're talking

20 about?

21 A Yes, it is.

22 Q It doesn't come out very well. And when you

23 attended the inspection of San Quentin's

24 execution facility, did you have the opportunity

25 to observe the level of lighting as it would be

0581

1 during an execution?

2 A Yes. Witness number 1 stated that he would

3 set things up as it would be, including the

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4 lighting.

5 Q And about how dark was it, in your opinion?

6 A Too dark. That's all I can say. I don't

7 have a number to measure darkness, but it's not

8 like a thermometer or a scale. But it was much

9 darker than I would ever allow myself to be

10 placed in clinical context.

11 Q And just to be clear, in addition to this --

12 this source of light, is there also light coming

13 in to the anteroom from the gas chamber through

14 the window?

15 A Yeah. There's one bulb above the door of

16 the gas chamber. I forget how many watts. It's

17 not a bright bulb. So there is some illumination

18 from the chamber. Some of that filters into the

19 anteroom, the room where the injections are given

20 from, but it doesn't add enough for this to in

21 any way be considered adequate illumination.

22 Q I'd like to draw your attention to the

23 testimony of Dr. Calvo. He stated in his

24 deposition that during executions, quote: "It

25 was dark. I couldn't see what I was writing."

0582

1 And that he had to use a flashlight to see what

2 he was writing.

3

Does that conform to your observation of

4 the lighting in the anteroom?

5 A Yes. And I think also when we were in there

6 there was a court reporter who couldn't perform

7 his tasks because of the lighting levels.

8 Q To your knowledge, do team members -- do

9 actual members of the execution team, so not

10 Dr. Calvo, do they have flashlights?

11 A No.

12 Q So the person injecting the drugs doesn't

13 have a flashlight?

14 A No. Furthermore, they shouldn't be having

15 to hold a flashlight while engaging in a task

16 that's best done by two hands, such as injecting

17 drugs.

18 Q Does the darkness in the anteroom have an

19 adverse effect on the safety of the execution?

20 A Yes, it does.

21 Q Based on your review of the testimony, are

22 you aware of the reason that the execution team

23 feels that it must perform executions in the dark

24 or a darkened room?

25 A Yes. It's a result of the configuration of

0583

1 the whole chamber. They are concerned, and I

2 think reasonably concerned, about their own

3 anonymity or confidentiality. So they don't want

4 witnesses to be able to see into -- through the

5 windows on the back of the chamber into that

6 working area where they are doing their thing.

7

And so there are -- you call them

8 one-way mirrors or half-silvered windows that

9 rely on the relative brightness of light on each

10 side of that window so that when it's dark on

11 their side the people in the witness area doesn't

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12 see a reflection. They can't see what's

13 happening behind that mirror.

14 Q In your opinion, are there other ways of

15 protecting anonymity that wouldn't affect the

16 team's ability to perform its tasks during an

17 execution?

18 A Sure, there are. Surgical mask and cap and

19 gown, whatever, they could cover everything

20 except their eyes. There are some states where

21 people who do enter the chamber are gowned up

22 like that and wear goggles so that no part of

23 their skin or hair is visible, and all the

24 witnesses could assess is their stature. But

25 that, I think, is a reasonable level of

0584

1 confidentiality.

2 Q Have you reached any conclusions about the

3 team's understanding of the procedure or the

4 dangers of the procedure based on the fact that

5 they've chosen to turn off the lights?

6 A It fits with their whole view that this is

7 just something that won't be a problem and is

8 going to go smoothly, and they don't have to

9 worry about it and, therefore, the ability to see

10 what they are doing isn't particularly

11 important. And it represents a failure to

12 address the appropriate priorities.

13

I think the number one priority should

14 be to make the executions humane. And their

15 anonymity is another problem, but it should be

16 subordinate to making it humane. They need to

17 rank their priorities and figure out other ways

18 of ensuring anonymity that don't jeopardize the

19 humaneness of the procedure.

20 Q Do some other states turn down the lights in

21 the execution support room or the equivalent of

22 the anteroom?

23 A The states that were doing it that I know

24 about are Missouri and Maryland, but they've both

25 changed their protocols as a result of litigation

0585

1 and now have changed their illumination, although

2 I haven't seen it for myself. So I can't be

3 certain if they have done it adequately.

4 Q They've stated that they intend to do that?

5 A They've stated that they have, that they've

6 actually changed it. I think with Maryland

7 they've actually installed a new light in that

8 working room near the area where the injections

9 occur.

10 Q The parties have stipulated that during

11 executions the anteroom is filled with officials

12 from Sacramento and other people who are not on

13 the execution team but are witnessing the

14 execution, and that during some executions,

15 quote, "it was a packed house."

16

In your opinion, is it important that

17 execution team members have room to do their job?

18 A Absolutely.

19 Q And why is that?

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20 A You know, sometimes when I'm in the OR and

21 I'm at the head of the table and I have all my

22 monitors and a patient is having heart surgery,

23 folks will come in from other institutions to

24 observe the surgery, other surgeons or

25 anesthesiologists or students. And for

0586

1 interesting cases like artificial hearts or

2 double lung transplants and things there can

3 sometimes be a crowd.

4

And that's okay while we're on

5 cardiopulmonary bypass, but once we start to

6 separate from bypass, things become very busy for

7 me and my residents. And we clear the decks. We

8 just tell everybody they have to completely get

9 out of our space so that we can do our thing. We

10 would never allow people to crowd us in any way.

11 Q Should anything get in the way of the

12 execution team members doing their jobs?

13 A Nothing should get in the way of that.

14 Q And just as an example of this, based on

15 your review of the testimony of witness 7, one of

16 the RNs, was she sometimes responsible for

17 picking up the syringes off the drug cart and

18 handing them off to someone else?

19 A Yes, that's what she did.

20 Q Did she know who was receiving the syringes

21 that she handed off?

22 A All she could see was a hand emerging from a

23 crowd of people taking the syringe. That's my

24 recollection of the testimony.

25 Q I'll just draw your attention to that

0587

1 testimony now. Page 83 of her deposition, she

2 testified --

3 A I'm sorry. Which witness is this?

4 Q Witness number 7.

5 A Thanks.

6 Q She testified, quote: "Because when I took

7 it," meaning the syringe, "off of the cart I

8 handed it to the officers, whoever it was going

9 to be, and it usually was kind of around a person

10 or corner or something because there were so many

11 people in there. And so I never paid any

12 attention. I just handed it to whoever and after

13 that, you know, I don't know."

14

Does that statement raise concerns in

15 your mind?

16 A It's the opposite of the way things should

17 be. They should have a clear working space so

18 that they can accomplish this task properly.

19 Q And is it your understanding that Warden

20 Ornoski, the former warden, characterized the

21 anteroom as fairly crowded and difficult for him

22 to move from his spot?

23 A Yes. He wasn't happy about the situation.

24 Q Was he able to lower the number of people in

25 the anteroom for the next execution after his

0588

1 first?

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2 A Well, he got rid of a few -- he was able to

3 do it by getting rid of one of the doctors, but

4 overall he had the sense of frustration that

5 there were these, I guess, superiors or upper

6 level administrators or officials who had come

7 in. I expect that they were probably tending to

8 gravitate towards the gas chamber area of the

9 room so that they could get a better view of what

10 was happening. And I think it was very

11 frustrating conditions for all of those

12 personnel.

13

And what's problematic is that they

14 weren't in a state of mind where they felt

15 comfortable saying, "Look, we have a problem with

16 this. Somebody has to take care of it and fix

17 it." Instead they just have to suffer under this

18 repeatedly through a series of executions. And

19 that just reflects a major systemic flaw with the

20 setup of the whole thing.

21 Q And does the execution team seal the door of

22 the gas chamber before the execution begins?

23 A Yes, they do.

24 Q Did you observe witness number 1 demonstrate

25 the sealing of the door during the tour?

0589

1 A Yes. He showed how they -- because this is

2 a very big -- or very heavy door. It's solid

3 steel, I guess, and it's kind of like a submarine

4 door that has to make a seal because it's also a

5 gas chamber.

6

And so he swings the door shut and then

7 he turns a wheel that locks it and he spins that

8 wheel until it snugs down. And then he actually

9 leaned into it to really tighten it shut as

10 though he were making sure that no toxic gasses

11 could emanate from it.

12 Q Does sealing the door in that way have

13 adverse effects on the safety of the execution

14 procedure?

15 A Yes, it does.

16 Q What are those effects?

17 A Well, to determine if someone is suffering

18 you need to be able to visualize them well, but

19 you also need to hear if -- what they are doing

20 because one of the ways we have evidence that

21 somebody is suffering is the sounds they make.

22

And by doing that it made the chamber

23 almost soundproof. When we were in there there

24 were some attorneys in the room at one point and

25 the door was sealed and we couldn't get their

0590

1 attention. We had to start banging on the

2 windows, as I recall, to get their attention in

3 there.

4

So certainly if somebody were moaning or

5 whatever, that would not be evident to the

6 personnel in the anteroom.

7 Q So just to clarify was it also difficult for

8 people -- during that simulation with the

9 attorneys in the chamber was it also difficult

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10 for people in the anteroom to hear the

11 attorneys --

12 A We had no idea what they were talking

13 about. We could see that they were talking, but

14 we couldn't hear.

15 Q So based on your review of the testimony, is

16 there any reason that the gas chamber door must

17 be sealed to perform execution by lethal

18 injection?

19 A I'm sorry. Could you repeat that?

20 Q Sure. Is there any reason that you've seen

21 in the testimony that the gas chamber door must

22 be sealed when the execution is being performed

23 by lethal injection?

24 A No. I think it's pretty -- it's just an

25 unthinking holdover from the protocol where they

0591

1 were using toxic gasses where it would be

2 essential to do a seal like that.

3 Q Now I'd like to talk about the placement of

4 the IV bags.

5

THE COURT: Which exhibit are we at

6 now?

7

MS. ANDERS: This is Exhibit 139.

8

THE COURT: 139? Well, I've been there.

9 BY MS. ANDERS:

10 Q So was this photo taken by somebody who was

11 standing in the anteroom?

12 A Yes.

13 Q And this is looking at the gas chamber as it

14 appeared for standing in the anteroom?

15 A It's one view of it, yes. It's got several

16 walls.

17 Q And does this show where the IV bags are

18 placed?

19 A Yes. It's sort of hard to see in this

20 slide, but you can see easily on the actual hard

21 copy. The top of the gas chamber there's kind of

22 a ductwork, and the IV bags are hanging from the

23 top of the vertical part of that ductwork.

24 Q Is that higher than IV bags would usually be

25 placed in your experience?

0592

1 A I've never in my life seen or heard of IV

2 bags placed anywhere near that high.

3 Q Where are IV bags usually placed?

4 A Usually we like to have them sort of be a

5 drip chamber, which is what we can look through

6 to see the rate of flow, is somewhere around eye

7 level.

8

Now, if we're working in the OR people

9 have different heights, but usually the top of

10 the bag would be around six feet or so off the

11 ground. We'll raise it up sometimes if we want

12 to increase the flow rate, but we'd never raise

13 it this high because we couldn't properly see

14 what's happening in the different drip chamber if

15 it's that high off the ground.

16 Q So does this high placement render

17 monitoring of drip chambers more difficult?

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18 A Yeah, especially in the dark and especially

19 with what's called monochromatic light, a single

20 red color light. It's better to have white light

21 which has many colors, which allows you to

22 appreciate drops moving, than to have a single

23 light that's way above your head.

24

The drip chamber is seen at a very

25 shallow angle and it's hard to tell what's going

0593

1 on.

2 Q And why is it important to be observing the

3 drip chambers?

4 A That's one of your indicators of the -- that

5 the IV is flowing properly. It doesn't prove

6 that the IV is flowing into a vein because there

7 could be a leak. It is one of the indicators

8 that we rely heavily upon to tell us if things

9 are okay or not.

10 Q And does placing the IV bags here also

11 render successfully inserting the catheters more

12 difficult?

13 A Yeah. The way they insert a catheter is to

14 have the IV bag right there at the bedside with

15 you so that when you put the catheter in and plug

16 in the tubing you can immediately compare the

17 flow in the chamber with the position of the IV

18 and see if it's positional, which means it flows

19 in some positions and not others. You want to

20 have it all in the same place to -- to do it

21 right.

22 Q Well, would there be a way of accomplishing

23 that in this -- in this setting?

24 A What other states do is -- in some cases is,

25 again, there's huge variation across the

0594

1 country. You have the IV pull in the chamber

2 with the IV bag hanging from it, and they get the

3 IV in, they plug it in and they verify that it's

4 working properly, they inspect the site. And

5 then they have a slot that's big enough to hand

6 the IV bags out through the wall into a separate

7 room, and then they hang them on a pole inside

8 their work room or their injection room.

9

THE COURT: Can you give me an example

10 of a state or two that you think has this set up

11 correctly?

12

THE WITNESS: Well, I don't think any

13 state has it set up correctly because you

14 shouldn't be doing the injection from a different

15 room.

16

THE COURT: Oh, I understand that. I'm

17 not assuming you're abandoning that testimony.

18 What I'm asking you is given the constraint that

19 the executioners want to be in a different room

20 from the catheter, who has the least worst

21 solution?

22

THE WITNESS: So Maryland has -- if you

23 are going to pass the IV bag into a different

24 room, then what Maryland was doing was they

25 had -- they had a slot that was about four-by-ten

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0595

1 inches is a wild guess. And so they could pass

2 the bags through and then they would hang them

3 up.

4

THE COURT: So the catheter is set at a

5 point where the IV is in the same space, but then

6 before the execution actually starts the bag is

7 moved outside of the room?

8

THE WITNESS: That's exactly right.

9

THE COURT: So Maryland is one example

10 of an attempt to accommodate that?

11

THE WITNESS: I don't know why they were

12 doing it that way, but I believe that they were

13 doing it because the IV nurse there who wanted to

14 have -- as any IV -- as any person displacing an

15 IV would greatly prefer to have the IV bag and

16 drip chamber right there with them while they are

17 doing it.

18

THE COURT: Any other states you can

19 think of?

20

THE WITNESS: I was just involved in

21 Maryland litigation last week. So that's

22 foremost in my mind.

23

THE COURT: On your mind.

24

THE WITNESS: Right.

25

THE COURT: Thank you.

0596

1 BY MS. ANDERS:

2 Q So is the fact that the execution team chose

3 to put the IV bags here indicative of a failure

4 to take into account the medical and safety

5 concerns that were present?

6 A It indicates that, but it's also just very

7 bizarre. It tells me that they are sort of way

8 out there and not getting the kind of guidance

9 they need from -- that they should be getting.

10 They are doing some very strange things.

11

And it's alarming, also, because we see

12 these strange things from inspecting the chamber

13 and stuff, but we don't know what other strange

14 things they're doing during an actual execution

15 that we're not there to see.

16 Q So, in sum, do all of these practices we've

17 just been discussing cause you to form any

18 conclusions with respect to the execution team's

19 ability to solve problems and take these

20 different concerns into account?

21 A They're woefully underprepared to do all of

22 these things.

23 Q So now I'd like to talk with you a little

24 bit about the process of designing the protocol

25 both recently and initially.

0597

1

Where did procedure 770 originally come

2 from?

3 A Well, originally from Texas. That was their

4 main source. And then Texas copied from

5 Oklahoma.

6 Q Has there been a ground-up revision since

7 then?

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8 A No, there hasn't.

9 Q Including the last one that took place in

10 2006?

11 A That's definitely not a ground-up revision.

12 Q Okay. Let's talk about the 2006 revision

13 process. Have you formed any opinions as to

14 whether that process was a considered process?

15 A I suppose it was considered, but it was not

16 well considered.

17 Q Was there a meeting in the Governor's Office

18 to revise the protocol held about a week after

19 Mr. Morales's scheduled execution?

20 A Yes, there was.

21 Q What have you relied on to form your

22 opinions about what took place at that meeting?

23 A One of the attendants -- attendees of the

24 meeting kept notes, written notes of what was

25 being said.

0598

1 Q And was Dr. Singler present at that meeting

2 as well?

3 A Yes. From what I can tell he was the only

4 physician who was present. He seemed to be the

5 only physician who said anything.

6

THE COURT: Exhibit number?

7

MS. ANDERS: 71.

8

THE COURT: 71. It looks like it must

9 be another group exhibit.

10

MS. ANDERS: Oh, yeah. This is a

11 relatively new exhibit. 71.

12

THE COURT: I found it. It's behind 67

13 in the binder.

14

THE CLERK: Right.

15

THE COURT: These are Mr. Slavin's notes

16 that we're looking at?

17

MS. ANDERS: These are Mr. Slavin's

18 notes, yes.

19

THE WITNESS: Do you happen to have an

20 extra copy, a hard copy of that?

21

MS. ANDERS: I'm sorry.

22

May I approach, Your Honor?

23

THE COURT: Yes.

24 BY MS. ANDERS:

25 Q So you were just saying, I think, that

0599

1 Dr. Singler was present at the meeting as well?

2 A Yes.

3 Q And did you rely on his testimony about what

4 took place at this meeting as well in forming

5 your opinions?

6 A His deposition testimony, I did rely on it,

7 yes.

8 Q So was Mr. Gillette, counsel to the

9 Defendants, also present?

10 A Yes.

11 Q And was Bruce Slavin, counsel for CDCR also

12 present?

13 A I'm sorry? What is that last name?

14 Q Bruce Slavin.

15 A Well, the cover there says handwritten notes

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16 by him. So his name is on there, I guess.

17 Q So it's your understanding that these notes

18 were created by Mr. Slavin?

19 A That's what the cover sheet says, yes.

20 Q Now, according to Dr. Singler's testimony,

21 he stated that at the meeting on page 178 of his

22 deposition, he answered questions about drug

23 effect on a, quote, "theoretical basis."

24

Based on that testimony, do you think

25 that the revision process involved meaningful

0600

1 input from a medical expert?

2 A I think he's, first of all, answering things

3 on more than a theoretical basis, but I think he

4 was trying to make some meaningful input here,

5 yes.

6 Q So did Dr. Singler make several

7 recommendations according to these notes?

8 A He did, yes.

9 Q Were some of those recommendations rejected

10 by the lawyers who were present?

11 A Yes.

12 Q For instance, did Dr. Singler recommend

13 using a different barbiturate?

14 A Yes.

15 Q So I guess about a third of the way down on

16 the page, Singler says, quote: "It would be

17 preferable to use phenobarbital."

18 A Yes.

19 Q So I'd just like to go back to Dr. Singler's

20 testimony on the subject. When asked what the

21 response was to his suggestion that a different

22 barbiturate should be used he stated that other

23 participants said, quote: "That it was a less

24 desirable choice for the state to choose or less

25 desirable drug for the state to choose because of

0601

1 the -- I guess now I can't recall exactly the

2 words that were used, but my recollection is

3 because of the precedent that has already been

4 set in multiple states using thiopental and

5 having passed whatever legal challenges it may or

6 may not have, that setting out on a completely

7 new course would require a different strategy,

8 and that was the extent of it."

9

Is this a medically legitimate reason to

10 reject the idea of using a longer-acting

11 barbiturate?

12 A No.

13 Q Does this tell you anything about whether

14 the CDCR is willing to make meaningful changes in

15 the procedure?

16 A If they are willing -- I don't know if they

17 are willing to make changes or not. So far they

18 appear not to have been willing to do that.

19 Q So looking at about a third of the way up

20 from the bottom, do the notes record Dr. Singler

21 as saying "would use BIS monitor to ensure

22 patient asleep"?

23 A Yes.

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24 Q Do you agree that it is necessary to ensure

25 that the inmate is unconscious?

0602

1 A Yes. I think he's right that you need to do

2 some things to ensure that the patient is

3 asleep. He clearly recognizes the need to assure

4 the patient is asleep.

5 Q Do you agree, however, that using a BIS

6 monitor without more and making no other changes

7 to the procedure would be sufficient to ensure

8 unconsciousness?

9 A No. Just by itself adding a BIS monitor

10 would be completely inadequate and potentially

11 misleading and damaging.

12 Q And briefly why is that?

13 A The BIS -- anesthesiologists would love to

14 have -- just to back up, the BIS monitor is the

15 kind of machine that looks at the electrical

16 activity of the brain and provides a number that

17 in many cases does correlate with anesthetic

18 depth or level of consciousness.

19

It's, however, nowhere near as efficient

20 and reliable to replace bedside clinical

21 determination of anesthetic depth that we talked

22 about before by a trained and experienced

23 clinician. And so trying to use a BIS monitor as

24 a stand-alone monitor to measure anesthetic depth

25 is completely reasonable.

0603

1 Q And down at the bottom of the page on the

2 same page, do the notes record a discussion of

3 Oklahoma's execution protocol?

4 A Yes.

5 Q And just looking at that, it says 1-2-3,

6 various configurations?

7 A Uh-huh.

8 Q In the context -- in that context, what do

9 you think the 1-2-3 referred to?

10 A First drug, second drug, third drug.

11 Pentothal, pancuronium, potassium.

12 Q And are there a couple of other different

13 configurations that are written down there?

14 A A It runs through a couple of

15 different -- a couple of different possibilities

16 are noted by Mr. Slavin.

17 Q And what are those possibilities?

18 A I can't exactly tell what they are saying in

19 the first line, but the second line says "a

20 continuous infusion in one arm and giving drugs 2

21 and 3 in the other arm," giving the pancuronium

22 and the potassium in the other arm.

23 Q Do you think that it would be advisable to

24 give the thiopental in one arm and then the

25 pancuronium and potassium in the other arm?

0604

1 A That's a very, very bad idea.

2 Q Why is that?

3 A Because if -- if there's a problem with the

4 IV that's delivering the thiopental, infiltrated

5 or leaking or mixing problem or whatever, any of

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6 the things that we've talked about, then the

7 thiopental wouldn't be effectively delivered into

8 the circulation at a level to provide

9 anesthesia. But if the other IV is working, the

10 one that's giving the pancuronium and potassium,

11 then the prisoner will be paralyzed. Nobody will

12 realize that he's not asleep. He will be

13 suffocating and then he will get the potassium

14 and experience that excruciating pain and then he

15 will die.

16 Q And, in fact, did that used to be the drug

17 delivery method in Oklahoma?

18 A It's very akin to that, yes.

19 Q And was that -- was that changed after it

20 was pointed out that this is problematic?

21 A That's now been changed.

22 Q Do the notes also record Dr. Singler as

23 stating a justification for the use of

24 pancuronium?

25 A Yes.

0605

1 Q It's about halfway down.

2 A Yes.

3 Q So I think about halfway down he states --

4 or the notes record, quote: "If don't want to

5 risk death rattle, then want to use paralyzing

6 agent."

7

I think we talked about this yesterday,

8 but is this the aesthetic concern that you were

9 discussing?

10 A Yes. "Death rattle" is one colloquial term

11 for what medically we call agonal movements, but,

12 again, they're not agonizing. They are just

13 movements that occur at death. And there can be

14 some gasping sounds when the person's body is

15 trying to breathe in but the tongue is

16 obstructing the airway. It's kind of like a

17 snore.

18 Q And do you think that this is a medically

19 legitimate reason to use pancuronium?

20 A No, it's not.

21 Q Dr. Singler also suggested or the notes

22 record him as suggesting that 5 grams of

23 thiopental might have been too high a dose

24 because, quote, "the heart almost collapses from

25 thiopental"; is that right?

0606

1 A Yes.

2 Q Is that a possibility?

3 A Yes. Again, we're in the realm of

4 conjecture. I don't think anybody has ever

5 deliberately given 5 grams of thiopental to an

6 awake person and studied their physiology. But

7 California -- institutionally it harbors a

8 concern that it may be possible to give too much

9 thiopental as well as too little thiopental, and

10 I think this is an example of that thinking.

11 Q Is it hard to know -- is it hard to know for

12 sure whether this actually is a concern, higher

13 doses?

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14 A We just don't have the scientific

15 information to say one way or another exactly

16 what's going on.

17 Q So moving on to the second page of the

18 notes, did Dr. Singler -- do the notes record

19 Dr. Singler as recommending using a narcotic to,

20 quote, "completely eliminate pain"?

21 A Yes. I think it says, "Why not use narcotic

22 to completely eliminate pain?"

23 Q Could you explain what you think he might

24 have meant by that?

25 A The word "narcotic" in medical parlance

0607

1 means a little bit of a different thing than it

2 does in the legal parlance. I think narcotics

3 can refer to drugs like cocaine legally, but

4 medically narcotics are drugs that are in the

5 class of opiate drugs.

6

They are very effective painkillers.

7 They are also -- have a side effect of reducing

8 or stopping breathing which normally is a

9 problem, but Dr. Singler is thinking that

10 wouldn't be a problem in an execution.

11

THE COURT: Could you execute someone

12 with a narcotic?

13

THE WITNESS: I, again, prefer to stay

14 away from talking about executing people, but in

15 animals --

16

THE COURT: All right. Let's try it

17 this way. Say you have a baboon or a gorilla

18 that's roughly the size of an average male human

19 being. Could you have a high enough dose of a

20 narcotic to kill that animal?

21

THE WITNESS: Yes, you could.

22

THE COURT: Would you need anything

23 else?

24

THE WITNESS: No. Heroin is a

25 narcotic. It's a derivative of morphine which

0608

1 comes from opium. And when people overdose from

2 heroin the reason they die is because they stop

3 breathing. And then just as with the pentothal

4 stopping breathing, if you don't breathe for a

5 sufficient period of time, the brain dies and the

6 heart stops pumping.

7

THE COURT: All right. In my

8 hypothetical primate, how long would it take that

9 animal to die?

10

THE WITNESS: I think it would take

11 exactly the same amount of time it would take the

12 thiopental to cause -- I wouldn't say exactly.

13 The effects of opiates are a little bit different

14 under the hemodynamic system, and that might have

15 minor effects. I think it would take a similar

16 amount of time that it would take to die from

17 barbiturates.

18

THE COURT: The 20- to 30-minute range

19 on the outside?

20

THE WITNESS: Again, those numbers are

21 very nebulous.

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22

THE COURT: I know this is outside your

23 field, but are there primateologists who -- or

24 doctors who deal with primates who might be able

25 to give us some insight on that?

0609

1

THE WITNESS: Yes. There are, you know,

2 large primate like gorillas and apes at zoos, and

3 they need surgery and there are veterinary

4 anesthesiologists and anesthesiologists who

5 provide care for them and might have a better

6 understanding of how they react to these drugs

7 than I would.

8

THE COURT: In terms of -- I assume

9 there isn't any pain to the subject caused by an

10 overdose of narcotics?

11

THE WITNESS: No.

12

THE COURT: There's no sensation of

13 pain?

14

THE WITNESS: I think it's -- for people

15 who use heroin it's very pleasant. It's the

16 feeling that they are looking for. Some

17 narcotics can cause nausea and so some people --

18 it varies from individual to individual. Some

19 people get nauseated or even vomit from

20 narcotics.

21

THE COURT: But if it was a high enough

22 dose, that would be highly unlikely?

23

THE WITNESS: If you're unconscious, you

24 can't experience nausea or experience anything.

25 If you're deeply unconscious, you can't

0610

1 experience anything.

2

THE COURT: And in terms of what's

3 visible to observers, anything of particular

4 concern with regard to high doses of narcotics?

5

THE WITNESS: I think it's when we're

6 watching two animals, one of which had been given

7 a large dose of narcotics and one had been given

8 a large dose of barbiturates, both enough that it

9 would stop breathing for a very long period of

10 time.

11

The only difference I think could

12 possibly happen is that as the brain becomes

13 anoxic, seizures can occur. Barbiturates are

14 very potent anti-epileptic drugs. We give them

15 to people to stop them from having seizures.

16

THE COURT: So they would be better in

17 that respect than narcotics?

18

THE WITNESS: I would predict with two

19 animals, one given a huge overdose of a narcotic,

20 say, morphine, and one given a huge overdose of a

21 barbiturate, you'd be more likely to see seizures

22 in the one that had received the narcotics, less

23 likely to see it in the one that had received the

24 barbiturates.

25

THE COURT: I may have already asked you

0611

1 this, but as among and between barbiturates,

2 between fast acting and slow acting, is there any

3 difference in terms of side effects?

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4

THE WITNESS: There are some subtle

5 differences. Thiopental is a class of

6 barbiturates called thiobarbiturate. It has

7 sulfur in it and that is connected with sometimes

8 people having constriction of the airways, an

9 asthmatic type of bronchoconstriction, so -- and

10 hemodynamic effects. So each of these has their

11 own subtle flavors of side effects.

12

However, I think it's also fair to say

13 that given in very large doses like what you're

14 talking about with euthanasia of an animal, those

15 effects can't really occur because, as we were

16 discussing, for example, you can't be nauseated

17 when you have a flat-line EEG.

18

THE COURT: Okay.

19

THE WITNESS: Bronchoconstriction or

20 constriction of the airways doesn't really matter

21 when you have flat-line EEG.

22

THE COURT: All right. Okay. Thank

23 you, Dr. Heath.

24 BY MS. ANDERS:

25 Q So I think we were talking about the fact

0612

1 that the notes record Dr. Singler asking the

2 question why not use narcotic to completely

3 eliminate pain. Do the notes also record

4 Mr. Gillette's response to that question?

5 A Yes.

6 Q Could you read what that is.

7 A The quote is -- it says, Gillette, hyphen,

8 the quote, "because all three drugs currently

9 used upheld by courts."

10 Q Is the fact that the three-drug cocktail

11 itself may or may not have been upheld in other

12 states a medically legitimate reason to reject

13 Dr. Singler's suggestion?

14 A No. Their priority is to be, look, let's

15 sit down and talk about how we can make sure this

16 is humane. If we make sure it's humane, then the

17 court is not going to stop us from doing it.

18 That's where they should be coming from.

19 Q Is it in any event accurate to say that the

20 three-drug cocktail without more has been upheld

21 everywhere?

22 A I don't think that's an accurate description

23 of what's happening in Missouri. I think the

24 judge there is saying if you want to use these

25 three drugs, then you need to have someone there

0613

1 to make sure that anesthetic depth is adequate.

2 And I don't think it's really an accurate

3 reflection at least of my understanding of what

4 was happening here in California earlier this

5 year.

6 Q In any event, would adding a narcotic to the

7 procedure alleviate your concerns about the

8 execution procedure?

9 A You still need to somehow make sure that

10 it's done -- whatever drugs you use to provide

11 anesthesia and analgesia have achieved their

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12 effects. Otherwise, California is not going to

13 know whether it did a humane execution or not.

14 Q So adding another drug, that drug would also

15 be subject to all of the concerns that we've

16 talked about previously?

17 A Dr. Singler was trying to add a layer of

18 safety, which is commendable, but he -- I guess

19 that was rejected.

20 Q Do these notes reflect that there is a

21 concern about not changing the execution

22 procedure any more than necessary or as little as

23 possible?

24 A Yeah. I think that's inherent in some of

25 these remarks that we've talked about here.

0614

1 They're trying to stick with something that's --

2 they think is legally okay.

3 Q In fact, did the notes use the word "tweak"

4 to describe the revision?

5 A Yes.

6

THE COURT: Let me interrupt you one

7 more time, Counsel. I forgot to ask Dr. Heath

8 the question.

9

The addition of a narcotic to the

10 current cocktail, would that reduce or eliminate

11 the pain that would be caused by the potassium,

12 assuming that the inmate were conscious?

13

THE WITNESS: Narcotics by themselves --

14 by themselves, narcotics are not all that good at

15 producing unconsciousness, although when you give

16 a lot of them, they will produce it.

17

THE COURT: That wasn't my question. My

18 question is let's assume a worst case scenario.

19 Let's assume that the sedative is insufficient to

20 make the inmate unconscious at such time as the

21 inmate receives potassium chloride, which you've

22 testified causes excruciating pain.

23

Would the addition of a narcotic to the

24 protocol provide a safeguard against that pain

25 assuming that you hadn't rendered the inmate

0615

1 unconscious?

2

THE WITNESS: If you had enough. So,

3 again, we use a drug like morphine to treat pain

4 and we do what's called titrating to effect.

5 Each individual has different sensitivity to

6 these drugs and experiences pain to different

7 degrees. So if you had enough, then by

8 definition you would be blocking their pain.

9

THE COURT: So if you added to the

10 current cocktail a massive dose of morphine, and

11 assuming, again, of course, it gets to the

12 patient, then you've eliminated the risk of pain

13 being caused by the potassium; correct?

14

THE WITNESS: If it gets in, you've

15 eliminated it. However, if the thiopental has

16 gotten in, then you wouldn't need it in the first

17 place.

18

THE COURT: Right. So it gets back to

19 the adequacy of the delivery system.

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20

THE WITNESS: Exactly, exactly.

21

THE COURT: Thank you.

22 BY MS. ANDERS:

23 Q Are narcotics also subject to concerns about

24 drug diversion?

25 A They are, yes. They are addictive and

0616

1 pleasurable.

2 Q So overall based on these notes and the

3 testimony about the meeting, what is your

4 impression of the priorities at work as the group

5 considered the revisions to the protocol?

6 A Their priorities -- well, Dr. Singler's

7 priority seems to be trying to address some

8 legitimate medical concerns, but the overall

9 thrust of that -- of how that group of people was

10 operating was to try to -- it appears to tweak it

11 and to try to find some way that would survive

12 legal issues. That was their main finish line,

13 to get across a legal challenge, not to meet the

14 challenge of making it humane.

15 Q Now, after that meeting with Governor's

16 Office counsel, did San Quentin personnel add a

17 continuous drip to the protocol?

18 A Yes, they did.

19 Q Could you describe your understanding of

20 that process just basically.

21 A I think they were somehow told that that was

22 going to be a new feature of the protocol, went

23 online to do a Google search of how -- about

24 thiopental and perhaps thiopental drips and came

25 up with this current plan of the 5 grams and

0617

1 250 cc.

2 Q And was it Dr. Rosko, the -- formerly an

3 anesthesiologist, now a psychiatrist --

4 A Right. He has a background as an

5 anesthesiologist. He did that, yes.

6 Q And I believe you said that he spent time on

7 the Internet; is that correct?

8 A I think 15 minutes was his description.

9 Q And when he -- when he did this, what did he

10 think that the bolus dose would be?

11 A Well, that's what's kind of amazing. He

12 thought they were still giving 5 grams as the

13 bolus dose. He was not -- he did not realize

14 that they had cut that down by more than a factor

15 of three.

16 Q Was that important information to have with

17 the bolus?

18 A It's hard to imagine -- it's not a coherent

19 design of a process. One hand doesn't know what

20 the other hand is doing, and you can't do things

21 that way. Something this important can't be done

22 that way.

23 Q And does the fact that Dr. Rosko spent so

24 little time on this and was not given important

25 information indicate a lack of regard on CDCR's

0618

1 part for the need to address, you know, problems

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2 or concerns about the old protocol?

3 A Yeah. There's a systematic failing to

4 address these issues head on and identify their

5 priorities, figure out how they are going to meet

6 those priorities and move forward. There's a

7 complete failure to do that.

8

MS. ANDERS: I'm actually at a pretty

9 good stopping place right here.

10

THE COURT: How much more do you have on

11 direct?

12

MS. ANDERS: I'd estimate about 45, 50

13 minutes.

14

THE COURT: All right. And very

15 roughly, Mr. Gillette, Mr. Matthias, can you

16 indicate how much cross you have?

17

MR. GILLETTE: I would imagine at least

18 two hours. It could be longer.

19

THE COURT: Okay. And then I've got

20 questions. Even though I've asked a number of

21 them, I have a lot more, but I'm going to wait

22 until you're done with cross-examination.

23

So I think we're going to be the rest of

24 the day with you, Doctor. I wanted to make sure

25 that there was no problem with that.

0619

1

All right. We'll take a recess until

2 2:30.

3

(Noon recess taken.)

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

0620

1 San Jose, California

September 27, 2006

2

AFTERNOON SESSION

3

THE COURT: In the matter of Morales

4 versus Tilton. Let the record reflect that we

5 are again in session, that counsel are present.

6 And we will have further direct examination of

7 Dr. Heath.

8

MS. ANDERS: Thank you.

9 BY MS. ANDERS:

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10 Q Just to clarify something you said earlier,

11 Dr. Heath. I believe you were testifying about

12 witness number 9 and how he stated that

13 thiopental does not stop breathing. Do you

14 remember that?

15 A Yes.

16 Q So I believe your answer sounded like

17 witness number 9 is actually in the anteroom

18 observing the execution?

19 A Yes.

20 Q Would you like to clarify that?

21 A After we discussed this, witness number 9

22 may not have seen actual scene briefing. What I

23 was trying to say is it's understandable for

24 somebody on a team who has witnessed executions

25 that's given thiopental to see notes and those

0621

1 charts the data that breathing continues, they

2 might be under the mistaken belief that

3 thiopental does not stop breathing.

4 Q Okay. Thanks. And just before we broke for

5 lunch we were speaking about the process of

6 adding the continuous drip to procedure number

7 770.

8 A Yes.

9 Q In your opinion, do the changes to

10 procedures number 770 address any of the concerns

11 that you had about the old protocol?

12 A Not really, no.

13 Q And basically what are the changes to the

14 new protocol, new aspects?

15 A So the initial bolus of thiopental, the

16 intended bolus has been reduced from 5 grams to

17 1.5 grams. The older protocol is said to give

18 those 5 grams in 25 cc. Now it's giving 1.5

19 grams in two much larger syringes, I forget the

20 exact amount, but maybe -- I forget the amount,

21 but much larger volume than that.

22

Once that administration is -- is

23 complete, they then in the other arm start

24 this -- the infusion of the thiopental drip, and

25 at the same time move forward with the second and

0622

1 third drugs, the pancuronium and the potassium.

2 Q Does the addition of a continuous --

3 A The pancuronium and potassium doses have

4 also changed.

5 Q Thank you. And does the administration --

6 the addition of a continuous drip lessen the risk

7 of improper drug administration?

8 A It depends how it's done, but it's crazy to

9 lower the initial -- to do so at the expense of

10 the initial bolus dose. That makes no sense

11 whatsoever.

12 Q Does the drip lessen the need for monitoring

13 anesthetic depth?

14 A Not at all, if you're going to use potassium

15 and pancuronium.

16 Q And will the drip deliver a significant

17 additional dose to the inmate within the time

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18 frame of an execution?

19 A Dr. Ebling discussed this yesterday.

20 Because of the -- the actual mechanics of how

21 it's being done, it's not, in my opinion, going

22 to make a significant difference, that

23 pancuronium and potassium are going to be already

24 in before the drip exerts any effect.

25

THE COURT: What if the IV lines were

0623

1 shorter?

2

THE WITNESS: Then it would get there

3 faster. But even -- even with that it's still

4 going to get there after the pancuronium and

5 perhaps the potassium depending on how quickly

6 they administer those.

7

Most states have -- or a lot of states

8 have timing built into this, and California

9 doesn't have any timing. It just says give the

10 drugs one after the other, although when we

11 looked at that chart today, it's not really how I

12 interpret that term "one after another." There

13 appears to be something else going on in between.

14

THE COURT: So the protocol should

15 include a timing sequence?

16

THE WITNESS: Again, I'm trying to stay

17 on the euthanasia of animals or whatever.

18

THE COURT: I don't mean to tread on

19 your ethical sensibilities. I'm just trying to

20 get at the practicalities.

21

If one were going to euthanize an animal

22 with the use of these drugs, then you would want

23 to have a timing sequence?

24

THE WITNESS: But you'd also have a

25 person there who understood all these drugs and

0624

1 they would do the timing by themselves because

2 they know how to do this. The notion of a

3 protocol, the timing in a protocol is a

4 ramification of having personnel who can't -- who

5 aren't proficient in it themselves. So they need

6 to lock them in to -- or it's better to look them

7 in to some precise regimen as opposed to leaving

8 it wide open, which is how appears to be

9 administered right now. There's a lot of

10 variance.

11 BY MS. ANDERS:

12 Q Have you in previous declarations in this

13 case stated that the addition of a continuous

14 drip would be a positive step?

15 A Yes.

16 Q And is that something you don't think

17 anymore?

18 A Well, certainly the way this is being done

19 here, if they've lowered the bolus dose, it's

20 not -- it's a decrement of the safety of the

21 protocol which is already unacceptably low.

22

It also adds -- in the context of not

23 assessing anesthetic depth, it adds a layer of

24 complexity and perhaps a layer of false assurance

25 that folks there may think, oh, now we've done

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0625

1 this thing, it's guaranteed to be safe, although

2 they appeared to think that beforehand anyway.

3 So --

4 Q And you mentioned lowering the bolus dose.

5 Is 1.5 grams of thiopental still an overdose in

6 relation to the clinical dose for inducing

7 anesthesia?

8 A It's more than I've ever given for an

9 induction of anesthesia, but, again, less then

10 I've given in other contexts.

11 Q And is using 1.5 grams lowered the margin of

12 error in drug administration?

13 A It definitely is among the lowest that I've

14 seen for any state to give that low a dose before

15 giving pancuronium and potassium.

16 Q And do you think that the CDCR has thought

17 out the consequences of these two changes to the

18 protocol?

19 A I think their intentions were probably good,

20 but since this is not the right thing to have

21 done, I don't think they've thought it out well.

22 I guess I'd put it that way. It's not well

23 thought out.

24 Q And so overall do you think that these

25 modifications are another example of the CDCR's

0626

1 failure to understand what's at stake in

2 executions and take the necessary precautions?

3 A Yeah. They haven't outlined the right

4 priorities. They are trying to come up with a

5 legal -- meet a legal finish line, I think,

6 instead of a medical humane finish line.

7 Q I'd just like to turn briefly to the initial

8 development of procedure 770. I believe you

9 alluded to this before, but was the protocol

10 mostly copied from what was used in Texas at the

11 time?

12 A Yes. Staff from California went to Texas to

13 learn about what's being done there.

14 Q How many grams of thiopental did Texas use

15 at that time?

16 A Two grams.

17 Q And this is Exhibit 111.

18

THE COURT: I'm sorry, Ms. Anders. This

19 is one of the supporting documents that was part

20 of the original OP-770 that was the subject of an

21 order the Court made last week? I just want to

22 make sure I'm identifying the right document.

23

MR. GRELE: We received it in discovery

24 early on, Your Honor. It's one of the documents

25 that -- it's the earlier version of the resource

0627

1 supplement.

2

THE COURT: We talked about a resource

3 supplement last week. This is an earlier version

4 of the same thing?

5

MR. GRELE: That's correct.

6

THE COURT: Thank you.

7 BY MS. ANDERS:

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8 Q So is this the CDCR's resource supplement 9 G-4? 10 A That's what it says, yes. 11 Q And this is a document referencing the 12 protocol as describing the syringes and their 13 contents? 14 A Yes. 15 Q And what is this -- what does Exhibit 111 16 say about the quantity of thiopental to be used 17 in the procedure? 18 A Well, it starts off -- there's been a change 19 to what's written here, what was typed out. So 20 what was typed out said sodium pentothal 2.0 21 grams, and then somebody crossed out that 2 and 22 written a 5 there. 23 Q And is 5 grams the amount that was used in 24 the older version of 770? 25 A Yes. 0628 1 Q Do you have a clear idea as to why the CDCR 2 decided to use 5 grams instead of 2? 3 A My understanding is it was a change made 4 because they found out that thiopental comes in 5 5 gram bottles, and they -- rather than dealing 6 with the implications of that they just decided 7 to change it to 5. 8 Q And is that based on the testimony of Denise 9 Dull? She testified -- is it your understanding 10 that she testified that the packaging had 11 changed, something with packaging? 12 A Yes. 13 Q And what does that reason tell you about the 14 medical understanding of the persons who are 15 responsible for the design of the protocol? 16 A Well, from a medical point of view it's a 17 completely arbitrary change. It's another 18 example of total arbitrariness in the system. 19 Q And if I told you that Daniel Vasquez, the 20 warden at the time, testified that he did not 21 know how or why the change from 2 grams to 5 was 22 made, does that also raise concerns? 23 A It just shows that he doesn't -- he's not 24 cognizant of the developments of the most 25 essential part of the protocol, which is the 0629 1 anesthetic part of it. 2 Q Did this Court issue an order back in 3 February giving the CDCR two options, one of 4 which was to use an anesthesiologist in the 5 execution of Mr. Morales? 6 A Yes. 7 Q And is it your understanding from the 8 testimony of Dr. Singler and anesthesiologist 9 number 2 that they decided that they could not 10 ethically participate after seeing the Ninth 11 Circuit's order affirming the district court? 12 A Yes. 13 Q And that order stated that the 14 anesthesiologist should be prepared to take all 15 medically appropriate steps, either alone or in

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16 conjunction with the execution team, to

17 immediately place or return Morales into an

18 unconscious state. Is that your understanding?

19 A Yes.

20 Q Did you agree with the Ninth Circuit that

21 the ability to return Mr. Morales to

22 unconsciousness or cause the execution team to do

23 so was a crucial component of ensuring that

24 anesthetic depth was adequate?

25 A Right. I think it's pretty clear that you

0630

1 don't want to just observe the anesthetic depth

2 as a passive observer. There needs to be an

3 ability to -- not just to test, but to correct,

4 if the correction is warranted.

5 Q And do you have an opinion with respect to

6 the CDCR's failure to ascertain in advance

7 precisely what the anesthesiologists understood

8 their obligations to be under the order?

9 A I forget the exact timing, but I think they

10 had -- and everything was pretty rushed at the

11 end there, as I recall, but it seemed like that

12 would be their first priority would be to fax

13 that to their houses or their offices and talk on

14 the phone to them and make sure that they were

15 slotted in, integrated into this, and that things

16 would be as seamless as possible given the

17 limited time.

18 Q Is this further evidence of the CDCR's

19 institutional inability to take steps necessary

20 to ensure that the executions are performed

21 humanely?

22 A I think it's a leadership failure.

23 Q I'd like to talk about the execution

24 facility itself and the drug delivery system with

25 you now.

0631

1

So as part of the inspection at San

2 Quentin you observed the facility itself and the

3 setup of the administration system as if an

4 execution were to take place?

5 A That's what -- that's what witness number 1

6 said, yes.

7 Q And did you draw any conclusions with

8 respect to whether the facility and the drug

9 delivery system allows the execution team to

10 ensure a humane execution?

11 A Yes.

12 Q Does the execution team administer the drugs

13 from a different room?

14 A Yes.

15 Q And does remote administration impede the

16 ability to monitor anesthetic depth?

17 A Absolutely, yes.

18 Q Why is that?

19 A We talked about before, and as other

20 individuals have said in their depositions, it's

21 a bedside procedure. You have to be there next

22 to the person or in the room with the person.

23 You have to be able to make physical contact with

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24 the person to -- as part of your assessment. 25 Q When, if ever, would anesthesiologists 0632
1 induce anesthetic depth from a remote location? 2 A I've tried hard to think of a time when an 3 anesthesiologist might ever induce general 4 anesthesia from a separate room, and the only one 5 I could come up with is if somebody had massive 6 radioactivity exposure and you had to anesthetize 7 them, but you for your own safety couldn't go in 8 there and would prioritize that. But I don't 9 think that's a situation that's ever actually 10 existed. 11 Q So, in other words, it would be in an 12 emergent circumstance of some sort? 13 A Definitely some kind of exigent 14 circumstance. You would never willingly and 15 voluntarily do it that way from a different room. 16 Q And do you believe that you would be able to 17 ascertain that general anesthesia has been 18 successfully induced looking through the window 19 into the gas chamber? 20 A No. Again, it's a bedside procedure. 21 Q So Dr. Singler is willing to stand in the 22 gas chamber with Mr. Morales; is that correct? 23 A Yes, he was. 24 Q Is that the right thing to do in order to 25 monitor anesthetic depth? 0633 1 A He had it right. That's what you need to 2 do. 3 Q In other states do execution team members 4 sometimes stand or come into the chamber itself 5 with the inmate? 6 A Yes. So, again, I was involved in 7 litigation in Maryland last week and what the -8 what their protocol now says is that the person 9 who is responsible for the IV integrities is 10 going to stay in the execution chamber and survey 11 the IV sites and IV tubing. 12 Q Now, of course, whether that's an effective 13 protection, does that depend on the rest of the 14 protocol as a whole and the people doing it? 15 A Yes. And, also, she's not going to be 16 assessing anesthetic depth. 17 Q Does the remote administration of the drugs 18 render a delivery failure more likely? 19 A Yes, it does. 20 Q And does it also make it less likely that 21 team members would detect any such failure if it 22 occurred? 23 A It does. 24 Q Does the setup of the gas chamber allow the 25 team to observe the full extent of the IV system? 0634 1 A No, it doesn't. 2 Q And could you explain why you think that? 3 A They can't properly see the prisoner's left 4 arm or hand, and that's where the IV tubing -5 one of the IVs usually leads to. As opposed to

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6 if they put the IVs in both feet or the feet and

7 the arm, then they'd have a better view. But

8 even then the lighting isn't good.

9

The further away you want to be, the

10 mirror or the window is not a completely clear

11 window. So that further has the effect of

12 dimming the view. You can see, but you can't see

13 well enough to properly assess IV integrity and

14 delivery.

15 Q And does the remote administration of the

16 drugs also make it more difficult for the

17 execution team to remedy any problem that it does

18 detect?

19 A Yes, especially in this situation where the

20 prisoner is sort of sealed in this steel

21 chamber. Normally in a clinical setting, you're

22 very close, and you can reach over and do

23 something. Here they have to go to the door,

24 wheel the door open, swing it open and then get

25 in there to intervene.

0635

1 Q And when you were at San Quentin, did you go

2 into the gas chamber itself?

3 A Yes.

4 Q How spacious was it, in your opinion?

5 A I was surprised at how small it is. But I

6 guess it's a gas chamber. So they need to keep

7 it small to make the gas concentration high.

8 Q Does the size of the chamber raise concerns

9 in your mind regarding the ability of the

10 personnel to properly set the IV lines?

11 A It's not good working conditions.

12 Q How does it compare to your clinical -- what

13 you would do in a clinical practice?

14 A We have a lot more space in an OR or in a --

15 what we call a lining area, which would be a

16 space outside the OR to put IVs in and do that

17 kind of stuff. We have a lot more space. If our

18 hospital narrowed our lining area or holding area

19 down to the size of that chamber, we'd put up a

20 big fuss about it.

21 Q And why is it so important to have that kind

22 of space when putting in an IV?

23 A Putting in an IV, sometimes you're using

24 your whole body. It sounds strange, but every

25 part of your body is positioned to get your head

0636

1 lined up, your eyes lined up with your hands and

2 be able to hold things in just a certain

3 position.

4

Sometimes you need to drop the arm or

5 help to drop the arm to help blood pool and

6 expand the veins, and you just position yourself

7 in some ways. You need to have room for your

8 whole body to line up with the arm.

9 Q So could the size of the chamber explain why

10 witness number 6 and possibly other team members

11 have had problems placing IVs on occasion?

12 A It's definitely -- putting IVs in can be

13 difficult. In some prisoners we know it's --

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14 they couldn't do it. They couldn't get two IVs

15 in. So you want to reasonably optimize things

16 and they definitely were working in very cramped

17 and confined quarters, and I wouldn't want to be

18 working under those circumstances.

19 Q What about placing a central line; would

20 that be difficult in the chamber?

21 A I wouldn't try to place a central line in

22 that chamber. If I'm putting in a line in a

23 subclavian vein, for example, I want to be

24 standing at the head of the bed and I'd need more

25 room than there really was there. That would be

0637

1 very constrained circumstances.

2 Q Is it your understanding from Dr. Singler's

3 testimony that he became concerned about the

4 ability to ensure patent IV lines and proper IV

5 placement when he saw the gas chamber?

6 A Yes.

7 Q In fact, he testified, I guess, in response

8 to questions regarding his concern on page 214,

9 quote: "Antecubital IVs inserted in a restrained

10 inmate in marginal lighting conditions without an

11 ability to drop the arm off the bed and help fill

12 the vein and do all the things that I do as the

13 IV expert in my hospital maximizes the chances I

14 will get it on the first try."

15

Do you agree with this statement?

16 A He's totally right in that statement. Any

17 clinician will look in there and see the same

18 thing.

19 Q Does the gas chamber allow the execution

20 team to observe the inmate?

21 A It's hindered observation. They can

22 observe, but it's not good observation

23 conditions.

24 Q And based on your review of the testimony,

25 do many of the execution team members have a view

0638

1 into the gas chamber?

2 A Most of them don't because of where they are

3 standing and the crowding and the layout of the

4 thing.

5 Q Does the protocol require that any team

6 member have a view into the chamber?

7 A It doesn't say that anywhere.

8 Q Or observe the inmate?

9 A Nothing about that.

10 Q Is witness number 4, the MTA, the sole team

11 member who has a head-to-toe view of the inmate?

12 A Well, he has a head-to-toe view, but he does

13 not have an arm-to-arm view of the inmate.

14 Q And this is what you mentioned before, the

15 left IV is hard to see?

16 A Right. You can't see the left arm properly

17 and so you can't see the left IV.

18 Q So where is the inmate's head in relation to

19 the execution team's vantage point?

20 A It's that person number 4 who's watching.

21 He's standing in front of a window and he's

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22 looking at the feet, and the gurney is oriented

23 away from him. He's looking up to the head.

24 Q Would it be difficult to detect signs of

25 consciousness or distress given how the inmate's

0639

1 body is oriented?

2 A Well, we -- this is just one more on top of

3 many hindrances that we -- the face is one of the

4 most useful parts of the body to look at,

5 especially the eyes and the skin of the face.

6 Q Does the person injecting the drugs have any

7 view to the gas chamber?

8 A My understanding is they can't see it.

9 Q And when you're administering anesthesia,

10 can you see the patient?

11 A Yes. We set things up to maximize our

12 presence right there at the head of the patient.

13 Q In your opinion, does the ability to observe

14 the inmate and the catheter site exacerbate the

15 risk of inadequate anesthetic depth?

16 A Yes, it does.

17 Q And are there other aspects of the execution

18 facility set up that render mistakes more likely?

19 A Yes, there are.

20 Q Have we covered the main aspects of the

21 facility that raise concerns in your mind?

22 A Yes.

23 Q So is it your opinion that the facility and

24 the physical setup of the equipment hinder the

25 execution team's ability to do its job?

0640

1 A Yes. That's right.

2 Q So I'd like to briefly discuss with you the

3 lack of contingency plans in the protocol. I

4 think you touched on this before.

5

Did the execution team decide that they

6 couldn't address contingencies in advance?

7 A Yes. We had that quote earlier on with

8 where they said there were, just to paraphrase, I

9 think too many possibilities that they couldn't

10 possibly, you know, list or enumerate them all

11 and address them all. That they would just defer

12 to the medical -- the EMTs or whoever were there,

13 the MTAs or whoever were there.

14 Q Is the need to administer a second dose of

15 thiopental a foreseeable contingency that could

16 arise?

17 A Yes. Definitely something could happen that

18 you'd have to give more thiopental. That was

19 foreseen, I think, by that Ninth Circuit decision

20 that we were talking about, also.

21 Q And does the protocol say anything about a

22 backup dose of thiopental?

23 A It says there should be thiopental there for

24 backup, yes.

25 Q And is it clear whether the backup is

0641

1 supposed to be mixed thiopental in a syringe or

2 unmixed?

3 A The protocol says unmixed.

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4 Q Does Exhibit 67 say that as well? Take a

5 look at it.

6 A Is that --

7 Q That's the formula.

8 A -- the thing that's not on the protocol, but

9 the list of how to make it up, the one that goes

10 in the cart?

11 Q That's right.

12 A That also says not to make it up -- not to

13 mix the backup thiopental.

14 Q Is there conflicting testimony on this,

15 though?

16 A There is. I forget exactly where, but some

17 of the depositions they say have it mixed up and

18 ready to roll.

19 Q So in light of the conflicting testimony, if

20 there is a procedure for having the syringe all

21 ready to go, is it well understood by all the

22 execution team members?

23 A They say they don't discuss those kinds of

24 what-ifs. I think that was their term,

25 "what-ifs." So they have no articulated plan for

0642

1 the various what-ifs that might warrant

2 administration of more thiopental.

3

And, indeed, if it's not drawn up,

4 that's an even bigger problem because it -- as

5 they've testified, it takes them time to mix up

6 the thiopental and, if you need it, you need it

7 quickly.

8

So it's another example of -- that they

9 were unprepared for what they should have

10 foreseen to be a real situation.

11 Q Although it is possible that there was a

12 mixed backup dose, but not in the protocol?

13 A That's possible. Again, the testimony was

14 divergent on that.

15 Q Does the CDCR have a plan in place for doing

16 a central line?

17 A It does not.

18 Q Does the protocol mention the possibility of

19 placing a central line, the current protocol?

20 A It does not.

21 Q What is a central line?

22 A So I think as we talked about earlier when I

23 had the four phases up there, there's two main

24 types of IVs, peripheral IVs, that go into the

25 hand and the arm, and the veins are usually close

0643

1 to the skin. And then there are central IVs or

2 central lines which go in one of three large

3 veins that is close to the center of the

4 circulation, which is the heart. And those veins

5 are either the internal jugular vein in the neck,

6 the subclavian vein under the clavicle or

7 collarbone, and the femoral vein, which is in the

8 groin.

9

So that would be a large catheter,

10 usually six or eight inches long, which is

11 inserted into one of those sites and travels

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12 towards the heart or into the heart.

13 Q I'm just going to put up Exhibit 140.

14

Is this an example of a femoral central

15 line?

16 A Is that in black and white now? I can't see

17 it well.

18 Q It's in color, but it's very hard to see.

19 A This is a femoral line. Let me just check

20 the picture.

21 Q Yeah. The hard copy is much easier to see.

22 140.

23 A Yes. I believe this is a femoral line from

24 one of the executions in Missouri.

25 Q So is it your understanding that this photo

0644

1 was obtained in discovery in Missouri litigation?

2 A Yes.

3 Q And is this a properly placed central line

4 from what you can tell?

5 A From what I can tell, I don't see any

6 evidence of any misadventure here.

7 Q And when is a central line necessary, in

8 what situation?

9 A So it's necessary in a situation where

10 intravenous access is necessary, but it can't be

11 achieved through our preferred route, which is a

12 peripheral IV.

13

It's also sometimes necessary when

14 you're setting up or embarking on surgical

15 procedures where you anticipate the potential for

16 heavy blood loss or the certainty of heavy blood

17 loss and the need to rapidly give blood and other

18 fluids to maintain the volume of the circulation.

19 Q And do you think it is inevitable that at

20 some point the execution team would have to

21 resort to a central line to obtain venous access?

22 A Yes. There are some patients, and their

23 population appears to be enriched in prisons, who

24 exhibit a history of intravenous drug abuse who

25 it's just not possible to get peripheral

0645

1 intravenous access. And so if you have to have

2 an IV, you have to put a central line in.

3

I should just say that it's not just

4 people with histories of IV drug abuse. I

5 sometimes encounter patients for reasons where --

6 I don't know of any actual risk factor or reason,

7 but we just can't get a peripheral IV in that's

8 good enough for the procedure and so we just go

9 for a central line.

10 Q Does a central line have to be placed by a

11 doctor or under the supervision of one?

12 A Yes. A highly trained physician assistant

13 or perhaps certain other empowered professionals,

14 non-physician medical professionals who are

15 highly trained and have a lot of experience with

16 elbow-to-elbow supervision by a doctor in some

17 places might be allowed to do that, but generally

18 it's done by physicians.

19 Q Why is that? Is it more difficult than

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20 placing a central -- a peripheral line?

21 A It's more difficult, but more importantly,

22 the complications of central lines are -- can be

23 very grave. It's unlikely to have a severe

24 complication from a peripheral IV, at least not

25 an immediate one. There might be infection or

0646

1 whatever, but it can't really hurt somebody that

2 badly in an acute time frame with a peripheral

3 IV. With a central line you can.

4 Q So I believe Dr. Singler testified at page

5 292 of his deposition that all types of central

6 lines are, quote, "potentially fraught with

7 life-threatening complications."

8

Do you agree with that?

9 A He's completely correct about that.

10 Q And I'm just going to put up a photo of a

11 central line suffering from such a complication.

12 This is Exhibit 72.

13

Is this also a photo obtained in

14 discovery in Missouri?

15 A That's a pretty bad view. I think the color

16 is off. But, yes, this is from another central

17 line placement during an execution in Missouri.

18 Q Could you explain what complications may

19 have occurred here?

20 A Well, you can see there's significant blood

21 loss. The gauze on the left of your picture

22 there is totally soaked and there's other blood

23 there. And this picture and other pictures in

24 that series show that there's a hematoma which is

25 a collection of blood inside the thigh. This is

0647

1 the groin here and there's blood collecting

2 there.

3

I think what happened here -- you can

4 never be sure what's going on inside under

5 somebody's skin until you actually look, do a

6 radiological procedure and see the femoral artery

7 that was right next to the femoral vein that was

8 injured, and a lot of bleeding occurred, which is

9 typical in that situation.

10 Q If the femoral artery is injured, is there

11 special equipment that you would need to treat

12 it?

13 A It depends on the nature of the injury, but

14 you may very well need to do what's called a --

15 to explore, to do an exploration and repair,

16 which means that's full-blown surgery.

17 Q Are there other potential complications of

18 central lines?

19 A Sure. One of the big ones is the

20 pneumothorax which is where the needle enters the

21 lung. So air that normally is just going in and

22 out of the lung actually leaves the line and

23 collects inside the chest cavity outside the lung

24 but inside the wall of the chest, and that causes

25 progressive collapse of the lung and eventually

0648

1 suffocation or hemodynamic collapse depending on

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2 how it progresses.

3 Q And would equipment be necessary to treat

4 that complication as well?

5 A Yes. You'd have to put a chest tube --

6 what's called a chest tube in, which is a tube

7 about the size of your finger that attaches to

8 suction and reinflates the lung.

9 Q And is it your understanding that the

10 execution team -- or the execution facility has

11 that equipment present, if necessary?

12 A I -- I don't really know the layout there in

13 terms of where their hospital is compared to the

14 chamber and stuff, but when you put a central

15 line in -- in a planned -- in a planned way, you

16 need to have all that kind of equipment

17 immediately on hand because this condition

18 develops rapidly and can kill someone very

19 rapidly.

20 Q And is the danger of complications like this

21 and like the hematoma and the pneumothorax, is

22 that danger one of the reasons that it's

23 necessary to anticipate the need to do a central

24 line in an execution?

25 A Yes, it is. Failing to plan is planning to

0649

1 fail, and you need to have this mapped out. You

2 need to have a plan B if you can't get IV

3 access.

4 Q And would you -- you would also need to have

5 someone available who could do a central line; is

6 that correct?

7 A You need to have somebody ready, willing and

8 able to do that.

9 Q In your opinion, is not having a contingency

10 plan for doing a central line a dangerous

11 omission from the protocol?

12 A Yes. And this might be a little bit subtle,

13 but I think that I believe it puts undue pressure

14 on the folks trying to obtain a peripheral IV to

15 not have this plan B that they can fall back on.

16 When -- in the clinical setting when we are

17 trying to put in peripheral IVs in somebody who

18 needs a peripheral IV, we always know that we

19 have that backup plan.

20

So we start looking at each other and

21 shrugging our shoulders and thinking, okay, maybe

22 it's time to move to a central line. We don't

23 like to do that to a person who's awake. It's

24 uncomfortable to say the least, but we will do

25 that. We have that backup option.

0650

1

If we don't have that option, then it

2 puts pressure on you to put in IVs and maybe to

3 sign off on IVs that aren't good, which appears

4 to be what happened in Mr. Williams' case.

5

MS. ANDERS: At this point I think we

6 have another exhibit we'd like to display. This

7 is Exhibit 146. It's the office of the medical

8 experts, Plata v. Schwarzenegger, medical

9 experts report of San Quentin. It's

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10 Government 5.

11

MR. GILLETTE: Your Honor, the first we

12 saw of this was this afternoon before we came

13 back from the lunch break. This is an issue the

14 Court is well aware we have objected to in the

15 past. It goes well beyond the scope of this

16 hearing. I understand they are offering it as an

17 exhibit for the purpose of this case, but we do

18 object on relevance grounds in consideration of

19 the Plata litigation.

20

THE COURT: I will reserve a

21 determination. I've already ruled in another

22 context that much of the Plata material is 403,

23 if not outright irrelevant. But I'll permit some

24 questioning of the witness at this point.

25

MS. ANDERS: Thank you.

0651

1 BY MS. ANDERS:

2 Q So have you reviewed the medical experts

3 report on San Quentin from the Plata litigation?

4 A Yes. I focused mostly on the initial parts

5 and I skimmed some of the cases that are

6 described.

7 Q And do you think the report's findings are

8 relevant to the concerns, the problems we've been

9 talking about here today?

10 A Yes, I do.

11 Q Are there parallels between -- well, let me

12 just step back.

13

Briefly could you summarize the overall

14 conclusion of the report.

15 A I didn't see this report until a couple of

16 days ago and I had already largely formulated my

17 conclusions without all of the material that you

18 provided me with. That's still open to more

19 information coming in, but I was really struck --

20 I was trying to understand how all these things

21 that I was seeing through this lens of lethal

22 injection, how these things could be happening,

23 and then I saw this report. It sort of fell into

24 place for me. It made sense because I didn't

25 know anything about what was going on in the rest

0652

1 of San Quentin.

2

And there were a couple of paragraphs

3 that really resonated with me when I read them.

4 Do I get a chance to read those out to you?

5 Q If you'd like to read them.

6 A One of them is on page 11. It says: "San

7 Quentin demonstrates a significant lack of local

8 medical and nursing leadership and an absence in

9 progress in Plata despite having rolled out over

10 a year ago. Because the facility is so decrepit

11 and support from the upper echelon from the CDC

12 in a number of key areas has not been

13 forthcoming, an attitude of resignation and

14 indifference has developed that results in

15 significant harm to inmates.

16

"The facility is symptomatic of the

17 custody attitude toward health care which appears

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18 to be one of indifference to its programs,

19 callous treatment of inmates, placement of

20 barriers in getting done what needs to get done

21 to develop a sound program and providing

22 sufficient autonomy to HCSD in order that they

23 can function."

24

And then the other paragraph is a

25 summary paragraph that said: "In summary, San

0653

1 Quentin" --

2

MR. GILLETTE: Could we have a page,

3 please?

4

THE WITNESS: I'm sorry, page 2. The

5 bottom of page 2, which is the first main page of

6 the summary.

7

It says: "In summary, San Quentin

8 should be viewed as needing to start from the

9 beginning. Its mission should be reevaluated.

10 In determining that mission, its physical

11 structure and staffing must be evaluated before

12 deciding what types of medical patients should be

13 housed there and what types of custody functions

14 should be engaged in."

15 BY MS. ANDERS:

16 Q So why do you think there are parallels

17 between the conclusions you just read and the

18 conclusions that you have with respect to the

19 lethal injection procedure?

20 A Well, looking at just what I could see from

21 the lethal injection point of view, there's a

22 leadership failure here. The people, the staff

23 here have -- their leadership has failed them.

24 They have not been provided with a clear goal of

25 ensuring a humane and dignified execution, and

0654

1 they -- evident from their behavior that they

2 don't feel able to state what their needs are, to

3 say "we need a clear room here so we can do our

4 job properly" or "we have this new form of

5 pentothal coming in and we'd like someone to go

6 over that with us and fix the protocol because it

7 no longer comports with what we're able to do."

8

That's a bad working condition.

9

Also, leadership shouldn't appoint

10 people to do a job that they are not prepared or

11 qualified to do. It's not fair on the people and

12 it's not fair on the prisoners. And these

13 individuals -- no one has told them that, look,

14 you have to understand these drugs, you have to

15 get -- and know what you're doing, you have to

16 know about infiltrations, you have to feel free

17 to come to us if you think we need to change

18 something around.

19

I don't see any evidence that they've

20 been told that. It looks the other way to me.

21 And I think that then fits in with what this

22 overall summary is saying.

23 Q So based on your review of all the evidence

24 in this case, has the CDCR placed the right

25 people in charge of the execution process?

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0655

1 A No, it has not.

2 Q And has the CDCR designed and revised the

3 protocols with the right priorities in mind?

4 A I don't think so. I think, again, they are

5 looking to cross a legal finish line, not a

6 medical or ethical or humane finish line.

7 Q And has the CDCR's lack of understanding of

8 the procedure, the stakes involved, led it to

9 create a process that involves a significant

10 unnecessary risk to the inmates?

11 A Absolutely, yes.

12 Q Do you think these problems are fixable?

13 A Yes, they are.

14

MS. ANDERS: Nothing further, Your

15 Honor.

16

THE COURT: Okay. Cross-examine?

17

MR. GILLETTE: Thank you, Your Honor. A

18 minute to get together here.

19

CROSS-EXAMINATION

20 BY MR. GILLETTE:

21 Q Good afternoon, Doctor.

22 A Good afternoon.

23 Q I'd like to make sure I understand right at

24 the outset. When you were qualified yesterday as

25 an expert, it was in the subjects of

0656

1 anesthesiology and anesthesia; is that correct?

2 A I'm not sure. What I understood was

3 anesthesiology and lethal injection.

4 Q Your expertise is as an anesthesiologist;

5 correct?

6 A This is -- you're asking what I was

7 qualified in a legal -- I'm not really familiar

8 with legal issues of qualification. My

9 recollection was anesthesiology and lethal

10 injection.

11 Q And anesthesia; right?

12 A I don't remember if it was anesthesia or

13 anesthesiology.

14 Q Now, Doctor, this would be the fifth time,

15 today and yesterday -- excuse me, your testimony

16 yesterday and today, this would be the fifth time

17 in the year 2006 that you have testified in a

18 challenge to a state's lethal injection

19 procedure; is that correct?

20 A I'm not sure if that's the correct number or

21 not. I have testified several times, yes.

22 Q Well, you've already mentioned Maryland.

23 That was the Evans case; is that right?

24 A That's correct.

25 Q And that was last week?

0657

1 A Yes.

2 Q Do you recall testifying in August of this

3 year in the Patton case in Oklahoma?

4 A Yes, I did.

5 Q And that was a challenge of that state's

6 lethal injection procedures?

7 A Yes.

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8 Q Are you aware that Mr. Patton was ultimately

9 executed this year?

10 A I believe that's right, yes.

11 Q And you've also mentioned the Taylor case in

12 Missouri; is that correct?

13 A Yes.

14 Q And you testified in that case in

15 approximately June of this year?

16 A That's right.

17 Q And do you recall also testifying in a

18 Virginia state court in the Lamb case in the year

19 2006?

20 A Yes.

21 Q And in all those cases, your testimony was

22 as a witness for a death row inmate challenging

23 the state's lethal injection procedures?

24 A That's correct.

25 Q And that would also be true, would it not,

0658

1 of the some 20 to 40 cases you mentioned

2 yesterday in which you have filed a declaration?

3 A That's correct. I've never been asked by

4 the defendant in one of these cases to render an

5 opinion.

6 Q And this case, the Morales case, would, in

7 fact, be the third time that you've filed

8 something challenging California's lethal

9 injection procedures?

10 A I'm not sure I'm really -- on the filing the

11 things. I write declarations.

12 Q That's fair, Doctor. You did a declaration

13 in the Kevin Cooper case, did you not?

14 A Yes.

15 Q And also in the Donald Beardslee case?

16 A Yes, I did.

17 Q Now, I'd like to -- I'd like to ask you some

18 questions or go to the issue that you were

19 talking about towards the end of your examination

20 about the development of California's lethal

21 injection protocol 770.

22

It is your understanding, is it not,

23 that California essentially adopted its protocol

24 from the one that was being used in Texas; is

25 that correct?

0659

1 A While making its own changes, yes.

2 Q But that formed the basic structure for the

3 California procedure; is that correct?

4 A That's the basic landscape, yes.

5 Q And you have also at least filed

6 declarations on one or more occasions in which

7 you've criticized the Texas procedure; is that

8 correct?

9 A That's correct.

10 Q And is your complaint about California

11 having followed Texas the fact that you don't

12 like Texas or that California should have done

13 more than just adopt the procedures of another

14 state?

15 A Well, I'm not a person who creates

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16 regulations. So I'm not an expert in how that

17 should be done. So I can just apply a common

18 sense standard.

19

I think that when you're going to do

20 something very important like formulate a lethal

21 injection protocol, it would make sense to both

22 look at what other states have done and try to

23 learn from their experience, but also to do one's

24 own I think the term is "due diligence" to

25 understand whether you think what other states

0660

1 are doing is a good idea or not. And I have the

2 sense that California did not do that due

3 diligence.

4

And I would add that it's my

5 understanding from my review of this that Texas

6 did not do its own due diligence when it adopted

7 the protocol from Oklahoma, and further that

8 Oklahoma did not do due diligence when this

9 protocol was created.

10 Q So you're pretty much dissatisfied with the

11 way everybody has gone about setting these

12 protocols; is that correct?

13 A I think the AVMA would be a good standard

14 for them to reflect upon where they form --

15 periodically form committees, they get experts

16 together, they review additional scientific

17 information and publications, the availability of

18 new drugs and new methods. And they are willing

19 to make changes for the better, what they think

20 for the better. I think the opposite is what's

21 occurring here.

22 Q When you talk about the AVMA we're talking

23 again about the veterinarian association; right?

24 A The American Veterinary Medical Association,

25 that's correct.

0661

1 Q Now, when you were testifying last week in

2 Maryland, were you critical of the fact that

3 Maryland had based its protocol on the one that

4 was being used in Delaware?

5 A It's quite an analogous situation. They,

6 again, I think with an absence of what one would

7 call due diligence, just went to another state

8 and found out what they were doing and just took

9 it on that same way.

10 Q Now, I think you indicated yesterday that

11 you had an opportunity to review information

12 about lethal injection protocols from every one

13 of the states in which lethal injection is an

14 authorized method of execution; is that correct?

15 A So there hasn't been litigation -- the best

16 way that -- the way that most materials become

17 available is through litigation, and there hasn't

18 been litigation in some states.

19

I think Colorado might have only

20 executed one person. And I'm just surmising. I

21 don't know anything about their death row. Since

22 I haven't received a phone call I'm surmising

23 that probably there isn't anybody felt to be

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24 coming close to lethal injection.

25

So in states like that, and there are

0662

1 several, and there are several states that have

2 lethal injection that have never used it, I've

3 seen less material. I've only seen material that

4 was obtained by people who called and tried to

5 find out.

6 Q So you're assuming that if Colorado

7 schedules an execution, they are going call --

8 someone is going to call you and have you come in

9 and criticize their procedure as well?

10 A That often happens. Not always, but it

11 often does happen.

12 Q Now, would it be fair to say that of the

13 various protocols -- and, by the way, have you

14 had an opportunity to review the lethal injection

15 protocol that's used by the United States

16 Government in their executions --

17 A I have, yes.

18 Q -- using lethal injection?

19 A I have, yes.

20 Q Are you involved in any litigation

21 challenging the Federal Government procedure?

22 A I was called by an attorney who's

23 representing a client who's on federal death row

24 who I think is coming close to a lethal injection

25 or to an execution, and I can't recall if I've

0663

1 submitted an affidavit or declaration. I don't

2 think I have. But I've spoken with him, with

3 that attorney.

4 Q Would you agree that despite your essential

5 criticism of pretty much everyone you've looked

6 at, that nonetheless each of these various

7 systems has some unique attribute or aspect about

8 it? They are not all exactly the same; would

9 that be fair?

10 A I'd go beyond that. I don't think no two of

11 them are exactly the same.

12 Q Now, you indicated yesterday that you felt

13 that it would be possible to make comparisons

14 among the states; is that correct?

15 A I think I've already done that in some

16 instances here.

17 Q In terms of some of the discussion we've had

18 about the Maryland protocol; would that be

19 correct?

20 A Yes. That's an example. I think there are

21 other examples.

22 Q Is it possible for you to put the California

23 procedure on a continuum -- continuum of

24 protocols, having seen as many as you have,

25 including the Federal Government and nearly all

0664

1 the states, where California falls as to whether

2 it's good, bad or indifferent among the various

3 state protocols?

4 A It's a difficult question to answer, but

5 there is several dimensions upon which would

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6 evaluate a protocol, and also the protocol does

7 not exist in isolation. It's a document that

8 ideally, if people were to read it, would form

9 some sort of framework or guidelines for the

10 actual act that is carried out.

11

So are you asking about California's

12 protocol or about the overall system that has

13 been discussed in the courtroom over the last day

14 or so, couple of days?

15 Q I'm asking you about the California protocol

16 as it now exists that you've had an opportunity

17 to review in relation to the protocols that

18 you've had an opportunity to review from all

19 these other states and the Federal Government.

20 Where does California fit in?

21 A Focusing just specifically on the protocol,

22 I'd put it in the -- compared with the other

23 states, the lower quarter, the lower 25

24 percentile. Again, it's sort of a meaningless

25 number. Not in the top half.

0665

1 Q And if you were to add in all the other

2 stuff that you've complained about yesterday and

3 today, does that change California's relationship

4 on this continuum of protocols?

5 A It's hard to know because I've seen so much

6 more information about California than I have

7 about other states. I can't think of another

8 state where there's been more discovery

9 provided.

10

And so it's a little difficult for me to

11 answer that, but there's a lot of very disturbing

12 things that I've seen, and I would certainly say

13 it's not good enough. It's not ready to roll.

14 That's for sure. So I'm not sure what the point

15 is of putting it on a continuum. It's

16 inadequate.

17 Q Let's go back to the development of the

18 California protocol, and you've already indicated

19 that you disapprove of the way it was originally

20 developed having been adopted simply from Texas.

21 But in terms of the development of the current

22 procedure, I sense that you were exceedingly

23 critical of the meeting that took place at the

24 Governor's Office; is that a fair assessment?

25 A My insight into it is limited by having seen

0666

1 that -- those notes there, but from what I can

2 see there, I think there is much to warrant

3 criticism of the structure of the development

4 process.

5 Q And from those notes -- and you weren't at

6 that meeting, obviously, were you?

7 A Obviously I was not at that meeting, no.

8 Q From those notes you are able to ascertain

9 what the priorities were of the various

10 government officials that were attending that

11 meeting?

12 A I can't see inside anybody's heads. All I

13 can do is try to draw inferences from the notes

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14 that are written there. So, for example, when

15 Dr. Singler says, you know, "why don't we put in

16 some narcotics to make sure there's no pain," and

17 then you say "we're not going to do that, that's

18 going to be a problem," that leads me -- I can

19 draw the inference that you're in charge of the

20 procedure, that you have veto power. And since

21 you're not a medical person this procedure is, in

22 effect, being designed by non-medical personnel.

23 Q So you don't think the lawyers who are

24 responsible for defending the actions the state

25 undertakes should have any input into how a

0667

1 procedure is developed?

2 A It's my understanding that you tried to stop

3 Dr. Concannon from testifying about veterinary

4 knowledge that is extremely applicable to trying

5 to conduct a humane lethal injection in

6 California. And personally it's my opinion that

7 a person who would deliberately stop the input of

8 a highly qualified veterinarian probably

9 shouldn't be involved in trying to design a

10 humane protocol.

11 Q So your view is that if the state doesn't

12 want certain evidence to come in or makes legal

13 motions, that that somehow establishes that we've

14 got an inhumane procedure?

15 A Nothing establishes anything. These are

16 just opinions that I've drawn from what I've

17 seen.

18 Q I'm sorry. I didn't mean to interrupt you.

19

You expressed in your testimony some

20 concern about the fact that at this meeting at

21 the Governor's Office there was suggestion about

22 what the law is in terms of various procedures

23 having been upheld in the past; is that correct?

24 A I don't have a problem with discussion about

25 it. I think that's part of the context here.

0668

1 But it should not be the -- I think the

2 overarching context should be to try to make

3 it -- to establish a priority of it being

4 humane.

5

It's my belief, although I'm not a

6 lawyer, that if that establishes the priority and

7 smart people put their heads together to achieve

8 that priority, that it will naturally fall within

9 the law.

10 Q Well, I believe you did say that you were

11 concerned about the fact that the state seemed

12 focused on the legal finish line; is that right?

13 A Yes.

14 Q Do you understand that ultimately the State

15 of California in terms of whatever protocol it

16 may adopt is governed by the provisions of the

17 Eighth Amendment in the Constitution? You

18 understand that?

19 A In a vague -- that's my general

20 understanding of how the law works in this

21 country, yes.

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22 Q And so you understand that obviously the

23 state is going to be -- should be concerned about

24 the legality of whatever it does; isn't that also

25 a reasonable consideration?

0669

1 A And, again, when focusing on it being

2 humane, that I believe -- and you did it in a

3 contemplative and considered way, if that was the

4 focus, then it would just naturally fall into

5 the -- under the constitutional protection that

6 California has to honor or follow.

7 Q Well, is it your view that a state's failure

8 to consider all of the factors that you've

9 discussed is an indication that it isn't taking

10 seriously its obligation to follow the

11 constitutional requirements?

12 A No. The problem is the subordination of the

13 humaneness to the legal requirements. That's

14 what I was trying to indicate I think is

15 inappropriate.

16 Q Well, I understand that you've had some very

17 serious objections here to the manner in which

18 California developed its protocol, but I'm

19 curious as to how you view that as falling within

20 your expertise as an anesthesiologist and an

21 expert in anesthesia.

22 A Part of my job is -- and I work on a team of

23 cardiac anesthesiologists and part of what we do

24 is discuss how we should do things. We -- new

25 drugs come in, new techniques come along, new

0670

1 surgical techniques come along that greatly

2 influence or change our practice.

3

And so -- and we work with support

4 personnel, technicians and nurses and other

5 people, and we all have to work together in a

6 choreographed way to take good care of our

7 patients.

8

And so an intrinsic part of my job and

9 the job of all of my colleagues is to be talking

10 about how we should do things, what the right way

11 of doing things is. And, you know, for us,

12 there's really, I don't think, a big need to

13 specify what our priorities or goals are. Our

14 goals are to take good care of our patients.

15 That's in our hospital mission and all that kind

16 of stuff.

17

But we have those conversations. I

18 think -- so that's why what I see happening in

19 this case, they're meeting in the Governor's

20 Office with one doctor whose suggestions get

21 overruled because of legal grounds that, while I

22 don't know much law, don't even seem to be

23 relevant is -- doesn't make sense on how to do

24 it.

25 Q So you don't think that the legal issues are

0671

1 of any -- any moment in resolving how to develop

2 a protocol that will satisfy the Eighth Amendment

3 limitations?

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4 A That's not at all what I'm saying. I'm

5 saying that I think the legal issues which I

6 understand surround the Eighth Amendment and

7 stopping cruel punishment, prohibiting cruel

8 punishment, that that will be addressed if -- if

9 you put -- if you try to prioritize a humane

10 execution.

11 Q Are you assuming that because of your

12 disagreement with the way this protocol was

13 developed based on the notes you've seen of this

14 meeting at the Governor's Office that the state

15 is not interested in conducting a humane

16 execution?

17 A I think California should be very interested

18 in conducting a humane execution, but you're

19 representing, I understand, the Department of

20 Corrections here, and you didn't want a

21 veterinarian to testify. So that concerns me.

22 Q So as far as you're concerned, unless the

23 state follows along all the lines you think are

24 appropriate for consideration, they are not doing

25 their job in a humane way?

0672

1 A I didn't say that at all.

2 Q Doctor, how does the procedure by which the

3 protocol is developed demonstrate that the actual

4 protocol, whatever it might be, in fact, creates

5 a risk of an inhumane execution?

6 A That's a very good point. I think if you

7 all had come up with a -- with a better procedure

8 and a humane procedure and all that kind of

9 stuff, then I don't think I'd have had a whole

10 lot of interest in where it came from.

11

I think it's when you see a pathological

12 procedure, a bad procedure, one tries to

13 understand why did it get that way.

14 Q Doctor, ultimately if it were determined

15 that California's procedure satisfied the Eighth

16 Amendment requirements, how it got there wouldn't

17 really matter, would it?

18 A Just because something is said by one court

19 or judge to say that California satisfies the

20 Eighth Amendment, I don't think that means

21 necessarily that the physicians and veterinarians

22 and anesthesiologists would look at it and say

23 that's a good protocol.

24 Q Now, Doctor, you have, as I understand it,

25 found no state's lethal injection procedure to be

0673

1 satisfactory, in your opinion; is that correct?

2 A Missouri is in flux right now and I think

3 the judge there has set up a very -- I think he

4 understands what the issues are and I think that

5 his decision there is one that will lead to a

6 protocol that addresses these issues.

7 Q Now, when we're talking about -- we're

8 talking about the Taylor case in Missouri,

9 obviously, and I assume what you're referring to

10 is the requirement of the judge in that case that

11 Missouri must have a trained medical person

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12 participate in the execution; is that correct? 13 A That's one of the important features that 14 he's implemented, yes. 15 Q Now, are you -- would you agree that the 16 involvement that's required by the judge in 17 Missouri is beyond or is one of the types of 18 activities that has been prohibited by the 19 American Medical Association for a doctor to 20 participate in? 21 A I'm not sure "prohibited" is the right 22 word. They've decided -- they've enumerated what 23 ethical -- what they feel would be ethical or 24 unethical. And certainly the kind of 25 participation that is being undertaken by many 0674
1 physicians around the country crosses the lines 2 of what the AMA characterizes as unethical. 3 Q The AMA procedures -- excuse me, the AMA's 4 views on doctor participation as to what is 5 ethical and what is not ethical, those would be 6 violated by what the judge ordered in Missouri; 7 isn't that correct? 8 A Yes. But this is what other physicians are 9 already doing, that is correct. 10 Q And, in fact, you referenced earlier a 11 letter from the, I think, former president or 12 outgoing president of the American -- is it 13 the -- it's the Society of Anesthesiology? 14 A That's correct. 15 Q And didn't he in that letter indicate that 16 the -- specifically that the Missouri 17 requirements were a violation of the ethical 18 limitations placed on doctors in terms of 19 participating in a lethal injection or in an 20 execution at all? 21 A I don't recall if he specifically referred 22 to Missouri, but I remember the general sense 23 that he was saying that anesthesiologist 24 participation in this type of regard would be -25 move into that territory of what the AMA said was 0675 1 unethical. 2 Q By the way, with respect to Missouri, do you 3 know what the current status is of that case in 4 terms of whether it's on appeal or not? 5 A I'm not proficient in all these legal layers 6 and stuff like that. So I can't answer that 7 question. 8 Q So you don't know whether any higher court 9 has passed on whether the requirement that the 10 district judge placed upon Missouri to have a 11 doctor participate has been reviewed yet by an 12 appellate court or the US Supreme Court? 13 A I don't think it's been reviewed by the US 14 Supreme Court. I don't really know. 15 Q Now, in terms of what was ordered to be done 16 in Missouri, is it your view that it would be 17 unethical for a doctor to do that? 18 A My personal view? 19 Q Yes.

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20 A My personal ethics, yeah, I don't think 21 doctors should do that. 22 Q What about the ethics of the doctors with 23 whom you work? 24 A It varies. Some of them think it's okay, 25 and some of them don't. 0676
1 Q Do you know a doctor who would be willing to 2 participate in an execution in the way that you 3 suggested it needs to be done? 4 A I know somebody who said that he would be, 5 yes. 6 Q And has he actually been approached, to your 7 knowledge, about participating in any state's 8 execution? 9 A Not to my knowledge. 10 Q Now, I assume you're aware that after the 11 judge initially issued that order in Missouri 12 about having a physician involved, that they were 13 unable to find someone, they were unable to find 14 a doctor who would, in fact, participate as 15 required by the court; isn't that correct? 16 A I'm not sure if the word "unable" is 17 correct, but they made an attempt, and they were 18 not successful. 19 Q Well, they sent out 298 letters, did they 20 not, to anesthesiologists or to physicians at 21 least and were unable to get a response from any 22 of those doctors that they would be willing to 23 participate? 24 A They only allowed ten days to elapse, and 25 the letter that I saw was -- did not make it look 0677 1 like a very attractive job. 2 Q So that was in your view an inadequate 3 approach to trying to find a doctor; is that 4 correct? 5 A Well, certainly if you really needed a 6 doctor, you wouldn't -- I would not -- you 7 wouldn't give up after doing that. 8 Q Well, what would you do then? 9 A I'm not an expert in hiring. I'd go to a 10 professional recruiter. 11 Q Would you put an ad in a professional 12 publication saying they're looking for a doctor 13 to be the executioner? 14 A I'm not an expert at -- I've never run a 15 department. So I'm not an expert on how to hire 16 people, but I know it's not done by sending out 17 298 letters and waiting for ten days. 18 Q You are aware, because I believe you've 19 testified to it, that the anesthesiologists here 20 in the Morales case who had originally agreed to 21 participate ultimately determined that the level 22 of participation that was required of them would 23 make it unable for them to participate; are you 24 aware of that? 25 A My understanding is they were willing to do 0678 1 everything except, if needed, they would not

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2 modulate or deepen the anesthetic depth, that

3 they were willing to do all of the monitoring and

4 that sort of stuff.

5 Q At the beginning of your testimony yesterday

6 when you were talking about California's

7 procedure, you said that in your view the

8 problems that California faces are easily

9 correctable.

10

Is this issue of finding a doctor who's

11 willing to participate in an execution one that

12 in your view is easily correctable?

13 A It's my -- my opinion -- again, it's a

14 prediction about the future, but that there exist

15 anesthesiologists whose opinion about the death

16 penalty would not prevent them from doing this.

17 Q And that's based in part on these articles

18 you've discussed this morning where doctors were

19 surveyed and in one survey they said, well, I

20 didn't think that everything the AMA prohibited

21 was wrong, and in a second one they said that

22 some of them would be willing to participate; is

23 that correct?

24 A Well, including injecting the drugs

25 themselves, yes.

0679

1 Q And, to your knowledge, have any doctors

2 actually participated in an execution where they

3 were injecting the drugs?

4 A I'm not certain, but I've seen documentation

5 that indicates that, yes.

6 Q And these were anesthesiologists?

7 A I don't know what specialty they were.

8 Q And in terms of your ability to evaluate the

9 adequacy of the state's procedure, you said that

10 you've seen a lot more here in California than

11 you've seen in other states; is that correct?

12 A Than in many other states. There's a lot

13 been released in Maryland, also, and varying, but

14 this is certainly one of the more abundant

15 discovery releases.

16 Q You have never attended an execution, have

17 you?

18 A No, I have not.

19 Q And I think I understood you to say

20 yesterday that you would not be present for an

21 execution; is that correct?

22 A It's something that I'd greatly prefer not

23 to do.

24 Q Have you ever asked to attend an execution?

25 A No, I haven't.

0680

1 Q Have you ever attended the practice of -- a

2 practice or a rehearsal by an execution team in

3 any state?

4 A No. That's been requested, but hasn't --

5 we've had demonstrations I think would be a

6 better description of it as opposed to watching

7 one of their actual formal practice sessions.

8 Q Would you consider what you saw in

9 California during the tour at San Quentin on

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10 March 30th of this year to be a demonstration? 11 A I think demonstration is more accurate than 12 practice. Yes, I think they were doing their 13 best to lay things out in a way that would inform 14 the Court and us the general layout of what they 15 are doing. 16 Q But you have -- you have never seen a 17 practice in California then either, have you? 18 A Not the kind of practice where they actually 19 practice pushing the syringes with the tubing 20 without the catheter going into the garbage can. 21 I haven't seen that. 22 Q Now, you indicated yesterday that you 23 thought that the old California version of 770 -24 now let me back up for a moment because you did 25 testify that you had provided declarations in the 0681
1 Cooper case and the Beardslee case; correct? 2 A Yes. 3 Q And also five declarations in the Morales 4 case leading up to the scheduled execution of 5 Mr. Morales? 6 A I don't recall how many, but it was quite a 7 few. 8 Q There was more than one? 9 A Definitely more than one. 10 Q And is it your understanding that the 11 procedure that was in place then is not the 12 procedure that's currently before the Court that 13 the state proposes to use? 14 A You're talking about the March change in the 15 protocol? 16 Q Correct. 17 A Yes, that's my understanding. 18 Q Now, you indicated yesterday that in your 19 opinion, the current procedure is actually worse 20 than the old procedure which you had criticized 21 in Beardslee, Cooper and your early Morales 22 declarations; correct? 23 A They're both way underwater, and this one is 24 even a little bit deeper, but it's still way too 25 deep. 0682 1 Q Now, in Cooper -- well, let me ask you 2 this: When you were reviewing the version of 3 operational procedure 770 that was in effect at 4 the time of the Cooper case, Beardslee and the 5 time of the scheduled Morales execution, do you 6 recall that the state provided an option for the 7 inmate to take a Valium prior to the execution 8 beginning? 9 A I believe California -- yes, I recall that. 10 There's a discretionary that -- at the prisoner's 11 discretion, a sedative. I can't remember what it 12 was. 13 Q And you were critical of that, were you not? 14 A I don't recall the affidavit. 15 Q I'd like to ask you to look at Exhibit 16 number 57 in the binders in front of you. And 17 let me direct your attention to page 8 of the

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18 declaration, specifically paragraph number 22.

19

Do you see that in front of you? Let me

20 read what you put there in this declaration.

21 A I can see it there, yes.

22 Q "In addition, Procedure 770 allows for the

23 inmate to ingest Valium prior to the

24 administration of sodium pentothal. This is

25 concerning because Valium is known to alter the

0683

1 sensitivity of the brain to sensitive" -- excuse

2 me, "to sedative drugs such as and including

3 sodium pentothal, which will significantly

4 amplify the risk of inhumane pain and suffering

5 should anything go wrong with the administration

6 of the sodium pentothal."

7

So is it fair to say that you were

8 critical of the fact that the state was offering

9 the opportunity for a Valium to be provided

10 before the execution began?

11 A You're mischaracterizing it. What I'm

12 saying there is if you're giving people Valium

13 ahead of time, which in general I think is a

14 humane thing to do to somebody facing an

15 execution, if that's going on for periods of time

16 well before the execution, if somebody, let's

17 say, for the month before the execution is being

18 given Valium as they want it, that will

19 definitely build up a resistance in their bodies

20 and in their brains to the effect of thiopental

21 and, therefore, it decreases the safety margin.

22

So I'm not saying that it's -- if my

23 writing is unclear here that I'm saying it's bad

24 to give the Valium, then that's not the intent of

25 my writing. The point is is if you are giving

0684

1 somebody Valium, that's a drug that makes people

2 resistant to the effects of barbiturates and that

3 that needs to be recognized.

4 Q So now you're saying it would be a good

5 thing to provide Valium or not a good thing? I'm

6 not sure I understand you here.

7 A I think I'm being very clear. I think I

8 said that it's my opinion that a person who's

9 facing execution would be anxious and that it

10 would be clinically appropriate and warranted to

11 provide them with an anxiolytic drug such as

12 Valium. There are many other drugs that one

13 could use.

14 Q Do you know whether any inmate ever asked to

15 take a Valium when it was offered?

16 A I don't know that.

17 Q Are you aware that that particular provision

18 has been excluded from the current version of

19 770?

20 A I hadn't noticed that.

21 Q Does that exclusion make the current

22 procedure better or worse in light of the old

23 procedure in your view, the elimination of the

24 Valium?

25 A I believe the protocol refers primarily

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0685

1 to -- first of all, I don't know because I don't

2 understand the hierarchy system exactly who would

3 have authority to prescribe Valium and whether

4 under the current protocol a physician who

5 identifies a patient with anxiety that warrants

6 treatment would be allowed to prescribe that to

7 the prisoner. I think they should be allowed

8 to.

9

If they could not prescribe Valium,

10 there are plenty of other similar benzodiazepines

11 or anxiolytic drugs that could be prescribed to

12 address the condition. So there's a work-around

13 it. That's the technical flaw in the protocol

14 is there's an easy work-around which is just to

15 describe other similar drugs that are not Valium.

16 Q That wasn't quite my question. The

17 procedure that existed, which you criticized or

18 you discussed in Cooper, 770 specifically

19 provided the option of taking a Valium or of

20 offering it to the inmate. That no longer is

21 done.

22

Does the fact that the state no longer

23 offers the Valium make it better or worse in your

24 view?

25 A The concern was not that they are

0686

1 offering -- the concern was if you give somebody

2 a lot of Valium, it can affect their response to

3 thiopental. The way to address that concern is

4 to give your thiopental properly and assess the

5 depth, not to take away the Valium.

6

So I guess the concern here is that yet

7 again the CDCR seems to be doing the wrong thing

8 for the wrong reasons. The right thing to have

9 done would have been to allow the prisoner

10 continued access to anxiolytic drugs and be

11 cognizant of that when designing and implementing

12 the lethal injection procedure.

13 Q Well, it just seems to me, Doctor, that this

14 was something you were concerned about. It's

15 been changed and now you're still concerned that

16 it's not the right thing to do; is that right?

17 A It's sort of immaterial because if the

18 intent was to deny anxiolytic drugs to the

19 prisoner in the month or so before their

20 execution, it's failed because there are myriad

21 anxiolytic drugs that could be substituted.

22

That's not going to stop a prisoner from

23 getting medical treatment that they need. It's a

24 nonsensical way of addressing the concern that's

25 listed there. I don't really know what more to

0687

1 say about it.

2 Q Are you aware that the state will deny or

3 would deny an inmate facing execution medication

4 that was required? I'm not talking about

5 Valium. I'm talking about any medication that

6 they are required to take for whatever reason.

7 Are you they denied that medication before an

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8 execution? 9 A Well, I had the sense that you were just 10 being critical of the withdrawal of Valium 11 because it would do just that. So given that -12 so I don't really know what your authority is 13 there and whether you could do that. I just 14 don't know the answer. 15 Q I'm not talking about Valium now. I'm 16 talking about prescribed drugs that the inmate is 17 regularly taking. Do you have any evidence that 18 if the inmate is supposed to be getting some 19 particular medication that they stop giving it to 20 them just because they are going to get executed? 21 A I think the Plata report is full of evidence 22 of patients not being given medication that was 23 warranted, and I see no reason why that would -24 why a prisoner on death row who's about to get 25 executed is going to get an elevated level of 0688 1 care of what seems to be throughout the prison 2 system. 3 Q And everything you know about Plata is what 4 you saw in that summary that you were given a 5 couple days ago; is that right? 6 A That's true. All I've seen is that 7 document, those cases and then accompanying text. 8 Q No idea what goes on in terms of the 9 treatment of death row inmates prior to an 10 execution in terms of any medical care; correct? 11 A Well, there's also information about the 12 custody of the prisoner as part of that procedure 13 770. 14 Q Custody? In what sense are you talking 15 about now? 16 A Well, I think when you all have custody of 17 somebody, you have an obligation to provide 18 medical care, and that's what I think Plata is 19 talking about, the interrelations of those 20 activities and the problems that have arisen in 21 San Quentin as a result of failed leadership in 22 that regard. 23 Q Is it your opinion that because there has 24 been a demonstrated concern or problem, I should 25 stay, let's say a demonstrated problem with one 0689 1 part of San Quentin, that the entirety of San 2 Quentin must be assumed to also be equally bad 3 and problematic? 4 A No. I don't think we can make sweeping -- I 5 certainly can't make a sweeping statement of that 6 because I've only had insight into one part of 7 what's happening in San Quentin, but I do have to 8 say that what we're seeing, you know, what we 9 talked about yesterday and today in court fits in 10 with the overall picture of other people who I 11 don't think have any particular interest in 12 lethal injection one way or the other have 13 independently concluded. 14 Q I want to talk about another aspect of 770 15 that's changed that I understand you now think

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16 may be worse, and that is the continuous

17 infusion.

18

It is your -- it is your understanding,

19 is it not, that the current procedure provides

20 for a 1.5 bolus injection of sodium thiopental

21 which will then be followed by a continuous

22 infusion of a bag containing 5 grams; is that

23 correct?

24 A That's correct.

25 Q And that the injection will be in the right

0690

1 arm, that will be in two syringes, and that the

2 continuous infusion will be in the left arm; is

3 that correct?

4 A I don't specifically recall the right or

5 left, but opposite arms.

6 Q But it's fair to say that it's two different

7 arms that are being used?

8 A You only have two arms.

9 Q Now, it's true, is it not, that in one of

10 the declarations you filed in this case, you

11 expressed concern that the absence of

12 continuous -- of a continuous infusion was one of

13 the problems that the California procedure faced;

14 isn't that right?

15 A I don't remember my exact wording, but I

16 think I was expressing with an ultrashort-acting

17 barbiturate and the concern that it could wear

18 off having a continuous infusion as in the

19 statute that this was derived from would -- may

20 help prevent that problem.

21 Q I'm going to ask you to take a look, please,

22 at Exhibit Number 53, and you'll see on the first

23 page this is identified as the second declaration

24 of Dr. Mark Heath. Do you see that?

25 A Yes.

0691

1 Q And I'd like to direct your attention to

2 page 5 -- excuse me, to page 9 of this

3 declaration.

4

Do you have that?

5

I'm going to specifically direct your

6 attention to lines 24 through 26 and the

7 following statement: "A continuous infusion is

8 an additional safety measure that mitigates this

9 danger" -- talking about the danger of the

10 misdelivery of the thiopental -- "and is

11 particularly important when the anesthetic is

12 being administered by inadequately trained

13 personnel."

14

Was it your opinion when you wrote this

15 declaration that putting a continuous infusion in

16 would be an important safety measure for the

17 execution procedure?

18 A I was reading the paragraph above because it

19 seems to be germane to this.

20

Yes, that was my opinion.

21 Q And you actually expressed it even a bit

22 more emphatically, did you not, in the Cooper

23 declaration; do you recall that?

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24 A I don't recall discussing it, but I'm sure

25 you can point --

0692

1 Q Yes. I would like to direct your attention,

2 please, to Exhibit 57. And this would be your

3 declaration in the Kevin Cooper case; correct?

4 A Yes.

5 Q And I'd like you to take a look first at

6 page 8, paragraph 23, and you'll see a discussion

7 there of the fact that the original Oklahoma

8 procedure included a continuous intravenous

9 administration of the drugs; right?

10 A Correct.

11 Q And then if we go over to page 9, starting

12 at line 1, you conclude or you state, I should

13 say: "The use of a continuous administration of

14 the ultrashort-acting barbiturate is essential to

15 ensure continued and sustained unconsciousness

16 during the administration of pancuronium and

17 potassium chloride. It is my opinion based on a

18 reasonable degree of medical certainty that the

19 failure to require a continuous infusion of

20 sodium pentothal places the condemned inmate at a

21 needless and significant risk with a conscious

22 experience of paralysis during the excruciating

23 pain of both suffocation and the intravenous

24 injection of potassium chloride."

25

That's what you said in Cooper; correct?

0693

1 A Uh-huh.

2 Q Now, is it your view that -- that a

3 continuous infusion is, in fact, not a good idea

4 in terms of avoiding the problems that you've

5 identified in these declarations inasmuch as

6 you've now criticized the state's use of it?

7 A Since writing these I've learned a lot more

8 about the actual environment, the working

9 environment that's confronted by these personnel

10 and the fact that they haven't been adequately

11 supported and trained in doing this.

12

I never imagined that the people who

13 were giving these drugs didn't know what they

14 were, hadn't read protocols, didn't know how they

15 worked, didn't know that infiltrations could

16 occur or could be seen within one minute, et

17 cetera, et cetera.

18

I now have an appreciation of how

19 woefully unprepared they are to do this, and I'm

20 concerned at having any extra layer of complexity

21 can result in -- in adverse unintended

22 consequences.

23 Q When you -- when you wrote in the Cooper

24 declaration and also in the Morales second

25 declaration that a continuous infusion was

0694

1 necessary, was it your view that it would

2 increase or decrease the risk that there might be

3 an inhumane execution?

4 A My view was by adding something that

5 would -- if properly delivered and affected would

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6 counteract any decline in the level of thiopental

7 from the bolus, that that would be a step towards

8 making it more humane.

9 Q But now that it's been done, you don't think

10 that it's going to make it less humane; is that

11 what you're suggesting?

12 A I never imagined it would be done at the

13 expense of the bolus, which is what's happened

14 here. It wouldn't cross my mind in a million

15 years that you would do it that way, and I

16 never -- I did not understand the problems with

17 the environment and system, and I hadn't seen the

18 death chamber and all of those things.

19

And I am -- I still believe that the new

20 protocol that was formulated in March is not a

21 step in the right direction.

22 Q Well, I don't recall you stating in either

23 Cooper or Morales that in order for the

24 continuous infusion to be a safety measure that

25 it also required that there be an initial 5 gram

0695

1 bolus dose. Was that your assumption?

2 A As I said, I never imagined that it would

3 come at the expense of the bolus. So I apologize

4 for not stating something that I never imagined.

5 Q Now, let's talk about the 1.5 bolus dose

6 which is now included in the protocol. I believe

7 you said in your testimony today, maybe

8 yesterday, that that amount, if properly

9 delivered, would be sufficient to render an

10 inmate unconscious; is that correct?

11 A Yes, it would. There could be extreme

12 circumstances, again, if somebody had been taking

13 lots of Valium in -- for weeks or months leading

14 up to the execution and they were a large person,

15 I would perhaps not be 100 percent confident

16 about that.

17 Q By the way --

18 A It's an extreme theoretical consideration.

19 Q I apologize. I didn't mean to interrupt you

20 there. Did you get a chance to finish your

21 answer?

22 A Yes.

23 Q How much experience have you had personally

24 in your -- in your professional work as an

25 anesthesiologist in working with thiopental?

0696

1 A I've administered it thousands of times.

2 Q And is that still a drug that is regularly

3 used?

4 A No. Well, I don't -- it's very rarely used

5 in adult anesthesia in the hospital where I

6 practice, and it's my understanding that it's not

7 used very much at all in the United States now.

8 Q Is that because it's not a good induction

9 drug or because other drugs have other properties

10 that make them preferable?

11 A Another drug called Propofol introduced in

12 the early 1990s, during the 1990s, I'd say fully

13 supplanted the presence of pentothal. It's a

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14 little bit better, but, again, when we have --

15 the choices get a little bit better or a little

16 bit worse. I feel pretty much always do the one

17 that's a little bit better.

18 Q And isn't that because Propofol will wear

19 off more quickly and leave the patient with less

20 lingering effect than the thiopental can?

21 A There are several reasons why we've shifted

22 to Propofol, and that is indeed one of them.

23 Q Now, in terms of the 1.5 gram bolus dose,

24 and we're going to assume that it has been

25 properly delivered, how long would you

0697

1 think it -- how long do you think it would take

2 to render the inmate unconscious?

3 A I can't tell you how long it takes -- spends

4 in the IV tubing because I'm not there to survey

5 that part of the system, but once it reaches the

6 vein, we anesthesiologists, one of our -- one of

7 our terms is -- we talk about is "vein-to-brain

8 time."

9

And that's the amount of time that it

10 takes from when a drug first enters the vein to

11 travel through the heart through the lungs back

12 to the heart and then get distributed out of the

13 aorta into the rest of the body, and it's a very

14 variable amount. I've seen that take as short as

15 perhaps 30 seconds and I've seen it take several

16 minutes. It depends on the hemodynamic status of

17 the patient.

18 Q So it could be as little time as 30 seconds;

19 is that what you're saying?

20 A Then again I've never timed it and I'm very

21 busy with other things when I'm giving it.

22 That's just a ballpark estimate.

23 Q And now, of course, I think you also said

24 that as an induction amount, 1.5 grams is way

25 above anything that you ever did; correct?

0698

1 A I've never induced with 1.5 grams.

2 Q And assuming that the 1.5 grams was properly

3 delivered and that it did render the inmate

4 unconscious, how long would you estimate that

5 it -- that the inmate would remain unconscious

6 from that 1.5 gram bolus dose?

7 A I really don't know the answer. As

8 Dr. Ebling said, it depends a lot on the status

9 of the patient, and I've never given that

10 amount.

11

One of the things that has been talked

12 about here, and, again, it's largely conjecture

13 and I can't assess the influence of it, is what

14 is the effect of the thiopental on the heart when

15 it reaches the heart. Because that's a larger

16 dose than we normally give and thiopental does

17 affect cardiac function.

18 Q And it's speculative at least in part, isn't

19 it, Doctor, because nobody can experiment with

20 human beings at the levels we're talking about,

21 even 1.5 grams?

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22 A We know from dog experiments that it does 23 reduce -- that higher doses reduce cardiac 24 output -25 Q In your deposition -0699
1 A Excuse me. 2 Q I'm sorry. I apologize. 3 A We know from dog experiments that it 4 produces cardiac output in a dose-dependent 5 fashion. And we also know in humans when we 6 induce thiopental coma that it has significant 7 hemodynamic effects and significant direct 8 effects on cardiac functioning. 9 Q When you were deposed on September 5th you 10 stated that you thought it would be possible that 11 an individual would remain unconscious for 12 several tens of minutes. Is that still a 13 reasonable estimate? 14 A I think that's certainly possible, 15 especially if you don't provide any mechanical 16 support somewhere around -- and it's very 17 certain, but after -- maybe before ten minutes 18 you start to get significant brain dysfunction, 19 and that can affect breathing in and of itself. 20 Q In fact, would it be fair to say that at a 21 1.5 gram dose properly delivered that if you 22 don't support the breathing that would be a fatal 23 dose? 24 A That would be fatal on the great majority of 25 cases. However, it's close enough into that 0700 1 safety zone that I don't want to say that that 2 would be fatal on all people. 3 Q Now, if you've given the 1.5, assume it's 4 gone in, and you've started this continuous 5 infusion of an additional 5 grams, assuming that 6 it gets in, would that combination in and of 7 itself be fatal? 8 A Depending on the rate at which you gave that 9 drip and how rapidly -- remember we talked about 10 that vein-to-brain time. What matters is when it 11 hits the vein, not all the time it spends in the 12 tubing, and being cognizant of this unknown 13 factor which is that that 1.5 grams may have 14 depressed the circulation to the point where the 15 vein-to-brain time of that infusion is 16 considerably increased, slowed down, certainly 17 adding a thiopental is not going to speed up the 18 rate at which they wake up, that's for sure so 19 long as, again, it's done properly and doesn't 20 confuse the personnel. 21 Q And, of course, when you're talking about 22 the effect that it would have, the 1.5 grams on 23 the circulation, that's all going to impact the 24 breathing, correct, and the apneic effect that 25 comes with the thiopental? 0701 1 A 1.5 grams, if it's delivered into the 2 circulation, it will definitely cause apnea, 3 absolutely, and adding more thiopental, if you do

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4 it in a timely fashion, will prolong that apnea.

5 Q You indicated in your testimony that you

6 still use thiopental under some circumstances to

7 induce comas; is that correct?

8 A Actually, I don't know. It was sometimes

9 using cardiac surgery, but we have alternative

10 methods of ensuring that -- or trying to ensure

11 that the brain is properly perfused and so we

12 don't use it now.

13 Q But it is a drug that can be used for that

14 purpose; isn't that correct?

15 A Yes, absolutely.

16

THE COURT: Mr. Gillette, can I ask you

17 is this a good time to stop?

18

MR. GILLETTE: One more, at most two

19 questions here.

20

THE COURT: Sure.

21

MR. GILLETTE: And that will be a very

22 convenient place to stop.

23

THE COURT: Then we'll come back and do

24 another hour and a half or so and then you're

25 done.

0702

1

MR. GILLETTE: Okay. That's fine.

2 BY MR. GILLETTE:

3 Q Doctor, are you aware of the extent to which

4 thiopental is authorized as a drug for use in

5 countries where euthanasia of humans is

6 permitted?

7 A I don't know about its authorization and I

8 know little about legalized euthanasia or

9 whatever the term is.

10 Q Are you aware that in the Netherlands a

11 combination of thiopental and pancuronium is one

12 of the authorized means for euthanasia?

13 A Yes. I'm aware that there are physicians

14 who are attendant and right by the bedside, and

15 they find that to be a good way of doing

16 euthanasia -- or, excuse me, of

17 physician-assisted suicide, physician

18 euthanasia.

19

MR. GILLETTE: It would be a good time,

20 Your Honor.

21

THE COURT: Okay. We'll take a recess

22 for about 15 minutes, and then we're going to go

23 to 5:30 today per my earlier comments. So we'll

24 stand in recess until 4:15.

25

(Recess taken.)

0703

1

THE COURT: In the matter of Morales

2 versus Tilton let the record reflect that counsel

3 are present.

4

And, Mr. Gillette, you may proceed with

5 your cross-examination of Dr. Heath.

6

MR. GILLETTE: Thank you, Your Honor.

7 BY MR. GILLETTE:

8 Q Doctor, I'd like to go back for a moment to

9 a couple of items that we talked about at the

10 beginning of my cross-examination. And at the

11 very beginning you said -- when I asked you how

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12 you would rank California you said it would be

13 hard, but you thought we were in the bottom 25

14 percent; is that right?

15 A I think I said something like that, yeah.

16 Q Can you give us the names of any of the

17 states you consider in the top ten?

18 A Can I just rank within the states that are

19 doing this? Missouri's protocol has not, I

20 think, incorporated the suggestions that the

21 judge set forth, but, if they do, then I think

22 that it will be a -- it will put it pretty high

23 up there. So that would be an example of a state

24 that's near the top.

25

Different states have their own

0704

1 strengths and weaknesses, and ranking a state

2 would depend on how you rank those different

3 dimensions within a protocol.

4

Let's say a state has better issues in

5 terms of drug delivery and drug timing and

6 visibility of the prisoner but worse personnel.

7 I don't know how you'd balance those two things

8 off to put a ranking on it. It's kind of like --

9 it's hard. But that's an example of a state that

10 I think has -- that looks like it may move in the

11 direction that will make the executions more

12 humane.

13 Q And that's -- with reference to Missouri,

14 that's assuming that the order of the judge

15 ultimately is upheld?

16 A Yes. To say it looks like it may be moving

17 in that direction, I don't know what's going to

18 happen. You're right.

19 Q Now, you've said there were some aspects of

20 Maryland, things that have been changed as a

21 result of the litigation that's been going on

22 that you thought they had improved some; is that

23 right?

24 A Yes. I gave you the example of the

25 lighting. And, again, there are caveats because

0705

1 I have not seen exactly how that lighting works

2 and whether it's going to actually thwart another

3 purpose of theirs, which is to conceal the

4 executioners. So that appears to be a step in

5 the right direction. More light generally is

6 good.

7 Q But you in your testimony last week in

8 Maryland, you were very critical, were you not,

9 of the execution team that's in place there?

10 A Oh, I think that if you saw what the folks

11 in the courtroom saw there, you'd be critical of

12 them, also.

13 Q The same way that you're critical of

14 California's execution team?

15 A It's a little bit different here, but there

16 are problems with both teams.

17 Q Now, you indicated that you've had quite a

18 bit of experience using thiopental, but that it's

19 no longer the most -- or it's not the favored

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20 drug of use, is that correct, for anesthesia?

21 A In the US, that's right.

22 Q In terms of the US, what would you consider

23 the heyday of thiopental? When was it the most

24 popular drug used for induction of anesthesia?

25 A I know that when I began my training and

0706

1 when I was finished training initially

2 functioning as an attending physician that was

3 the only drug pretty much that was used for

4 induction. Sometimes for the purpose of teaching

5 residents we'd do a different kind of barbiturate

6 or something and for cardiac cases we would use

7 it.

8

But I think for decades it was the

9 drugs -- I wouldn't call it a heyday. I would

10 say there was a hey-epoch for it.

11 Q And you started practicing medicine when?

12 A I finished medical school in 1988.

13 Q Now, I want to talk with you some about the

14 pancuronium and the concerns you had about that.

15 And I want to make sure I understand in light of

16 some of the questions we've already gone through

17 that, if you assume that there has been an

18 adequate delivery of the 1.5 grams of thiopental,

19 the inmate would be unconscious; correct?

20 A Barring the extreme circumstance I alluded

21 to earlier, yes, that's right.

22 Q And if unconscious and then given the

23 pancuronium, they would be unable to know or to

24 experience any suffocating effects that might

25 come from the use of the pancuronium; is that

0707

1 right?

2 A If you're deeply unconscious, then you can't

3 experience anything including suffocation, that's

4 right.

5 Q And, of course, the same would be true of

6 the delivery of the potassium assuming they're at

7 that deep level of anesthesia?

8 A If you're deep enough for potassium not to

9 hurt, then it won't hurt, that's right.

10 Q Now, in your -- in Exhibit 141, if you could

11 take a look at that. It's the chart that you

12 prepared. And this is with reference to the

13 phases, the four phases of execution by lethal

14 injection. Do you have that in front of you?

15 A I do, yes.

16 Q And you have identified as phase 3, which is

17 the delivery of the pancuronium, Pavulon, that

18 that is the cosmetic phase; is that correct?

19 A Yes. Dr. Singler said you'd need that to

20 stop the death rattle.

21 Q Are you aware of a statement by any

22 California official that the sole reason

23 pancuronium is used in the lethal injection

24 protocol is for the purpose of hiding any

25 movements?

0708

1 A I can't think of anything. I'm referring to

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2 the statements by Dr. Singler and other experts,

3 Dr. Dershwitz, saying that and I haven't seen any

4 refutation of that. So I take that as an

5 acceptance that they concur with their experts'

6 opinions.

7 Q Have you seen anything in all the material

8 you were shown, assuming you were, that was

9 provided in discovery on the development of the

10 procedure from Texas, which suggested that it was

11 used in Texas, the pancuronium, solely because it

12 had a cosmetic effect?

13 A No. I didn't get to see very much at all

14 about the discussion that occurred or anything

15 about the discussion that occurred with respect

16 to adopting the Texas protocol.

17 Q So when you put in here "cosmetic" that's

18 your description of what you think is going on

19 with that third phase of the lethal injection;

20 correct?

21 A Well, I and Dr. Singler and Dr. Dershwitz's

22 description, correct.

23 Q Now, Dr. Singler and Dr. Dershwitz both said

24 the pancuronium could have the effect of hiding

25 or suppressing certain kind of reflexive

0709

1 movements. Did either of them say that was why

2 California was using it?

3 A Dr. Dershwitz has clearly said that the

4 choice of the use of pancuronium -- he calls it a

5 political decision. It has not been a medical

6 decision. It is there to -- and I don't remember

7 his exact words, but basically for purposes of

8 concealing any -- what could be disturbing

9 movements from witnesses and perhaps guards,

10 also. I don't remember his exact language.

11 Q And when Dr. Dershwitz made those statements

12 was he purporting to act as a spokesman for the

13 California Department of Corrections and

14 Rehabilitation?

15 A Well, when he made the statement that was --

16 we discussed earlier on he was -- he was an

17 expert consultant. I don't know if that means

18 he's a representative of yours or not. I don't

19 know officially what that means, but he's your

20 expert.

21 Q Now, in terms of your opposition to the

22 pancuronium, are you aware of any state that has

23 eliminated it from their protocol?

24 A I'm not. You know, just to be clear there

25 are some states that use other neuromuscular

0710

1 blockers that are functionally -- for purposes of

2 this conversation they are interchangeable or

3 identical, but they are not pancuronium. But no

4 state has eliminated this class of drugs.

5

THE COURT: Sir, there are couple of

6 states that don't use the second drug at all, is

7 that right, that they just use a sedative and

8 potassium?

9

THE WITNESS: So -- again many of

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10 these -- that's a good question. Many of these

11 protocols are fluid and dynamic.

12

There are two states that I'm aware of

13 that only had two drugs and one of them has

14 changed it. North Carolina originally to my

15 understanding for their first couple of

16 executions gave thiopental and pancuronium, but

17 did not give any potassium. And New Jersey,

18 which has never performed a lethal injection

19 procedure, their protocol had pancuronium --

20 excuse me, their protocol had thiopental and

21 potassium but no pancuronium.

22

THE COURT: So you're not aware of any

23 actual executions being performed using just

24 thiopental and potassium?

25

THE WITNESS: I'm not, at least not

0711

1 intentionally.

2

THE COURT: Okay.

3 BY MR. GILLETTE:

4 Q But you are aware that New Jersey's protocol

5 does not include pancuronium; correct?

6 A Yes. I'd like to be clear during litigation

7 New Jersey -- or actually during a hearing that I

8 attended New Jersey said basically -- their

9 representative said, "We don't have a protocol.

10 When we get a warrant or when we have somebody

11 who is close to being executed that's when we'll

12 assemble a group of people who can advise us

13 about what -- how we should formulate a

14 protocol."

15

So I'm not really sure it's fair to say

16 right now that that is New Jersey's current

17 protocol.

18 Q Do you recall discussing New Jersey's

19 protocol in your Cooper declaration?

20 A I don't recall discussing that.

21 Q Can we look again at Exhibit 57, please.

22

And I'd like to direct you to page 3,

23 paragraph 9 specifically.

24

And you say there in reference to the

25 reason why pancuronium is not necessary:

0712

1 "Because New Jersey's adoption of lethal

2 injection is relatively recent, its protocol

3 better comports with evolving standards. New

4 Jersey's lethal injection protocol is very well

5 documented so the public, the condemned, the

6 medical community and the courts can determine

7 whether or not injections are intended and

8 designed to be as humanely administered as

9 possible. The New Jersey lethal injection

10 protocol does not use pancuronium or other

11 neuromuscular agents."

12

To the best of your knowledge, is that

13 still the case in New Jersey?

14 A I'm not sure of the timing of the Cooper

15 case. Let me see.

16 Q I'll represent to you that your declaration

17 is signed February the 2nd, 2004.

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18 A Thanks.

19 Q Have you obtained new information on New

20 Jersey since then?

21 A That's helpful. So I'm not sure of the

22 timing of when New Jersey stated that their -- or

23 when its representative from New Jersey in the

24 hearing made a direct statement that they

25 would -- this isn't their protocol. They would

0713

1 get a protocol when they -- when they had an

2 execution coming close.

3 Q Does the fact that New Jersey got rid of --

4 or excuse me, that New Jersey did not put

5 pancuronium in their protocol make it a more

6 humane procedure in your view?

7 A Well, yes. I think it decreases the -- or

8 virtually eliminates the possibility that that

9 prisoner will be, you know, locked in and

10 chemically in tune if they are inadequately

11 anesthetized and it makes it easier for the folks

12 who are supervising or performing the execution

13 to know if there is a problem that they need to

14 intervene there.

15 Q Does the New Jersey protocol, would that be

16 in your top ten list of states that have a better

17 rather than worse procedure?

18 A Now it doesn't really -- my understanding,

19 and I'm not sure of the legal and technical

20 nuances of this, but my understanding is it

21 doesn't have a protocol now and that they have a

22 moratorium there. So I'm just not sure if it's

23 something that really warrants ranking.

24 Q Well, you've seen it and is it one that we

25 ought to take a look at and determine if that's

0714

1 otherwise -- you know, doesn't have the

2 pancuronium and there are other things about it

3 that would make it preferable for California or

4 any other state to look at?

5 A I think part of due diligence would be kind

6 of learning -- because this is a very important

7 thing and, you know, part of due diligence would

8 be to try to find out as much as possible what

9 other states are doing and what they've learned

10 and what their thinking is.

11

That would seem to me to be -- part of

12 that is you could learn from their experience.

13 Many states have had some pretty bad experiences

14 with lethal injection procedures and they've

15 modified things as a result of that.

16

For example, Florida when they brought

17 in their lethal injection procedure sent out

18 letters to all or many states with a series of

19 questions and asking for input about exactly

20 those sorts things, trying to benefit from the

21 experience of those states. And I think that

22 kind of thing is good practice.

23 Q Are you aware of how -- how many other

24 states California may have looked at -- aside

25 from the fact that it ultimately adopted the

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0715

1 Texas procedure, do you know if California

2 explored procedures that were in place in any

3 other states?

4 A I don't know the answer to that question. I

5 was not provided with any information about

6 that. I was told it came from Texas.

7 Q If a state were to look at the New Jersey

8 protocol and say, wow, they don't use

9 pancuronium, let's just take pancuronium out of

10 our procedure, would that be good enough? Would

11 that be due diligence in your view?

12 A No. I think that's the opposite of what

13 anybody would consider to be due diligence, just

14 blindly copying a protocol from another state. I

15 don't think anyone would consider that to be due

16 diligence.

17 Q If California were to eliminate the

18 pancuronium and the potassium, only use the

19 thiopental, would that make it a more humane

20 procedure in your view?

21 A Yeah. I think that would -- again, the

22 major things that are likely to cause pain or

23 suffering in this procedure are the pancuronium

24 and the potassium. So by removing those that

25 brings it much closer to what veterinarians do,

0716

1 which is use just a large dose of anesthetic

2 agent.

3 Q Now, in this case, in the Morales case, one

4 of the alternative methods that was authorized to

5 do the Morales execution -- there were two. One

6 was with anesthesiologists. The second was to

7 use just the thiopental.

8

And didn't you file a declaration

9 raising some concerns about the state only using

10 the thiopental when that became the fall-back

11 alternative?

12 A It wasn't about the state only using

13 thiopental. It was about the hurried and rapid

14 way in which it was implementing it.

15

You yourself are well aware of the

16 importance of rehearsals and practice as a way of

17 identifying the problems and figuring out how to

18 address them. And while that kind of endeavor,

19 that practice can never completely eliminate all

20 possibilities, we all agree that it's important

21 and helpful to identify what the issues are.

22

But the state to rush in and do this

23 very important thing without going through that

24 process, I think would have been unduly hasty and

25 would have presented needless risks to

0717

1 Mr. Morales.

2 Q Well, the procedure that was anticipated,

3 Doctor, was to simply deliver only the thiopental

4 in a way that it had always been delivered and

5 simply eliminate the pancuronium and potassium.

6 What more rehearsal would have been required for

7 that to be a safe procedure?

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8 A It's difficult for me to place myself in

9 there. I don't know exactly how the execution

10 transpires, but it's clearly got some

11 complexities there.

12

They are in a different room. They are

13 not able to see what's happening when the drips

14 are leaking or infiltrating and anything like

15 this, especially with unqualified personnel, some

16 who don't know how to mix the drug, some of whom

17 haven't read the protocol, some of whom don't

18 know how the drugs work. It's important to have

19 training and practice.

20 Q So this really goes back to your basic

21 criticism of the execution team and the way the

22 executions are conducted generally; isn't that

23 correct?

24 A I don't think these folks are ready to

25 provide euthanasia on a dog and I don't think

0718

1 they are ready to provide euthanasia on a human

2 being.

3 Q Let's talk about animal standards. You've

4 indicated that in your view the AVMA -- that's

5 the American Veterinary Association; correct?

6 A Yes.

7 Q That their guidelines are an appropriate --

8 something that's appropriate for states to look

9 at in terms of developing a lethal injection

10 protocol; is that correct?

11 A Yes. I think there's a lot of useful

12 information there and I think it would be ill

13 advised to ignore those guidelines.

14 Q And are -- you are aware, are you not, that

15 the AVMA has put a warning on its web site

16 where they -- where you find the guidelines to

17 euthanasia stating that those guidelines are not

18 intended to be used for human lethal injections;

19 isn't that correct?

20 A I think it's self-evident they may not

21 develop those guidelines with the intent that

22 they be used in lethal injections. They are

23 veterinarians. They do not participate in the

24 practice of human medicine or human anesthesia or

25 human euthanasia. I think that's a self-evident

0719

1 thing.

2 Q Could I ask you to take a look at Exhibit

3 47, please. It's entitled "Misuse of the 2000

4 Report of the AVMA Panel on Euthanasia."

5

Have you seen this document before,

6 Doctor?

7 A I believe so, yes. I have to read the whole

8 thing all the way through to make sure it's the

9 same. There are different reiterations and so

10 I'm not sure if it's the same exhibit I've seen

11 before.

12 Q Were you present yesterday when

13 Dr. Concannon testified?

14 A I was, yes.

15 Q Now, if you look at this Exhibit 47, and I

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16 direct your attention to the second paragraph in

17 the last line which states "the report" --

18 referring to the AVMA guidelines on euthanasia.

19 "The report should not be extrapolated to

20 humans."

21

Does that suggest to you that the AVMA

22 is of the view that their guidelines do not apply

23 and should not be applied to human lethal

24 injection procedures?

25 A Could you just -- I'm sorry. I didn't catch

0720

1 where you were reading from.

2 Q The second paragraph. There's an opening

3 sentence and then there's a full paragraph just

4 before "summary of lethal injection in humans"

5 and the last sentence is: "The report should not

6 be extrapolated to humans."

7

You agree or disagree with that?

8 A The report is written for the care of

9 animals by veterinarians. That's the limit of

10 what it is created for. And so they have not

11 addressed issues of human euthanasia and I think

12 it's reasonable for them to constrain or to

13 advise constraining the interpretation of it.

14

However, the report has a considerable

15 amount of information that is -- I can tell you

16 as a medical professional and as we heard from

17 Dr. Concannon the same thing -- the best

18 information we have about what might be happening

19 during human lethal injection.

20

And I think Dr. Concannon phrased it

21 very well -- I can't phrase it better -- that I

22 think it would be a disservice to the Court to

23 not recognize the information here and the

24 utility of it.

25

And I think it's a disservice for

0721

1 California to ignore the information here.

2 Regardless of whether one is extrapolating it or

3 not, one can compare and one can see that the way

4 California presently is executing prisoners does

5 not comply with what this report says.

6 Q Well, and --

7 A Whether it's an extrapolation or a

8 comparison is a semantic matter, but what you all

9 are doing to prisoners can't be done to dogs.

10 Q Well, that's certainly your opinion;

11 correct?

12 A Everything I say is my opinion.

13 Q And Dr. Concannon also testified that there

14 are a number of procedures that are authorized by

15 the AVMA for euthanizing animals that no one

16 would ever consider using on a human being;

17 correct?

18 A I believe that's the case. There are

19 procedures, that captive bolt procedure, that

20 humans, we have an aversion to mutilating each

21 other and that would be a relatively mutilating

22 kind of death even if it were to be a sort of

23 instant loss, cause instant loss of consciousness

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24 enough to be humane.

25 Q Are you a member of the American Veterinary

0722

1 Medical Association?

2 A I'm not.

3 Q Doctor, is it your view or do you have an

4 opinion as to whether a veterinarian ought to

5 participate in an execution of a human being in

6 California?

7 A You know, I don't know what the -- I don't

8 know a lot about veterinary ethics. It's a

9 profession. I think all professions have ethical

10 codes and standards. And I don't know, for

11 example, whether one of their codes explicitly

12 prohibits them from doing anything with humans.

13 That wouldn't surprise me if that were the case.

14

And I also don't know if they have codes

15 about executions as do some medical professions.

16 I just don't know the answer to that.

17 Q Let me ask you to take a look at Exhibit 52,

18 which I represent is your first declaration in

19 the Morales case. And I'd like to direct your

20 attention specifically to page 28, please.

21

And I want to specifically direct your

22 attention to lines 5 and 6 where you discuss the

23 apparent absence of a central role for a properly

24 trained medical or veterinary professional in

25 CDC's execution procedure.

0723

1

When you reference there the presence or

2 a role for a veterinary professional what did you

3 have in mind?

4 A I don't recall exactly what was in my mind

5 then, but reading it now I think the -- I think

6 what would be said there is that veterinarians

7 are people who have spent a lot of time thinking

8 about euthanasia and have a lot of experience and

9 practice in euthanasia and that some of them like

10 Dr. Concannon are proficient anesthesiologists

11 and proficient at assessing anesthetic depth.

12

And having somebody like that who can

13 provide a good death, a euthanasia to dogs with

14 proficiency, would be something that would be a

15 major step up from what is happening now.

16 Q Well, were you suggesting or not that a

17 veterinarian ought to act -- ought to actually be

18 involved in the process of the execution?

19 A In terms of the "ought," I think that's

20 just -- that's a sort of personal term. I'm not

21 sure. I don't -- I'm not in favor of the death

22 penalty. So I'm not in favor of any

23 individuals -- I'm not personally in favor of any

24 individuals participating in executions. So that

25 would include veterinarians, but the absence of

0724

1 people who know how to provide a humane death,

2 which is the case in California, is very

3 concerning.

4 Q In light of your opposition to the death

5 penalty, is it fair to say that, if asked, you

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6 would not assist the state in designing what

7 could be viewed as a humane execution protocol?

8 A Yeah. I think there are plenty of other

9 people who could do that and it would be my

10 preference not to do that.

11 Q Have you been asked?

12 A I don't think any state has asked me, no, to

13 take out a piece of paper and write out a

14 protocol, no.

15 Q Would you be ethically constrained not to do

16 that?

17 A Yes. That would be against my personal

18 ethics.

19 Q Would it be a violation of the AMA's

20 limitations on doctor involvement in execution

21 procedures?

22 A Again, I'm not sure "limitations" is the

23 right word. They outline things that fall within

24 ethical behavior or activities and things that

25 fall into the realm of unethical behavior. And

0725

1 to write out a protocol that I knew was going to

2 be used for executing a human being would fall

3 into their -- what they outline as unethical.

4 Q So the AMA has laid out some very specific

5 limitations as they view it on what is ethical

6 and unethical, and one of the unethical things is

7 any involvement in an execution procedure;

8 correct?

9 A I don't remember the exact details. There

10 is a place for physician in terms of certifying

11 death and I forget their position on medicating,

12 treating the anxiety, the condition of anxiety,

13 like we talked about earlier on this afternoon.

14

As I recall, they would -- they'd think

15 that that's okay to provide medical care. They

16 might even be treating conditions that result

17 from an impending execution such as anxiety, but

18 I think that's the extent of what they consider

19 to be ethical participation.

20 Q Doesn't the AMA prohibit even pronouncing

21 death as an unethical role for a doctor to be

22 involved in?

23 A I think they allow certification but not

24 pronouncement.

25 Q I'm not sure what you mean by that.

0726

1 A I am unclear on it, also, because that's

2 very rare in my practice that I've been

3 pronouncing and certifying death. But I think

4 pronouncing involves doing an examination of a

5 person, listening to their heart or feeling for

6 their pulse or whatever and then determining that

7 they are, in fact, dead. And certification means

8 filling out the paperwork that performs the

9 societal function of documenting that that person

10 is dead.

11 Q Is it unethical in your view for the doctor

12 to watch the EKG machine and announce that the

13 inmate has flat-lined and, therefore, is dead?

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14 A The AMA says it's unethical? Personally

15 it's -- in general, my view is when it's a

16 passive phenomenon, completely just an observer

17 and there's no possibility for them intervening,

18 then it's sort of fuzzy to me exactly how

19 unethical that is.

20 Q Is it something you would consider doing?

21 A It's something I'd very much prefer not to

22 be around. I've reviewed EKGs that were

23 recordings of EKGs of executions that were done

24 before and I'm not sure actually at an ethical

25 level what is the difference between looking at

0727

1 an EKG that was done a year ago or five years ago

2 and looking at an EKG that's rolling out in front

3 of you. I'm not sure that there's actually an

4 ethical difference there. So I might be a little

5 bit at variance with the AMA's position on that.

6 Q Well, are you saying that it's -- that even

7 just sitting there watching the EKG machine and

8 saying okay, he's flat-lined, that might in your

9 view be unethical?

10 A These are gray zones and -- but you start

11 making a diagnosis about an ongoing event and I

12 think interpreting an EKG as an ongoing event and

13 then making a diagnosis that then can trigger

14 certain actions and behavior, that to me is

15 different from simply watching an EKG unfold or

16 looking at an EKG a year later. It crosses a

17 line, although I agree it's a fuzzy line.

18

Ethics are complicated and end-of-life

19 eithics are especially complicated and there are

20 many unresolved issues. I think we are kind of

21 dancing around those ones where you could

22 probably talk for a long time about it.

23 Q What about the role of the doctors who fill

24 out the execution logs; is that in your view

25 ethical or unethical?

0728

1 A You see, one of the interesting things about

2 it is that in some states there's a regulatory or

3 protocol requirement that a physician be present

4 to do various tasks.

5

And so one could say, if there's one

6 physician who's identified to show up and do it,

7 that the fact that they have showed up has

8 permitted an execution to take place. And so,

9 therefore, by filling that slot if there is no

10 one else to fill it they have furthered or, in

11 fact, permit an execution to take place.

12

So that's one way of looking at that

13 situation. Again, these are -- I probably would

14 become a biomedical ethics professor over these

15 kinds of conversations and I can't tell you I

16 have the answers firmly fixed in my head.

17 Q In your view is the opinion of a doctor on

18 whether the death penalty -- whether a doctor

19 approves or disapproves of a death penalty, how

20 does that weigh in terms of whether they have an

21 ethical obligation not to participate in an

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22 execution in certain ways? 23 A If I understand your question correctly, 24 you're saying that some physicians, as we know in 25 this case, support the death penalty and some are 0729
1 opposed to it, and some probably don't ever think 2 about it. But comparing the groups that support 3 it and the group that opposes, does the group 4 therein have an influence on the ethics of 5 whether or not they would participate? 6 Q Well, my question is does the ethical 7 limitation depend upon whether one opposes or 8 supports the death penalty? The ethics are what 9 they are, aren't they? 10 A The AMA's ethics or my ethics or your 11 ethics? Whose ethics? 12 Q Anybody's ethics. 13 A I imagine in some people's ethics that is an 14 important issue and some people don't even have 15 to tell me whose ethics they are and define it. 16 Q Well, is your ethical limitation bound up 17 with the fact that you're opposed to the death 18 penalty? 19 A Even back when I didn't think about the 20 death penalty ten years ago when I was working in 21 the ICU and whatever, I don't -- I'm pretty sure 22 I wouldn't have gone into an execution in that 23 scenario and injected drugs into people. 24 Q Because you would have thought it then, as 25 you do now, unethical; is that correct? 0730 1 A Ethics are probably a higher cognitive level 2 of function. I just would have had an aversion 3 to do that. 4 Q Now, with reference to having -- I know 5 you've looked at the execution logs from 6 California and you've had the opportunity to 7 develop this chart with respect to respirations 8 and the information you've taken off of that, do 9 you have sufficient information to sit here today 10 and testify that any California inmate was, in 11 fact, conscious when they were given pancuronium? 12 A No. We don't have the information to say 13 whether they were conscious or unconscious. We 14 are lacking sufficient information to make that 15 determination. 16 Q And the same would be true with respect to 17 whether any inmate was conscious or unconscious 18 when they received the potassium; isn't that 19 correct? 20 A Correct. 21 Q Now, in terms of the execution logs and the 22 discussion -- the testimony you gave this morning 23 about the measurement of respiration, is there a 24 difference between actual breathing and 25 respiratory effort? 0731 1 A Certainly, yes. In many -- in some cases 2 there is, yes. 3 Q Well, can somebody exhibit respiratory

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4 effort but not actually be breathing?

5 A Absolutely. If the airway is obstructed,

6 then they are doing just that.

7 Q Now, in terms of the -- of the execution

8 logs which have a reference to respiration and

9 numbers that are down there, now, do you know

10 what, in fact, those doctors were observing when

11 they wrote down a number for respirations on the

12 execution logs?

13 A All I know is what they say they were

14 observing. I don't know -- I wasn't present and

15 I haven't seen a video. So I don't know what, to

16 use your term, in fact, they were observing. All

17 I have is their representation of it.

18 Q So it's really impossible to say what it

19 was, in fact, that they saw when they identified

20 respirations; isn't that correct?

21 A You know, this is getting into a discussion

22 of level of certainty. You have somebody saying

23 they saw something. You have no reason to

24 believe they would have a reason to fabricate

25 this.

0732

1

If you want to question what they say

2 they are seeing, then I would suppose that you'd

3 have to equally question what everybody else,

4 what all of the executioners said they were

5 seeing and doing, also.

6 Q Well, in terms of whether the doctors were

7 actually seeing breathing respiration as opposed

8 to respiratory effort, wouldn't it just be

9 conjecture based on all the circumstances you've

10 described, the problems that you've seen in the

11 execution process as to whether it was breathing

12 or respiratory effort that they were actually

13 observing?

14 A I should clarify respiratory effort is not

15 something that you see. Respiratory effort

16 represents an effort, an attempt to do

17 something. What one sees is movement. That's

18 all we can see.

19

People who are breathing, we see

20 evidence of their respiratory effort because they

21 are moving air in and out and their chests are

22 moving. People who have an obstructed airway, we

23 see evidence of their respiratory effort because

24 their chest is moving. When the airway is

25 obstructed we -- the pattern of chest wall

0733

1 movement tends to be different, but if you're --

2 don't have a good view of it, you're absolutely

3 right, it's possible to be confused between the

4 two things.

5

But certainly I think, getting to the

6 point of this, a person who's had -- received 5

7 grams of thiopental should have no respiratory

8 effort. Respiratory effort comes from the brain,

9 from the brain stem and there is electrical

10 inactivity after 5 grams of thiopental.

11 Q Well, respiratory effort is an involuntary

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12 reflexive level, isn't it?

13 A No.

14 Q It's a purposeful voluntary effort on the

15 part of the person?

16 A You can stop breathing for 30 seconds.

17 You've controlled your respiratory effort. It's

18 therefore voluntary. At some point when you try

19 to hold your breath it becomes excruciating. The

20 lack of breathing becomes excruciating and you're

21 desperate to draw a breath and your cortex, your

22 cognitive will can't control the drive from your

23 brain stem.

24 Q Well, doesn't thiopental have the effect of

25 causing apnea which prevents breathing or is the

0734

1 effect of not breathing?

2 A If given in sufficient dose it will cause

3 apnea, that's correct.

4 Q And isn't one symptom of apnea an effort

5 that respiratory -- the body attempts to breathe

6 even though it cannot. Isn't there respiratory

7 effort that occurs at a much lower involuntary

8 reflexive level?

9 A You're mischaracterizing apnea now. When we

10 talk about apnea we are talking about a lack of

11 effort. I don't think most clinicians -- while

12 technically it could be said that a person who

13 has been let's say strangled, you'd say they are

14 apneic, that's not how we use that word. We use

15 that word when a person has no respiratory drive

16 and they are not trying to breathe.

17

If somebody is trying to breathe but has

18 an obstructed airway, we usually don't say they

19 are apneic. We'd say they are obstructed and

20 that they are -- that they do have respiratory

21 drive.

22 Q So the apnea does not create a circumstance

23 in which the body may attempt to get in the

24 oxygen and attempt to breathe even though it

25 cannot?

0735

1 A Well, apnea doesn't create anything. Apnea

2 is a status. It's a descriptive condition. And

3 if there were a patient who had -- you know, who

4 had choked on a piece of hot dog or something and

5 they were desperately trying to breathe, the

6 person in the ER would not describe the patient

7 has apneic. That would be a very great

8 mischaracterization of what they were seeing.

9

They would say the person is in severe

10 respiratory distress. They are attempting to

11 draw a breath, but they are unable to.

12 Q Well, with respect to the numbers you saw on

13 the execution logs and the doctors' description

14 of either counting for a minute or counting for

15 15 seconds and multiplying, do you know if they

16 were rounding up or rounding down with respect to

17 the number that they put on as to how many

18 respirations they were counting?

19 A I don't recall if they said. I don't recall

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20 if they discussed that.

21 Q Well, that might make a difference; right?

22 I mean, if they rounded up, nine seconds could

23 only be eight seconds. I mean, it could make a

24 difference, couldn't it, as to this little chart

25 you prepared, Exhibit 74?

0736

1 A Yes, you're right. This is the standard way

2 that we use to assess respiratory rate, but it's

3 not a precise method. It's an adequately

4 accurate method, but it's not precise.

5

I should comment, also, that respiratory

6 rate is something that varies naturally. The

7 timing between each breath is never identical.

8 So even if one were to measure for one minute and

9 say that there were 27.2 breaths, that would not

10 be a precise thing. It's adequate precision for

11 the task at hand.

12 Q And, of course, I think we've already gone

13 through this, but we can't really say whether any

14 of those individuals were in -- any of the

15 inmates were, in fact, breathing; right?

16 A All we can say is that they had to have had

17 enough thiopental in them to depress respiratory

18 effort, you're right.

19 Q Now, you have criticized among the various

20 things that is wrong with the California protocol

21 the fact that the chamber door is closed;

22 correct?

23 A Correct.

24 Q And that results in an inability to hear

25 anything that goes on in the chamber; right?

0737

1 A It makes it harder to hear. It depends on

2 how loud the noise is. I expect if you made a

3 really loud noise, you could probably hear it.

4 Q But is it reasonable to assume that might

5 affect the ability of a doctor who is standing on

6 the outside to hear if there's any sounds coming

7 out of the inmate that might be considered

8 respiration?

9 A Yes. Usually respiratory efforts are a

10 visual assessment, but you're right. If a person

11 has an obstructed airway -- or, excuse me, if

12 they have a partially obstructed airway, then you

13 might hear a snoring-type noise. But if their

14 airway is fully obstructed or unobstructed, then

15 you wouldn't hear anything.

16

MR. GILLETTE: Excuse me, Your Honor. I

17 believe I had turned that off and I apparently

18 did not.

19

THE COURT: Now we're even. Each side

20 has done it once.

21

MR. GILLETTE: And now I think neither

22 of us should allow this to happen again. I will

23 certainly make every effort to ensure it does

24 not. I apologize.

25 //

0738

1 BY MR. GILLETTE:

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2 Q Among the other criticisms that you voiced

3 was the crowded condition that was in the

4 anteroom outside the chamber; is that correct?

5 A Yes.

6 Q And it makes it difficult to see in the

7 window, doesn't it?

8 A Excuse me. You said outside the chamber in

9 the anteroom?

10 Q Correct.

11 A In the room they inject from, yes.

12 Q I'm not talking about the witness area. I'm

13 talking about the people who are in the back;

14 right?

15 A Yes.

16 Q And that's where the doctor is; right?

17 A Yes.

18 Q And so the doctor is among the people who's

19 having to try to get to the window to make -- to

20 see the inmate to make these observations;

21 correct?

22 A Yes.

23 Q And you also indicated that the light is bad

24 in the back, isn't that correct, in the anteroom,

25 too low?

0739

1 A In the anteroom, yes. The doctor had to use

2 a flashlight for the --

3 Q In fact, said it was very difficult for him

4 to fill out the form properly because of the

5 lighting problem; correct?

6 A Yes.

7 Q Have you had an occasion to look at

8 execution logs from other states?

9 A I have, yes.

10 Q And have you seen any other states that

11 include this kind of information on them?

12 A Which kind of information?

13 Q Respirations, counting respirations.

14 A Not in this way. I've seen EKG strips where

15 vital signs are indicators of what's going on or

16 written along the EKG strips. I've seen some

17 states that have similar information on them,

18 though not recorded in the identical way.

19

So this is within the range of what is

20 normally done, but it's not done by everybody.

21 And I guess I should also comment that there's a

22 lot of discovery -- a lot of information that

23 hasn't yet come out about lethal injections.

24 Q Well, you've seen the logs that are used

25 this Texas, haven't you?

0740

1 A I have, yes. There's a lot of them and I

2 haven't reviewed them in detail yet.

3 Q But, to the best of your recollection, isn't

4 it true that all that's -- that's documented on

5 the Texas execution log is that the inmate is

6 brought in, the execution starts, and he's dead?

7 A My recollection isn't good enough to comment

8 on it right now. I'd have to go and look at them

9 again before commenting.

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10 Q Is it your opinion that the kind of detail

11 that's on the California execution log is

12 essential to humane execution?

13 A So fundamentally anything that is just an

14 observation can't itself affect that execution,

15 but as a matter of process it's important to in

16 doing a procedure like this, any medical

17 procedure that you're not extremely familiar

18 with, to document what you do and what you see so

19 that if things don't go as expected you can in a

20 timely and considered fashion go back and look at

21 that information, assemble information, compare

22 it with other situations and try to figure out do

23 we need to improve this, can we improve this, how

24 would we improve this.

25

That's important at a systemic level,

0741

1 but it is definitely the case that what somebody

2 writes down during one execution, it's hard to

3 see how that would have benefit or affect the

4 level of humaneness of that actual execution as

5 it's ongoing.

6 Q But in your view all this documentation is

7 necessary so the state can look at it for the

8 next one and know if anything went wrong; is that

9 what you're saying?

10 A Yes. I think that this kind of

11 documentation, it should be ideally improved on

12 this, but this kind of documentation is important

13 for us to try to understand what is going on in

14 lethal injection procedures. I think that graph

15 that it put up there showed interesting things

16 like this wide variance in how long people

17 breathe for and how long it's taking to get the

18 pancuronium. And that raises questions and there

19 should be discussion about that.

20

I don't know what the answer is as to

21 why it takes some people one minute to get

22 pancuronium and some people nine minutes to get

23 pancuronium, but we wouldn't even be able to pose

24 the question if your folks hadn't collected this

25 data.

0742

1 Q Are the execution logs medical records, in

2 your view?

3 A In part they are because part of this is a

4 medical procedure. There's an induction of

5 general anesthesia. There's an attempt to do

6 that. It's necessary to make the procedure

7 humane. And some of these, the information

8 that's being collected here, can speak to the

9 efficacy of that induction of general

10 anesthesia.

11

There's also the information there about

12 non-medical things such as giving potassium,

13 which isn't a medical procedure. That's --

14 that's the judicial execution. And so, as I say,

15 that's described as sort of hybrid logs. They

16 are describing some medical -- a medical endeavor

17 and they are also describing the judicial

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18 endeavor.

19 Q In your opinion, giving the potassium is not

20 a medical procedure because in your view it's not

21 necessary to complete the execution; is that your

22 view?

23 A Well, a medical procedure is one that has a

24 medical indication, and there's no medical

25 indication to give a live human being high-dose

0743

1 potassium except, as we discussed earlier, where

2 they are having cardiac surgery.

3 Q Well, is there a medical indication for

4 giving an individual a fatal dose of thiopental?

5 A If they are about to -- if they are about to

6 have potassium injected, yes, you need to give

7 somebody an anesthetic dose of thiopental. It

8 doesn't necessarily have to be fatal.

9 Q So, actually, California wouldn't even have

10 to give 1.5; is that what you're saying? You'd

11 give a whole lot less than that just so long as

12 they rendered him unconscious?

13 A If they had an individual there who would

14 administer the thiopental and as that wore off,

15 as we do during general anesthesia. We

16 transition from the induction phase to the

17 maintenance phase, and that's a transition

18 wherein the induction drugs are wearing off and

19 we're supplementing them with different kinds of

20 drugs that maintain the anesthesia as we've

21 discussed.

22

If all those things were going on and

23 they had the right monitors, they are properly

24 located and all those things, I would leave it to

25 their judgment as to how much thiopental to use

0744

1 for their initial dose and I would not be

2 critical of that person using a lower dose.

3 Q So it's the giving of the thiopental that

4 makes this, in your view, a medical procedure,

5 the lethal execution?

6 A It's within the context of knowing that

7 you're going to give somebody potassium, which is

8 extremely painful, knowing that you're going to

9 lock them in, you're going to paralyze them,

10 knowing that you're going to do those things and

11 believing that you want to provide a humane

12 execution, you are giving the thiopental to

13 ensure or try -- try to ensure that the second

14 two drugs don't cause suffering.

15

If you didn't give the thiopental, you

16 would be a torturous death. There's no doubt

17 about that whatsoever that I'm aware of. So

18 you're giving -- why else would you give the

19 thiopental? You're giving two lethal drugs. Why

20 else would you be giving an anesthetic drug other

21 than to provide anesthesia?

22 Q When you give -- or when you're giving

23 anesthesia in a surgical situation it's fair to

24 say, isn't it, that you have two objectives? One

25 is to render the patient sufficiently unconscious

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0745

1 that the painful procedure can go forward, the

2 surgery, whatever it is, and the other is to

3 ensure you don't kill them; right?

4 A Those are among our objectives, yes.

5 Q Well, you want to put them asleep and you

6 want to wake them back up again; right?

7 A Yes, in the great majority of cases.

8 Q And, of course, that is not at all the

9 objective of a lethal injection execution, is

10 it?

11 A Quite correct.

12 Q And is it your opinion that having someone

13 monitor the anesthetic depth of the inmate is the

14 only thing needed to make this procedure humane,

15 California's procedure humane?

16 A No, that's not my opinion.

17 Q So what else has to be done?

18 A Well, in addition to monitoring anesthetic

19 depth they or somebody has to be able to act if

20 that monitoring indicates or determines that

21 anesthetic depth needs to be deepened.

22

So just the act of monitoring alone just

23 like we talked about the execution logs, those

24 don't make the execution more humane. They might

25 make subsequent executions more humane if you

0746

1 have somebody assessing death, but they don't

2 help with that one.

3 Q Is it your opinion that a lethal injection

4 execution cannot be humane unless there is a

5 physician present to do all these things that

6 you've just mentioned, monitoring and being

7 prepared to intervene?

8 A Well, lethal injection is done for animal

9 euthanasia and they are not physicians performing

10 that or present. But with these drugs since

11 potassium -- since California has chosen to use

12 potassium, then you need somebody who is

13 proficient and competent at assessing anesthetic

14 depth and who understands how to deepen the

15 depth, if that's what they determine is

16 warranted.

17 Q Did I just understand you to say that you

18 don't have to be a veterinarian to euthanize an

19 animal?

20 A I don't know the details of how veterinary

21 euthanasia is accomplished in the US. I'm not an

22 veterinarian, but my understanding is that there

23 are animal shelters where a non-fully trained

24 doctor of veterinary medicine is present at all

25 the euthanasia procedures.

0747

1 Q Is it your view that it must be a -- there

2 must be a physician involved in the execution

3 process or is there some other medical

4 professional you think would satisfy the concerns

5 that you've raised?

6 A Well, there are other people who are not

7 physicians who can do all this. The advantage of

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8 going to an anesthesiologist is that someone

9 who -- that is somebody who is likely to have the

10 the necessary background to do it, but there are

11 other people who have that.

12

They may -- you may not know that with

13 as much certainty. So there are people who work

14 in intensive care units who look after patients

15 who are on ventilators, many of whom are

16 unconscious, many of whom are deliberately placed

17 into a state of general anesthesia, and that's

18 done by people who are not anesthesiologists.

19

And so some of those people I think are

20 good at assessing anesthetic depth and it's just

21 that you don't have that label on them and so you

22 have to do more work to determine whether that

23 was the right kind of person or not of. The

24 label is helpful. It doesn't prove anything, but

25 it helps put you into the right domain.

0748

1 Q But you're saying it would have to be a

2 physician?

3 A No. There are people like nurse

4 anesthetists, certified registered nurse

5 anesthetists who are very proficient at inducing

6 anesthesia and assessing anesthetic depth.

7

I don't know in California whether they

8 are allowed to practice without physician

9 supervision. That's a regulatory issue. In some

10 states there's varying degrees of supervisions

11 legally required and that varies from state to

12 state and I don't really know that much about

13 that.

14 Q Do you know if there are any ethical

15 limitations that would prevent a nurse from

16 participating in that way in an execution?

17 A I believe the American Nursing Association

18 or some perhaps other umbrella body that

19 represents nurses in the United States has taken

20 a position that might be identical to the AMA

21 although with changing of the language because

22 they are talking about nurses instead of

23 physicians. I think it's probably substantively

24 similar to the AMA's outlining of the ethical

25 dimensions of this.

0749

1 Q So you might run into the same concerns

2 going to get a nurse or a nurse anesthetist that

3 you'd have to find someone who was willing to

4 violate the ethical limitations of their

5 profession in order to participate; correct?

6 A Again, I'm not sure about -- I'm not a nurse

7 and I'm not an expert in nursing ethics, but I

8 think that's the case, but I can't speak firmly

9 about it. If that is the case, then that would

10 be the logical conclusion starting out that you'd

11 have to be reaching into the subset of

12 individuals whose ethics are at variance with the

13 ethics of the profession.

14 Q Assume you had a registered nurse

15 anesthetist who was competent to induce the

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16 anesthesia and measure the anesthetic depth. 17 Would that person also be able to take additional 18 steps necessary to ensure that the anesthetic 19 depth was maintained? 20 A Sure. Nurse anesthetists see that all the 21 time. They are very good at it. They induce 22 anesthesia. They maintain anesthesia. They 23 emerge their patients from anesthesia. Their 24 patients do very well. All during that time 25 that's exactly what they are doing, assessing 0750
1 anesthetic depth and modulating it as required. 2 Q So they could go in and intervene in the way 3 that you've indicated might be necessary if the 4 person was coming out of the anesthesia? 5 A Sure. If the surrounding environments and 6 conditions were set up, if the door weren't 7 locked close and they had extra thiopental drawn 8 up and all those things. Yes. They have the 9 competence and wherewithal to do that if the 10 environment would permit it. 11 Q Do you -- is it your opinion that physicians 12 are required to set the IVs in an execution? 13 A No. Many good IVs are set by 14 non-physicians. 15 Q And would that include licensed vocational 16 nurses? 17 A Licensed vocational nurses? 18 Q Vocational nurses. 19 A You know, that's a term -- I don't know in 20 California whether that's something that is 21 permitted -- the licensed vocational nurse, I 22 don't know whether they are permitted to do 23 that. That's beyond my ken right now. 24 Q Are you aware that the MTAs, and you've made 25 reference to witness 3 and 4 as being MTAs, are 0751 1 licensed vocational nurses? 2 A That slips my mind. I'm just not sure. 3 Q And has it slipped your mind that both of 4 the MTAs in addition to being licensed vocational 5 nurses have a certification on their license 6 authorizing them to establish IVs? 7 A I don't specifically recall that, but they 8 talk as people who have had experience starting 9 IVs and I assume that they weren't doing that 10 illegally. 11 Q Is there any reason that somebody with a 12 background as a licensed vocational nurse 13 training to establish IVs and certification to do 14 so could not establish the IVs in a lethal 15 injection execution? 16 A No. This kind of person as a general 17 proposition, that's what they do. They start IVs 18 and they often are very very good at it. As we 19 talked about -- as Ms. Anders and I discussed 20 earlier, there's constraints imposed by the 21 crowding in the gas chamber. The decision to use 22 it as a lethal injection chamber I think would 23 hinder even a really good person from working in

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24 the optimal conditions.

25 Q But apart from those limitations, which I

0752

1 understand that you've explained, the mere fact

2 that the individual is an LVN in and of itself

3 does not suggest to you that they are not

4 qualified to establish IVs?

5 A The most important thing is -- is how good

6 you are at it. I think Dr. Dershwitz at one time

7 said, no, it's not the letters after your name,

8 it's how good you are at doing something. And

9 I've used IVs -- I've frequently used IVs for

10 inducing anesthesia that were started by

11 non-physicians.

12 Q It could be an RN as well?

13 A Sure.

14 Q Has it been your experience that it's not

15 always the case that no matter how good you might

16 be that the IV is going to be set the first time

17 you try?

18 A Oh, yeah. I mean, no matter how good you

19 are you miss IVs.

20 Q And the fact that you've missed doesn't mean

21 you're necessarily going to be unable to

22 establish the IV in that vein; is that correct?

23 A Well, when you miss in a vein -- I think

24 maybe "missing" is the wrong word because if you

25 miss it's usually not that bad because you

0753

1 haven't hit the vein and no blood comes out. The

2 real problem is when you hit so that you can't

3 thread the catheter in properly and then blood

4 leaks out from that hole.

5

Once that's happened it's considerably

6 more difficult to get a catheter into that vein

7 or at least in that stretch of vein because now

8 you have the blood tends to collect over the vein

9 and under the skin and makes it quite a bit more

10 difficult.

11 Q The fact that there's difficulty in

12 establishing the IV doesn't necessarily mean that

13 the IV was not established; isn't that correct?

14 A Oh, no. Yes, that's right. That's quite

15 correct. You can struggle with an IV and have

16 great difficulty getting it in, but it can turn

17 out to be a very good IV, absolutely.

18 Q Now, we've all agreed that there was a

19 failure of an IV in the left arm of Stanley

20 Williams; isn't that correct?

21 A That's what's asserted by -- in the

22 testimony, yes.

23 Q And what is your understanding as to whether

24 that failed IV played any part in the execution

25 of Mr. Williams?

0754

1 A From what I can tell it didn't. They were

2 using the other IV to administer drugs.

3 Q Does the fact that there was a failure in

4 this one instance suggest to you that the entire

5 procedure is somehow less humane or at risk, I

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6 should say?

7 A No, not at all. One IV failure, that's

8 totally normal and I'd have to say looking

9 overall at the -- this is very general, but the

10 number of lethal injection procedures and the

11 difficulties encountered with IVs, there's no

12 evidence that the folks there are not proficient

13 in the actual mechanics of putting the IV in.

14

The problem is putting an IV in that's

15 not working and then not telling the execution

16 team leader and the warden that the IV -- that

17 there's a problem there. That's the big problem.

18 Q Doesn't it -- doesn't the fact that it's now

19 acknowledged that this occurred, that it should

20 not have occurred, suggest that it's -- that the

21 team has learned a lesson and it's not something

22 that ought to occur in the future?

23 A Didn't Mr. Allen's execution occur after

24 Mr. Williams' execution?

25 Q It did. Are you aware of any problems with

0755

1 Mr. Allen's execution in terms of setting the

2 IVs?

3 A No. But I'm also not aware of any

4 discussion between those two executions in which

5 they discussed how they ought to conduct

6 themselves to protect the prisoner in the event

7 of a problem with an IV, and it's my suspicion

8 based on a lack of such conversation and dialogue

9 that had there been a similar problem in this

10 time the arm that's getting the drugs that that

11 may well not have been discussed with the team

12 leader either.

13 Q You're making an assumption that there

14 was -- there was no attention paid to the fact

15 that there had been a problem in Williams when

16 they got to the Allen execution?

17 A There's -- there's no indication that they

18 went through the steps that one would need to --

19 one ought to go through to address that kind of

20 event. They should be debriefing after every

21 execution and discussing the things that went

22 wrong and there should be records of that.

23

And some states have that kind of

24 record, but if California has provided

25 everything, all the documentation -- I don't know

0756

1 if it has or not, but I haven't seen anything

2 that would indicate that that's going on.

3 Q So in your view, your opinion, the fact that

4 there is not some documented meeting that took

5 place afterwards is an indication that there's a

6 failure or a flaw in the procedure?

7 A It's not so much the procedure. It's the

8 environment in which the procedure is being

9 carried out. People need to -- it's really

10 important when you're doing a complicated thing

11 like this for a person who's got an essential

12 role to be able to say, "I'm sorry, but in this

13 instance I couldn't fulfill that essential role

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14 and so everybody needs to be aware of that and we

15 need to discuss that or we need to adapt things.

16 So should somebody else go in there and try to

17 place an IV? Should we try to feed -- how does

18 that affect our backup plans," which, of course,

19 there aren't any backup plans here, "but if we

20 were to need to rapidly develop a backup plan how

21 that would affect that."

22

That's the kind of conversation that

23 needs to happen and they ascribe the events that

24 occurred after this mishap with Mr. Williams and

25 they don't describe any kind of conversation like

0757

1 that. I think it fits in with their sense of

2 inability to go to their superiors, their

3 leadership and say, "We've got a problem here.

4 We've got to -- this room is too crowded. Can

5 you clear it out for us."

6 Q Are you aware of whether the RN who failed

7 to set that left arm IV in the Williams execution

8 participated in the Allen execution?

9 A I don't recall.

10 Q Now, you talked this afternoon about the

11 concerns you had as to the lack of knowledge that

12 witness number 3 and witness number 4 who we've

13 described as the MTAs had as to the way the drugs

14 operate and what they do; isn't that correct?

15 A Yes.

16 Q Now, is it your understanding that the MTAs

17 are responsible for setting the IVs, that that is

18 one of their tasks?

19 A Yes.

20 Q And another of their tasks is to pass the

21 syringes to the person who's responsible for

22 delivering the drugs; isn't that correct?

23 A Yes.

24 Q And one of their roles is, at least for one

25 of them, witness number 4 described standing in

0758

1 the window and watching the inmate as the drugs

2 were being delivered; isn't that correct?

3 A That's correct, yes.

4 Q Now, with those roles of inserting the IVs

5 and passing the drugs and perhaps watching

6 through the window, why is it necessary for any

7 of those individuals to know how the drugs work?

8 A The fact that you would ask that question

9 means you shouldn't be involved in designing this

10 protocol.

11

The person who's looking into the window

12 needs to know that pancuronium can cause the

13 impression of the person being comfortable and

14 asleep. If you don't know that, then looking in

15 the window doesn't provide any assurance that the

16 execution going humanely.

17

The person who's handing the drugs needs

18 to know that thiopental works one way and

19 pancuronium works a different way and that if

20 they accidentally handed the wrong syringe it's

21 an important mistake and they need to grab the

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22 person and say wait a second, we should switch

23 this.

24

If you don't know what you're handling,

25 you don't know what can go wrong, you won't be

0759

1 looking for things to go wrong, and you won't be

2 able to correct them. It's like a child with a

3 gun. If they don't know it's a gun, they can

4 shoot themselves with it.

5 Q What is the basis for your assumption that

6 they don't know what's in the syringes when they

7 are handing them to the person who's responsible

8 for delivering those drugs?

9 A They don't know how they work. For example,

10 if they think that pancuronium is an anesthetic

11 drug, then they might think, oops, I handed the

12 pancuronium first, but that's okay because the

13 guy is going to go to sleep from it.

14 Q So you're assuming that they are not aware

15 of the order in which the drugs are supposed to

16 be delivered?

17 A No. I believe they are aware of it,

18 although some of them have not read the protocol,

19 but I'm also aware that they can make mistakes

20 particularly in a high stress environment. And

21 it's important that they feel comfortable. Just

22 as in the way that that nurse evidently didn't

23 feel comfortable, they feel comfortable saying,

24 "You know what? I made a mistake."

25

But they'd only have an impetus to say

0760

1 that if they thought it was an important mistake

2 and they can only know if it's an important

3 mistake if they understand the drugs that they

4 are working with. And I think this is -- I don't

5 know how to explain it better than that.

6

The folks who are doing the execution

7 just like veterinarians or veterinarian

8 assistants when they are doing their euthanasia

9 have to understand the drugs they are working

10 with. I don't see how one could defend the

11 opposite proposition.

12 Q So in order to pass the drugs they've got to

13 know what the drugs do; is that your view?

14 A To be participating in a lethal injection

15 procedure, to be members of an an execution team

16 and to be doing any of these things they need to

17 know about these drugs.

18

I work -- I teach medical students. I

19 let them inject drugs into patients, but before I

20 ever let them inject the drug I say this is

21 Versed or this is Fentanyl, how does it work,

22 what does it do. And if they can't tell me, I

23 don't let them inject it.

24 Q Well, they are medical students and that's

25 people being trained to be doctors. That's a

0761

1 somewhat different situation, isn't it, Doctor?

2 You're dealing with patients whose lives are on

3 the line because you're standing there

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4 responsible for treating them? 5 A Yes. Just because they are medical students 6 and they have not yet been given the 7 responsibility of ensuring that a person is free 8 from suffering. 9 Q When you were on the tour at San Quentin on 10 March the 30th did you have an opportunity to see 11 the way that the syringe card is set up? 12 A I did, yes. 13 Q I'd like to ask you to take a look at 14 Exhibit Number 27, please. 15 A I'm sorry. Did you say 27? 16 Q 27, yes. 17 A Yes. 18 Q And does this appear to be a photograph of 19 the setup of the syringes on the cart at San 20 Quentin as we saw it on the 30th? 21 A Yes. 22 Q And you'll notice that the syringes are 23 marked left to right from number 1 to number 6; 24 isn't that correct? 25 A Correct. 0762 1 Q And that there are different colors for each 2 of the three drugs and for the saline push; 3 correct? 4 A Correct. 5 Q And there is also writing on the cart 6 indicating pentothal and pancuronium and 7 potassium; correct? 8 A I can see the pentothal, but the other ones 9 I can't see because the syringe is covering the 10 writing. 11 Q They are in different colors, are they not? 12 Each of them is outlined in a different color? 13 A Yes. This is a flash taken with white light 14 which has many different wavelengths. In the 15 room there they are illuminated just by that red 16 light and I don't know whether or not those 17 different colors or how well those different 18 colors would be distinguishable. 19 Q Well, the pentothal syringe is outlined in 20 green; is that correct? 21 A Yes. 22 Q Is it your view that it would be impossible 23 to tell that it was outlined in green in the room 24 with the lights down? 25 A I don't know. To the lower left there there 0763 1 are two syringes that are also on green 2 rectangles. 3 Q There are two syringes on the bottom left, 4 that's correct, marked 1 and 2. 5 A Okay. What's in those syringes? 6 Q Pentothal. 7 A How do you know? 8 Q Look at the top, Doctor. There's another 9 green one that says "pentothal" on it. It's the 10 backup. 11 A I can't read the writing under the ones in

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12 the lower left. So I can't tell what it's 13 saying. 14 Q So the fact that the other green one says 15 pentothal, you won't make the assumption that 16 that is the pentothal? 17 A You can't read the label under it. The 18 label is obscured. One needs to be able to read 19 it. 20 Q Are you aware of the order in which the 21 drugs are delivered? 22 A I am, yes. 23 Q And the first two syringes are pentothal; 24 correct? 25 A Well, actually, there's just one syringe 0764
1 that -- a 35 cc syringe, and I don't see any of 2 those here on the cart. 3 Q Are you aware of whether this setup is under 4 the old or the new protocol? 5 A This is the new protocol. 6 Q And the new protocol requires 1.5 grams of 7 thiopental delivered in one syringe of 1 gram and 8 one syringe of a half gram? 9 A Yes. 10 Q That would be syringe 1 and syringe 2; 11 correct? 12 A Uh-huh, yes. 13 Q And number 3 would be the saline, right, 14 that goes in between the pentothal and the 15 pancuronium? 16 A Yeah. I can't -- there's some other syringe 17 in between them. 18 Q There's a syringe outlined in black; 19 correct? 20 A Yes. 21 Q And it's marked with something on it; isn't 22 that right? 23 A I can't read what it says. 24 Q Okay. And then there's a syringe that's 25 marked number 3 that's outlined in pink. And 0765 1 what's the third syringe that's delivered after 2 the saline of the drugs? 3 A The pancuronium. 4 Q And then there are three syringes outlined 5 in orange marked 4, 5 and 6; correct? 6 A Yes. 7 Q And there are three syringes of potassium 8 that are used; isn't that correct? 9 A That's correct. 10 Q Do you have any evidence that at any 11 execution in California the drugs were not 12 delivered in the correct order? 13 A I don't know. 14 Q Do you have any evidence that in any 15 execution in California that one or more of the 16 drugs were, in fact, not delivered at all? 17 A I don't know. All we have is the 18 information that we have and it doesn't tell us 19 how much pentothal was delivered.

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20 Q Now, you talked this morning or this

21 afternoon about some concerns you had with

22 respect to the RNs whose depositions you were

23 able to examine, witness number 6 and witness 7;

24 isn't that correct?

25 A Yes.

0766

1 Q And it's your understanding that both of

2 them had been on the execution time at one time;

3 isn't that correct?

4 A Yes.

5 Q Isn't it true both of them have retired?

6 A That's my understanding, yes.

7 Q Were you aware of when witness number 7

8 retired?

9 A I don't recall.

10 Q If I represented to you that it was in 2003

11 after the Anderson execution, do you have any

12 reason to believe that's not accurate?

13 A Not at all.

14 Q Do you have any idea when witness number 7

15 retired?

16 A I don't know.

17 Q I'm sorry. I just said 7.

18

Witness number 6. Do you have any idea

19 when that witness retired?

20 A I don't recall when either of them retired.

21 Q If I represent to you that was in January

22 after the Allen execution, do you have any reason

23 to believe that that's not accurate?

24 A I have no reason to believe that's not

25 accurate.

0767

1 Q Is it your opinion that the fact that these

2 witnesses are unable to recall either several

3 months or in one case several years after they

4 participated on the execution team that they

5 cannot recall specifics about what they did and

6 how they did it that that demonstrates that the

7 executions were conducted in an inhumane way?

8 A No. That doesn't prove anything. It just

9 adds up to the overall picture of folks who have

10 been brought forward to explain what happened are

11 giving very discrepant information.

12 Q Well, you were very critical of the fact

13 that they didn't remember what they did. Does

14 that say they didn't know what they were doing at

15 the time either many months before or many years

16 before?

17 A That does not prove that, but I would very

18 much expect a person to know whether they had

19 gone up -- whether they were getting four large

20 syringes or one small syringe. It's very

21 difficult for me to believe that somebody could

22 confuse or forget those things.

23 Q Is it your opinion that because they had

24 participated in an execution they should have a

25 better memory for everything they did during

0768

1 those executions?

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2 A I'm -- I think that that would be a

3 memorable event. They say they rehearsed it a

4 lot, but they didn't know exactly what they were

5 doing. And there's a big difference, again,

6 between giving several very large syringes and

7 one small syringe -- one of these -- giving a 25

8 cc syringe would be something -- or push would be

9 something that would happen in just over a few

10 seconds, whereas giving thiopental from large

11 syringes would take considerably longer and I

12 would expect people to remember standing around

13 while that happened.

14

So you're right. Time has passed and

15 it's possible that they've forgotten everything,

16 but they didn't say that in the -- in the

17 deposition that they can't remember any of this.

18 They gave depictions of what's going on and I

19 just -- I'm basing my opinion on what they said.

20 Q Now, you've also said, and there's been

21 testimony to that effect, that this is a very

22 stressful event, talking about an execution for

23 someone who's participating on the execution

24 team; isn't that true?

25 A That was the testimony of the execution team

0769

1 leader, witness number 1. He said that that's

2 the most stressful thing -- I don't know if he

3 said that he's ever had to do in a prison or that

4 anybody ever has to do in the prison, but I

5 bet -- I think that would be a very stressful

6 thing compared to other things that happen in

7 prisons.

8 Q And quite reasonably something that someone

9 might not want to remember or spend a lot of time

10 thinking about after all is said and done, right,

11 after it's over?

12 A It's interesting. Usually stress tends to

13 burn memories in very vividly for people, but

14 you're right. As in many things in life, there

15 are many possibilities here.

16

MR. GILLETTE: This is a convenient time

17 to stop.

18

THE COURT: Time to stop? Okay.

19

It's 5:30. I appreciate everybody

20 adjusting their schedule today. We will be in

21 recess until tomorrow at 9:00 o'clock.

22

And anything we need to take up prior to

23 then?

24

MR. GILLETTE: One brief matter, Your

25 Honor, and it's the reason unfortunately I had my

0770

1 cell phone on. We were advised at noon that

2 Andrea Hoch, the Governor's legal affairs

3 secretary, was served with a subpoena this

4 morning as was Bruce Slavin, chief counsel for

5 the California Department of Corrections and

6 Rehabilitation.

7

I have been asked to advise the Court

8 that both Mr. Slavin and Ms. Hoch will seek to

9 quash those subpoenas. With respect to Ms. Hoch,

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10 it's related to the privileges upon which the

11 Court has yet to rule.

12

Mr. Slavin's are of a similar nature.

13 I'm advising Mr. Slavin will be here unless

14 otherwise ordered not to be. I don't know for

15 certain with respect to Ms. Hoch and I don't know

16 if there will be something filed in writing on

17 her behalf, but I have been asked to bring that

18 to the Court's attention.

19

THE COURT: Right. I was aware of that

20 and had asked them, Ms. Hoch and Mr. Slavin or

21 their counsels as the case may be, to file

22 something with the court and obviously give

23 notice to counsel for the parties and I'll deal

24 with those things in due course. I haven't

25 received anything yet.

0771

1

MR. GRELE: Your Honor, if I may just

2 briefly. It may be that their testimony is

3 unnecessary at all. It depends on how the

4 testimony goes and so --

5

THE COURT: Well, if I can give you a

6 read, I don't know what Mr. Slavin's position is

7 going to be and his position legally is different

8 from Ms. Hoch's because the Court already

9 sustained Judge Seeborg's ruling with regard to

10 Mr. Slavin.

11

With regard to Ms. Hoch, the Court has

12 deferred it given the possibility that the

13 testimony would be cumulative and more cumulative

14 than probative. That's kind of my inclination at

15 the moment. I would need a proffer from

16 Plaintiff as the subpoenaing party as to why that

17 isn't the case. But I don't want to force the

18 issue with the Governor's Office unless I have to

19 and I'm not at that point at this time.

20

MR. GRELE: I'm just alerting the Court

21 that it may never happen.

22

THE COURT: Right. But as far as

23 Mr. Slavin is concerned, I'd want to know what

24 his legal grounds are for wanting to quash the

25 subpoena and I'll deal with that.

0772

1

MR. GILLETTE: Thank you, Your Honor.

2

THE COURT: All right. We'll see you

3 tomorrow morning. We are in recess. And if my

4 class would just come back, we'll meet in

5 chambers. You will come through this door.

6

We will be adjourned until 9:00 o'clock

7 tomorrow morning.

8

(Whereupon, the proceedings adjourned

9 for the day.)

10

11

---oOo---

12

13

14

15

16

17

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18

19

20

21

22

23

24

25

0773

1

CERTIFICATE OF REPORTER

2

3

4

5

I, Peter Torreano, Official Court

6 Reporter of the United States District Court for

7 the Northern District of California, 280 South

8 First Street, San Jose, California, do hereby

9 certify:

10

That the foregoing transcript is a

11 full, true and correct transcript of the

12 proceedings had in Morales v. Tilton, Case Number

13 C-06-0219-JF, dated September 27, 2006; that I

14 reported the same in stenotype to the best of my

15 ability, and thereafter had the same transcribed

16 by computer-aided transcription as herein

17 appears.

18

19

20

21

22

23

_______________________

PETER TORREANO, CSR

24

License Number C-7623

25

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0773

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4 MICHAEL ANGELO MORALES,

) C-06-0219-JF

)

5

Plaintiff,

)

) San Jose, CA

6

vs.

) September 28, 2006

)

7 JAMES TILTON, et al.,

) Volume 4 of 5

) PP. 773-1067

8

Defendants. )

____________________________)

9

TRANSCRIPT OF PROCEEDINGS

10

BEFORE THE HONORABLE JEREMY FOGEL

UNITED STATES DISTRICT JUDGE

11

A P P E A R A N C E S:

12

For the Plaintiff:

Law Offices of John R.

13

Grele

By: JOHN R. GRELE

14

703 Market Street

Suite 550

15

San Francisco, CA

94103

16

McBreen & Senior

17

By: DAVID A. SENIOR

1880 Century Park East

18

Suite 1450

Los Angeles, CA 90067

19

Jenner & Block

20

By: GINGER D. ANDERS

601 13th Street, NW

21

Suite 1200 South

Washington, DC 20005

22

23

(APPEARANCES CONTINUED ON THE NEXT PAGE)

24 Court Reporter:

PETER TORREANO, CSR

License Number C-7623

25

0774

1 A P P E A R A N C E S (Continued):

2 For the Plaintiff:

Jenner & Block LLP

By: RICHARD P.

3

STEINKEN

One IBM Plaza

4

330 N. Wabash

Suite 4500

5

Chicago, IL 60611-7603

6 For the Defendants:

Office of the Attorney

General

7

By: DANE R. GILLETTE,

DAG

8

RONALD S. MATTHIAS,

DAG

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9

455 Golden Gate Avenue

Suite 11000

10

San Francisco, CA

94102-7004

11

State of California

12

Department of

Corrections and

13

Rehabilitation

Office of Legal

14

Affairs

By: K. L. McCLEASE

15

1515 S Street

Suite 314 South

16

Sacramento, CA 95814

17

18

19

20

21

22

23

24

25

0775

1

EXAMINATION INDEX

2

MARK HEATH, M.D.

3

RESUMED CROSS BY MR. GILLETTE 779

4

REDIRECT BY MS. ANDERS . . . . 809

RECROSS BY MR. GILLETTE . . . 813

5

BRENT EKINS

6

DIRECT BY MR. GILLETTE . . . . 844

7

VOIR DIRE BY MR. GRELE . . . . 849

RESUMED DIRECT BY MR. GILLETTE 850

8

CROSS BY MR. GRELE . . . . . 877

REDIRECT BY MR. GILLETTE . . . 946

9

RECROSS BY MR. GRELE . . . . 968

10 ROBERT SINGLER, M.D.

11

DIRECT BY MR. GILLETTE . . . . 972

CROSS BY MR. GRELE . . . . . 1057

12

EXHIBIT INDEX

13

MAR

14 EXHIBIT

15 147 Court Order from Walker v. Johnson

795

16 148 Article entitled "The

934

Pharmacokinetics and Pharmacodynamics

17

of Thiopental"

18

19

20

21

22

23

24

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25

0776

1 San Jose, California

September 28, 2006

2

P R O C E E D I N G S

3

THE COURT: In the matter of Morales

4 versus Tilton. Let the record reflect t

5 773ounsel are present, and we will resume with

6 the cross-examination of Dr. Heath.

7

MR. GILLETTE: Your Honor, before we

8 begin with that there's two brief matters I'd

9 like to bring to the Court -- the attention of

10 the Court.

11

The first was with respect to my

12 essentially oral motion to quash the subpoena of

13 Bruce Slavin that was made yesterday afternoon.

14 We're withdrawing that. Mr. Slavin will not be

15 here today because we were told it would be

16 unnecessary for him to do so, but should it be

17 necessarily he will make himself available to the

18 Court for examination.

19

THE COURT: Very good.

20

MR. GILLETTE: And then with respect to

21 the issue about the Governor, it's my

22 understanding that the Governor's Office did file

23 a motion to quash the subpoena. An attorney,

24 Leslie Lopez from the Attorney General's Office,

25 is present. I don't know if the Court wants to

0777

1 take up that issue or not.

2

THE COURT: Well, let me inquire because

3 Mr. Grele made a comment yesterday that suggested

4 that the issue may be moot. I don't know what

5 Plaintiff's view about this is at this point.

6

MR. GRELE: Your Honor, it may be moot.

7 I think it certainly is premature to take it up

8 now. I think it all really depends on what goes

9 on in the examination of one of the state's

10 experts that's going to be later on today.

11

THE COURT: Is that Dr. Singler?

12

MR. GRELE: Or probably tomorrow

13 morning.

14

THE COURT: All right.

15

MR. GRELE: So, I mean, we could take it

16 up preliminarily if that's -- I frankly hadn't

17 even read the papers.

18

THE COURT: Well, since counsel is

19 here -- I read the papers. I read them at 7:15

20 last night.

21

MR. GRELE: Okay.

22

THE COURT: If we can get to that point

23 we can give -- give you an opportunity to file

24 your own papers, but my view of the matter is the

25 same as it was in ruling on the objection to

0778

1 Judge Seeborg's order, and that is I need to be

2 convinced that the evidence isn't cumulative.

3 And it would be very helpful actually to hear

4 from other witnesses to the meeting before ruling

5 on that.

6

So at this point I'm not inclined to

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7 order Mrs. Hoch to testify. That can change, but

8 that's my view at the moment.

9

MR. GRELE: I understand, Your Honor.

10 Thank you.

11

MR. GILLETTE: Just one other

12 housekeeping matter, Your Honor. Our expert,

13 Dr. Singler, is here. We'd like to ask him to be

14 able to remain in the courtroom for the rest of

15 the day.

16

THE COURT: That would be fine. That's

17 the same order that the Court made with respect

18 to Dr. Heath.

19

MR. GILLETTE: Our other expert is

20 waiting outside. We did not ask him to remain.

21

THE COURT: Very well. Okay. So let's

22 finish up with Dr. Heath and then we'll see where

23 we are.

24

All right. Mr. Gillette, you may

25 proceed.

0779

1

MR. GILLETTE: Thank you, Your Honor.

2

MARK HEATH, M.D.,

3 having been called as a witness on behalf of the

4 Defendant, having been previously sworn, resumed

5 the stand and testified as follows:

6

RESUMED CROSS-EXAMINATION

7 BY MR. GILLETTE:

8 Q Good morning, Dr. Heath.

9 A Good morning.

10 Q Now, yesterday in your testimony you stated

11 that it was your opinion that it is the potassium

12 which ultimately kills the inmate in a lethal

13 injection execution; is that correct?

14 A That's correct, yes.

15 Q And that, of course, assumes that --

16 A I can clarify. From reviewing the EKGs

17 that's in the great majority of cases, although

18 there are instances that don't fit that

19 description.

20 Q But in those majority of cases where it is,

21 in your opinion, the potassium that results in

22 death, that assumes that at that point the inmate

23 was, in fact, still alive after the delivery of

24 the thiopental and the pancuronium; correct?

25 A Yes. Death only occurs as a singular event.

0780

1 Q So it's reasonable to assume that an

2 execution which includes potassium is one that is

3 shorter than an execution that includes just

4 thiopental or even a combination of thiopental

5 and pancuronium?

6 A Yes. Based on the evidence in the great

7 majority of cases potassium does accelerate

8 the -- or bring forward the time of death, that's

9 correct.

10 Q Yesterday you testified that it is unethical

11 to use neuromuscular blockers such as pancuronium

12 in end-of-life situations; is that correct?

13 A That's my opinion and also the opinion of

14 the American Society of Critical Care Medicine.

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15 Q And is that because the use of the

16 pancuronium or a similar neuromuscular blocker

17 would, in fact, hasten the end of life?

18 A No. It's not an issue of hastening life.

19 It's an issue of -- that it has no medical

20 utility. It would only have the effect of

21 calming or comforting family members.

22 Q It would not have any effect in terms of

23 furthering the speed at which the individual

24 would die because of the repressive effect of the

25 neuromuscular blocker on breathing?

0781

1 A It depends on the individual clinical

2 setting. In the great majority of these cases

3 patients are on ventilators and they are

4 dependent on the ventilators for breathing, and

5 since pancuronium when it -- if it were allowed

6 enough time to kill somebody, it would do so by

7 causing respiratory arrest. That is an important

8 part.

9

Now, sometimes end-of-life situations

10 involve disconnecting from ventilators and then

11 if there's pancuronium there -- if it were

12 administered beforehand, it would hasten the end

13 of life and, if it were administered for that

14 purpose, then that would be something that

15 physicians wouldn't do.

16 Q Now, yesterday you were critical of the

17 decision by the warden to include on the

18 execution team an individual who you characterize

19 as having been disciplined for bringing narcotics

20 over to the prison; is that correct?

21 A I don't think that was my characterization.

22 I think I said illegal drugs.

23 Q Illegal drugs?

24 A Yes.

25 Q Are you aware that the drug at issue was a

0782

1 small quantity of marijuana?

2 A I don't know what the drug was or what the

3 quantity was.

4 Q Are you --

5 A Although I was -- I forget where I've heard

6 this. It was an amount that was considered to be

7 an amount for -- not for personal use but for

8 distribution.

9 Q Really? Where did you hear that?

10 A I don't know. I can't recall that.

11 Q Are you aware that that event occurred some

12 20 years before this individual was selected to

13 be on the execution team?

14 A I don't know when it occurred.

15 Q Is it your opinion that as an

16 anesthesiologist you're better able to determine

17 who should be on the execution team as opposed to

18 the warden at the prison?

19 A In terms of who should be handling

20 controlled substances, I don't think the warden

21 has any -- I'm not aware that he has any

22 expertise or that he's worked in an area where

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23 the handling of controlled substances is an

24 important issue.

25

And it's a very important issue in the

0783

1 operating room environment and in hospital

2 environments because there is such a problem with

3 drug diversion. And certainly one of the things

4 people get asked -- you know, people get drug

5 tested in our environment and a history of -- of

6 something very inappropriate like taking drugs

7 into a professional environment is considered to

8 be a different act than just personal consumption

9 in one's private life.

10

And so when somebody is bringing illegal

11 substances into a professional environment where

12 one has to have sharpness of mind, for example,

13 dealing with health care issues and I would

14 imagine dealing with security issues in a prison,

15 then that's considered to be a very, you know,

16 irresponsible -- represents an irresponsible

17 frame of mind, and it would be somebody who would

18 be very cautious about putting them in this kind

19 of situation.

20 Q Doctor, I understand that you really wanted

21 to add all that additional stuff because you've

22 been doing it throughout your testimony, but I'd

23 appreciate it if you would try to limit your

24 responses to the questions that I've asked.

25

Now, in terms of --

0784

1 A I'm sorry. You asked for my opinion and so

2 I gave it.

3 Q Yeah. Well, I do appreciate that.

4

Is it your view that an individual who

5 20 years earlier had had any kind of disciplinary

6 action involving drugs including a small quantity

7 of marijuana would never be allowed to

8 participate in a surgical procedure?

9 A I think if somebody had a history of use of

10 or bringing illegal drugs into a professional

11 workplace and they had -- that was an actual

12 documented thing that they were disciplined for

13 or where it had been processed by the law for,

14 arrested or charged or whatever -- I don't really

15 know that area -- that would be something that

16 would make people very concerned about giving

17 them access to controlled substances,

18 absolutely.

19

That would be a real blemish. There are

20 many other good jobs that you could do that don't

21 require access to controlled substances and there

22 are many people who don't have that kind of

23 blemish.

24 Q And, as far as you're concerned, one

25 incident 20 years earlier is a history and that's

0785

1 enough for you to say I wouldn't let that person

2 participate whatsoever?

3 A No. If I had somebody else I could select

4 from who didn't have that, I think it would be

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5 better to select that person.

6 Q Now, you also testified that, in your

7 opinion, it was cruel to include on the execution

8 team an officer who had had -- suffered from

9 depression at one time; is that correct?

10 A I think it was that he suffered from

11 post-traumatic stress disorder as a result of the

12 stress of his prison work combined with his

13 statement that the most stressful thing he ever

14 does is participate in executions.

15

That just seems like, you know, offering

16 that to somebody as an honor, which is how it was

17 couched to him, is luring him into a situation

18 that really might not be good for him.

19 Q Now, you really don't know anything more

20 than the description you've just given about this

21 individual, do you? You don't know anything

22 about his background or anything else other than

23 the limited amount of information that you've

24 obtained about him from the deposition testimony;

25 isn't that correct?

0786

1 A Well, there's information about medications

2 that he's had to take as a result of this

3 other -- I won't go into the details, but there

4 is information about -- that speaks to the level

5 of stress that he has experienced and his being a

6 person who is vulnerable, as many of us are, to

7 post-traumatic stress disorder.

8 Q So what you're saying I understand is that

9 you're prepared to diagnose this individual as

10 someone who ought not to be put in a stressful

11 situation because it's happened before and, in

12 your opinion, the warden should never have given

13 him the opportunity to participate in the

14 execution team? Is that your opinion?

15 A Poor judgment -- it's not my diagnosis of

16 post-traumatic stress disorder. It's a diagnosis

17 that somebody else has applied. And he himself

18 says that he finds this thing to be extremely

19 stressful.

20

So I just think that given that you want

21 personnel who are able to handle stress, somebody

22 who goes into a post-traumatic stress disorder

23 state can be quite dysfunctional despite their

24 best attempts to function. And if you have other

25 people to choose from, it seems like that would

0787

1 be a better choice.

2 Q And, again, as an anesthesiologist you think

3 that you're of better position to make that

4 choice than is the warden?

5 A Perhaps yes. I'm a physician and that's a

6 medical diagnosis. So I think it's common sense

7 to probably most of the people in the room that

8 somebody with post-traumatic stress disorder from

9 stressful work in a prison would not be the

10 person you'd pick for what he considers to be the

11 most stressful job there is in the prison when

12 it's a very important job that requires a high

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13 level of performance.

14 Q Well, it's not the person you would pick.

15 That doesn't mean that a warden couldn't make

16 that decision, does it?

17 A Anybody can make bad decisions.

18 Q And, in your opinion, it would be a bad

19 decision that they selected someone that you

20 thought was inappropriate?

21 A My opinion is at variance with what

22 evidently the warden's opinion was, that's

23 correct.

24 Q Now, when you're in a surgical situation and

25 giving anesthesia is it correct to say that there

0788

1 is a fine margin between trying to keep the

2 patient asleep versus not giving them so much

3 drug that you might kill them?

4 A Sometimes it's a fine margin. Sometimes

5 it's a wider margin. Certainly we're balancing

6 those considerations.

7 Q And would it be correct to say that it is

8 that margin, that balance, if you will, that

9 needs -- that is the reason why it's important

10 that you as an anesthesiologist maintain a

11 presence in the operating room or next to the

12 patient while the anesthesia is being delivered?

13 A Not really. That's one of the many reasons,

14 but I'll give you an example.

15

In cardiac surgery when a patient is put

16 on cardiopulmonary bypass and so the flow of

17 blood and the oxygenation are no longer

18 controlled by the anesthesiologist, they are

19 controlled by a group of perfusionists who are

20 professionals, who are experts in that area.

21 We'll give the patient a very large amount of

22 anesthetic drug before that happens.

23

And really one can argue that we're not

24 needed there to monitor anesthetic depth, but we

25 stay there because it's always possible that our

0789

1 services will be needed to adjust the anesthesia

2 level or other physiological parameters.

3 Q Well, you stay there because you want to

4 make sure that something doesn't go wrong, that

5 the individual will wake up but more dangerously

6 that they won't die; right?

7 A Well, they can't really die when they are on

8 cardiopulmonary bypass. The only way that could

9 happen is if the tubing separated and that would

10 be things that are beyond our profession to

11 address.

12

There are a separate group of

13 professionals, the perfusionists, and that's

14 their purview to make sure that the patient is

15 kept alive by that machine. So I'm not there to

16 stop the patient from dying because I am no

17 longer in control of their life or death once

18 this machine and those perfusionists have taken

19 over that job.

20 Q So there is a risk that in your view the

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21 drugs might not perform as expected; is that what

22 you're saying?

23 A That's always a consideration, yes.

24 Q And does that risk tend to diminish when you

25 are giving double to triple the amount of a

0790

1 clinical dose of a drug such as thiopental?

2 A The risk diminishes, but it's always

3 present.

4 Q I assume that your goal is in surgery not to

5 give more than is necessary; is that correct?

6 A I think in medicine one is always trying to

7 give the right amount.

8 Q And in the context of an execution more is

9 better; right?

10 A Well, I get the sense from -- or, actually,

11 more than a sense, but from the discussions and

12 your experts that there's a concern that giving

13 too much has -- of thiopental brings in problems,

14 also.

15

The concern is that there can be an

16 effect or there would be an effect on the cardiac

17 output from a large dose of thiopental and that

18 that could cause problems with circulating the

19 other drugs. That's been articulated by your

20 folks.

21

So -- and we're out in a realm where the

22 science hasn't been done on this, but I think

23 that's something that is a concern that can't be

24 discarded. And so it's not clear to me, and I

25 don't think it's clear to your folks, that more

0791

1 is better.

2 Q Well, that effect your talking about is one

3 that results in death without the potassium

4 perhaps being fully transported; right?

5 A That's one of the things that people are

6 thinking about, yes.

7 Q And, in fact, they are killing him, right,

8 with the thiopental?

9 A What they are talking about is a great

10 reduction in the cardiac output but not killing.

11 I didn't see anybody saying that that would

12 completely stop the circulation. It's just that

13 it would slow it down and it would take longer

14 for the drugs to reach their targets.

15 Q But you agree, do you not, that 5 grams of

16 thiopental would eventually be fatal?

17 A Absolutely. If it's effectively delivered

18 into the circulation, yes.

19 Q And, in fact, the 1.5 grams, if effectively

20 delivered, is a fatal dose in most cases?

21 A I think in the great majority of people

22 that's right.

23 Q Now, Doctor, do you understand that the

24 extent to which an execution procedure is deemed

25 humane is ultimately a constitutional question?

0792

1 A I think that's one interpretation of it. I

2 think that there's different folks who can decide

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3 what's humane. I think veterinarians decide what

4 is humane for their animals and I don't -- I'm

5 not aware if that's a constitutional issue or

6 not, but I suspect that it isn't.

7

So the term "humane" is used by many

8 different people. I think we're all trying to

9 use the same things, but sometimes it's being

10 discussed in a legal framework.

11 Q Well, as you just suggested, euthanizing

12 animals isn't something that's covered by the

13 Constitution, as far as you know, is it?

14 A As far as I know, I don't think the animals

15 have constitutional protections.

16 Q And when an animal is being euthanized they

17 are not being punished, are they?

18 A No. I think sometimes dogs are euthanized

19 because they've been biting, too many histories

20 of biting people. I don't know the details, but

21 I think even then it's not considered to be a

22 punishment for the dog. The dog just can't be

23 rehabilitated. So this has to be done.

24 Q Have you given any thought to the

25 consideration that considerations may apply to a

0793

1 public execution which really have no relevance

2 to the private euthanasia of an animal?

3 A I think it's clear that there are such

4 considerations, yes.

5 Q Now, you were rather critical yesterday of

6 my efforts to exclude evidence from Dr. Concannon

7 and the AVMA guidelines as irrelevant. I believe

8 you suggested that it was misguided for the state

9 to attempt to exclude that evidence. Is that

10 your testimony?

11 A I think if the goal here is to come up with

12 a humane execution, it would be to everybody's

13 benefit to get input from people who have

14 expertise in euthanasia, which is by definition

15 providing a humane death. I think it's in

16 everybody's interest to know as much as we can

17 and figure out the most humane way that it can

18 reasonably be achieved.

19 Q Is it your view that it's misguided to

20 determine that the AVMA guidelines are

21 irrelevant?

22 A I think to ignore the AVMA guidelines would

23 be to ignore a large body of useful information

24 that's been accreted over time by people who are

25 considerate and concerned and caring about how

0794

1 euthanasia occurs, and that's the best

2 information we have.

3

And I think we have every reason to

4 think it's unbiased information with respect to

5 the death penalty and this litigation. So I

6 think it would be very good to bear that strongly

7 in mind.

8 Q Now, Doctor, you have -- you've indicated

9 that you submitted declarations in a number of

10 other states. Is one of those states Virginia?

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11 A Yes.

12 Q Do you recall submitting a declaration in

13 the case of a death row inmate in Virginia by the

14 name of Darick Walker?

15 A I do, yes.

16 Q Are you aware that that -- that case was

17 recently decided on a summary judgment motion in

18 Virginia?

19 A I don't know all the technicalities, but I

20 was told that the case is going to be appealed or

21 something like that. So I don't know all of

22 these layers of legal work.

23 Q Have you had an opportunity to review the

24 decision that was issued by the district court in

25 that case?

0795

1 A I haven't seen it, no.

2

MR. GILLETTE: Your Honor, I'd like to

3 have marked as the next in order and I believe it

4 would be Exhibit 147.

5

THE COURT: Yes.

6

MR. GILLETTE: And I apologize. I've

7 only got a couple more copies. I will give one

8 to Mr. Kolombatovich as soon as we're done here.

9

If I may approach the witness?

10

THE COURT: Sure.

11

MR. GILLETTE: For the record, Your

12 Honor, this is a copy of an order that was issued

13 on September the 11th, 2006 by the Eastern

14 District of Virginia in the case of Walker versus

15 Johnson. And it was an order granting a motion

16 for summary judgment on a challenge to the

17 state's use of lethal injection.

18

(WHEREUPON, EXHIBIT 147 WAS MARKED FOR

19 IDENTIFICATION.)

20 BY MR. GILLETTE:

21 Q Dr. Heath, I'd like to direct your

22 attention, if I could, to the last page of this

23 opinion, page 11.

24

Do you have that page in front of you?

25 A I do, yes.

0796

1 Q And I'd like to read to you the first

2 sentence of that final paragraph.

3

"Finally, any discussion by plaintiff

4 about the standards of animal euthanasia has no

5 bearing on death penalty matters and is rejected

6 by the court."

7

Do you see that statement?

8 A I see that statement, yes.

9 Q Is it your opinion that the district court

10 judge in Virginia who wrote that was misguided in

11 finding it irrelevant?

12 A Two things. First of all, I don't -- I

13 appreciate the opportunity to read the entire

14 opinion because I don't know if there is

15 information in here that bears on the logic of

16 that conclusion, and I don't think it's wise to

17 talk about any part of an opinion without

18 understanding all the underlying thoughts that

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19 went into developing the opinion.

20

And, secondly, as you've been saying,

21 this is a legal matter. And so I don't know

22 whether Virginia has specific issues that define

23 what animal euthanasia applies to just from a

24 strictly legal point of view and what human

25 executions, how that should be governed.

0797

1

So but I would just say as a -- I think

2 a common sense matter of dignity that it would

3 not be good to execute a human by a method that's

4 prohibited for animals.

5 Q Well, Doctor, I appreciate that you'd like

6 to read the whole opinion. Certainly feel free

7 to do so, and I suspect if you have other

8 comments your counsel will cover them in redirect

9 examination, but what this judge said was animal

10 euthanasia has no bearing on the death penalty

11 with relation to human beings.

12

It strikes me as a statement that's

13 completely inconsistent with your belief that

14 we've got to look at the animals, isn't it?

15 A If you just let me read the opinion then.

16 Q Are you going to read the whole thing now?

17 I don't think we need to go through that. If you

18 don't want to answer that question, I'll just

19 withdraw it.

20

MS. ANDERS: Objection. Argumentative.

21

THE COURT: Sustained.

22

MR. GILLETTE: And I'll withdraw that

23 question, Your Honor.

24 BY MR. GILLETTE:

25 Q Now, Doctor, it's your opinion, is it not,

0798

1 that a physician or at least a nurse anesthetist

2 must be present to monitor anesthetic depth; is

3 that right?

4 A If potassium is going to be administered and

5 you want it to be some -- be a method of death

6 that's not prohibited for animals, and you want

7 it to be humane, you want to ensure it's humane,

8 you want to be able to tell the citizens of

9 California and courts that his execution was a

10 humane execution, then you need somebody who can

11 make sure the prisoner was unconscious.

12 Q Now, Doctor, yesterday you talked about a

13 letter that was sent from the president or

14 perhaps it may be the former outgoing

15 president -- I'm not sure -- of the American

16 Society of Anesthesiologists, a Dr. Guidry; is

17 that correct?

18 A Yes. He's the outgoing president.

19 Q Would you look at Exhibit 62, please. Does

20 this appear to be the message from Dr. Guidry

21 dated June the 30th, 2006, "observations

22 regarding lethal injection"?

23 A Yes, it does.

24 Q And if I could direct your attention to page

25 3 of the exhibit, please. And at the end of page

0799

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1 3 and going over to page 4 is the following

2 sum -- or statement of the actions by a physician

3 that would constitute physician participation in

4 an execution as defined by the AMA.

5

And it states beginning with the last

6 two lines on page 3: "Selecting injection sites;

7 starting intravenous lines as a port for a lethal

8 injection device; prescribing, preparing

9 administering or supervising injection drugs or

10 their doses or types; inspecting, testing or

11 maintaining lethal injection devices; and

12 consulting with or supervising lethal injection

13 personnel."

14

Do you see that?

15 A Yes.

16 Q Is that your understanding of what the AMA

17 has said are ethical constraints on a physician

18 participation in an execution?

19 A Yes. I don't have the list memorized, but

20 that looks right.

21 Q And then if you continue on page 4 to the

22 next paragraph in which Dr. Guidry specifically

23 discusses the Missouri case that you've talked

24 about before, Taylor, and he says as follows:

25 "Clearly an anesthesiologist complying with the

0800

1 Missouri ruling and despite this court's

2 position," referring to the Missouri court,

3 "ethical obligations would be violating the AMA

4 position which ASA has adopted. It is my belief

5 that the court cannot modify physicians' ethical

6 principles to meet its needs."

7

Do you see that?

8 A Yes.

9 Q Do you agree with that?

10

MS. ANDERS: Objection. There's a lack

11 of foundation.

12

THE COURT: Just a moment. Let me look

13 at the question again.

14

I think the witness is being asked if he

15 agrees with the opinion that's expressed and I

16 think he can answer that because it's his own

17 opinion. Overruled.

18

THE WITNESS: And this is just my

19 opinion about personal ethics. I think every

20 person develops their own personal ethics and

21 sometimes those ethics in the great majority of

22 cases comply with the law and comply with the

23 ethics of groups to which they participate.

24

People comply with the ethics of their

25 church or their temple, but they are not always

0801

1 in strict compliance with them and I think this

2 is an example of that.

3

We, just like everybody's ethics, aren't

4 always in compliance with what the laws might

5 be. We come up with our own ethics. And that

6 applies to physicians just like everybody else.

7 And some physicians, their ethics permit them to

8 be very deeply involved in executions including

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9 lethal injection procedures. There are

10 physicians who are willing to do things that are

11 absolutely necessary for allowing the execution

12 to happen.

13

For example, in executions where they

14 can't put a peripheral IV in. If a physician did

15 not do a central line, there would be no

16 execution. So the physician there is really

17 performing an essential step in the execution.

18 It's really no different than injecting the

19 potassium that kills the person.

20

And yet there are physicians who feel

21 comfortable doing that. They feel it's the right

22 thing to do. There's a very good article in the

23 New England Journal of Medicine talking about the

24 thinking that physicians go through when they

25 decide to participate in executions and why --

0802

1 and the ethical progress that they make in

2 working through the issue.

3

So in terms of Dr. Guidry's statement

4 about what -- whether a court -- I think the

5 quote is a court cannot modify -- it's

6 Dr. Guidry's belief that a court cannot modify

7 physicians' ethical principles to meet its needs.

8

Clearly that's right, but the reality is

9 is that there's a variation among physicians'

10 ethical principles and some physicians feel this

11 is the right thing to do to help out an execution

12 to make sure it's humane. Other physicians don't

13 feel that way.

14 Q But the bottom line, Doctor, is, in your

15 opinion, this would be unethical and a doctor who

16 did it would be unethical, correct, who

17 participated in an execution?

18 A It's my opinion it would violate my ethics

19 to do it, but I'm not in a position of telling

20 people what their ethics should be about the

21 death penalty. There are many extremely bright

22 and considerate and contemplative people who

23 think the death penalty is good and who think

24 that executions should be humane and that they

25 have the knowledge to further the humaneness of

0803

1 the execution, and those people who are

2 physicians decide to participate and they are

3 participating and it's not for me to judge them.

4 Q I think you stated yesterday that you only

5 know one anesthesiologist who, in your opinion,

6 has said something to the effect of "I would be

7 willing to participate in an execution"; is that

8 correct?

9 A I've heard varying degrees of willingness

10 from people, from people who would never go near

11 it ranging up to one person who was very explicit

12 about a willingness to do it, yes.

13 Q Who said "if asked, I would actually go in

14 and inject those drugs"?

15 A Yes. He said he would go, and specifically

16 about California, specifically about this case.

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17 Q Now, I'd like to ask you to take a look at

18 another exhibit. This is number 66.

19

Do you have that in front of you?

20 A Yes. This is I think the second of the two

21 Farber articles. Is that correct?

22 Q That is correct. And I'd like to direct

23 your attention to page 3 of the exhibit, please.

24 And specifically I'd like to direct your

25 attention to the top of the second column and the

0804

1 first sentence which states that the percentage

2 of respondents -- this is the doctors who were

3 sent these surveys.

4

"The percentage of respondents agreeing

5 to perform the disallowed actions varied from 19

6 percent for administering the lethal drugs to 36

7 percent for determining death."

8

Do you see that?

9 A Yes.

10 Q And, in fact, if you go a little bit further

11 down, you'll see that only 41 percent of the

12 respondents were willing to participate in any

13 way right, right, a minority of those who

14 responded?

15 A I don't see where that is.

16 Q If you look right below the sentence we just

17 read.

18 A Okay.

19 Q The second sentence down. "Forty-one

20 percent of respondents were willing to perform at

21 least one disallowed act, and 59 percent were

22 willing to perform none of the disallowed acts."

23

Do you see that?

24 A I see that, yes. I think that bolsters the

25 opinion that I just provided you.

0805

1 Q Now I'd like you to take a look at the next

2 page of this exhibit, please, page 4. And you

3 should see on the left-hand side a title, a

4 topic, "discussion"?

5 A Yes.

6 Q And the first sentence in that section

7 reads: "This study demonstrates that physicians

8 are willing to be involved in lethal injections

9 for capital punishment even though such

10 involvement is contrary to the best interests of

11 the prisoner, is in violation of the Hippocratic

12 Oath, and is prohibited by most medical

13 societies."

14

Do you see that?

15 A I see it, yes.

16 Q And then if you go further down, I want to

17 direct your attention to the third full

18 paragraph, and that begins as follows: "Some of

19 the physicians in our study may have made

20 specific value choices because they lacked

21 education about the ethical issues involved."

22

Do you see that?

23 A Yes.

24 Q And if you go to the end of that paragraph:

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25 "Greater effort will need to be made to ensure

0806

1 that all physicians are aware of the ethical

2 concerns regarding physician participation in

3 capital punishment."

4

Do you see that?

5 A I do, yes.

6 Q And then if you go over to the second column

7 and you go about four lines down -- or three

8 lines down, the following sentence: "Regardless

9 of the small size of these numbers," referring to

10 the sample, "the fact that some physicians would

11 be willing to perform actions involving lethal

12 injections is of concern."

13

Correct?

14 A Yes, I see that.

15 Q And that paragraph ends: "Third, and most

16 [sic] important, we do not know whether surveyed

17 physicians would actually perform the actions as

18 stated in their responses."

19

Do you see that?

20 A I do.

21 Q And, finally, the last sentence of this

22 article: "Furthermore, increased effort must be

23 made to educate physicians about the ethical

24 concerns involved in participating in capital

25 punishment."

0807

1

Do you see that?

2 A I do.

3 Q So is it your opinion, Doctor, that what you

4 would require is that the state find persons,

5 whether they are anesthesiologists or physicians

6 or registered nurses, who would be willing to act

7 at variance with the professionally prescribed

8 ethical standards of their profession?

9 A If it wants to do this mechanism of

10 execution and it wants to do it humanely, then it

11 would need to have that kind of person there.

12

Those people have been found in the

13 past. They clearly exist and it seems like the

14 state would want to try to find them as it has in

15 the past found individuals who are willing to

16 come and do basically 99 percent of what was

17 being asked. They found those people very

18 quickly.

19

It seems to me that if it -- if you want

20 to stick to this method, then try to find those

21 people.

22 Q Well, Missouri wasn't able to find anybody

23 very quickly, were they? They sent out their 300

24 letters and they didn't get any response and you

25 said they didn't wait long enough. What do you

0808

1 mean by "quickly"?

2 A Well, ten days.

3 Q Ten days is enough in your view that it

4 would only take ten days for the state to find

5 someone who would do something that in your

6 opinion is unethical?

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7 A To the contrary, they gave up after ten

8 days.

9 Q So it's not that quick. It takes more time

10 in your view?

11 A I think anytime you're trying to find an

12 anesthesiologist or a medical professional, it

13 takes considerably more than ten days to find a

14 person and to identify them and recruit them and

15 interview them and all those things. In the

16 medical profession that's generally a fairly

17 lengthy process.

18 Q Despite the ethical constraints that are at

19 issue here and the fact that the state would be

20 asking a physician or perhaps a nurse to violate

21 the standards of their profession, is this in

22 your view, getting someone in here to do it, is

23 that an easily correctable problem for the

24 state's procedures?

25 A It's my opinion if the proper outreach were

0809

1 done, you'd identify the people that you need. I

2 think at the very least it's troubling that no

3 where during any of in this litigation you don't

4 at least try to do that.

5

MR. GILLETTE: Your Honor, I have no

6 further questions.

7

THE COURT: Okay. I have a number of

8 questions of Dr. Heath. I don't know if you want

9 to do any redirect before or after that.

10

MS. ANDERS: I just have a couple of

11 questions.

12

THE COURT: Okay. Go ahead.

13

REDIRECT EXAMINATION

14 BY MS. ANDERS:

15 Q Good morning, Doctor.

16 A Hi.

17 Q Just to clarify something for the record

18 really quickly. When you stated -- when you were

19 talking about taking ten days to find an

20 anesthesiologist, were you speaking about

21 Missouri's efforts?

22 A Yes.

23 Q And when you were speaking about a state

24 finding anesthesiologists quickly, were you

25 referring to the State of California finding two

0810

1 anesthesiologists to assist in the Morales

2 execution within a week period or period of --

3 A If it wasn't clear, it seems to me that an

4 in order -- well, some choices came out, I think,

5 from the judge either this or this as proposed --

6 as possible ways of proceeding.

7

And I forget how long it took, but it

8 seemed to me like it was within 48 hours that

9 that answer came back that there were two

10 anesthesiologists, but I forget the exact timing,

11 but it was quick would be the right word. In

12 fact, I was surprised because I thought it would

13 be a more lengthy process.

14 Q And you and I spoke yesterday about the IV

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15 failure in the Tookie Williams execution and

16 whether any changes were made in the procedure as

17 a result of that; is that right?

18 A Yes.

19 Q Did witness number 5 testify that he and the

20 warden, in his opinion, should have been told

21 about the IV problem during the execution?

22 A Yes, he did.

23 Q And did he also testify that even though

24 that was true there were no changes made to the

25 protocol between the Williams execution and then

0811

1 the next execution, which is the Allen execution?

2 A That's correct, yes.

3 Q And were any changes, to your knowledge,

4 made in the subsequent revision process, the

5 March 2006 revision process?

6 A No. The current protocol doesn't say

7 anything about the importance or specify that

8 these folks who are putting the IVs in should

9 correspond and communicate with the rest of the

10 team to apprise them if they have any concerns

11 about the reliability of one of the IVs. There's

12 no mention of that still.

13 Q And, in fact, does the current protocol

14 forbid team members from speaking to one another?

15 A No. They haven't changed that either and

16 that would be one of the things you'd need to

17 change if they were going to have that kind of

18 correspondence.

19 Q Does the AVMA report contain protocols for

20 euthanasia?

21 A Not really. It's guidelines. That's what

22 they called it. The title of the page is "the

23 AVMA guidelines," and it's meant to be used by

24 professionals. It's to put boundaries there on

25 things which you can't do and to make

0812

1 recommendations about generally good ways of

2 proceeding, what classes of drugs and things are

3 good.

4

But it's written for professionals,

5 people who know how to exercise judgment and

6 decide what the best way to do something is.

7 Q In your opinion, do you think that a

8 protocol however detailed could ever be an

9 adequate substitute for a professional exercising

10 their judgment in the situation?

11 A No. It's very hard to write down all --

12 specify all the details of what would have to be

13 done to do something properly. In the end that's

14 what the roles of professionals are in our

15 society is that they are given the authority and

16 the delegation to exercise their judgment about

17 what the right way to do something is.

18

MS. ANDERS: I have no further

19 questions, Your Honor.

20

THE COURT: All right. Thank you.

21

Mr. Gillette, did you have anything

22 else?

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23

MR. GILLETTE: If I could, Your Honor,

24 just a couple of very brief questions.

25 //

0813

1

RECROSS-EXAMINATION

2 BY MR. GILLETTE:

3 Q Doctor, you've talked about the ability of

4 the state to fairly quickly find somebody who --

5 to find two anesthesiologists to participate in

6 the Morales executions; isn't that correct?

7 A Yes.

8 Q And I assume it's your understanding that

9 that was based on the initial order that was

10 issued by Judge Fogel; correct?

11 A I don't really know the timing, but you're

12 right. I assumed that the judge proposed -- or

13 the judge set this forth as a possible way of

14 proceeding and that then these people came

15 forward very quickly.

16 Q And are you aware that there was a

17 modification that was issued by the Ninth Circuit

18 which changed the scope of the involvement that

19 was anticipated of those anesthesiologists in the

20 execution that ultimately resulted in their

21 conclusion they could not ethically participate?

22 A You're asking me to come to a legal opinion

23 just as a layperson. It seems to me that it

24 was -- that part of providing an anesthesiologist

25 there is obviously to -- for them to make

0814

1 necessary adjustments if they determine that the

2 anesthetic depth needs to be increased.

3

So from a lay point of view I don't see

4 that as any modification. It's intuitive and

5 obvious to an anesthesiologist if you're called

6 to make sure somebody is asleep that that

7 includes making sure they are asleep.

8 Q So you're basing your conclusion on how easy

9 it was to find without really knowing what they

10 were originally told as opposed to what

11 ultimately turned out was expected of them and

12 how they viewed their ethical limitations in that

13 respect?

14 A I don't know all the ins and outs of the

15 discussion that happened there, you're right.

16

MR. GILLETTE: Thank you.

17

THE COURT: All right. I have just a

18 few areas I'd like to go into with you,

19 Dr. Heath. I asked some of these questions

20 earlier. So if I'm repeating myself, I'm sorry.

21 I just want to try to make sure I've got all of

22 my concerns covered.

23

With respect to the various types of

24 barbiturates that could be used to anesthetize

25 someone, did I understand you correctly, and

0815

1 obviously you're not commenting on the context of

2 an execution, that thiopental has unique

3 properties such that it's actually not used in

4 surgical anesthesia anymore?

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5

THE WITNESS: Yes. But I wouldn't want

6 you to think that that is -- that represents a

7 major problem with thiopental. There's another

8 drug called propofol that I think has completely

9 supplanted its use in the United States because

10 it has -- some attributes are preferable, but

11 thiopental is also a very good induction agent.

12

THE COURT: Okay. If you were going to

13 euthanize a large primate like an ape or a

14 gorilla, would there be any advantage in using a

15 slower active -- slower acting anesthetic in

16 order to accomplish that?

17

THE WITNESS: Yes. I think at this

18 point it might be worth clarifying a potential

19 semantic distinction.

20

THE COURT: Okay.

21

THE WITNESS: We talk about

22 ultrashort-acting barbiturates and that means

23 that they don't last for a very long time. They

24 wear off quickly.

25

THE COURT: Right.

0816

1

THE WITNESS: But it's important to

2 understand that there's a strong correlation

3 between how fast barbiturates wear off and the

4 speed of their onset.

5

THE COURT: Understood.

6

THE WITNESS: Many people think of them

7 as ultrafast acting as well as ultrashort acting,

8 in other words, that their onset is very rapid.

9 And it's very true that there's a correlation.

10 The ones that have the fastest attack time tend

11 to be the ones that wear off the most quickly

12 that are linked properties.

13

THE COURT: If I understood Dr. Ebling

14 correctly, I think I get that. In other words,

15 if you were going to use pentobarbital, for

16 instance, it would last longer, but it would also

17 take longer to establish anesthetic depth.

18

THE WITNESS: The caveat there is that

19 the way veterinarians use pentobarbital they are

20 giving a very large overdose and so given the

21 larger amount of the drug also accelerates its

22 attack. And so they are giving a large enough

23 dose of pentobarbital that its attack time, its

24 onset time is also now very fast.

25

So a long-acting barbiturate when given

0817

1 in very high doses becomes a fast-acting

2 barbiturate, also.

3

THE COURT: Let me see if I can ask you

4 a hypothetical you're able to answer. Let's

5 assume that I wanted to euthanize a large primate

6 and let's say I wanted to do it in a reasonably

7 short period of time. In other words, I did not

8 want to have a prolonged period of euthanasia.

9

What would be the barbiturate for me to

10 use for that purpose?

11

THE WITNESS: I don't know about the

12 best. I know that veterinarians use

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13 pentobarbital. They make heavy use of

14 pentobarbital and I have to believe that's based

15 on their cumulative experience that that's what

16 they've come to think is a good way of doing it.

17

THE COURT: And do you have any

18 knowledge as to how long -- let's assume we're

19 dealing with a primate of approximately 150, 160

20 pounds. Do you have any knowledge as to how long

21 it would take on the average for a veterinarian

22 to euthanize a primate of that size using

23 pentobarbital?

24

THE WITNESS: I don't know their exact

25 techniques for doing that exact situation and so

0818

1 I don't know if they give something to accelerate

2 the death or if they just give a large amount of

3 pentobarbital and wait until death occurs. I

4 haven't been present while that was done.

5

THE COURT: So you don't know what the

6 typical expectation is in terms of time in order

7 to cause death by that method?

8

THE WITNESS: I can just speculate. It

9 would be much better to talk to a veterinarian

10 who's done it.

11

THE COURT: All right. So if this were

12 something that the Court were interested in or

13 the state were interested in, they could contact

14 a veterinarian with experience in euthanizing

15 animals of that species and get that information.

16

THE WITNESS: Yes. I think that would

17 be a good idea.

18

THE COURT: Okay. You testified about

19 the IV lines that the state uses, that California

20 uses in delivering the drugs used in an

21 execution. And I believe I understood your

22 testimony to be that the longer the lines are,

23 the more time it takes for the drugs to get into

24 the -- to the body of the person being executed;

25 is that right?

0819

1

THE WITNESS: If there's no adjustment

2 in flow rate, if the flow rate is the same.

3

THE COURT: So assuming a constant flow

4 rate, if you had three sets of lines, it would

5 take you three times as long as if you had one

6 set of lines?

7

THE WITNESS: You mean three sets of

8 lines strung together in series or three

9 completely separate?

10

THE COURT: No. I meant a series. In

11 other words, if you had 18 feet rather than six.

12

THE WITNESS: Precisely, yes. It would

13 take longer, yes.

14

THE COURT: And do you have an opinion

15 as to whether the length of line you observed at

16 San Quentin is -- well, do you have an opinion

17 about it? I'll just leave it very general. Do

18 you have an opinion about it?

19

THE WITNESS: I do, yes. It's much

20 longer than we would ever use to induce

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21 anesthesia or care for our patients to ensure

22 anesthetic depth because we would be right there

23 with the patient and so our line is more on the

24 order of six or seven feet.

25

And it's a result of them separating

0820

1 themselves into a different room that it then

2 becomes necessary to have that long tubing, but

3 it's definitely an increased risk.

4

THE COURT: Okay. Well, that's what I

5 want to zero in on. I'm not getting into the

6 question of whether people should be in the same

7 room. You've expressed your opinion about that

8 and I understand that.

9

What I'm trying to understand is the

10 risks associated with having lines of this

11 length. Obviously in a clinical setting you

12 would want, as I understand you to say, the line

13 to be no longer than six or seven feet, but

14 that's primarily, if I understand you, because

15 the anesthesiologist and whoever is administering

16 the drugs want to be observing the patient while

17 that takes place.

18

But putting that interest aside, are

19 there any risks associated with a longer line

20 apart from the time factor that we testified

21 about?

22

THE WITNESS: Yes, there are.

23

THE COURT: And what are those risks?

24

THE WITNESS: So it's important to be

25 able to visualize the full extent of the tubing.

0821

1 And the longer it is and the longer the distance

2 which it's spanning, then the harder it is to

3 achieve that.

4

So if it's going -- as it is at San

5 Quentin, going around behind a board on which the

6 stopcocks are mounted and then looping down and

7 going into holes and running it in a place where

8 it's hard to see at a low level in the chamber

9 and then coming up to the arms where you can't

10 really see one of the arms, those things make it

11 hard to survey and look for problems.

12

And we don't have single pieces of IV

13 tubing that are 20 feet long. We fabricate those

14 by connecting a series of short pieces.

15

THE COURT: Right. What I'm trying to

16 get at is what kind of problems could occur given

17 the length of line that you have at San Quentin.

18

THE WITNESS: Each time you have to make

19 that connection those connections become

20 vulnerable points. And there are publications

21 talking about anesthetic depth being inadequate

22 because of leaking from those connection points

23 and, you know, people recognize it because they

24 are monitoring depth. They think that the

25 patients are getting the drugs, but, in fact, at

0822

1 those connection points, there's a leakage

2 occurring that they hadn't seen.

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3

THE COURT: If there was a leakage,

4 though, you would expect there to be some

5 evidence of it such as liquid on the floor,

6 wouldn't you?

7

THE WITNESS: If you see that. But it

8 could be soaking into the gurney or the

9 prisoner's clothes or it could be leaking in a

10 place where you don't see it collecting on the

11 floor. And even if you did, as we know, you need

12 to have some plan for what to do about that and

13 if you have an anesthesiologist there who's seen

14 all these problems before, the leaking and the

15 kinking and the infiltration, then he or she can

16 quickly react to it.

17

But if you don't, then it enhances or

18 amplifies the problems of having a leak.

19

THE COURT: Besides leakage at the

20 connecting points and time delay, are there any

21 other risks associated with the length of line?

22

THE WITNESS: It's a little complex, but

23 one of the things that happens is that you get

24 loops in the tubing. So instead of the tubing

25 going straight like this it might get laid out so

0823

1 it does a loop like this.

2

THE COURT: All right. And I recall

3 seeing something like that when we toured. So

4 what is the problem with that?

5

THE WITNESS: It's very interesting.

6 It's a little bit of geometry. Maybe it would

7 help if I drew it. I will try, but I can move my

8 hands in the air.

9

Normally you would think of the fluid as

10 flowing down from the bag to the prisoner who is

11 by definition lower. Gravity makes the fluid

12 flow.

13

If you have a loop like that, if you

14 think about it, if the stopcock is here on this

15 part of a loop, the fluid actually has to flow up

16 to go to the prisoner because it goes down and

17 then up and then around and back down. If you

18 put new stopcocks on that part of the loop where

19 the flow direction is at least reversed from what

20 we're intuitively thinking, then that often leads

21 people to inject retrograde, to inject in the

22 wrong direction.

23

And that's a really common mistake that

24 we anesthesiologist have all made a number of

25 times. And the way we -- at least the way I

0824

1 avoid making that mistake is I make sure I check

2 the drip chamber when I'm injecting the drugs to

3 make sure that I'm not pushing drugs back up into

4 the IV bag.

5

THE COURT: Well, wouldn't at some

6 point -- I'm picturing the U joint under my sink

7 as you drew that picture. Initially there is

8 that water flowing downhill phenomenon, but at

9 some point if you get enough water in the drain

10 the water flows uphill and goes out through the U

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11 joint.

12

So why isn't the phenomenon you just

13 described a very transient one?

14

THE WITNESS: Good question. The

15 problem is that if you're injecting thiopental in

16 large volumes, you start injecting into that

17 piece of tubing, unless they are injecting in the

18 wrong direction, that large volume will rapidly

19 fill the tubing and go up into the IV bag and be

20 diluted in that 1 liter of IV bag.

21

So say 100 cc of thiopental gets diluted

22 into 1 liter of fluid. Now when you open the

23 stopcock and let it start flowing forward again

24 what's flowing in is not that bolus of 1.5 grams

25 in 100 cc, but instead is very diluted and it's

0825

1 probably diluted by a factor of eight that's

2 dripping out of the bag.

3

THE COURT: Would that account for the

4 thiopental getting into the inmate's body more

5 slowly than anticipated? Is that the net effect

6 of what you just described?

7

THE WITNESS: That's one of the reasons

8 our induction in a clinical setting can go wrong

9 is when we accidentally do retrograde

10 injections.

11

And, furthermore, the pancuronium is in

12 a small volume. So what you were talking about

13 where the resumption of forward flow would clear

14 it forward again would happen completely with the

15 pancuronium because that's just in a few cc, less

16 than 10 cc. I forget the amount. Maybe 40 cc.

17

So the full dose, paralytic dose of the

18 pancuronium is still in the tubing after that

19 happens and then when you resume forward flow it

20 would carry the full paralytic dose into the

21 patient or prisoner.

22

THE COURT: All right. So so far

23 there's the possibility of retrograde injection,

24 the passage of additional time because of the

25 length of the tubing, the possibility of leaks.

0826

1

Are there any other risks that result

2 from the length of line that's used at San

3 Quentin?

4

THE WITNESS: The main thing that comes

5 to mind is the secondary risk when you have a

6 long length of tubing. It's because your patient

7 is far away from where you're working.

8

THE COURT: Right.

9

THE WITNESS: And then that separation

10 is in itself a big problem.

11

THE COURT: Well, and I don't have any

12 questions about that because I understand your

13 point about that.

14

THE WITNESS: Okay.

15

THE COURT: All right. Now I want to

16 move on to some other areas. I believe that

17 there will be testimony from Dr. Singler that the

18 injection of potassium is not as painful as you

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19 have testified that it is.

20

Is it your belief that any person

21 injected with -- I believe it's 30 milligrams of

22 potassium chloride -- would suffer excruciating

23 pain?

24

THE WITNESS: It's really this

25 concentration, that it's 2 milliequivalents per

0827

1 mL, which is a very very high concentration.

2 They would with 100 percent certainty suffer

3 excruciating pain.

4

THE COURT: And for how long?

5

THE WITNESS: Until they die.

6

THE COURT: Which would be less than a

7 minute; correct?

8

THE WITNESS: It depends on the speed of

9 circulation. We talked about this before, but

10 different people have different circulation

11 speeds. I've seen vein to brain times of 30

12 seconds and I've seen vein to brain times of

13 several minutes. If the thiopental has gone in

14 first and has slowed the heart down, then that

15 vein to brain time might be longer. And so --

16

THE COURT: With a couple of exceptions,

17 which I'm going to ask you about, the execution

18 logs appear to reflect that the inmates who were

19 given potassium died very quickly after being

20 given potassium.

21

THE WITNESS: I think that's right, yes.

22

THE COURT: But if they are not properly

23 anesthetized, is it your opinion that 100 percent

24 of them will suffer excruciating pain from the

25 time that the potassium arrives in their body

0828

1 until the time that they die?

2

THE WITNESS: Yes. And in trying to

3 ascertain that time there's a physiological

4 question that I've discussed with a number of

5 colleagues trying to get their answer.

6

As you know, the venous blood in the

7 normal circulation comes to the heart. It then

8 gets pumped by the right side of the heart to the

9 lungs where it picks up oxygen. It then goes

10 back to the left side of the heart and now in its

11 oxygenated form gets distributed to the rest of

12 the body.

13

Part of where it's distributed to is the

14 coronary arteries which actually perfuse the

15 muscle and allow the heart to stay alive and to

16 pump.

17

And so one question that I've had is

18 does the potassium stop the heart when it

19 initially travels into the right side of the

20 heart or does it have to get pumped through the

21 lungs through the left side of the heart and then

22 perfuse the left side of the heart.

23

And I couldn't find any scientific

24 information about that and so all I was able to

25 do is ask cardiologists and electrophysiologists,

0829

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1 people who know this area.

2

And everybody's opinion is that it would

3 have to go through the lungs first and be

4 perfused into the myocardium, the muscle of the

5 heart, which would add to the amount of time that

6 it takes to cause death.

7

THE COURT: Well, we actually have

8 records of how long it's taken inmates to die

9 after being given potassium, which we can draw

10 inferences from.

11

THE WITNESS: Yeah.

12

THE COURT: Now, if you change the

13 concentration of the potassium and gave the same

14 dose, would it be a lethal dose?

15

THE WITNESS: Now we're getting into

16 questions -- I'll try to help as much as

17 possible.

18

THE COURT: All right. Let me rephrase

19 it. Again, I want to be sensitive to your

20 concerns and at the same time I want to get the

21 information I need to get.

22

Let's say we were trying to kill a

23 gorilla that weighed between 150 and 200 pounds

24 and we wanted to use potassium chloride in

25 addition to the anesthesia that had been

0830

1 previously given.

2

If we changed the concentration but not

3 the total amount of drug that was being given, is

4 it the concentration that effects the death or is

5 it the amount of drug in total?

6

THE WITNESS: It's the amount -- the

7 thing that causes the pain and the thing that

8 causes the heart to stop are the same things.

9 It's the concentration of potassium that is

10 reached next to an electrically excitable

11 membrane, in other words, a nerve or the heart

12 muscle.

13

So if you're going to stop the heart,

14 you're going to have to achieve a concentration

15 that would also cause pain. I don't think

16 there's a --

17

THE COURT: That's exactly what my

18 question is. So you can't separate the two. You

19 can't have a lethal dose and a concentration that

20 wouldn't cause pain?

21

THE WITNESS: I think that it would be

22 possible to build it up over a very long time.

23 So, for example, a person who has kidney failure

24 and doesn't secrete potassium.

25

THE COURT: But it would take you a long

0831

1 time.

2

THE WITNESS: If you were to give it in

3 a low enough concentration that didn't hurt, it

4 would take I think quite a while to get to a

5 concentration that would stop the heart.

6

THE COURT: Okay. Now, with respect to

7 the use of potassium in California executions,

8 the logs of the Allen execution and the Massey

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9 execution both indicate that those inmates

10 received a second dose of potassium. In other

11 words, the first one did not kill them.

12

Do you have an opinion as to why that

13 happened?

14

THE WITNESS: I really don't know why

15 that happened. The first dose, if it was

16 effectively delivered, I'm pretty confident that

17 will stop somebody's heart. But I'm really not

18 sure. It may relate to this issue that's been

19 raised about thiopental depressing circulation.

20 I'm just not sure.

21

THE COURT: All right. So you don't

22 have any particular opinion as to why that might

23 have occurred?

24

THE WITNESS: I think it's outside of

25 science. I can speculate all kinds of -- I can

0832

1 give you many conjectures, but I wouldn't be able

2 to settle on any one of them.

3

THE COURT: Okay. Well, I'm not asking

4 for conjecture.

5

Okay. You've expressed a number of

6 criticisms of the way California carries out

7 protocol 770. If California were proceeding with

8 a single drug, that is, a massive dose of

9 barbiturate, would that alleviate your concerns?

10

THE WITNESS: No. The concern here I

11 think is the same concern that the American

12 Veterinary Medical Association has. When you use

13 potassium it is an inhumane death and so you need

14 to --

15

THE COURT: I'm sorry. You didn't

16 understand my question. I need to ask it again.

17

If we didn't use potassium, if the only

18 drug that was used to execute people in

19 California were a barbiturate in a high enough

20 dose it would always be fatal, to what extent

21 would you still have the same concerns about the

22 protocol?

23

THE WITNESS: The concerns would be

24 different. I'd just want to make sure that --

25 one would need to make sure I hope that it was --

0833

1 it was the right personnel were there who were --

2 just as when a dog is euthanized in California or

3 the United States that it's a person who knows

4 how to do that. Because even with that technique

5 there are things that can go wrong that can

6 result in it being inhumane.

7

THE COURT: Well, that's what I want to

8 focus on. So assuming that the IV is properly

9 set, assuming that you have a reasonable length

10 of tubing for the delivery of the drug, and

11 assuming that the personnel who were involved

12 have been adequately trained in the mechanics of

13 what they need to do, and you've already

14 testified that barbiturates don't cause any pain,

15 so what problems do you foresee if that's the

16 approach that's taken?

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17

THE WITNESS: If they are right there in

18 the room?

19

THE COURT: Let's assume -- I didn't

20 give -- that wasn't part of my hypothetical. So

21 what I want to understand is what problems can

22 arise. And I'm not asking you to give me a legal

23 opinion. I just want to know from a medical

24 standpoint what kinds of problems can arise if

25 you give someone a massive dose of barbiturate

0834

1 and the delivery system is properly set up.

2

THE WITNESS: So, again, as always, if

3 the drug is effectively delivered into the

4 circulation, then it will work properly. The

5 problems that arise I believe in veterinarian

6 euthanasia are similar to those that arise in

7 medical practice and in lethal injection.

8

For example, if there is not a delivery

9 of the full dose, the animal can go -- be

10 unconscious, partly unconscious, but not enough

11 to completely stop breathing. And then you have

12 an animal that is staying alive but is not

13 properly oxygenating and starts getting brain

14 damage and problems like that.

15

THE COURT: Okay. And that actually was

16 something that you testified about back in

17 February when we were looking at this issue. But

18 what I want to focus on then is the issue -- I

19 want to make sure I've got all the problems lined

20 up.

21

The principal problem is if you don't

22 have an effective delivery of the drug, then you

23 can put the person to sleep or the animal to

24 sleep and not achieve death?

25

THE WITNESS: That's what veterinarians

0835

1 worry about.

2

THE COURT: You'd have permanent brain

3 damage or you wouldn't kill the person -- or you

4 wouldn't kill the creature you're trying to

5 kill?

6

THE WITNESS: Yes. You'd have seizing.

7 You'd have all kinds of problems.

8

THE COURT: Now, are there ways to

9 monitor brain activity and breathing without a

10 human being observing them?

11

THE WITNESS: No. There are monitors

12 that provide information to human beings, but

13 then you need a human brain to synthesize and

14 interpret that information and compare it with

15 what they are actually seeing, any movements or

16 anything else that they are actually seeing.

17

THE COURT: Well, all right. But,

18 again, let's assume in this hypothetical we're

19 just using a barbiturate. We have an EEG and we

20 have an EKG, both of which are I assume

21 well-established monitors that are available.

22

Solely for the purpose of determining

23 whether -- whether death was occurring,

24 wouldn't -- wouldn't that be sufficient, and, if

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25 not, why not?

0836

1

THE WITNESS: I have to think about the

2 use of an EEG. I just want to make sure.

3 There's one kind of device that uses EEG

4 information, but is not what we call an EEG

5 monitor. There are these BIS monitors and

6 similar monitors made by other companies that

7 provide a number, be it on a scale from zero to

8 100, that correlates with level of consciousness,

9 but that's very different from --

10

THE COURT: I'm not talking about

11 consciousness now. I'm talking about death.

12 That if you flat-line on both an EEG and an EKG,

13 you can pretty safely say that the person or the

14 animal is dead.

15

THE WITNESS: That's interesting. EEGs

16 can be used in a clinical setting to assess brain

17 death and they aren't -- they are one of the

18 things that we use to assemble a diagnosis of

19 brain death. We're always very careful about

20 that.

21

And one of the times that you don't use

22 an EEG is if there is -- if you know that the

23 person has been administered or received

24 medications that suppress the EEG. So that's one

25 of the contraindications for using an EEG to make

0837

1 that determination. You can't determine brain

2 death with an EEG.

3

THE COURT: If you have a flat line on

4 an EKG, that creature is dead and isn't coming

5 back; correct?

6

THE WITNESS: You have to always check

7 for the -- check the pulse also because -- which

8 is why the doctors, I believe, do that.

9

THE COURT: That's why you have the

10 pronouncement of death.

11

THE WITNESS: Right. Because the EEG

12 leads --

13

THE COURT: I'm on an EKG now.

14

THE WITNESS: You're right. Thanks for

15 correcting me.

16

The EKG leads can fall off or detach the

17 things you peel off and --

18

THE COURT: Sure.

19

THE WITNESS: But you're right. If, in

20 fact, the EKG is correctly showing a flat line,

21 the person is dead.

22

THE COURT: Okay. So if you're trying

23 to kill a large primate humanely and you're

24 giving them a large dose of a barbiturate in

25 order to do that and hypothetically instead of

0838

1 having somebody right next to them you have them

2 hooked up to an EKG, the EKG should give you

3 feedback as to whether the barbiturate is doing

4 what it's supposed to do; correct?

5

THE WITNESS: Yes.

6

THE COURT: All right. And I think I

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7 understand this, but barbiturates are not

8 analgesics; correct?

9

THE WITNESS: If you're having a hard

10 time with that, there's a good reason for it.

11 Sometimes things are not framed well or described

12 well and that can make one feel like one is going

13 around and around in circles on an issue.

14

Barbiturates when you give them at a low

15 enough dose where the person is still conscious

16 are not good at blocking pain. A sedated person,

17 they respond a lot to pain. If you give

18 barbiturate in a dose that produces deep

19 unconsciousness, you can't have pain.

20

So, in effect, they are functioning as

21 analgesics. It's a little bit of a semantic

22 issue.

23

THE COURT: But they are not directly

24 suppressing the pain. You just aren't awake to

25 notice that you're hurting?

0839

1

THE WITNESS: It suppresses the whole

2 brain including the systems that carry pain. It

3 suppresses everything.

4

THE COURT: All right. I think that may

5 be it. Let me just make sure.

6

Actually, I want to just ask you

7 something about this Virginia case that

8 Mr. Gillette referred to. And I know you haven't

9 read the opinion and so just think of this as a

10 hypothetical question that I'm asking you as an

11 expert.

12

And I'm just going to read starting in

13 the middle of page 3 to the top of page 4. And

14 this is -- for the record this is Exhibit 170 --

15 or, excuse me, 147.

16

MR. GILLETTE: 147.

17

THE COURT: "The execution takes place

18 in a one-room chamber. The inmate is strapped to

19 a gurney in the front of the chamber and the

20 executioner, IV team and the physician who

21 pronounces death are behind a curtain in the rear

22 of the chamber. The curtain has two holes so the

23 executioner and the IV team can observe the

24 inmate during the administration of the drugs.

25 The IV team members have backgrounds in relevant

0840

1 medical fields and training in placing IV lines.

2 The IV team places two IV lines in the inmate.

3 The IV lines are connected to several feet of

4 tubing that allows the drugs to be administered

5 by the executioner from behind the curtain. The

6 IV team checks the IV lines by using a saline

7 drip. Once the IV team verifies that the IV line

8 works, the IV lines signals the executioner and

9 moves behind the curtain to continue to monitor

10 the saline drip. The executioner has training to

11 determine whether the IV line is flowing properly

12 as he administers the drugs. Also, the

13 executioner can see the inmate and the IV line to

14 determine whether the drugs are entering the

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15 inmate's body properly. If the first IV line is

16 not working properly, the executioner can switch

17 to the second IV line."

18

Now, there was questioning by

19 Mr. Gillette about the relative merit of various

20 execution protocols and you said California was

21 in the bottom quartile I think is your testimony.

22

What I've just read to you, if you could

23 give me a relative comparison of that protocol

24 versus what you've observed in California in

25 terms of this top-to-bottom ranking that you

0841

1 talked about with Mr. Gillette.

2

THE WITNESS: Yes.

3

THE COURT: If you need to qualify it

4 for ethical reasons, I understand, but it would

5 actually be very very helpful to me to know

6 whether this type of protocol addresses some of

7 concerns that you've raised.

8

MS. ANDERS: Excuse me, Judge. I'd just

9 like to -- I believe most of the information in

10 the Walker case is under a protective order. So

11 I'd just like to remind Dr. Heath --

12

THE COURT: No, I'm not -- I don't want

13 you to reveal anything confidential either. What

14 I've read is from a published opinion. So I

15 think I'm on safe ground.

16

But to the best of your ability and

17 within the ethical constraints you have, I would

18 appreciate your answer.

19

THE WITNESS: Sure. I'll do my best. A

20 large part of my opinion is informed by

21 information that is not in this public document.

22

THE COURT: Okay. That's why I said

23 that I started it this way. Let's forget about

24 the Walker case in fact and treat my question as

25 a hypothetical.

0842

1

If a hypothetical state had such a

2 protocol, does that begin to address the concerns

3 that you've articulated about California's

4 protocol? And please explain your answer.

5

THE WITNESS: It does begin to address

6 them. They have him in the same -- they say they

7 are in the same room as opposed to being --

8 having the prisoner sealed in a gas chamber and

9 the executioners being in a different room. But

10 they are in the same room. So now they have

11 auditory input.

12

They have shorter IV tubing as a result

13 of that which eliminates the concerns you were

14 just asking me about before and there -- they

15 are, therefore, closer to the prisoner and have

16 better ability to survey the scope of the

17 apparatus, the scope of their IV system and all

18 of those things. So those things are all areas

19 in which it's distinct from California.

20

THE COURT: Okay. And they move in the

21 direction of ameliorating the flaws that you've

22 identified?

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23

THE WITNESS: I think that's right, yes.

24

THE COURT: I don't believe I have any

25 other questions. Is there any follow-up?

0843

1

MS. ANDERS: I don't have any, Your

2 Honor.

3

MR. GILLETTE: No more questions, Your

4 Honor.

5

THE COURT: Okay. You may step down,

6 Doctor. Thank you.

7

Let's take the morning recess and resume

8 at 10:30.

9

(Recess taken.)

10

THE COURT: In the matter of Morales

11 versus Tilton we are back on the record. Counsel

12 are present.

13

And does Plaintiff wish to call any

14 additional witnesses?

15

MR. GRELE: No. I think we're going to

16 rest, Your Honor, subject to moving in exhibits

17 and also subject to I think we're finalizing the

18 joint statement of facts and we're hoping that

19 that precludes our need to call any further

20 witnesses.

21

THE COURT: All right. We'll keep the

22 record open then with that understanding.

23

And, Mr. Gillette, you may call your

24 first witness.

25

MR. GILLETTE: Thank you, Your Honor.

0844

1

The defense will call Dr. Brent Ekins,

2 if I may just step out and bring him in.

3

THE CLERK: Raise your right hand,

4 please.

5

BRENT EKINS,

6 being called as a witness on behalf of the

7 Defendant, having been first duly sworn, was

8 examined and testified as follows:

9

THE CLERK: Thank you. Be seated.

10

Please state your name and spell it.

11

THE WITNESS: My name is Brent Ekins,

12 spelled E-K-I-N-S. B-R-E-N-T.

13

DIRECT EXAMINATION

14 BY MR. GILLETTE:

15 Q Good morning, Dr. Ekins.

16 A Good morning.

17 Q What is your profession, please?

18 A I'm a clinical pharmacist by profession, and

19 I have practiced clinical toxicology most of my

20 career.

21 Q And where are you currently employed?

22 A I'm currently employed for Hanford Community

23 Medical Center and Central Valley General

24 Hospital in Hanford, California.

25 Q What are your responsibilities in that

0845

1 regard?

2 A My responsibility there is as a staff

3 pharmacist to deliver medicines, prepare

4 medicines to patients.

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5 Q If I could ask you to look -- there's some 6 binders in front of you and I'd like to ask you 7 to look at Exhibit 102. It's probably in the 8 smallest binder right there. 9 A Okay. 10 Q Does this appear to be a copy of your 11 current curriculum vitae? 12 A Yes, it does. 13 Q And does it set forth accurately your 14 education and experience and background? 15 A Yes. 16 Q Could you briefly summarize your educational 17 background for us. 18 A My educational background, I attended the 19 University of Utah College of Pharmacy, graduated 20 in 1974 with a degree in -- bachelor's degree in 21 pharmacy. Practiced in a poison control center 22 for two years. Went back at the end of -- to the 23 university in 1976 and entered a doctoral 24 pharmacy program with a focus on toxicology 25 completing that in 1978. 0846 1 Q And have you had any academic experience in 2 terms of teaching? 3 A I was on faculty at three universities, 4 first at the University of Utah while I was 5 employed there as an assistant professor -6 excuse me, assistant clinical professor at the 7 University of Utah. I taught the undergraduate 8 toxicology course and the post-Pharm.D. 9 fellowship, which I developed. 10 Q And Pharm.D., that is a Doctorate of 11 Pharmacy; is that correct? 12 A That is correct. 13 Q And in terms of your subsequent work 14 experience, was that initially in the area of 15 toxicology? 16 A It was entirely in the area of toxicology. 17 Q And poison control? 18 A Yes. 19 Q Now, in that context in your experience, 20 have you had -- have you had experience working 21 or dealing with drug overdoses? 22 A Yes. 23 Q And have any of those involved barbiturates? 24 A Yes. 25 Q Is sodium thiopental a barbiturate? 0847 1 A Yes. 2 Q Is it a drug of abuse? 3 A Not really. 4 Q And why is that? 5 A It's not available. It's a restricted 6 drug. It's just not available to -- for other 7 than primarily pharmacists or anesthesiologists. 8 Q To the extent that it might be abused, is 9 there any class that -- of individuals who most 10 frequently would be found to be abusing it? 11 A Well, I'll answer by I don't think it's an 12 issue of abuse of that particular drug. It's

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13 just not a common drug, but clearly someone who

14 would have access to it such as an

15 anesthesiologist or someone working in and around

16 an operating suite would certainly be the ones

17 that would have -- or a pharmacist or if some of

18 the pharmacy staff would have access.

19 Q If someone were to use thiopental as a drug

20 of abuse, how would they have to deliver it?

21 A Well, it's only available as an intravenous

22 product. So you'd have to inject it. You'd have

23 to put it in a solution. It comes as a dry

24 powder. You'd have to put it in solution and

25 inject it.

0848

1 Q Are you familiar with whether there are any

2 studies dealing with overdoses of thiopental?

3 A There are some. There's a handful of

4 articles where people have actually overdosed on

5 it.

6 Q And what has been the result in those

7 studies of the persons overdosing on thiopental?

8 A Well, these all have been case reports of

9 suicides. So the result of all of those were

10 death.

11 Q Now, you indicated that you're now working

12 in a hospital setting; is that correct?

13 A That's correct.

14 Q And what are your -- what are your job

15 responsibilities as a pharmacist in a hospital

16 setting?

17 A In short, my job responsibility is to review

18 orders by physicians to make sure that they are

19 appropriate in terms of dose, to help nurses

20 understand how to give those drugs, to monitor

21 for adverse drug reactions, to actually dose some

22 drugs independently and to assure that the end

23 points that we're trying to reach are reached.

24 Q In your -- as part of your job

25 responsibilities and your experience, are you

0849

1 familiar with the uses and properties of the drug

2 sodium thiopental?

3 A Yes.

4 Q Have you had occasion to work with that

5 drug?

6 A No.

7 Q Are you familiar with the uses and

8 properties of pancuronium?

9 A Yes.

10 Q And are you familiar with the uses and

11 properties of potassium?

12 A Yes.

13

MR. GILLETTE: Your Honor, we'd offer

14 Dr. Ekins as an expert in toxicology and

15 pharmacology.

16

THE COURT: Any objection?

17

MR. GRELE: I just have a couple of

18 questions.

19

THE COURT: Sure. Go ahead, Mr. Grele.

20

VOIR DIRE EXAMINATION

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21 BY MR. GRELE:

22 Q Good morning, Doctor.

23 A Good morning.

24 Q Have you conducted any studies on

25 barbiturates yourself?

0850

1 A I have not.

2 Q Have you conducted any research studies on

3 Pavulon or pancuronium bromide?

4 A I have not.

5 Q Have you conducted any research or studies

6 on potassium chloride?

7 A I have not.

8

MR. GRELE: Nothing further.

9

THE COURT: Okay. Thank you.

10

Dr. Ekins will be qualified as an expert

11 and the questions go to the weight of his

12 testimony.

13

Go ahead, Mr. Gillette.

14

MR. GILLETTE: Thank you, Your Honor.

15

RESUMED DIRECT EXAMINATION

16 BY MR. GILLETTE:

17 Q Doctor, are you familiar with the protocol

18 that's currently in place in California for

19 lethal injection executions?

20 A I've read it, sir.

21 Q And what is your understanding as to the

22 drugs that are to be used under that protocol?

23 A There are three drugs to be -- proposed to

24 be used. One is thiopental sodium; the second

25 drug is Pavulon or the generic of that,

0851

1 pancuronium bromide; and potassium chloride.

2 Q Now, with respect specifically to the

3 thiopental, what is your understanding as to the

4 amounts that are to be used of that drug and how

5 they are to be delivered?

6 A Well, the current proposed is to give 1,500

7 milligrams of thiopental as a bolus followed by

8 100 milligrams per minute of thiopental as a

9 maintenance dose.

10 Q And 1,500 milligrams would be 1.5 grams; is

11 that correct?

12 A That is correct.

13 Q Now, in a clinical setting, what would --

14 based on your knowledge and experience, what

15 would thiopental be used for?

16 A Its primary use is to -- as an induction

17 agent prior to surgery.

18 Q Have you had occasion prior to your

19 testimony today to review any literature on

20 thiopental?

21 A Yes.

22 Q And what is that, if you can summarize?

23 A Well, I've looked at recommended doses,

24 starting doses. While its current use has

25 plummeted, it's not really a widely used drug at

0852

1 this point in time, the doses, the starting doses

2 both when its used primarily as an induction

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3 agent with other agents coming into play

4 afterwards as longer-acting anesthetic agents or

5 as a single agent for short-term procedures, the

6 starting doses are pretty consistent throughout

7 all of the reference textbooks and most of the

8 articles that I've reviewed.

9 Q Is there a reason in terms of your review of

10 the materials that thiopental is not as widely

11 used today as it has been in the past?

12 A Well, there are other drugs available, other

13 choices, and some of those are easier to use than

14 is thiopental.

15 Q Now, in your review, have you determined

16 whether in a clinical setting there is a standard

17 dose for thiopental as an induction drug?

18 A Yes.

19 Q And what would that be?

20 A Well, it ranges anywhere from 3 to 6

21 milligrams per kilogram. Most of the textbooks

22 cite 2.5 to 3.5. Other ones just round it up to

23 a nice number like 4 milligrams per kilogram.

24 Q And so the determination is based at those

25 levels on a variety of factors, is that true, or

0853

1 is it principally body weight that is the key

2 consideration?

3 A Well, the key consideration is body weight.

4 Q Does thiopental, if it's delivered, result

5 in unconsciousness?

6 A Yes.

7

MR. GRELE: Your Honor, I don't know if

8 this witness can testify to that.

9

THE COURT: He can testify as to his

10 understanding of what it does. I don't think he

11 can testify from personal knowledge of what it

12 does, but he can testify as a pharmacist as to

13 what he understands the properties of the drug

14 are.

15

MR. GRELE: Well, as long as we

16 understand he's a pharmacist and not an

17 anesthesiologist or anything --

18

THE COURT: I think that's what he

19 said. I think that's exactly what he said his

20 expertise was. Overruled.

21

Go ahead.

22

THE WITNESS: This is a drug that is

23 well studied. I've read many articles that look

24 at the dose used and what level -- what happens

25 when patients lose consciousness and when they

0854

1 get to different levels of unconsciousness.

2 BY MR. GILLETTE:

3 Q And do the studies indicate at different

4 levels of unconsciousness whether that would be

5 sufficient to oblate any pain that the individual

6 might sustain?

7 A Yes.

8 Q And is there any indication in the reports

9 as to what dose would be necessary to reach that

10 level of unconsciousness?

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11 A Well, yes. The doses that are used as the

12 initial induction doses certainly get the patient

13 to that initial level.

14 Q And how quickly based on your review of the

15 materials does thiopental result in

16 unconsciousness?

17 A This is considered really, really fast. In

18 studies that have been done -- one study, for

19 example, in Gentry's article in 1994 they used

20 volunteers, had them hold a device and measured

21 their loss of consciousness in 27 seconds when

22 they dropped the item they were holding. That's

23 a conscious action. That's not a surgical level,

24 but that's a conscious action.

25 Q And are there any indications as to how fast

0855

1 it takes or how quickly it would take to get to

2 yet a higher level of unconsciousness?

3 A Within the first minute.

4

MR. GRELE: Your Honor, if I may, I'm

5 sorry. If we can have a standing objection to

6 this. It's as if we were up there talking about

7 articles, I think.

8

THE COURT: All right. The spirit of

9 the objection is understood. The objection goes

10 to the weight rather than the admissibility of

11 the testimony. Overruled.

12 BY MR. GILLETTE:

13 Q Based on your review of the materials, is

14 the effect of the drug thiopental in any way dose

15 dependent?

16 A Yes.

17 Q And in what way?

18 A Larger doses work faster. Larger doses

19 probably have a longer duration of effect.

20 Q When you say "work faster," what do you mean

21 by that?

22 A If you give a small dose, you have -- you

23 have a smaller peak. If you give a larger dose,

24 you have a larger peak.

25 Q Now, in terms of -- based on your review of

0856

1 the materials, would a 1.5 gram bolus dose of

2 thiopental be considered a clinical dose?

3 A No.

4 Q If you were to assume that 1.5 grams of

5 thiopental were delivered into an individual,

6 based on your review of the materials, would that

7 result in unconsciousness?

8 A Yes.

9 Q Do you have an opinion based on your review

10 of the materials how long unconsciousness would

11 last with a 1.5 gram dose of thiopental?

12 A I have some -- I have an opinion about that.

13 Q And what is that, please?

14 A Well, the opinion is not based on studies in

15 this case because there are no studies in this

16 context given this drug in this dose to answer

17 that question.

18

But based on known parameters of the

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19 pharmacology of this drug and its dose in lower 20 doses, we do know that it's going to have an 21 effect for, you know, probably a minimum of 10 to 22 15 minutes from a single dose, assuming you did 23 nothing -- nothing different. That begs the 24 question how relevant is that in this setting 25 because that's not what's being proposed. 0857
1 Q You're talking about a single dose at a 2 clinical level? 3 A Yes. 4 Q And you've said the 1.5 is above the 5 clinical level; correct? 6 A It's -- it's five to seven to eight times 7 higher depending upon how much the patient 8 weighs. 9 Q Now, you've also indicated that the 10 procedure includes a continuous infusion of a 5 11 gram -- of an additional 5 grams of thiopental; 12 is that correct? 13 A Well, there is 5 grams available, but it's 14 really a maintenance dose based on a dose. So 15 it's based on delivering 100 milligrams per 16 kilogram -- excuse me, 100 milligrams per minute 17 following the loading dose. 18 Q And how do you reach that conclusion as to 19 the amount of the maintenance dose? 20 A Well, there's 5 grams put into a certain 21 concentration, and they drip at a certain rate. 22 So it's just simple math. 23 Q Are you familiar with the manner in which 24 thiopental is packaged? 25 A Yes. 0858 1 Q And how is it -- how is it packaged? 2 A Well, the normal packages that we have are 3 packaged so that you can make a 2.5 percent 4 concentration. It's dry powder with a 30 mL 5 bottle of normal saline. 6 Q So is thiopental a drug that you would find 7 in your pharmacy? 8 A Yes. 9 Q Is it a drug that you have had or that you 10 have distributed to physicians for whatever 11 purposes they requested them for? 12 A Yes. 13 Q Now, you indicated that it was dry. So it 14 has to be mixed; is that correct? 15 A That is correct. 16 Q And how is thiopental mixed, if you know? 17 A It's simply mixed with -- usually we draw 18 off the saline in a syringe and put the syringe 19 into the dry powder and it's immediately into 20 solution. 21 Q Is it a difficult drug to mix from the dry 22 powder into solution? 23 A It's incredibly soluble. 24 Q How much in advance of its use can 25 thiopental be prepared? 0859

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1 A Twenty-four hours. Once it's prepared, it

2 has to be used within 24 hours.

3 Q Otherwise, what happens to it?

4 A Oh, it probably degrades somewhat.

5 Q Now, are you familiar with the report

6 that -- and deposition testimony of Dr. Ebling

7 who's testified in this proceeding?

8 A Yes.

9 Q Have you had an opportunity to review his

10 report and deposition testimony?

11 A Yes, sir.

12 Q Have you had an opportunity to review the

13 articles that he cited in his report?

14 A Yes.

15 Q Does that include the articles on which he

16 was one of the authors?

17 A Yes.

18 Q What is your understanding of Dr. Ebling's

19 testimony or his -- his report in this case?

20

MR. GRELE: Your Honor, I just want to

21 note that when we had our expert review

22 additional materials we submitted a supplemental

23 report. There's been no supplemental report. It

24 appears additional material had been reviewed.

25 Maybe we should parse that out in terms of the

0860

1 examination so we know.

2

THE COURT: Okay. What have you

3 reviewed in preparation for today?

4

THE WITNESS: Relative to Dr. Ebling's

5 study, I've reviewed his deposition transcript

6 and I read the articles that he cited in that as

7 supporting of his position.

8

THE COURT: All right. You can answer

9 Mr. Gillette's question, if you remember it.

10

THE WITNESS: Any particular focus?

11 BY MR. GILLETTE:

12 Q Well, let's try to be a little bit more

13 specific. Dr. Ebling talked about blood levels

14 of thiopental. How relevant in your view are

15 the blood levels of thiopental in determining its

16 effect in the context of a lethal injection

17 execution?

18 A Well, there are no data on lethal injection

19 cases. Therefore, it becomes very difficult to

20 make very strong statements about that. There's

21 not even an animal model of lethal injection that

22 we can compare it with.

23

So what we have is -- we have animal

24 data looking at how sedated an animal is, which

25 is what Dr. Ebling has done, and subjecting them

0861

1 to sort of torture, twisting their tails and

2 putting clips on and different things to see when

3 they respond or not. And we have human

4 experiments where they are using normal doses for

5 surgical procedures, and we have blood level on

6 those.

7

And what's clear is that the blood level

8 that the rat data shows from Lundgren's study,

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9 which is out of Sweden, and Dr. Ebling is on that

10 particular study, the blood levels for the rats

11 not to respond are up in the 40 microgram per mL

12 range.

13

MR. GRELE: I'm sorry. Your Honor,

14 we're going to object to this. This is all --

15 Dr. Ebling has come and gone. We've had no

16 opportunity, no notice that there was going to be

17 testimony about his articles from this witness.

18 In fact, a lot of what the witness is testifying

19 to is beyond his report.

20

I think that's just slightly unfair. If

21 we had had some notice, we could probably have

22 had our witness prepare some of the very same

23 subjects and testimonies, and that's the purpose

24 of the rule.

25

THE COURT: Mr. Gillette, do you want to

0862

1 respond?

2

MR. GILLETTE: Well, Your Honor,

3 Dr. Ebling when he -- excuse me, Dr. Ekins when

4 he testified in his deposition was asked about

5 some of Dr. Ebling's material and information

6 and -- in preparation for his testimony, and

7 Dr. Ekins talked about the issues of blood levels

8 and things of that sort. So they are well aware

9 that he's familiar with that issue.

10

He has reviewed additional material that

11 has become available, and I don't know that it's

12 unfair for us to present testimony that is

13 directly responsive to the expert that they have

14 presented when he's had the opportunity to review

15 that material and be prepared to discuss it.

16

THE COURT: Okay.

17

MR. GRELE: Your Honor, I'm sorry to

18 belabor this point, but if we could just have a

19 list of the additional material that he's

20 reviewed since his deposition that has not been

21 disclosed to us, I think that would help us a

22 little bit in this issue and maybe we'd be better

23 able to articulate our objection.

24

And Mr. Gillette is half right, half

25 right about --

0863

1

THE COURT: He talked about some of

2 Dr. Ebling's articles.

3

MR. GRELE: He talked -- he had not

4 reviewed any of the articles at the time of

5 deposition, at least that was his testimony. He

6 knew that the articles concerned rat data and he

7 felt that that was inappropriate. He had not

8 read any of the articles. He had not done any

9 separate research on it and, in fact, had not

10 done very much research on sodium thiopental at

11 that point.

12

THE COURT: Let's handle it this way.

13

What additional materials have you

14 reviewed since your deposition?

15

THE WITNESS: I've reviewed the articles

16 that he cited, primarily the Gustafsson article,

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17 which is one of the ones he cited. Wada, that

18 article, which his name is on it. I think

19 there's one additional one that he's on that

20 wasn't particularly relevant.

21

THE COURT: So maybe three articles

22 altogether?

23

THE WITNESS: Three articles that he

24 specifically looked at. And then I looked at the

25 corollary, what's out there with human studies

0864

1 and blood levels. Again, I'll parse all of this

2 to say this is not all that relevant because none

3 of these articles, whether the animal data or the

4 human data, really goes to the issue of the

5 lethal injection scenario.

6

THE COURT: So your comment on those

7 articles that you have read since your deposition

8 is -- is it fair to say it's the same comment

9 that you made at the deposition regarding the

10 relevance of studies of that kind?

11

THE WITNESS: Yes.

12

THE COURT: And so reading the

13 additional material has not changed the opinion

14 you expressed in your deposition?

15

THE WITNESS: No. It's probably

16 bolstered it.

17

THE COURT: All right. I'm going to

18 allow the witness to testify if he can provide at

19 some point after we're done the specific articles

20 he read. I'll allow a supplemental declaration

21 from Dr. Ebling, if Plaintiff wants to submit

22 one.

23

But it seems to me this is simply the

24 same opinion expressed at his deposition, that

25 it's proper for Mr. Gillette to ask him about.

0865

1

MR. GILLETTE: Thank you, Your Honor.

2 And let me just follow up on a couple of points

3 with what you just added.

4 BY MR. GILLETTE:

5 Q Do you recall, Dr. Ekins, in your deposition

6 if you were asked to and did discuss the question

7 of redistribution of drugs as an issue?

8 A Yes.

9 Q Do you recall if you were asked questions

10 about the half life of drugs and specifically

11 thiopental?

12 A Yes.

13 Q And did you answer questions about that?

14 A I did, and the question really begs to use

15 of terminology. Half life is a concept where you

16 have a steady state blood level in a patient, and

17 then we measure half lives.

18

It's also a concept where when you give

19 somebody a drug, how long from the time you give

20 it to them until they reach peak blood level.

21 There's kind of a time frame. Sometimes that's

22 called a half life of absorption. Almost always

23 that's in conjunction with oral doses, not

24 intravenous doses, because there's no absorption

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25 issue with intravenous doses.

0866

1 Q In your opinion, does the issue of the half

2 life of thiopental have any particular relevance

3 to the question of its use as a drug in a lethal

4 injection execution?

5 A Not under the constraints of the time frame

6 that is usual for these procedures.

7 Q And what do you mean by that?

8 A Well, these are -- these are short

9 processes, and the issue of half life comes into

10 play if you're going to use this for several

11 hours.

12 Q If you say that a drug has a half life, does

13 that mean that it disappears in whatever the half

14 life period of time is?

15 A Yes. If you had a half life of five hours

16 and the drug started out at ten, in five hours it

17 would be five. That's the basic concept.

18 Q Does that mean that if it has a half life

19 that it's less effective over the period as the

20 half life is -- takes place?

21 A Generally the implication is that if the

22 drug is going down it's going to have less

23 effect.

24 Q Now, you talked about redistribution. What

25 is that and what does it mean?

0867

1 A Well, in this particular drug the drug is so

2 rapidly absorbed that it goes into the brain very

3 quickly, and so the blood levels drop

4 precipitously. They are just simply going from

5 the blood into the brain. So it's not really

6 biotransforming this drug or metabolizing this

7 drug, but is simply moving it from one place to

8 the other.

9

Unfortunately, these are not just

10 one-compartment models. Conceptually that's

11 where the Ebling article sort of deviated, I

12 think, from reality in that they use really

13 what's considered a one-compartment model so it

14 goes from the blood into the brain and back from

15 the brain into the blood.

16

This is a drug more complicated and

17 probably really makes more of a four- or

18 five-compartment model possible.

19

All of that is interesting information,

20 but when you look at how this drug is used in

21 humans it's just simply for anesthesia. The

22 issues of giving it, maintaining it, maintaining

23 surgical anesthesia is not a problem. It doesn't

24 have these big wide fluctuations in humans in

25 that application.

0868

1 Q Now, you mentioned earlier the term "steady

2 state." What did you mean by that and why is

3 that important?

4 A Steady state is when the blood and its

5 tissues are in equilibrium. So once you give a

6 drug and it goes to where it's going to go, it

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7 varies from one drug to another, and it becomes

8 in an equilibrium so that there's some stability

9 in blood levels and tissue levels, that's what's

10 called steady state.

11 Q And why is that important?

12 A Well, it's important to usually have a --

13 you know, the therapeutic effect is going to be

14 related to the drug at the effector site, and

15 there's usually some indirect measure back to the

16 bloodstream. Almost all the drugs we use, we're

17 not measuring the concentration of where the drug

18 is. We're measuring an indirect measurement of

19 that.

20 Q And what is the site of effect for

21 thiopental?

22 A Somewhere in the brain.

23 Q And, to your knowledge, have there ever been

24 any studies of the brain levels of thiopental in

25 a human being?

0869

1 A No.

2 Q Have there been any animal studies to that

3 effect?

4 A I am not -- I suspect there might be, but I

5 don't know. It goes back to me to relevance to

6 my application and its use in clinical practice.

7 Q Now, you've suggested that all of these --

8 these animal studies and this steady state or the

9 redistribution of half life is really not

10 relevant to the question that's before the Court

11 as to the use of thiopental in a lethal injection

12 execution; is that correct?

13 A That's correct.

14 Q And could you explain why that is, in your

15 view this is not relevant?

16 A Well, in this scenario the proposed process

17 is that you give someone a relatively high dose.

18 I've estimated seven to eight times the normal

19 dose, which in all patients should produce

20 anesthesia and unconsciousness.

21

And then we're proposing a process to

22 simply replace. Everything could be

23 redistributed, redistributed to biometabolize, to

24 transform or anything else. So we want to get to

25 a certain level and we want to keep them there,

0870

1 and that's what the maintenance dose does. The

2 maintenance doses are already established to be

3 literally twice what the normal surgical

4 maintenance dose might be.

5 Q Do you have an opinion based on the

6 materials you've read and your knowledge and

7 training as to whether the use of thiopental

8 under the protocol as we've been discussing it

9 will result in adequate sedation?

10 A Yes.

11 Q And what is that opinion, please?

12 A Well, I think this is well above the normal

13 dose for adequate sedation. If we looked at

14 normal usage of this drug in surgical procedures

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15 for which they are going to do skin incisions or

16 they are going to open up chest cavities, you

17 know, the normal induction dose will bring them

18 to that level.

19

We're using seven to eight times higher

20 than that. So it's certainly expected that they

21 would be at surgical anesthesia at those -- at

22 that dose.

23 Q And can you have it -- you have an estimate

24 as to how long it would take to get to that

25 surgical level of anesthesia?

0871

1 A Within one minute.

2 Q Is that from the 1.5 initial dose?

3 A Yes. And, again, that's an estimate because

4 we don't have collected prospective study data to

5 actually verify that. We think that's the case

6 from the normal doses, from the therapeutic

7 doses, and we're taking a little bit of a leap of

8 faith, but it's a good leap of faith without that

9 other discrepant information that would dissuade

10 us from that.

11 Q And, of course, we are assuming that it's

12 actually delivered into the person; is that

13 correct?

14 A Yes.

15 Q And based on that opinion about the

16 sedation, do you have an opinion as to whether it

17 would result in a pain-free procedure, this

18 delivery of the thiopental?

19 A I think by definition if they are at that

20 level of unconsciousness, they have no sensation

21 or no recollection or no pain recognition at all.

22 Q Now I'd like to turn to the second drug

23 that's used, pancuronium. Are you familiar with

24 that drug?

25 A Yes.

0872

1 Q Have you had any involvement in working with

2 it?

3 A This drug I have had.

4 Q And in what sense?

5 A Well, it's used to paralyze patients, most

6 commonly in the ICU. That and succinylcholine

7 are probably two of the most common drugs that we

8 use to paralyze patients when we put them on a

9 ventilator, and they need to be ventilated, we

10 don't want them fighting against the ventilator.

11 So it's not an uncommon drug to be used in that

12 setting.

13 Q Does it have an effect on respiration?

14 A Yes.

15 Q And is there a -- you've already said that

16 as a result it would require ventilation; is that

17 correct?

18 A That's correct.

19 Q Is there a normal clinical dose of

20 pancuronium?

21 A Yes.

22 Q And what is that?

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23 A Four to five milligrams is a usual clinical

24 dose.

25 Q If I represent to you that the state is

0873

1 using a 40-gram dose, that would be above the

2 clinical dose?

3 A Forty milligrams?

4 Q Forty milligrams.

5 A That would be eight times higher at least.

6 Q Would that dose, that 40-milligram dose of

7 pancuronium, be considered a fatal dose?

8 A Yes.

9 Q Would --

10 A If nothing else were done, yes.

11 Q Does the -- does pancuronium prevent

12 respiratory effort?

13 A Yes.

14 Q And what is respiratory effort?

15 A Well, pancuronium paralyzes the diaphragm

16 and the intercostal muscles that are involved in

17 both deliberate and not deliberate breathing.

18 Respiratory effort goes back to what drives us

19 all to breathe when we're sleeping. We don't

20 have to think about it. It's not a conscious

21 effort.

22

We can breathe. We can take big deep

23 breaths if we want to and override that, but

24 underlying all that is the drive to breathe,

25 which is controlled by the brain.

0874

1 Q Can respiratory effort be an involuntary

2 activity?

3 A It certainly is.

4 Q And under what circumstances?

5 A When you're sleeping you don't think about

6 it.

7

MR. GRELE: Your Honor, again, another

8 objection. I think he's talking about medicine

9 and medical terminology. He's a pharmacist and a

10 toxicologist, and I just don't understand how he

11 can opine on these subjects.

12

THE COURT: All right. He can give his

13 understanding what respiratory effort is, what it

14 means to him, and, again, the objection goes to

15 the weight.

16

THE WITNESS: Okay. As I deal with

17 patients, it's clear that as patients stop

18 breathing, their CO2 levels go up. It's CO2 that

19 drives the respiratory drive, and I've seen many

20 patients who in a code situation, a situation

21 where they are not breathing or their heart has

22 stopped where we're trying to work with them, we

23 can monitor that because we have measurements and

24 we can monitor their CO2 levels.

25

And once those things start going above

0875

1 20, 45, 50, then you see involuntary -- many of

2 these patients are already not responsive and

3 they are attempting to breathe and they are

4 completely out of it. They are completely

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5 unresponsive to all pain and yet they are still

6 having a respiratory effort.

7

So it's clear that that -- in my

8 perspective and seeing patients at the bedside

9 you have an involuntary drive to breathe based on

10 these blood levels of carbon dioxide.

11 BY MR. GILLETTE:

12 Q And you did indicate that pancuronium can

13 prevent that respiratory effort?

14 A Yes.

15 Q Now, the third drug that's used by the state

16 in the lethal injection procedure is potassium.

17

Are you familiar with that drug?

18 A Yes.

19 Q And have you had experience working with

20 that drug?

21 A Every day.

22 Q And what would the uses be for potassium in

23 a clinical setting?

24 A It's primarily as a potassium replacement

25 for patients who have low serum potassium.

0876

1 Q Would potassium in large quantities have an

2 effect on the heart?

3 A Yes.

4 Q And what would that be?

5 A Well, it has a direct cardiotoxic effect on

6 the heart as well as it disrupts the electrical

7 impulse generation that's required for making

8 effective heartbeats.

9 Q The dose that's proposed in the state

10 protocol is 80 milliequivalents in three

11 different syringes, a total amount of 240. But

12 with respect to the 80 milliequivalents, would

13 that be considered a fatal dose?

14 A Yes.

15 Q Is that above a dose that would be used in a

16 clinical purposes, for clinical purposes?

17 A Well, with most toxicology it's the dose

18 that determines the poison and it's also the rate

19 of -- 80 milliequivalents is not that high of an

20 unusual dose if you give it over eight hours.

21 Q What if you were to deliver it in one or two

22 minutes?

23 A Then that would be considered a lethal

24 amount at that point.

25 Q So that 80 milliequivalents delivered in one

0877

1 to two minutes would be considered a fatal

2 amount; is that correct?

3 A Yes.

4

MR. GILLETTE: Is -- actually, I think

5 that's it. No further questions, Your Honor.

6

THE COURT: All right. Thank you.

7

Cross-examine?

8

MR. GRELE: I'll just set up, Your

9 Honor.

10

THE COURT: Sure.

11

CROSS-EXAMINATION

12 BY MR. GRELE:

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13 Q Good morning.

14 A Good morning.

15 Q Good morning, Doctor.

16

Have you done any studies on pain, pain

17 management?

18 A I've not done any studies on it.

19 Q And I noticed you did have some articles on

20 your CV there. Would it be fair to say they are

21 all sort of clinical survey articles of people

22 who present themselves in a certain situation in

23 ORs or poison centers or places of that nature?

24 A The majority are clinical case reports.

25 Q Okay. And so you're not studying blood

0878

1 levels or anything of that. You're observing

2 behaviors and trying to draw patterns over time

3 and over patients; is that correct?

4 A Most of them are done to look at clarifying

5 issues relative to blood levels and clinical

6 effect or dosages, what dose caused a certain

7 effect.

8 Q Okay. A lot of them are overdoses; isn't

9 that correct?

10 A Yes.

11 Q So it's not entirely clear how much has been

12 consumed; isn't that right?

13 A Oftentimes the history is murky.

14 Q Okay. All right. It's mainly the studies

15 are how do we treat a person that presents this

16 kind of problem; isn't that right?

17 A Well, it's both a matter of how you treat

18 them and how to interpret it. One of the

19 articles, for example, was a digoxin overdose in

20 a child. And the question is how do you

21 interpret a completely huge blood level in a

22 patient who has no symptoms.

23 Q You mentioned just a couple of points I

24 wanted to go over here from your direct. You'll

25 get us, I guess, on a break the articles you've

0879

1 read on sodium thiopental. But you did mention

2 that there were some case reports of suicide on

3 sodium thiopental.

4 A There's a handful of them, two or three.

5 Q Okay. All right. And in those cases those

6 individuals obviously are using them

7 recreationally; isn't that correct?

8 A No. I think they used them to kill

9 themselves.

10 Q Okay. And they would be hospital personnel

11 or people with access to the drug?

12 A I don't know all. They are not real precise

13 about who they were or how they had access to

14 it. There are not that many to start with. It's

15 sort of an aberration. It's not a drug that's

16 widely available. So it's not --

17 Q So I understand that. So you're saying that

18 you don't know the circumstances under which they

19 used the drug?

20 A I know what the articles say. They are just

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21 not all that complete.

22 Q Complete about who was doing it?

23 A Where they got the drug or --

24 Q Where they got the drug.

25 A -- what their role was or why they did it or

0880

1 any of that stuff.

2 Q I understand. Now, as a pharmacist isn't it

3 particularly important that we keep track of

4 drugs such as sodium pentothal?

5 A Yes.

6 Q Why is that?

7 A It's a Schedule III controlled narcotic.

8 Q Well, that's just a label. I'd like to go

9 beyond labels a little bit. So why don't we

10 explain that a little bit.

11 A If you miss -- if you don't track it, the

12 DEA comes in and finds you.

13 Q And finds you and there's perhaps criminal

14 prosecution and all of that?

15 A Yes. We keep good track of those drugs.

16 Q All right. I'm going to ask you to look at

17 Exhibit 76.

18

Okay. We've had some testimony about

19 this and so I'm going to ask you to make a couple

20 of assumptions about it. Okay, Doctor?

21 A Okay.

22 Q All right. This is a pharmacy log

23 concerning the sodium thiopental turned over to

24 certain members of the Department of Corrections

25 over a one-and-a-half-year period, I believe it

0881

1 is. Okay?

2

Okay?

3 A Okay.

4 Q All right. Now, I'm going to ask you to

5 assume that each execution, they mix

6 approximately 5 grams of sodium thiopental.

7 Okay?

8

All right. And that they come in the --

9 the -- the small vials, the half gram or 500

10 milligram bottles. Okay?

11 A Okay.

12 Q All right. And they are checking out --

13 each time apparently they are checking out 25

14 vials; isn't that right?

15 A Yes.

16 Q Okay. All right. So that's 15 vials extra;

17 isn't that right?

18 A Yes.

19 Q Okay. Now, in some cases there seems to be

20 some differing testimony about this between

21 witnesses, but in some cases they do a backup.

22 Some witnesses say they never mix the backup;

23 others say they may.

24

So that would be an additional ten,

25 that's right, an additional ten vials. Okay?

0882

1

That still would leave five vials of

2 sodium thiopental from each checkout appear to be

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3 missing in this log; isn't that right?

4 A Not necessarily -- well, it would appear

5 that, yes.

6 Q Okay. All right. But if you came across

7 something like this, would you engage in some

8 investigation about perhaps either what the

9 individuals were doing with it or recordkeeping

10 procedures or perhaps both?

11 A Certainly recordkeeping. There's usually a

12 log kept for drugs that are destroyed separate

13 from their inventory logs. They probably have a

14 log that says what we did with the stuff that we

15 put in solution but didn't use.

16 Q Okay. That's fair enough. I'll ask you to

17 assume another hypothetical then and that is that

18 all the testimony is very clear that, at least

19 from the personnel who were responsible for

20 mixing the drugs, that they've all -- that

21 they've always thought it was returned in every

22 instance, any extras. Okay?

23

Would that raise some concerns about

24 both recordkeeping and perhaps the chain of

25 custody issues?

0883

1 A Well, not from my perspective because I'm

2 not a pharmacist in charge of that place, but if

3 I were, I'd be very concerned about where it

4 went.

5 Q Okay. Thank you. Thank you. Now I'm going

6 to ask you to look at Exhibit Number 67, if you

7 could.

8

I think you've testified, I believe,

9 that there's a certain percentage of diluent

10 provided with sodium pentothal -- or I'm sorry, a

11 certain amount of diluent provided with sodium

12 pentothal to reach a certain concentration that's

13 recommended by the manufacturer; isn't that

14 right?

15 A They actually come in kits. It makes it a

16 2.5 percent solution. You don't have to use that

17 that way, but that's one option is to mix it. It

18 makes it kind of convenient.

19 Q That 2.5 solution, by the way, that's pretty

20 much been the standard solution mixture for

21 pentothal for perhaps the past 25 years; isn't

22 that correct?

23 A It's common. It's a common one to use, yes.

24 Q All right. Now, what I'm going to ask you

25 to assume is that the testimony is that at some

0884

1 point in time over the course of the executions

2 in California they were using a 5 gram bottle of

3 pentothal.

4

Are you familiar with that old way it

5 came, the 5 gram -- the large 5 gram bottle?

6 A Never seen it.

7 Q You've never seen it?

8 A I've just heard about it.

9 Q Okay. All right. You knew that it existed

10 at one point; isn't that right?

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11 A Yes.

12 Q Okay. If you could look at the next

13 exhibit, 69, at the last page.

14

Do you see that?

15

By the way, do you recognize this as a

16 pentothal insert that's provided by the

17 manufacturer circa 1993?

18 A Yes.

19 Q Okay. All right. And they have some 5 gram

20 bottles mentioned here; isn't that correct?

21 A Yes.

22 Q And one of them is a 2 percent solution and

23 one of them is a 2.5 percent solution?

24 A Yes.

25 Q And about how much diluent would that come

0885

1 with?

2 A The 500 milligram one comes with 20 cc.

3 Q Okay. I'm not asking about that one. I'm

4 asking about the bottle. How much diluent would

5 that come with?

6 A I have no idea. I've never seen it.

7 Q Okay.

8 A You can do the math and then figure out if

9 you want to make a 2 percent solution. It's not

10 that hard.

11 Q Can you do it off the top of your head or do

12 you need some calculator or --

13 A Well, how accurate do you want to be? I can

14 do it off the top of my head, but what question

15 do you have about it?

16 Q Okay. All right. Is it approximately 200

17 to 250 cc of diluent?

18 A Five grams? Yeah.

19 Q Okay. All right. Now, suppose you were to

20 mix up that 5 grams in a -- in that amount of

21 diluent and draw out 35 cc of that remaining

22 solution as in Exhibit 67, described in Exhibit

23 67.

24

Let's not deal with the backup where

25 they have "do not mix" next to it.

0886

1

By the way, if somebody was going to use

2 a backup with pentothal, would there be any

3 benefit whatsoever to having it sitting there

4 unmixed?

5 A It would only take about ten seconds to mix

6 this.

7 Q You would have to mix it and draw it up and

8 put it in the right concentration and all that?

9 A It wouldn't be hard to do, but I would think

10 that if you're going to do this procedure you

11 would have everything mixed in advance and ready

12 and not to have a delay, but, if you had a delay,

13 it wouldn't be a huge delay.

14 Q I understand. I understand. From

15 individuals who are trained in this process and

16 able to go through it and do it pretty quickly;

17 isn't that right?

18 A Uh-huh.

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19 Q Okay. Anyway, at the top here it's 25 cc

20 diluent. Do you see that?

21 A Yes.

22 Q So why don't we assume that there's

23 testimony -- and I admit, Your Honor, it's

24 contradictory testimony -- but there's testimony

25 that the individual who was responsible for

0887

1 mixing the drugs at San Quentin in the executions

2 from, I believe, Thompson through Allen, would

3 take that -- that mixture with the 200 or 200 cc

4 of diluent and only draw up the 25 cc.

5

What percentage of pentothal would then

6 be in that syringe or how much pentothal would be

7 in that syringe?

8

THE COURT: What's the concentration is

9 what you're asking; correct?

10

MR. GRELE: I'm asking the volume --

11 actually, the milligram dose.

12

THE COURT: Okay.

13

THE WITNESS: It looks like about 700

14 milligrams.

15 BY MR. GRELE:

16 Q Okay. All right. The upper end of a

17 clinical dose; is that right?

18 A Uh-huh. Well above the operating level.

19 Q Okay. All right. Now, let's take it the

20 other way. Suppose you used Exhibit 67 and you

21 drew up -- you only put in 25 cc of diluent into

22 the -- into the canister, the 5 gram canister.

23 Suppose you did that.

24 A You only put 25 cc in?

25 Q I notice you have a very quizzical look on

0888

1 your face, Doctor, and I'm going to draw that out

2 a little bit.

3

What concentration would you end up with

4 at that point of -- of the drug?

5 A Well, there would be 200 milligrams per mL

6 at that point.

7

THE COURT: 20 percent.

8

MR. GRELE: 20 percent.

9 BY MR. GRELE:

10 Q And that's approximately 10 to 8 percent

11 higher than -- I'm sorry, ten times higher than

12 the manufacturer's recommended solution; isn't

13 that right?

14 A Well, they don't really recommend. They

15 just have some guidelines in terms of making it

16 easy to use. I've not really seen anything that

17 says you have to use it at their .5 percent

18 concentration or even at the 5 percent

19 concentration.

20 Q Have you seen anything saying that they

21 should use it at a 20 percent concentration?

22 A No.

23 Q Okay. Now -- and I'm going to ask you to

24 assume that that was the protocol approved by

25 team leaders and wardens, that mixing, through at

0889

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1 least 2005. Okay? I think that that's the

2 record in this case.

3

Now, how -- when you mix sodium

4 thiopental what does it look like?

5 A It's a clear liquid.

6 Q A clear liquid. Okay. Now, clear liquids

7 could have some color to them. So what color?

8 A Well, I can't tell you that I've really

9 actually analyzed it to answer that question.

10 Q I know you've never handled it yourself.

11 A I put some in a solution before. It's clear

12 and it don't have any floaties in it.

13 Q Okay. Floaties, is that sort of --

14 A We don't like to have those.

15 Q That's sort of a --

16 A It's basically clear. It might have a

17 little slight discoloration, slight, you know,

18 tint to it.

19 Q All right. Would it be accurate to say that

20 it's a brown color?

21 A No.

22 Q Okay. And if somebody that works under you

23 as a pharmacist mixed a sodium thiopental so it

24 had a brownish color, would you sort of question

25 whether or not it was being done properly?

0890

1 A Yeah. If it's brown, something sounds like

2 it's not right.

3 Q Okay.

4 A This is relatively clear. You know, I've

5 seen it in solution. It's, you know, maybe a

6 little off -- off clear, tinted a little bit with

7 some coloring, but brown is this color. I

8 wouldn't use brown as a --

9 Q Or even a yellowish brown, that's a little

10 too dark, isn't it?

11 A Well, now you're getting into some real

12 subjective descriptions, and I don't know how to

13 answer that.

14 Q Well, if you saw it, I know you've never --

15 you've -- you've testified you've never used

16 sodium thiopental and now you're testifying

17 you've mixed it; right?

18 A Yes.

19 Q So if you mixed it and it was, say, a

20 yellowish brown color -- I know that's an

21 inaccurate description -- would you think maybe I

22 should get another batch and do it right?

23 A Well, if anything looked like it wasn't

24 usual, an unusual color or unusual consistency,

25 we'd probably want to check the batch or check

0891

1 the expiration date or do something.

2 Q Double-check the work?

3 A Absolutely.

4 Q Okay. Now, are you familiar with the term

5 "KVO" for a drip rate for a --

6 A It's one of those non-standard hospital

7 abbreviations the Joint Commission doesn't

8 approve of.

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9 Q Sort of like "floaties"?

10 A Yes.

11 Q Now, "KVO," what -- basically what does it

12 translate to?

13 A "Keep the vein open."

14 Q And basically is that pretty much the

15 slowest drip rate that's set for an IV?

16 A Well, that's a rate that a physician would

17 like to keep the vein open, just in case they

18 have to give them something IV.

19 Q Okay. It's not for administering the drug.

20 It's just for making sure that the line is

21 flowing in the right direction?

22 A That's correct.

23 Q Okay. All right. Now, when you sort of

24 reviewed the procedure and reviewed 770, you made

25 a certain number of assumptions, as I recall; is

0892

1 that right?

2 A Well, I read it. What are you referring to?

3 Q Okay. Well, you made an assumption that,

4 one, it was improperly administered?

5 A Well, I made the assumption that if you're

6 saying you're going to give 1.5 grams, you give

7 it, yes.

8 Q Okay.

9 A And the assumption that you're going to give

10 100 milligrams per minute thereafter, you give

11 it, yes.

12 Q Okay. All right. And I think that's an

13 assumption that the state has made all along. So

14 you're --

15 A Okay.

16 Q Now, you also made an assumption that it's

17 being delivered -- I think when you talked in

18 your deposition you said it's being delivered in

19 15 to 20 seconds; isn't that correct?

20 A Well, the -- that would be the usual. That

21 would be within the constraints of the volume and

22 everything else. That would be reasonable to

23 assume.

24 Q Okay.

25 A The protocol doesn't really say that. It

0893

1 just says put constant pressure on it and you've

2 got 60 cc total in both syringes. You could

3 actually put it in one syringe. You can make a 5

4 percent solution and put it in 30 cc. You can do

5 a lot of things to make it less human involvement

6 in it.

7 Q I understand that.

8

By the way, for any endeavor as a general

9 principle, the more complex you get it, the more

10 difficult it is to attain; isn't that correct?

11 A Well, the more likely something could

12 happen. So simpler is always better. Having

13 thiopental in one 30 cc syringe, 5 percent

14 solution without someone changing it would be

15 better than two syringes with double the volume,

16 can't they?

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17 Q All right. And I think we've seen a perfect

18 example of that when we talked about the mixing

19 chart that you saw in Exhibit 67. Simpler would

20 perhaps be a little bit better.

21 A Uh-huh.

22 Q Okay. Now, I think you said at -- that also

23 it would be given quickly as possible; is that

24 right? That was your testimony, I believe?

25 A Yes.

0894

1 Q Okay. And that the drip would start

2 immediately after that bolus dose; isn't that

3 right?

4 A That's how the protocol is set up.

5 Q Okay. And that the rate would not vary;

6 isn't that right? You testified in your

7 deposition you were assuming that the rates

8 weren't -- weren't going to be variable in terms

9 of --

10 A Well --

11 Q Let's -- that's a bad question, I

12 understand, because obviously the rates are going

13 to be varying, but let's just take the bolus

14 dose. You were assuming that that's not going to

15 vary; isn't that right?

16 A There's no reason to believe why it would

17 take a long time to do that. It's an easy drug

18 to give. It's not that large of a dose. You can

19 give it in a very short period of time. The

20 assumption is and your intent is to give this

21 drug right away.

22 Q Uh-huh.

23 A So there's no reason why you wouldn't just

24 give it quickly, yes.

25 Q Okay. And is it a common knowledge that

0895

1 with sodium thiopental the longer you draw out a

2 bolus administration, the less effect it's going

3 to have and the less rapidly it's going to have

4 that effect?

5 A In this scenario there is no data to support

6 that statement.

7 Q Okay.

8 A In some studies rate has been a -- has been

9 an issue and -- cited by Dr. Ebling, but even in

10 that study that was cited only in Gentry's

11 article, which is the one that's relied upon in

12 human studies to look at rate, it was only the

13 really, really slow infusions that made any

14 difference in the dosage. It wasn't all of them.

15 It wasn't all the rates. It was just the really,

16 really slow ones.

17 Q When you say "really, really slow ones,"

18 what are you talking about?

19 A Forty milligrams per minute.

20 Q Okay. So --

21 A And we're giving 1,500 in 10 to 15 seconds.

22 Q Right, right. I understand. And there's

23 great variation on that.

24

So 40 milligrams per what were you

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25 saying?

0896

1 A Per minute.

2 Q So what does that translate into, say, 500

3 milligrams, how many minutes?

4 A A lot.

5 Q Well --

6 A Hold on.

7 Q All right.

8 A My trusted calculator. If you get 500

9 milligrams at 40, that's 12 and a half minutes.

10 Q Twelve and a half minutes. Okay.

11

Now, if I were to -- do you have any reason

12 to -- first of all, you didn't review any of the

13 logs in this case, did you?

14 A I did not.

15 Q Okay. All right. You also made some

16 assumptions about the personnel involved; isn't

17 that right?

18 A I made the assumption that they would know

19 how to put an IV in and how to deliver drugs.

20 Q You made an assumption that they properly

21 mix it, all of that; right?

22 A Properly mix, properly delivered, yes.

23 Q Okay. And I think your answer was, I'm

24 going to quote you from your deposition here at

25 page 180: "My caveat here is that if you don't

0897

1 deliver the drug, it won't have the effect. So

2 the expectation is that the system, the prison

3 system in this case, are of people who are

4 competent, know how to start an IV, know how to

5 prepare it."

6

Isn't that right?

7 A Yes.

8 Q Okay. And then you said, quote:

9 "Hopefully, a pharmacist oversees them to make

10 sure it was done properly and they will infuse it

11 in a way they intended hopefully in a quick

12 manner, and that's all implied by the delivery of

13 the drug to the condemned in this case."

14

That's your quote; isn't that right?

15 A Yes. And I don't know if they do have

16 pharmacists involved or not. No idea.

17 Q Right, right. And then you follow that in

18 terms of IV settings. I think you talked a

19 little bit about IV settings, and I know that's

20 not in your realm of expertise as a pharmacist,

21 but you said: "Obviously, the best person would

22 be -- an anesthesiologist would probably be the

23 best person because they do it every day in

24 administering anesthesia."

25

Isn't that right?

0898

1 A Yes.

2

Q Okay. "And that's kind of

3

what they do. They delivered the

4

drugs. So, you know, it doesn't require

5

a great deal of training. Someone

6

non-medically could do it, but, you

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7

know, that would be the ideal --

8

certainly be ideal to at least have a

9

nurse do that."

10

And then the question is: "Why?"

11

"Because they are used it.

12

They are trained. It's common. They

13

are used to what it feels like to push

14

an IV through a small tube. They are

15

familiar with it."

16

And I said -- then I asked

17

you: "Well, pushing quite a volume in

18

these syringes; isn't that right?"

19

"Yes."

20

Was that your sort of opinion, then, it

21 would be better to have more trained personnel

22 doing this kind of endeavor?

23 A Yes.

24

Q Okay. And then I asked you

25

again in your deposition at page 202:

0899

1

"Do you disagree with the statement that

2

anesthesia by thiopental alone requires

3

constant monitoring and regular

4

injections to remain unconscious -- to

5

maintain unconsciousness?"

6

And then your answer was: "I

7

think in the ideal situation that's

8

exactly what you do. You monitor them

9

and you give them a loading dose, a

10

maintenance dose, and measure it

11

clinically how it's working, if you're

12

going to be honest about that."

13

Isn't that right?

14 A Well, that's how you'd use it in a clinical

15 setting.

16 Q Okay. Are you saying that when you're

17 putting a human being to death you no longer have

18 to monitor whether or not they are unconscious?

19 A The intent of monitoring in a clinical

20 setting is to make sure they don't have untoward

21 reactions. It's to monitor to make sure they

22 don't lose their blood pressure or have some

23 adverse reaction to it.

24

When you're giving an overwhelming dose

25 designed to cause fatality, then monitoring that

0900

1 patient to the logical end point is less for

2 safety as it is in a clinical setting than for

3 the intended outcome.

4 Q I understand that. Now, suppose you're

5 having a combination of difficulties that are

6 sort of woven in those comments, and that is

7 somebody who's not medically trained

8 administering the drugs.

9

Does that increase the need perhaps to

10 have somebody who is medically trained monitor

11 that -- the inmate?

12 A Well, I think that every time you use these

13 drugs it would be ideal to have someone there

14 trained that knows how to measure the effect.

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15 You asked if that were possible.

16 Q If I were to say to you that when procedure

17 770 was originally drafted the intent of Warden

18 Vasquez was to have medical staff actually

19 administer the drugs, would that be consistent

20 with having somebody who knows what they are

21 doing actually performing this?

22 A Well, that would be ideal. In the United

23 States I don't see that's going to happen. The

24 AMA has basically prohibited that from happening.

25 Q And then I -- you said: "In the clinical

0901

1 setting thiopental is titrated to clinical

2 effect. It's central to the use of these

3 drugs."

4

Isn't that right?

5 A In a clinical setting.

6 Q Okay. All right. And that's because in

7 that setting you're making accommodations for

8 individual characteristics; isn't that right?

9 A That's correct.

10 Q Okay. And you have them monitored by

11 appropriate officials; isn't that right?

12 A That's correct.

13 Q And anesthesiologists or nurse

14 anesthesiologists; isn't that right?

15 A That's correct.

16 Q Okay. Now, KVO rate is perhaps about what?

17 Three or four drops a minute, isn't that right,

18 from a standard 15 milliliter per whatever --

19 milligrams per milliliter or whatever that set

20 is?

21 A Well, we standardize it at our facility at

22 30 milliliters per.

23 Q Okay. And what does that come out to be?

24 A Three or four cc a minute.

25 Q Three or four drops a minute?

0902

1 A No.

2 Q All right. How many drops a minute?

3 A It depends on how big the drop is.

4 Q Standard size IV bag.

5 A The ones we use at our hospital are ten

6 drops per mL.

7 Q Okay.

8 A The ones at the prison claim -- this

9 procedure says that you have standardized ones

10 that are 15 drops per mL. So there's some

11 variation, but they are calibrated so they are

12 easy to use.

13 Q Now, who does the calibration? Who -- in

14 the hospital who says, all right, I need a

15 certain rate for a certain procedure?

16 A Well, that would be the physician.

17 Q Okay. All right. And then isn't it true

18 that a nurse is the one that then sets that rate;

19 isn't that right?

20 A Usually.

21 Q Not a maintenance engineer from the prison;

22 isn't that right?

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23 A Well, they don't work at the hospital.

24 Q Right. I understand that.

25

I'm going to ask you to look at Exhibit

0903

1 91.

2

Do you see that?

3 A Yes. A picture of what appears to be some

4 syringes.

5 Q All right. I think I showed you this when

6 you went through your deposition a couple

7 months -- a month and a half ago.

8 A Yes, you did.

9 Q And so you recall that picture?

10 A Yes.

11 Q Okay. Now, first of all, I asked you this

12 is not the standard way to set up a cart of

13 syringes at a hospital or any other place in the

14 medical field; is that right?

15 A Not from what I can see in the picture.

16 It's kind of blurry, and I don't see the whole

17 syringe, but....

18 Q You don't see the whole syringe for two of

19 them, right, I believe? Or you don't see the

20 ones up at --

21 A I don't see the bottom of the syringe.

22 Q Okay. Now, you can't make out here the

23 names of the various drugs that are underneath

24 these syringes; is that right?

25 A That's right.

0904

1 Q Okay. And would I -- would I -- would it be

2 fair -- would it be, say, standard practice to,

3 as one witness has testified, place the name of

4 the drug in the shadow of the syringe?

5 A That would not be the usual practice.

6 Q Okay. All right. And because it -- it

7 complicates the endeavor and increases the

8 likelihood of error; isn't that right?

9 A Well, I think every syringe that leaves a

10 pharmacy is labeled itself. So whether it was

11 put on a tray with the name underneath it or not

12 would be a duplication of -- a bad duplication,

13 but we always -- I think the standard of care

14 would be to label the syringes. And that's

15 easy -- that is easy to do.

16 Q I understand. You just put a name on them.

17 Okay.

18

Now, in your testimony -- I believe we

19 talked about this in your deposition -- you were

20 assuming that -- you didn't have any knowledge

21 about the length of line involved in the process

22 at the time of deposition anyway?

23 A Right.

24 Q Okay. Did you have a chance to review any

25 additional materials on that?

0905

1 A Well, it's still unclear exactly the length

2 from the site of where the thiopental is added or

3 the -- or where the port is and how long that is

4 from the patient. Because it talks about it

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5 going from this big long line with an IV bag on

6 it to the lowest port of the syringe, and that

7 lowest port has got to be somewhere in the last

8 three feet of the line. But then it doesn't say

9 whether there's a connector connecting that into

10 the other room.

11

It's sort of an awkward setup. It's not

12 a normal set -- it's not a usual setup because

13 they are apparently still attempting to do this

14 inside a gas chamber. It doesn't seem -- this is

15 not gas chamber stuff. This is -- but because of

16 that they've got some physical challenges to do

17 that.

18 Q Okay.

19 A But, yes, I looked at that. And you asked

20 me earlier about how much volume is in that

21 syringe and I can't answer that.

22 Q There is -- for standard IV tubing there is

23 a manufacturer measurement for how much cc are in

24 that tubing; isn't that right? Are you familiar

25 with it?

0906

1 A Yes.

2 Q Is it perhaps 1.8 cc per -- per foot? I'm

3 sorry. I think I got that right.

4 A Well, in an 8.75 foot IV syringe it takes

5 about 10 cc to drain that completely.

6 Q Okay. All right.

7 A So these are fairly small amounts. So, as I

8 understand, this is going to be given --

9 thiopental will be given. It will be infused.

10 It will be followed by a 20 cc flush, which will

11 double the -- flush out the line. So you'll

12 virtually have none left in that line.

13 Q Okay.

14 A So no matter what the length of the line is

15 it's still not going to be -- unless it's --

16 again, I don't know exactly -- having not been

17 there and seen that and not having specifically

18 the protocol to know exactly how many feet from

19 the actual port to the patient, but, assuming

20 it's somewhere less than nine feet, that's 10 cc.

21 Q All right. But why don't we assume that

22 it's perhaps 17 and a half feet. How many cc

23 would that be?

24 A Well, that would be less than 20.

25 Q Okay. All right. And -- and so if you're

0907

1 taking that length of line and you push in

2 some -- some thiopental, say, 40 cc of it,

3 assuming no flow coming through from the drip

4 bag, you end up with about 20 cc actually in the

5 patient at that point; isn't that right?

6 A No. You'd have 20 cc left in the line.

7 Q Okay.

8 A All the rest would be in the patient.

9 Q Right. So if it's a 40 cc dose, 20

10 percent -- half of it is staying in the line?

11 A Well, you're giving a 40 milliliter dose or

12 1,000 milligram dose, you're taking that one off

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13 and then changing it and putting another 20 cc

14 in. So a total of 60. And then you're flushing

15 it. So in rapid succession none of that stays in

16 the line.

17 Q Okay. But my question was, Doctor, if you

18 put in 40 cc, will 20 cc remain in the line?

19 A Oh, no.

20 Q Where will it go?

21 A It will go into the patient.

22 Q Well, suppose there's no drip goal?

23 A Drip is irrelevant.

24 Q So every bit that you push in there is going

25 to end up in the patient?

0908

1 A Yeah, because the way this is set up is you

2 give the dose and then you flush that line.

3 Q Okay. When you flush --

4 A If the line -- when you flush the line

5 everything that was in the line will be gone, and

6 it's at least double -- even for a 17-foot

7 extension, which I can hardly imagine you would

8 do it that way, but even that the flush will

9 drain every bit of the thiopental out of the

10 line.

11 Q Okay. So at about the time that the saline

12 flush in this procedure is administered finally

13 all of the thiopental will have reached the

14 inmate?

15 A Yes, if they do the procedure as is

16 outlined.

17 Q Okay. All right. Okay. And now suppose I

18 were to say that it's about another 17 and a half

19 feet for the IV drip bag, the maintenance dose.

20 A You're saying it's 34 feet from the

21 patient?

22 Q No. It's 17 and a half feet. Okay? How

23 long will it take that -- strike that.

24

The longer the distance, the greater

25 amount of time it's going to take to get there;

0909

1 isn't that right?

2 A Well, yes and no. If you don't have the

3 line pre -- normally we'd run a line and we'd run

4 it down to the point of where we're going to

5 either use a needleless connection, as they use

6 here, where we run it out until it starts

7 dripping out. That way it's right at the site.

8 So it goes back to the same port as when you

9 first put in the thiopental, I presume.

10 Q Okay. Well, why don't you look at Exhibit

11 Number 28 then.

12 A Okay.

13 Q Well, unfortunately, the way these are done

14 you have to look at 23 in conjunction with 28.

15

Do you see that? There's your bags up

16 there in 23. They go all the way down. And then

17 in 28 they appear to loop down to the bottom

18 here. You can't really see the bottom of it.

19 Loop back up, and then I will just let you know

20 that at some point eight or ten inches beyond

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21 that they actually enter the chamber. Okay?

22

You had not seen any of this when you

23 were talking about -- when you wrote your report;

24 isn't that right?

25 A No.

0910

1 Q And you hadn't seen any of it in your

2 deposition; isn't that right?

3 A Not until you showed me.

4 Q Not until I showed you at deposition; isn't

5 that right?

6 A Yes. Although I'd read that -- as I recall

7 it, I had read the 707 by then.

8 Q The 770 by then?

9 A 770.

10 Q All right. And they don't describe all

11 these lines that feature these twisting lines

12 going down and back in the photo, 28; isn't that

13 right?

14 A No.

15 Q And that's not -- when you had earlier

16 described the way you -- you had set it up,

17 that's not what's depicted in here, is it?

18 A Well, it's hard for me to really know for

19 sure what's depicted here.

20 Q Okay.

21 A It's certainly clear that you can take the

22 IV bag, that you're going to deliver a certain

23 rate, deliver 100 milligrams per minute, and then

24 you could prefill the line down to where you're

25 going to hook it into the set that's going into

0911

1 the patient.

2 Q Okay. All right.

3 A So you could minimize whatever delay. You

4 could actually start the maintenance dose at the

5 same time you started the other dose depending

6 upon how the setup is.

7 Q Depending upon how the setup is. And,

8 again, the more complex you make the endeavor,

9 the more important it is the people engaging in

10 the process are trained in that endeavor and have

11 some experience that they bring to it; isn't that

12 right?

13 A I agree.

14 Q I'm sorry?

15 A I agree.

16 Q Okay. All right. Now, I think you -- you

17 also testified to setting a drip rate and how

18 that can be sometimes more difficult than others;

19 isn't that right?

20 A Well, it's not really hard. It's just -- in

21 this case they just count the number of -- the

22 rate and just measure it.

23 Q Okay. All right.

24 A There's a number of ways to do it. You can

25 actually count -- count that or you could just --

0912

1 you know, you can mark on the bag and it's known

2 so many milliliters going in over a period of

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3 time, but there's a number of ways of doing it --

4 Q Okay.

5 A -- without a pump to be more accurate.

6 Q Okay. And when you say "a pump," you have

7 to train somebody in order to do that pump; isn't

8 that right?

9 A Like most things, yes.

10 Q Okay. All right. And sometimes it can be

11 kind of a tricky endeavor figuring out the sort

12 of programming for a particular drug in a

13 particular dose at a particular time?

14 A Well, with pumps they are just almost so

15 easy that anybody can do it because the dosage

16 is -- the concentrations are preprogrammed and if

17 you just choose the drug it's already preset.

18 It's really actually easier. There's less --

19 it's not complicated at all. It's less

20 complicated, which means it's safer.

21 Q Well, in your deposition I asked you to

22 describe the devices for us, and you said:

23

"Answer: "Well, they are at

24

56 -- well, there are infusion pumps.

25

There's hundreds of different models and

0913

1

at this point we don't do any -- we

2

don't set any of those pumps up. They

3

are all through a very limited number of

4

nurses that we've trained, that have

5

been trained to do that. So it's

6

limited to who can set up an infusion

7

pump."

8

Was that your testimony then?

9 A Yeah.

10 Q Okay.

11 A There's only a few people that actually set

12 them up, but all the nurses use them. They are

13 easy to use, but a certain select people actually

14 do the programming.

15 Q Do the programming of the pump?

16 A That's pretty common.

17 Q And once that's done a nurse does the

18 actual --

19 A Yeah. Once the programming is done and set

20 up, then it's -- it's almost anybody can do it.

21 Q By the way, there's been some testimony

22 about a meeting at the Governor's Office and

23 certain people who were present and who were not

24 present. You were not at the Governor's

25 meeting; is that right?

0914

1 A I've never been to the Governor's office.

2

MR. GRELE: Okay. All right.

3

THE COURT: How much more do you have,

4 Mr. Grele?

5

MR. GRELE: I have probably about

6 another 25 to 30 minutes.

7

THE COURT: Okay. Go ahead. We'll just

8 take our break at noon.

9

MR. GRELE: All right. That's fine.

10 BY MR. GRELE:

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11 Q What is the microgram per milliliter level

12 of sodium thiopental that is accepted as a

13 measure of the level of unconsciousness?

14 A I'm glad you asked. Based on -- I've got, I

15 think, citations for seven or eight different

16 articles. I've looked at that in humans doing

17 surgical. Gentry is the first article. His

18 level of stage 2 coma or EEG burst suppression

19 was 33.9 mics per mil.

20 Q Well, let's just, if you could -- I'm not

21 going to ask you to read off the studies. Okay?

22 A Uh-huh.

23 Q Now, why are they measuring micrograms per

24 milliliter to determine unconsciousness?

25 A They are not. This is all done in research

0915

1 settings. They do not do this under normal

2 circumstances.

3 Q I understand that. We don't experiment --

4 we don't do certain experiments on humans. I

5 understand that.

6 A It's not really experimentation. It's just

7 as a practical matter when these drugs are used,

8 blood levels are not used to determine clinical

9 effect.

10 Q And when you're actually in the hospital

11 setting?

12 A In any clinical setting for this.

13 Q Okay. In fact --

14 A The only reason to do that -- excuse me, if

15 I could.

16 Q I'm sorry. I'm sorry. Let me just ask the

17 question and then you can give the answer.

18

And in -- these researchers are doing it

19 what? Just for their own edification? Or why is

20 it important to look at blood levels?

21 A What people do research for is to answer

22 questions of what if and to figure out -- we know

23 that this works. We've tried to find out the

24 right dose. And many of these are

25 pharmacokinetic and pharmacodynamic studies to

0916

1 try to determine how to dose these patients.

2

This is a little bit of a unique drug.

3 So they want to know can we measure, can we do

4 this, should we start with a constant infusion,

5 should we give them a loading dose and a

6 maintenance dose, and what kinds of -- we know

7 when they get sedated, but what are the resultant

8 levels of that.

9

And so there's a fairly consistent

10 amount of blood level data from these early

11 studies in the '80s and '90s when this was more

12 commonly used that answer that question, how to

13 dose them and how to get them to a place and are

14 they going to be stable at that point.

15 Q Okay. Now, let me ask you a certain -- are

16 you familiar in the research on thiopental of the

17 difference in measurements between venous blood

18 concentrations and arterial blood concentrations

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19 and how that became a debate in the field? 20 A Yeah, I can. And let me answer it by this 21 way: All of the studies that have been done, the 22 animal studies often use arterial samples. Most 23 of the human studies are mute. They don't say 24 whether they drew it from the arterial side or 25 the venous side. They simply report them as 0917
1 plasma levels, and so there you don't really 2 know. 3 Q Right. 4 A It's not that -- they may know, obviously, 5 would know, but it's moot. So when -- that's 6 part of the reason that it's hard to make sense 7 out of these data. 8 Q Right. 9 A You're not necessarily talking about the 10 same data even from one study to the other 11 study -12 Q Right. And that was my point. The figure 13 that you threw out here at 33 micrograms per 14 milliliter, you don't know if that's a venous 15 concentration or an arterial blood supply 16 concentration; isn't that right? 17 A I don't know and alls I do know is it was 18 enough to produce level III surgical coma. 19 Q All right. 20 A And that's why when we talk about use of 21 blood levels to -- post-mortem blood levels to 22 assess pre-mortem anesthesia, or in the absence 23 we're not even planning to do blood levels, it 24 becomes completely meaningless. 25 Q Doctor, I didn't even ask you about 0918 1 post-mortem. So let's -- I'm on a clock here. 2 I'm trying to avoid going into things that I 3 didn't ask about. Okay? 4 A Yes. 5 Q Now, there are differing levels of 6 unconsciousness; isn't that right? One is 7 responds to verbal stimulation. That's one 8 level; isn't that right? 9 A Yes. 10 Q That's a fairly low level compared to the 11 others; isn't that right? 12 A Yes. 13 Q Okay. And one holds an object and they are 14 holding it steady with their arm out and then it 15 falls. That's another level; isn't that right? 16 A Yes. That's generally considered loss of 17 consciousness. 18 Q By some individuals; isn't that right? 19 A Uh-huh. 20 Q You're not going to do knee surgery with 21 somebody who drops their pen, are you? 22 A No. 23 Q But, in fact, that was the level of 24 consciousness or unconsciousness that was the 25 subject of one of the studies that you had 0919

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1 reviewed prior to your depositions; isn't that

2 right?

3 A Yes.

4 Q Okay. And then there's a level of

5 unconsciousness where you can do certain

6 procedures and not others; isn't that right?

7 A Well, no. I think there's a level of

8 consciousness that's a continuum and once they

9 get to that point the anesthesiologist determines

10 if they are adequately sedated, and they are

11 watching.

12

They're not trying to -- again, that's

13 not analogous to what we're talking about here

14 because they're trying to keep him at the minimum

15 level of consciousness, not too much so that then

16 they start losing blood pressure, not too little

17 so they are sensing pain, but keep them right on

18 the edge.

19 Q Okay.

20 A But we've gone well beyond this.

21 Q When you say "we" you mean the State of

22 California?

23 A Excuse me. The process that's being

24 proposed has gone well beyond this fine line

25 between consciousness and unconsciousness.

0920

1 Q I understand that. I understand that. But

2 it's important for us to understand what -- the

3 terms people are using when they define

4 "unconsciousness." Okay?

5 A Okay.

6 Q All right? And if I were to tell you that a

7 researcher that was initially put forward by the

8 state determined a level of unconsciousness to be

9 responding to verbal stimuli, would that be an

10 appropriate analogy to draw to determine a

11 particular -- the effect of a particular level of

12 thiopental?

13 A Well, responding to verbal stimuli is

14 oftentimes used as a measure to see if they are

15 coming out of anesthesia. It's less specific

16 than -- than, for example, holding an item.

17 Q I understand that.

18 A So that it is -- it is used. It's a light

19 level of anesthesia, yes.

20 Q Okay. All right. I mean, obviously you're

21 not going to engage in a surgical procedure on

22 somebody who's coming out of anesthesia; is that

23 right?

24 A That's right.

25 Q Okay. Now, how long does sodium thiopental

0921

1 keep its peak concentration in the brain?

2 A Well, the answer to that question is not

3 really known.

4 Q Okay. That's fine. If it's not known,

5 that's fine.

6 A But there is lots known about it. I mean,

7 it suggests that we don't know anything, but we

8 do know a lot.

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9 Q Okay. All right. Do you know whether or

10 not the level will increase or decrease in the

11 brain over time given a certain dose?

12 A Well, any drug will decrease over time.

13 Q Now, you said that half lives are not really

14 relevant to our discussion; isn't that right?

15 A Yes.

16 Q Okay. And you defined a half life as a

17 measure of a -- the dissipation of a drug at a

18 certain point in time when it's stabilized; isn't

19 that right?

20 A It's the half life when you've stabilized it

21 to a steady state, yes.

22 Q And so then it's your understanding of the

23 way drugs are studied that you wait until that

24 drug reaches a steady state in order to measure a

25 half life?

0922

1 A Absolutely. You can't measure a

2 disposition -- a half life until you've reached

3 the steady stage.

4 Q Okay. So it's not really a half life then.

5 It's a half plus X life; isn't that right?

6 A No.

7 Q Well, one of the studies you looked at, in

8 fact, they did a survey of a number of other

9 studies of thiopental; isn't that right? I'm

10 referring to the pharmacokinetic --

11 "Pharmacodynamics and Pharmacokinetics of

12 Thiopental" by Russo and Bressolle.

13 A Yes.

14 Q And what they did there in the survey --

15 this is one of the ones that was revealed to

16 Plaintiff at the deposition, Your Honor.

17

And in that article, they -- they

18 actually surveyed a number of other studies on

19 thiopental and listed half lives; isn't that

20 right?

21 A Yes. Because they were using them in

22 clinical situations where they had time to create

23 a half life.

24 Q Okay. Well, they measured it in terms of

25 minutes, didn't they? 2.5 minutes; isn't that

0923

1 right?

2 A Only -- only in a very narrow focus, yes.

3 That was really the redistribution half life.

4 That was not the half life. That's not

5 elimination half life.

6 Q Okay. Then I guess that's our point.

7 There's two differences. There's a

8 redistribution half life and an elimination half

9 life with thiopental; isn't that right?

10 A That is correct. If you -- if you only give

11 a single dose and do nothing else.

12 Q I understand. I understand.

13 A Which is not what we're talking about in

14 this setting.

15 Q Right, right. I understand. I understand

16 that.

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17

So at a certain point in time it's like

18 a graph where the concentration goes down and

19 then sort of goes down at a slower rate and goes

20 down at even a slower right; isn't that right?

21 A That's correct.

22 Q Okay. So there's like three phases of it;

23 isn't that right?

24 A Could be.

25 Q The initial phase lasts -- the

0924

1 redistribution phase, as you're talking about, it

2 lasts approximately what? Three to four minutes

3 or how -- maybe three to four half lives? I'm

4 sorry.

5 A At therapeutic levels.

6 Q At therapeutic levels. Okay. Because

7 that's what people have measured; isn't that

8 right?

9 A That's correct.

10 Q Okay. Now, it's your testimony that we

11 perhaps can't draw linear conclusions based on

12 that; isn't that right? We can't say -- we can't

13 say it's got a certain redistribution half life

14 at clinical levels. Therefore, we can

15 extrapolate and see what it would have at the

16 levels that we're talking about in lethal

17 injection. That's your testimony? There's no

18 linear transposition; isn't that right?

19 A There's no relevance to the lethal injection

20 scenario. We don't have data that really can do

21 that unless it's just a leap of faith.

22 Q Right. I understand that, the leap of faith

23 you've been talking about.

24 A On the other hand, when you talk about this

25 half life of redistribution, that's going from

0925

1 the blood to where it's going to work. It's not

2 like it's going from the blood or the body

3 completely gone somewhere. It's just simply gone

4 to where it's going to work.

5 Q I understand that.

6 A That's why it works so fast.

7

MR. GRELE: Your Honor, rather than

8 engage in this debate any further, why don't --

9

THE COURT: Why don't we just come back

10 to it and everybody can gather their wits.

11

All right. It's noon. We'll take a

12 break until 1:30 and then we will continue with

13 this examination.

14

Thank you.

15

(Noon recess taken.)

16

17

18

19

20

21

22

23

24

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25

0926

1 San Jose, California

September 28, 2006

2

AFTERNOON SESSION

3

THE COURT: In the matter of Morales

4 versus Tilton let the record reflect counsel are

5 present.

6

Mr. Grele, you may continue your

7 cross-examination.

8

MR. GRELE: Thank you, Your Honor.

9 BY MR. GRELE:

10 Q Good afternoon, Doctor.

11 A Good afternoon.

12 Q You've had a chance to look at your file

13 there and list the additional materials you've

14 reviewed since your deposition --

15 A Yes.

16 Q I'm sorry.

17 A Yes, I have.

18 Q If you could finish -- wait until I finish

19 so the reporter can get both of us, that would be

20 great.

21

So you've had a chance to review the

22 articles that you have reviewed since your

23 deposition?

24 A I've made a list for you.

25

MR. GRELE: Can I have that list,

0927

1 please.

2

May I approach the witness?

3

THE COURT: Yes.

4

MR. GRELE: Thank you.

5

Thank you, Doctor.

6

THE WITNESS: You're welcome.

7 BY MR. GRELE:

8 Q Do you have those articles with you?

9 A Yes, I do.

10

MR. GRELE: Is there any way I can have

11 somebody look at them while I do my examination,

12 Your Honor?

13

THE COURT: Sure. Do you want to hand

14 them -- have them -- have the witness hand the

15 articles to you and then you can give them to one

16 of your co-counsel?

17

MR. GRELE: Thanks.

18

THE WITNESS: I'm through the ones you

19 have already.

20

MR. GRELE: Thank you very much.

21

I don't know that anyone will be able to

22 digest it in the short amount of time, but we'll

23 try, Your Honor.

24 BY MR. GRELE:

25 Q Okay. We had closed on one topic. I want

0928

1 to shift to another, if I could. You were

2 describing mixing sodium thiopental to us earlier

3 this morning; do you recall that?

4 A Yes, sir.

5 Q And you estimated it only took approximately

6 ten seconds to do that?

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7 A It's very fast. Once you inject the saline

8 into the bottle it's instantaneous.

9 Q Okay. It's instantaneous. There's no

10 mixing involved?

11 A It really goes directly into solution.

12 Q Okay. And -- and this is from personal

13 experience?

14 A Yes.

15 Q Okay. And over time you've learned how to

16 do that properly?

17 A Well, I put drugs into solution every day.

18 So this is a routine part of my job.

19 Q And it's something you've done fairly

20 often?

21 A Every day. Not necessarily with thiopental,

22 but with other drugs where you draw up a diluent,

23 you put it into a dry powder and into solution.

24 It's fairly common.

25 Q Have you mixed thiopental in the last month?

0929

1 A No. As I mentioned, I don't really mix it

2 usually. It's mixed by -- in the operating room

3 by the anesthesiologist.

4 Q Okay. So you've not mixed it in the past

5 month?

6 A I routinely do not ever mix it.

7 Q Okay. When I asked you in deposition,

8 quote, "have you ever mixed thiopental," you

9 answered "no."

10

Was that correct?

11 A That's correct.

12 Q Okay. Now, I asked you some questions about

13 your knowledge of certain areas of

14 pharmacokinetics. And this knowledge is gained

15 from the review of the literature that you've

16 accomplished in the past month?

17 A Relative to these drugs?

18 Q Well, for instance, when I asked you in your

19 deposition whether or not you knew how long

20 sodium thiopental keeps a peak concentration in

21 the brain, you indicated you did not know; isn't

22 that correct?

23 A Well, it's a drug that is never measured in

24 the brain. So it's not a question that has an

25 answer because in humans we don't measure that

0930

1 drug in the brain. So, therefore, ergo I don't

2 know how long that is in the brain, nor does

3 anybody else.

4 Q Okay. And -- and you at deposition

5 indicated you did not know if it will decrease in

6 the brain as time passes; isn't that correct?

7 A Well, I think you asked me that earlier

8 today, and the answer is all drugs decrease over

9 time.

10

Q Well, on page 156 I said -- I

11

asked you -- well, I had initially asked

12

you: "Is it your position that the

13

brain level will not decrease at all?"

14

And you answered: "It's my

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15

position there's no data in humans to

16

even answer that question. So I cannot

17

answer that question with any surety."

18

And then I said later on: "But

19

you still haven't answered my question

20

about whether or not the brain level

21

will decrease."

22

And you responded: "I don't know."

23

Isn't that correct?

24 A I did make those assertions, yes.

25 Q Okay. And then on -- a little later on I

0931

1 asked you about half lives and I asked you

2 whether or not you had any reason to believe that

3 2.5 to 3 minutes, that the concentration is

4 reduced by one-half is incorrect.

5

And then you said: "I have no idea."

6

Isn't that correct?

7 A I had not looked at it at that point, yes.

8 Q Okay. All right. And the percent of drop

9 of blood concentration you indicated, again, you

10 did not know and it was largely irrelevant; isn't

11 that right?

12 A In the setting the data that we have does

13 not relate to this setting, so yes.

14 Q Okay. And those are concepts that you've

15 sort of familiarized yourself with in the past

16 month?

17 A Yes.

18 Q Okay. So basically -- and you're not a

19 pharmacokineticist; is that correct?

20 A Well, define that, please.

21 Q Someone who studies the mechanical action of

22 drugs in the human body over time.

23 A I don't hold myself out as an expert in

24 pharmacokinetics, but I certainly use it every

25 single day just about.

0932

1 Q I understand. And pharmacodynamics either;

2 isn't that right?

3 A Pharmacodynamics, we use the term more

4 commonly as drug concentration effect.

5 Q And so you --

6 A So that part of it, yes, we -- we use it.

7 We just don't use the term "pharmacodynamics" in

8 our day-to-day language.

9 Q Okay. Pharmacodynamics is things like how

10 much -- how long it takes to get up to the brain

11 and things of that nature; isn't that right?

12 A I'm not in a clinical -- I'm not in a

13 research setting where we're studying that level

14 of information.

15 Q I understand. I understand. So you've read

16 some articles in the past month. What? Three or

17 four articles?

18 A I'm just giving you an initial three that

19 reviewed relative to blood levels.

20 Q Okay. And so you've sort of taught yourself

21 in the past month or so about some of these

22 concepts; isn't that right?

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23 A Well, I've reviewed the Ebling information

24 that made quite a point about the redistribution

25 of drug thiopental from -- from the bloodstream.

0933

1 Q My question was you reviewed some materials

2 in the past month to get up to speed on some of

3 these concepts; isn't that correct?

4 A Yes, I have.

5 Q Okay. All right. Thank you.

6

Do you have any reason to disagree with

7 Dr. Dershwitz that in the rapid distribution

8 phase of thiopental -- thiopental's half life is

9 maybe a minute, and it goes on for several

10 minutes? Do you have any reason to disagree with

11 that?

12 A I never read any of his work.

13 Q Okay. But do you have any basis upon which

14 you can disagree with Dr. Dershwitz?

15 A The half life? Can you repeat that

16 statement?

17 Q Redistribution phase -- the rapid

18 redistribution phase is a few minutes, and it's

19 got a half life of maybe a minute.

20 A In the context of a single dose, that's

21 correct.

22 Q Okay.

23 A Single dose having -- with no other

24 additional drug given.

25 Q Okay. At one point in time, not over a long

0934

1 period of time?

2 A I could say that the half life of

3 redistribution is probably very short like that.

4 Q Okay. All right.

5 A I don't know if it's a minute or it's three

6 minutes or it's two and a half minutes.

7 Q Okay. Now, you reviewed an article called

8 "The Pharmacodynamics and Pharmacokinetics of

9 Thiopental"; isn't that right?

10 A By Russo.

11

MR. GRELE: By Russo.

12

We'll have this marked. I don't know

13 what we're up into.

14

THE COURT: 148.

15

MR. GRELE: 148.

16

(WHEREUPON, EXHIBIT 148 WAS MARKED FOR

17 IDENTIFICATION.)

18

MR. GRELE: May I approach the witness,

19 Your Honor?

20

THE COURT: Yes.

21

MR. GRELE: You have your own copy.

22

Okay. Why don't you use this one.

23 BY MR. GRELE:

24 Q And that's a copy of the article that you've

25 reviewed?

0935

1 A Yes, it is.

2 Q Okay. Now, I'm going to ask you to turn to

3 page 116 of the article, please.

4

Do you see that chart?

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5 A Yes.

6 Q Do you see where the little arrow is or the

7 little mark is?

8 A Under "half life"?

9 Q Seven -- seven -- seven spaces in at the

10 "half life per minute." Do you see that?

11 A Yes.

12 Q Now, we have different characteristics

13 here. There's eight males 20 to 40, eight males

14 20 to 30, eight females. Do you see that on the

15 right -- on the left-hand side?

16 A Yes.

17 Q All right. And for the eight males 20 to 40

18 we had a range and a mean of 2.72, isn't that

19 right, half life? Plus or minus 1.46, and I

20 think that's a statistical variation and

21 calculation.

22 A Yeah. Hold on just a minute. Let me look

23 at this.

24

Okay. This is distribution

25 pharmacokinetics. Okay. Go ahead.

0936

1 Q Of thiopental; isn't that correct?

2 A That's correct.

3 Q Okay. Do you see the column I'm referring

4 to? It's got a little mark on it?

5 A Yes.

6 Q Okay. For -- it has a mean of 2.72, but it

7 also has a range of 1.4 to 5.5; isn't that right?

8 A That's correct.

9 Q All right. And, actually, the chart, if you

10 turn to the next page, it tells you that the

11 extreme values were not given, isn't that right,

12 for some of these?

13 A Yes.

14 Q Okay. But a male 20 to 30 can -- the lowest

15 one that they calculated here was .9, less than a

16 minute; isn't that right?

17 A That's right.

18 Q And the point I'm trying to make here is

19 it's an extremely variable drug in the initial

20 phases of distribution; isn't that correct?

21 A Only if you give it one time.

22 Q I understand. I understand.

23

Now, you were asked to comment upon some

24 of the information concerning whether or not the

25 amount of thiopental of 5 grams would cause a

0937

1 circulatory collapse for -- using it in layman

2 terms. Okay? Do you understand what I'm talking

3 about, a circulatory collapse?

4 A Yes.

5 Q All right. And you indicated, did you not,

6 that you did not see it in the data that you had

7 been given, that it would be -- that that would

8 be a difficulty; isn't that right?

9 A I have not seen data to suggest that they

10 suffered subcirculatory collapse.

11 Q Okay.

12 A But there's very little data that I looked

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13 at to answer the question yea or nay.

14 Q I understand. I understand.

15

And you looked at some of the

16 declarations. I think it was Dr. Heath's

17 declaration; isn't that correct?

18 A Yes.

19 Q Okay. And, by the way, you were also asked

20 a little bit about potassium, potassium chloride,

21 and how you usually give it in a very

22 watered-down form; isn't that right?

23 A Less concentrated.

24 Q Less concentrated. Thank you.

25

And you give it very slowly; isn't that

0938

1 right?

2 A Well, routinely we give it usually no more

3 than 10 milliequivalents per hour. You can give

4 it probably twice that rate without too much

5 concern, and I have at least one patient that we

6 give quite a bit more than that every two weeks

7 for an underlying condition where she's got

8 potassium wasting.

9 Q Approximately over an eight- to ten-hour

10 period; isn't that right?

11 A She probably gets 80 milliequivalents in

12 three to four hours.

13 Q You titrate it out like that?

14 A (Witness nods head up and down.)

15 Q And that's an extremely high dose, isn't it?

16 A Yes.

17 Q That's very much an outlier, isn't it?

18 A She's a singular patient.

19 Q All right. Thank you. And there was also

20 some discussion about breathing. In fact, you --

21 in your deposition you indicated that it stops

22 all breathing -- pentothal at 5 grams would stop

23 all breathing within a minute; isn't that

24 correct?

25 A I'm not sure I said that in the deposition.

0939

1 If I did, I may have misunderstood your

2 question.

3 Q Okay.

4 A It certainly would be at a level that would

5 produce anesthesia within a minute. To stop

6 breathing it does require a phase-in of that

7 drug's effect. So it's not going to necessarily

8 be the same minute that they become conscious.

9 Q Okay. So it stopped breathing within a

10 minute or, if you drew out the administration, it

11 might take a little longer for them to stop

12 breathing?

13 A No. What I said is that within a minute

14 they'd be unconscious. It may take much longer

15 for them to stop breathing.

16 Q So your position is you don't know how long

17 it would take them to stop breathing?

18 A My position is this lethal injection process

19 has never been studied.

20 Q Okay.

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21 A So that it's not that I don't know. It's

22 like no one has actually looked at it to -- and

23 no one has -- for the most -- to my

24 understanding, no one has simply used thiopental

25 for that reason at 1.5 grams or any other dose

0940

1 and measured that question within that time

2 frame.

3 Q Okay. Now, you made some -- excuse me, Your

4 Honor.

5

You made some statements on direct about

6 your analysis of thiopental, and in those

7 statements you indicated that you'd reach a

8 certain level of consciousness at a certain dose;

9 isn't that right?

10 A Unconsciousness?

11 Q Unconsciousness. I'm sorry. You're right.

12 A Yeah. In fact, the three articles I just

13 handed you really address that.

14 Q Okay. And you use sort of a linear

15 calculation for that?

16 A No. I just looked at what they did, and

17 they used a combination of maintenance doses just

18 starting out giving a long dose to get them to

19 where they're surgically ready. Some of them

20 gave loading doses plus a maintenance dose. They

21 are all very nicely done to tell you what kind of

22 blood level may equate to a surgical level of

23 anesthesia.

24 Q Okay.

25 A And they've done it using a variety of

0941

1 dosing models, but very much similar in terms of

2 a maintenance dose or a loading dose.

3 Q So your answer is no, it's not linear; is

4 that correct?

5 A No.

6 Q You don't just literally -- you don't just

7 say I've got seven -- 700 milligrams and, if I

8 double it, it's going to be twice as fast?

9 A Well, the limited data we have suggests it

10 will be faster. It may not be twice as fast. It

11 may be twice as fast.

12 Q Okay. But you don't know?

13 A But it has not been studied. There's no

14 data.

15 Q All right.

16 A I don't want to guess for you.

17 Q Right. And I appreciate that. So you can't

18 extrapolate linearly -- you can't just say, you

19 know, if we double, it's going to be twice as

20 fast. If we draw it out twice as long, it's

21 going to be two times less effective. Is that

22 right? We can't make those kinds of simplistic

23 calculations.

24 A I'm not sure it's an issue of

25 effectiveness. It may be an issue of how

0942

1 rapidly -- if you doubled the dose, it may be a

2 slight difference in how rapidly it works because

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3 you're going to get a higher peak blood level,

4 and that may change the seconds from 27 seconds

5 or 30 seconds or 60 seconds to a smaller number.

6 It may or may not be half.

7 Q Okay.

8 A I don't know if they've studied that, but

9 it's not available.

10 Q Those are the kinds of calculations that

11 people in that field would be responsible for --

12 for doing; isn't that correct?

13 A What field is that?

14 Q Pharmacokinetics.

15 A I don't see any way that they would ever get

16 into this arena to do that.

17 Q Okay. So it's an impossibility. They can't

18 study it?

19 A No, it's not. They could do post-marketing

20 observations of these patients to see if this is

21 working as you expect it to be working. That's

22 certainly possible.

23 Q Okay. Okay. You were asked about Pavulon

24 and information that perhaps some inmates had

25 been breathing after the administration of the

0943

1 pancuronium. Do you recall that?

2 A Yes, I recall you asking that.

3

Q And then you said: "But,

4

again, I've watched Pavulon in patients

5

at 5 milligrams. They don't move. They

6

don't move. So when someone is given 40

7

milligrams and someone in the gallery

8

says, 'I saw them breathing,' I don't

9

know how to relate to that. It's sort

10

of non-information."

11

Is that your quote?

12 A That's my quote, and I can explain that.

13 Q Okay. Were you aware of the fact that there

14 were doctors observing inmates breathing during

15 executions in California?

16 A No.

17 Q Okay. Now, you talked about respiratory

18 effort, I believe, in direct examination. Do you

19 recall that testimony?

20 A Yes.

21 Q Okay. What's the difference between

22 respiratory drive and respiratory effort?

23 A Well, respiratory effort in my -- in my

24 simple idea would be that effort that I can

25 create. I can breathe. I can hyperventilate

0944

1 myself, if I want to. I can take an extra

2 breath. Whereas, respiratory drive is driven by

3 my autonomic nervous system.

4 Q Okay. All right. And is it your testimony

5 that Pavulon affects respiratory drive?

6 A No.

7

MR. GRELE: Okay. That's all I have,

8 Your Honor.

9

THE COURT: Thank you.

10

Mr. Gillette, I have a couple of

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11 questions for the witness. Do you want to do

12 redirect first?

13

MR. GRELE: Your Honor, I did leave out

14 one area, and I apologize.

15

THE COURT: Okay. Well, how long?

16

MR. GRELE: Just two minutes, if I

17 could.

18

THE COURT: Okay.

19

MR. GRELE: All right.

20 BY MR. GRELE:

21 Q You indicated that in your position you're

22 brought on to train individuals when there's new

23 drugs given and things of that nature?

24 A I don't think I understand your question.

25 Q Okay. In your position as the chief

0945

1 pharmacist you are called upon to consult with

2 those who are administering drugs such as nurses

3 and doctors in the hospital; isn't that right?

4 A Yes.

5 Q And the circumstances in which you're called

6 upon to do that are circumstances where there are

7 perhaps new drugs being used or new levels of

8 drugs being used or a different drug

9 administration procedure and things of that

10 nature; isn't that right?

11 A If we have something that's unusual, we'll

12 take time to make sure that the people using it

13 understand how to use it.

14 Q Okay. And you bring your expertise to that

15 effort; isn't that right?

16 A Yes.

17 Q Okay. And you train nurses in that effort;

18 isn't that right?

19 A That's correct.

20 Q Okay. And you train them -- you give them

21 sort of a rudimentary discussion of the

22 properties of the chemicals, isn't that right, so

23 they have an understanding of what they are

24 doing?

25 A It helps them to know somewhat about the

0946

1 drug and how to use it, how to dose it perhaps,

2 what to monitor.

3 Q Okay.

4 A How to watch out for complications.

5 Q Right. For instance, Pavulon, they need to

6 know that it's a drug that stops movement and

7 breathing; isn't that right?

8 A Well, yes, they would need to know that, and

9 it's pretty standard. In the areas that we use

10 that the nurses are all at a high level of

11 training already.

12

MR. GRELE: Okay. All right. Well,

13 thank you very much. I appreciate it.

14

THE COURT: Counsel?

15

MR. GILLETTE: Just a couple of

16 questions, Your Honor, if I may.

17

REDIRECT EXAMINATION

18 BY MR. GILLETTE:

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19 Q Doctor, there was some discussion during

20 cross-examination about arterial versus venous

21 concentrations of thiopental in the blood. Do

22 you recall that?

23 A Yes.

24 Q Is there a differentiation between arterial

25 and venous blood concentration on thiopental?

0947

1 A Well, there is prior to steady state. When

2 steady state is reached for thiopental, that may

3 take several hours before their arterial and

4 venous side are exactly the same and the tissue

5 sites are saturated.

6

But based on one of Dr. Ebling's papers,

7 I believe it's the Wada paper, it actually says

8 that there's a 23 percent difference -- that the

9 venous side is 23 percent of the arterial side in

10 that early -- during the early phase.

11 Q So the venous side has got a lower

12 concentration than the arterial side?

13 A Much lower, by one-fourth as much.

14 Q Have there been any studies that you've

15 reviewed that discuss the blood levels

16 necessary -- blood levels of thiopental necessary

17 for surgery?

18 A Yes. Actually, the three articles I gave to

19 the prosecution team all talk about what doses

20 they -- not only how to dose patients so that

21 they could achieve predicted blood level, but

22 they wanted to make sure that the blood level was

23 surgically acceptable.

24

So all three of those articles really

25 talk about either a bolus rate plus a decrease --

0948

1 an exponentially decreasing maintenance dose or

2 some type of a loading dose and a maintenance

3 dose. Not in the context necessarily of this

4 lethal injection process, but in terms of making

5 sure that patients were acceptably anesthetized

6 for surgery, and those levels are quite

7 consistent with all three of those articles.

8 Q And what are those levels?

9 A Those articles range between 13 and 15

10 micrograms per milliliter at the level that they

11 were targeting for to do surgery.

12 Q Do those articles indicate whether they are

13 measuring arterial or venous blood levels?

14 A They do not.

15

MR. GILLETTE: Thank you, Your Honor.

16 That's all I have.

17

THE COURT: I just have a couple

18 questions, Doctor.

19

The evidence in the case is that at

20 least under the old protocol the concentration of

21 thiopental that was given to inmates was 20

22 percent.

23

Do you recall that?

24

THE WITNESS: Yes.

25

THE COURT: Is there any problem from

0949

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1 your experience or within your expertise with

2 injecting thiopental in that concentration?

3

THE WITNESS: There's no -- there's no

4 real problem from a solubility issue, from a

5 concentration gradient. It is an alkaline

6 product so that it's obviously a higher risk if

7 it were not in a vein, if it was extravisated for

8 some reason. And so it's a very alkaline product

9 and having it at a less concentration from 20

10 percent down to a lower concentration obviously

11 makes it less likely that you'd have adverse

12 reactions from it.

13

THE COURT: That's if you miss the vein

14 or if there's some problem with the manner in

15 which it's injected?

16

THE WITNESS: Yes, that's correct.

17

THE COURT: You could inadvertently hurt

18 an otherwise healthy patient?

19

THE WITNESS: That's correct.

20

THE COURT: Okay. If you're actually

21 trying to get this massive dose into the vein in

22 that concentration, if that's your intention

23 because you're carrying out an execution, is

24 there any problem in terms of absorption of the

25 thiopental into the person to whom it's being

0950

1 injected using -- using that high a

2 concentration?

3

THE WITNESS: No. There's not a problem

4 of absorption. I just -- you know, since that

5 protocol has been changed to a lower, you know,

6 milligram dose I'm just not sure it makes much

7 sense particularly with the -- with the physical

8 limitations of where the patient is and where the

9 drug starts to use a more concentrated because

10 that -- that puts more emphasis on making sure

11 that adequate fluid is flushed through that line

12 to get that material back into the patient.

13

THE COURT: So getting the right -- I

14 want to make sure I understand it. I don't want

15 to overstate or understate what you're saying.

16

If your goal is to get the full effect

17 of the thiopental, and let's assume now that the

18 new protocol is 1.5 grams, are there any

19 advantages or disadvantages to using a

20 concentration other than the one that's

21 recommended by the maker of the drug?

22

THE WITNESS: Well, let me answer it in

23 this way: Abbott makes, you know, the drug and

24 just makes it available. They do make some kits

25 that if you put the kit together, you end up with

0951

1 a two and a half percent concentration. But

2 people have -- but that's not an uncommon thing.

3 We get all kinds of drugs every day and we take

4 those drugs and make them the right -- whatever

5 concentration we want.

6

So taking the two and a half percent and

7 making it 5 percent with half the volume. Okay?

8 Making it a 10 percent would capture --

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9

THE COURT: Sure. You'd be less

10 diluent. But is there an upper limit where you

11 become uncomfortable -- keeping in mind the

12 context here, you're not trying to keep the

13 patient alive, but you want to have a successful

14 injection, is there a point at which the

15 concentration becomes too high?

16

THE WITNESS: Well, I think above 20

17 percent would be -- would be not chosen just

18 because we don't have a lot of experience with

19 it, and you'd probably have to go back and make

20 sure that it's completely solubilized. It

21 probably is, but you'd have to look at that.

22

THE COURT: Would it make sense to try

23 to stay reasonably close to the recommended

24 concentration?

25

THE WITNESS: It would be wise to stay

0952

1 within, you know, the 5 to 10 percent range

2 because that's a reasonable -- reasonable

3 concentration.

4

THE COURT: All right. Now,

5 Dr. Dershwitz whose testimony is in the record

6 has provided a declaration saying that he

7 believes that with a 5 gram dose of thiopental

8 virtually everyone would stop breathing within a

9 minute.

10

Your testimony just now is a little bit

11 different. You said you believe everybody would

12 be unconscious after a minute with that dose;

13 correct?

14

THE WITNESS: Uh-huh.

15

THE COURT: Do you have an opinion as to

16 how long a person could breathe after receiving

17 that dose of thiopental?

18

THE WITNESS: Well, I think that there's

19 two -- there's two answers. One is that once

20 they are anesthetized at this level of surgical

21 anesthesia they are going to stop breathing, but

22 they may still have this inherent underlying

23 drive to breathe that's unrelated to you now

24 putting them under anesthesia because that's a

25 deeper level. That automatic drive to breathe is

0953

1 at a deeper level than surgical anesthesia.

2

THE COURT: All right. So you could be

3 at a surgical plane of anesthesia and still be

4 breathing?

5

THE WITNESS: You could still be

6 breathing because you still have some autonomic

7 function that may not ever be completely wiped

8 out by the thiopental or it's going to take a

9 period of time for that to happen.

10

THE COURT: And that's distinct -- and I

11 think Mr. Grele asked you this, but I want to

12 make sure I understand it. That's distinct from

13 what you described as respiratory effort?

14

THE WITNESS: Yes.

15

THE COURT: How long would you expect to

16 see visible manifestations of respiration after

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17 the injection of a 5 gram dose of thiopental?

18

THE WITNESS: Not very long.

19

THE COURT: All right. A minute or

20 less?

21

THE WITNESS: Again, I've not reviewed

22 logs that help address that, but just based on

23 the pharmacology of it I've got to say it's a

24 minute or less that you'd expect that to start

25 happening.

0954

1

THE COURT: All right. So there might

2 be some autonomic breathing taking place, but in

3 terms of what somebody could see from outside the

4 chamber, for instance, the doctor who was present

5 at the execution from outside the chamber, to see

6 something that looked like breathing after a

7 minute would be -- is not what you would predict

8 from that?

9

THE WITNESS: No. I would say that you

10 might see some autonomic reflexes that says, you

11 know, he's trying to breathe, but the carbon

12 dioxide level is going up, he's becoming

13 hypercapnic, and that's going to drive the

14 respiratory muscles to react and try to breathe

15 for that patient.

16

THE COURT: How long would you expect

17 that to last?

18

THE WITNESS: Well, that's going to last

19 until the Pavulon has its full effect. So in the

20 sense if you didn't give Pavulon, if you just

21 used this one drug, which is what you're

22 suggesting, 5 grams of one drug --

23

THE COURT: Yes.

24

THE WITNESS: -- then, again, one to two

25 minutes is probably -- you're going to stop

0955

1 having all voluntary breathing.

2

THE COURT: That's the question. I

3 realize if you give somebody Pavulon, then you're

4 not -- if the Pavulon works correctly, you

5 shouldn't see anything; correct?

6

THE WITNESS: Correct.

7

THE COURT: But assuming that you've

8 achieved unconsciousness, you've achieved a

9 surgical plane of unconsciousness after a minute

10 with a 5 gram dose, you may still see respiratory

11 effort, correct, or you might still see this

12 autonomic breathing?

13

THE WITNESS: Yes.

14

THE COURT: You would expect that to

15 cease after a minute or two; correct?

16

THE WITNESS: I would expect that to

17 cease after a minute or two.

18

THE COURT: Or when the Pavulon was

19 given, whatever occurred first?

20

THE WITNESS: Yes.

21

THE COURT: All right. So --

22

THE WITNESS: And then there's somewhat

23 of a leap because, again, to my knowledge, and I

24 don't have access to what data has been collected

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25 during the executions, but obviously if -- if we

0956

1 have data prospectively collected in a way to

2 answer that question, then eventually we'd know

3 really well the answer.

4

THE COURT: Okay. But I'm just asking

5 you now as a -- within your expertise. I mean,

6 obviously, you've not studied this and I

7 understand that.

8

All right. So I'm just going to pick a

9 couple of examples here. In the execution of

10 Mr. Siripongs the execution log indicates that

11 the thiopental was started at four minutes after

12 midnight, and the pancuronium was started at

13 eight minutes after midnight, and, according to

14 the doctor who observed the execution, Drs. Davis

15 and Calvo, respiration ceased at nine minutes

16 after midnight.

17

So you have a five-minute period between

18 the injection of the thiopental, and in this case

19 we're talking about 5 grams, and the cessation of

20 what they characterize as respiration.

21

So without getting into the

22 technicalities of whether it was breathing or

23 respiratory effort, and there's a dispute about

24 that, do you find it remarkable that five minutes

25 went by between the administration of that amount

0957

1 of thiopental and the cessation of respiration?

2

THE WITNESS: Well, I find it unusual

3 and, again, it would be nice to know during that

4 time what was happening with the blood pressure

5 of the patient. They may have run into some

6 degree of shock, which would limit how rapidly

7 the drug could be --

8

THE COURT: Okay.

9

THE WITNESS: -- making its clinical

10 effect.

11

THE COURT: And I want to make clear

12 both to you and for the record that I don't draw

13 any particular conclusion. This is just an

14 anomaly that has troubled me ever since I came

15 across it and I'm trying to understand it.

16

THE WITNESS: Sure.

17

THE COURT: So you don't -- you find

18 it -- it raises a question in your mind as well?

19 You just don't know the answer?

20

THE WITNESS: Well, the real question

21 that you pose is if you gave this, you know,

22 large dose of this drug thiopental when will

23 their autonomic system shut down.

24

THE COURT: Well, I'm trying to

25 reconcile -- see, I don't know what happened.

0958

1 The doctors actually say he stopped breathing.

2 So this is another piece of information, but

3 without trying to decide it I'm just looking at

4 what's undisputed.

5

We know when the thiopental was started

6 and we know when what the doctor characterized as

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7 respiration stopped, and we know what the

8 interval was on the log, and in the case of

9 Mr. Siripongs it's five minutes.

10

In another execution, the Babbitt

11 execution, it's also five minutes. The pentothal

12 starts at 28 after midnight and the respiration

13 stopped at 33 after midnight. The pancuronium

14 actually is started at 31 minutes after

15 midnight. So there's five minutes between the

16 thiopental and the cessation of respirations and

17 two minutes from the administration of the

18 pancuronium to cessation of respirations.

19

And I'm just wondering whether those

20 time intervals alone raise any questions in your

21 mind.

22

THE WITNESS: Well, I think it raises

23 the question as to how long it would take for

24 thiopental by itself to cut out the autonomic

25 breathing in that we're all assuming based on

0959

1 either limited observations in this setting or

2 what we expect to do based on the pharmacology,

3 it's going to be a shorter time frame. It may be

4 longer. It may be much longer to get that depth

5 of -- of respiratory drive at the medulla or the

6 brain stem.

7

THE COURT: And does that have anything

8 to do with the depth of unconsciousness?

9

THE WITNESS: No.

10

THE COURT: All right. So you're saying

11 a person can be surgically unconscious and thus

12 unable to sense any pain or anything else, and

13 you could have an interval of as long as -- I

14 think the longest one I saw in the log was

15 actually seven minutes between the administration

16 of the thiopental and the -- and the cessation of

17 what is characterized by the observing doctors as

18 respirations.

19

THE WITNESS: I think it goes -- that

20 cries out for definitions of what they were

21 measuring. Were they measuring title volume?

22 Were they measuring, you know, the movement of

23 air or just muscle movement? It sort of goes

24 back to what were they measuring looking at and

25 what did it mean.

0960

1

THE COURT: What's the basis of their

2 conclusion that what they saw was respiration?

3

THE WITNESS: Right.

4

THE COURT: Okay. All right. Thank

5 you.

6

And the last question I have of you is

7 with regard to potassium. The protocol that was

8 in effect for all of the executions we've been

9 talking about provided that there would be 80

10 milliequivalents of potassium given, and that, as

11 you've testified, I believe, is a lethal dose 100

12 percent of the time; correct?

13

THE WITNESS: Yes, I think so.

14

THE COURT: Okay. In at least two of

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15 the executions, the execution of Mr. Massey and

16 the execution of Mr. Allen, it was necessary to

17 give or at least the execution team decided to

18 give a second dose of potassium.

19

Can you think of any reason why the

20 first dose would not have been immediately

21 lethal?

22

THE WITNESS: They were using 50 or

23 80?

24

THE COURT: I believe they were using

25 80. I think that was the protocol at the time.

0961

1

THE WITNESS: I can't -- I don't have a

2 good explanation. Obviously, the drug is going

3 to be distributed and quickly. It has a direct

4 effect on the myocardial tissue as well as on the

5 electrical system of the heart. That level --

6 that drug is so toxic that we removed it from

7 the -- from the general populace.

8

THE COURT: All right. So assuming that

9 it is properly delivered, that there's nothing

10 wrong with the IV, that it gets in with the full

11 volume that is injected, the person should die

12 within seconds after the administration of the

13 first dose; correct?

14

THE WITNESS: Yeah. And I think the

15 only caveat I would have is that -- is, again,

16 the issue of -- I'm thinking -- we're at the

17 bedside. I'm two feet from -- you know, between

18 the line where I'm injecting it into the patient,

19 and I expect immediate effect.

20

If I'm now 17 feet away as is suggested,

21 then it does create a different scenario and that

22 has to do with timing and --

23

THE COURT: The timing, the timing of

24 the drug to get through the line.

25

THE WITNESS: The timing of it to get

0962

1 through the line and the totality of it.

2

THE COURT: But then I'm wondering --

3 and I can give you some actual time frames.

4

Let's see.

5

In the Massey execution he's given --

6 the 80 milliequivalents of potassium chloride is

7 started at 28 after midnight and he's given a

8 second dose at 33 after midnight. He's

9 pronounced dead based on a cardiac flat line at

10 33 after midnight.

11

So my question is do you have any idea

12 what happened to the first dose?

13

THE WITNESS: No. But it would be

14 interesting to know -- to look at the

15 electrocardiogram during that time. He obviously

16 had some still beats, some -- they could have

17 been agonal rhythms. I don't know what they

18 looked like, but they could have been agonal

19 rhythms, which really are ineffectual rhythms or

20 they could have had a full, you know, regular

21 EKG.

22

THE COURT: So you'd need to see the

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23 actual data?

24

THE WITNESS: Yeah. It's all -- you

25 know, it certainly goes back to what really was

0963

1 the data.

2

THE COURT: Okay.

3

THE WITNESS: What did it look like and

4 what the rhythm was at the time and a decision as

5 to whether there's effective beats going on and,

6 therefore, we'll give a second dose, or whether

7 there was agonal rhythms that it just wasn't flat

8 line and so we'll give a second dose.

9

THE COURT: Okay. We'd have to talk to

10 the people who were actually on the scene and

11 observed it?

12

THE WITNESS: Were there physicians

13 observing that or just the prison system?

14

THE COURT: Well, apparently at the

15 Massey execution I think there were actually

16 two. And then in the execution of Mr. Allen,

17 which was the last execution actually carried out

18 in California, the potassium chloride is started

19 at 31 minutes after the hour and he flat lines

20 seven minutes later. And the log does not

21 indicate this, but he was given a second dose of

22 potassium.

23

And this is the gentleman who was 70 odd

24 years old and diabetic and in a wheelchair and

25 had a bad heart. So I'm just trying to

0964

1 understand again, trying to reconcile the log

2 regarding what you've testified to regarding

3 that.

4

THE WITNESS: I understand the dilemma.

5

THE COURT: Any thoughts about that?

6

THE WITNESS: It goes back to, you know,

7 circulatory support. Obviously, if they are in

8 shock and they're now third spacing all of this

9 extra fluid, there's going to be less effective

10 delivery of the drug to the heart. There's a

11 number of things that could be happening and

12 without better data it's hard to guess.

13

THE COURT: All right. And the last

14 question. In your role as a pharmacist do you

15 get training as to the pain-causing effects of

16 the various drugs that you dispense?

17

THE WITNESS: No. But I have an

18 observation -- I mean, not so much the training

19 about that, but....

20

THE COURT: To do your job competently

21 you have to know what the effects of the drugs

22 are?

23

THE WITNESS: Yes, right.

24

THE COURT: Okay. In an unanesthetized

25 person, is potassium a painful substance?

0965

1

THE WITNESS: Yes.

2

THE COURT: Is it always painful?

3

THE WITNESS: Yes.

4

THE COURT: And what is the degree of

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5 pain caused by potassium in an unanesthetized

6 person?

7

THE WITNESS: That is the question.

8 It's certainly an irritant. Certainly there's a

9 response, and you'd probably visually see a

10 response of the veins, might have a vascular

11 response to it.

12

It's certainly painful. The

13 descriptions of both patients who have gotten it,

14 they will tell you it's painful. We even have

15 some people complain that 20 or 30, 40

16 milliequivalents per liter is running it too

17 fast. "It's burning."

18

THE COURT: Does the amount -- strike

19 that.

20

Does the dose, that is, the

21 concentration -- I keep confusing those.

22

Does the concentration of potassium

23 affect the amount of pain that an unanesthetized

24 person would suffer?

25

THE WITNESS: Well, probably so. We use

0966

1 the standard concentration. The concentrate is

2 all the same concentration. It's the concentrate

3 we use to make less odorant solutions. It's 2

4 milliequivalents per mL.

5

THE COURT: Okay.

6

THE WITNESS: That -- that concentration

7 is irritating. The relationship between that

8 irritant, that pain, and perhaps a skin incision

9 is probably a lot different.

10

THE COURT: All right. But if you've

11 got a -- you've got the dose that's used in the

12 execution protocol, and you weren't anesthetized,

13 what is the quantum pain that a person would be

14 expected to suffer?

15

THE WITNESS: I'm not sure I can

16 quantify that, but it's going to be -- it will

17 hurt.

18

THE COURT: Okay.

19

THE WITNESS: But I don't know what

20 adjective to put with that.

21

THE COURT: All right. So --

22

THE WITNESS: I've heard the word

23 "excruciating." I'm not quite sure that's the

24 right terminology. It should be very painful.

25 It would hurt.

0967

1

THE COURT: But you're not able to give

2 a meaningful quantification?

3

THE WITNESS: No. From the descriptions

4 of people who have had it inadvertently given to

5 them, this happened before, they just simply say

6 it was very painful.

7

THE COURT: And that's in a far lesser

8 concentration?

9

THE WITNESS: Same concentration.

10

THE COURT: 80 milliequivalents?

11

THE WITNESS: No. Concentration is the

12 same.

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13

THE COURT: Okay.

14

THE WITNESS: Just the dose is

15 different.

16

THE COURT: All right. Well, then maybe

17 I'm asking you the wrong question.

18

THE WITNESS: I think it's the

19 concentration that's the issue.

20

THE COURT: All right.

21

THE WITNESS: And whether you give that

22 concentration, you give more of it or less of it,

23 you'll have the same initial effect.

24

THE COURT: Okay. Thank you.

25

Any follow-up by either side?

0968

1

MR. GILLETTE: Nothing for Defendants,

2 Your Honor.

3

MR. GRELE: If I could just, Your Honor,

4 on this breathing issue?

5

THE COURT: Yes.

6

MR. GRELE: Thank you. We didn't have a

7 chance to go over the logs in the examination.

8

RECROSS-EXAMINATION

9 BY MR. GRELE:

10 Q Could you turn to -- well, first before you

11 turn to the exhibit, you offered some theories

12 about what could be wrong with observations by

13 medically trained doctors as to whether or not

14 somebody was breathing after the administration

15 of thiopental, in response to the Court's

16 questions. Do you recall that?

17

By the way, you're not a medically

18 trained doctor; is that right?

19 A I'm not.

20 Q You're not trained in how to evaluate heart

21 rhythms and make decisions based on heart rhythms

22 and those kinds of things, are you?

23 A I am not.

24 Q Okay. And in determining whether or not

25 somebody is engaged in agonal rhythm or regular

0969

1 breathing, for instance, those aren't your

2 determinations that you make, are they?

3 A That's correct.

4 Q Okay. That's something you go to medical

5 school for; isn't that right?

6 A To be trained in that, that's correct.

7 Q Okay. And -- and how about the action of

8 thiopental on the brain? You indicated that if

9 somebody was in shock, it would limit the effect

10 of the thiopental in the brain; is that correct?

11 A If you were in shock, you would have less --

12 as shock is, it pools blood and makes it less

13 likely you can deliver the right dose, same dose

14 as if you were not in shock.

15 Q And you don't know when that point in shock

16 would occur? You don't know if it occurs at 1

17 gram, 2 grams, 3 grams, 4 grams or 5 grams of the

18 thiopental; isn't that right?

19 A I'm not sure it actually occurs, but it's a

20 possibility.

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21 Q I understand. It's leap of faith stuff

22 here, but I guess that's what we're engaged --

23 doing.

24

But when you say it raises the question

25 of shock and circulatory collapse issues, you

0970

1 don't know where on the spectrum that would

2 occur; isn't that right?

3 A Not really.

4 Q Okay. You, in fact, said in your deposition

5 that 1.5 grams would have a profound effect on

6 breathing; isn't that right?

7 A On breathing, yes. To the extent that it's

8 seven times higher than the standard dose that

9 puts someone in surgically ready coma.

10 Q Right. And so obviously if they are in a

11 surgical coma at 5 grams, they're going to -- or

12 at 500 milligrams, they are going to be in a

13 surgical coma at 1.5?

14 A Yes.

15 Q Now, this, of course, all assumes that

16 there's no human error involved; isn't that

17 right?

18 A Certainly.

19 Q Okay. Now -- and when you're looking at

20 that question, whether or not it's human error as

21 opposed to whether or not it's -- it's a

22 pharmacokinetic property of the drug, would it be

23 helpful for you to make sort of a comparative

24 analysis to see that sometimes it does happen

25 more or less like you would expect and other

0971

1 times it doesn't?

2 A Well, I'm a great opponent -- or a proponent

3 that this process that seems to have so many

4 questions ought to certainly be studied as it

5 goes forward --

6 Q Okay.

7 A -- and then collected in a uniform way so

8 that these questions can be addressed.

9 Q Okay. And if there is some information that

10 perhaps some of the executions proceed as you

11 would expect under sodium thiopental, but some

12 don't, then you start to look at some human error

13 questions; isn't that right?

14 A Well, you have to look at something. It may

15 be human error. It may be something else.

16

MR. GRELE: Okay. All right. Thank

17 you.

18

THE COURT: Mr. Gillette, anything

19 further?

20

MR. GILLETTE: Nothing else, Your Honor.

21

THE COURT: You may step down, Doctor.

22 Thank you very much.

23

MR. GILLETTE: May the doctor be

24 excused?

25

THE COURT: Yes. The doctor may be

0972

1 excused unless there is some objection.

2

MR. GRELE: No, Your Honor.

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3

THE COURT: Okay. Thank you.

4

You are released from your subpoena.

5

And, Mr. Gillette, you may call your

6 next witness.

7

MR. GILLETTE: Thank you, Your Honor.

8 Defendants call Dr. Singler.

9

THE CLERK: Raise your right hand,

10 please.

11

ROBERT SINGLER, M.D.,

12 being called as a witness on behalf of the

13 Defendant, having been first duly sworn, was

14 examined and testified as follows:

15

THE CLERK. Thank you. Be seated.

16

Please state your name and spell it.

17

THE WITNESS: Robert Singler. Robert

18 R-O-B-E-R-T, Singler, S-I-N-G-L-E-R.

19

DIRECT EXAMINATION

20 BY MR. GILLETTE:

21 Q Good afternoon, Doctor. What is your

22 profession, please?

23 A I'm a physician and anesthesiologist by

24 specialty.

25 Q And where are you currently employed?

0973

1 A I'm in practice, in clinical private

2 practice at Queen of the Valley Hospital in Napa,

3 California.

4 Q And what are your responsibilities at that

5 job?

6 A I am a staff anesthesiologist. I administer

7 anesthesia personally on a daily basis.

8 Q I'd like to ask you to look, please, at

9 Exhibit Number 37, which is in one of the binders

10 in front of you.

11

And do you recognize this document?

12 A I do.

13 Q And what is it, please?

14 A It's my most recent CV.

15 Q Does this accurately set forth your

16 education and experience?

17 A Almost. I'm no longer chief of anesthesia

18 at Queen of the Valley Hospital.

19 Q And what -- how has that changed? What is

20 the difference now between being chief there and

21 your new position? Does it change what you do?

22 A It does not. I just have fewer meetings to

23 go to.

24 Q Now, could you briefly summarize your

25 education, please.

0974

1 A I received a bachelor of arts from Oberlin

2 College in 1972 in biology and philosophy. I

3 went to medical school at Duke University and

4 graduated in 1976.

5

I took surgical training for one year at

6 UC San Francisco and then went on to an

7 anesthesia residency finishing in 1979. I then

8 took a fellowship in anesthesia at the Virginia

9 Mason Clinic in Seattle finishing in 1980.

10 Q Now, there is a reference on your CV to

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11 being a diplomate of the American Board of

12 Anesthesiology. What does that mean?

13 A It means I'm a board certified specialist.

14 Q And what does it take to become a board

15 certified anesthesiologist?

16 A Completion of an approved residency training

17 program, completion of some period of time in

18 clinical practice, a written and oral

19 examination.

20 Q Now, after you graduated, after you finished

21 your additional work as -- and becoming a

22 specialist in anesthesiology, did you have any

23 academic appointments?

24 A I returned from Seattle to the -- to UCSF

25 where I was invited to the faculty as an

0975

1 assistant clinical professor and remained there

2 for just under two years on the paid full-time

3 staff and then stayed on an occasional basis on a

4 volunteer faculty for perhaps another half dozen

5 years.

6 Q After you stopped being a full -- on the

7 full-time faculty what were you doing?

8 A I went into full-time clinical practice in

9 Marin County.

10 Q And what year was that?

11 A It looks like it was 1982, a while back.

12 Q So since 1982 until the present, have you

13 been a full-time practicing clinical

14 anesthesiologist?

15 A I have.

16 Q In addition to your clinical anesthesia

17 work, do you have any military commitments?

18 A I'm a physician in the Air Force Reserve.

19 Q And what is that -- what responsibilities

20 does that entail?

21 A One weekend a month and two weeks a year, if

22 you believe the recruiters. Perhaps a bit more

23 of that.

24 Q Has that resulted in your having to go to

25 active duty anytime in the last several years?

0976

1 A Yes. I was recalled to active duty for

2 Operation Desert Storm in 1990 and again for

3 Operation Iraqi Freedom three years ago.

4 Q And how long were you in Iraq on this last

5 tour?

6 A Four months.

7

MR. GILLETTE: Your Honor, I would offer

8 Dr. Singler as an expert in clinical anesthesia.

9

THE COURT: Any objection?

10

MR. GILLETTE: No, Your Honor.

11

THE COURT: Thank you. So ordered.

12 BY MR. GILLETTE:

13 Q Now, Doctor, in your profession and work as

14 a clinical anesthesiologist, have you had cause

15 to experience working with sodium thiopental?

16 A Yes.

17 Q Before we go to that I do want to ask one

18 other question. Do you recall that you were

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19 deposed on August the 24th of this year? 20 A I do. 21 Q And since that deposition have you reviewed 22 any additional materials? 23 A Only one document. You handed me yesterday 24 a two-page handwritten set of notes by Mr. Bruce 25 Slavin taken at the time of the meeting that took 0977
1 place in the Governor's Office in February 2 perhaps. 3 Q Thank you. Now, with respect to the issue 4 of your -- you say you've had occasion to work 5 with thiopental; is that correct? 6 A That is correct. 7 Q And it is a drug whose uses and properties 8 you are familiar with? 9 A I am. I used it on a daily basis for almost 10 20 years. 11 Q And do you have experience as an 12 anesthesiologist working with pancuronium 13 bromide? 14 A I do. 15 Q Are you also familiar with its uses and 16 properties? 17 A I last used it the day before yesterday. 18 Q And as a clinical anesthesiologist do you 19 have experience working with potassium chloride? 20 A That as well, yes. 21 Q And you're familiar with its uses and 22 properties? 23 A I last used it the day before yesterday. 24 Q Now, Doctor, did you agree to attend the 25 execution that was scheduled for Michael Morales 0978 1 on February the 24th, 2006 in your capacity as an 2 anesthesiologist? 3 A I did. 4 Q And what was your understanding of the role 5 that you would play in the Morales execution, if 6 it went forward? 7 A Well, pursuant to an order that I believe 8 came from this Court I agreed to monitor 9 Mr. Morales's state of unconsciousness from the 10 time he was placed in the chamber and began 11 receiving anesthetic drugs until the time that 12 pancuronium bromide was started. 13 Q Was it your understanding you would actually 14 be in the chamber at the time that the execution 15 was taking place? 16 A There were two of us, two anesthesiologists, 17 and by mutual agreement I agreed to be the 18 anesthesiologist in the chamber unless I were 19 otherwise incapacitated, in which case my 20 alternate was to step in. 21 Q So based on the understanding that you had 22 of the role you would play, you did agree that -23 you were prepared to participate in the execution 24 under those -- or to be present at the execution 25 under those circumstances? 0979

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1 A Be present is more the way I look at it,

2 yes.

3 Q Did you have any ethical considerations or

4 concerns with respect to that level of

5 involvement in the execution?

6 A I did and still do. I initially declined

7 the invitation to participate. It was -- it

8 was -- the request came in some haste with the

9 indication that there was a short number of days

10 before the scheduled execution. And I suggested

11 that it was not something I would probably do,

12 but stated that I would talk with my wife and

13 we'd talk it over.

14

On further discussion with my family I

15 did agree to go forward on the basis of the

16 documents that I received from this Court.

17 Q And you're referring to the order you'd seen

18 that described the role as you understood it for

19 purposes of your presence at the execution?

20 A Yes.

21 Q After you agreed to attend the execution,

22 did you attend any practice sessions prior to

23 that with members of the execution team at San

24 Quentin Prison?

25 A I did. Both anesthesiologists spent the

0980

1 entire day with -- or at least many hours with

2 the warden and then subsequently with the team

3 actually going through a simulated protocol from

4 beginning to end followed by discussion and then

5 doing it again from start to finish.

6

So we went through two complete

7 run-throughs the afternoon -- or by the end of

8 the afternoon that day that I attended at San

9 Quentin.

10 Q And was this on the Saturday before the

11 execution which was scheduled to start at

12 12:01 a.m. on a Tuesday morning?

13 A I'm afraid I don't recall the date offhand,

14 but could retrieve that if I -- that seems like

15 it.

16 Q Certainly it was at least two or three days

17 prior to the scheduled execution?

18 A Yes.

19 Q And you've indicated that you had an

20 opportunity to observe the execution team

21 practice the procedure; is that correct?

22 A That was the first thing that both of us

23 watched, yes.

24 Q And that gave you -- and you had an

25 opportunity to observe the execution chamber and

0981

1 the facilities that surround it; is that correct?

2 A Yes.

3 Q Did you have any discussion with any of the

4 team members about the techniques that they were

5 using in the execution procedure?

6 A Yes. In one specific area in particular.

7 As I was informed about the court order, we had

8 an affirmative duty to practice much as we did in

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9 the hospital, to try to replicate the hospital

10 setting in an attempt to ensure that the planned

11 execution was a humane process.

12

I had a verbal description of the

13 protocol, although I had not read the protocol,

14 prior to that practice session or indeed prior to

15 the planned night of execution. I had not seen

16 the protocol in print in either of its forms.

17

But I was reasonably comfortable on the

18 basis of the description that I had that if

19 things proceeded as they do in hospital with me

20 observing this directly that there would be

21 virtually no chance for -- for pain and suffering

22 given the drugs that were described.

23

But as I watched the first practice run

24 and the description of that by the team I felt

25 compelled even given my ethical discomfiture to

0982

1 comment on how the IV flow issues were being

2 handled. As it was described to me, the team

3 would use slow, gentle pressure to exhaust the

4 syringe in question and place the drug in

5 circulation.

6

That's very difficult to do with a 50 cc

7 syringe. Typically if I need palpable feedback

8 when I'm injecting, I'll use a 10 cc syringe or

9 less. And you get virtually no tactile feedback

10 from a large barrel syringe. So you need another

11 mechanism to reassure yourself that you're not

12 blowing the IV just through hydraulic action, and

13 that was a concern of mine as I -- as I heard the

14 protocol described.

15

Certainly the antecubital IVs that are

16 used are hardy vessels. I mean, we pump great

17 amounts of fluid into patients in shock through

18 that site with regularity and yet, if we're

19 talking about theoretical possibilities and being

20 placed in the situation in the chamber with the

21 inmate, I wanted to rule out any possibility that

22 there would be misadventure.

23

So I asked the team to consider using

24 the passive flow rate of the IV as a -- as a rate

25 limiting step. You open the IV up, let it run

0983

1 wide, and then you manipulate the stopcock so

2 that, much as I do in hospital when I'm using a

3 patient with an extremely small, say, pediatric

4 IV so that I'm certain that I'm not exceeding the

5 passive flow rate of that intravenous.

6

And that's done by merely rotating the

7 stopcock into a position that allows flow from

8 two ports instead of just one.

9

That was a change. I felt troubled by

10 that because I did not see myself in the role of

11 redoing their protocol or adjusting or suggesting

12 refinements, but given that the court order asked

13 me to practice much as I would in hospital, I

14 felt compelled to point that out because I didn't

15 want to be placed in a situation where the

16 technician was blowing the veins before my eyes

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17 and we would be in a situation where I could not

18 guarantee what I had been asked to guarantee.

19 Q Now, you mentioned the passive flow rate.

20 Could you describe a little more what that means

21 in terms of the injection -- injecting a syringe

22 into the -- into the tubing in a stopcock.

23 A Well, for most patients an antecubital IV is

24 a big vein and, if you place an 18, 16, even many

25 of the modern 20 gauge IVs into that vessel and

0984

1 open the roller clamp up wide, you won't be able

2 to count the drips.

3

They will -- they will drop through the

4 drip chamber faster than you can count. That's

5 what we typically call "wide open."

6

What that IV has just displayed for you

7 is its -- is that -- is the patient's passive

8 acceptance of that rate of fluid under a

9 hydraulic pressure of the height difference

10 between the bag and the patient as to how fast

11 that patient's vascular system will accept that

12 fluid. There's a couple bottlenecks, the biggest

13 one of which is the IV catheter and not the vein.

14

So if one of the theoretical risks,

15 however small, is that you will hydraulically

16 blow this vein apart by pushing too hard on the

17 syringe, then I think you can reassure yourself

18 that you're not going to get into trouble if you

19 don't exceed what that IV will accept passively.

20 Q Other than that suggestion, did you give any

21 other advice or information or instruction to any

22 members of the execution team?

23 A Only with regard to my positioning inside

24 the chamber, how I wanted the instruments or the

25 monitoring equipment which I planned to bring

0985

1 with me positioned on the inmate or adjacent to

2 the inmate. We moved a small aluminum stool in a

3 position where I could see my monitoring

4 equipment at the same time as I was seeing the

5 inmate.

6 Q So those discussions were with respect to

7 the equipment that you anticipated using to do

8 the job that you understood was required by the

9 court's order as opposed to telling the team how

10 to actually conduct the execution?

11 A That's correct.

12 Q Now, at some point did you come to the

13 conclusion that, in fact, you could not

14 participate, could not even be present at the

15 Morales execution?

16 A That decision was the subject of several

17 hours of agonizing discussion between my partner

18 and myself.

19 Q And what was it that led you to conclude

20 that you could no longer be present for the

21 execution?

22 A You handed me shortly after my arrival at

23 San Quentin an excerpt from an opinion rendered

24 by the Ninth Circuit, and this one-page excerpt

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25 was at variance with my understanding and my

0986

1 associate's understanding of what our obligations

2 were to be under the order that came from Judge

3 Fogel.

4 Q And in what way did you perceive a variance

5 between what you thought it was that you were

6 going to be asked to do versus how you understood

7 the Ninth Circuit to be suggesting what you

8 should do?

9 A It's difficult to be diplomatic about it.

10 We do not see ourselves as having anything

11 remotely approaching an executioner's role. We

12 saw our role as -- as not too different from --

13 from opposing counsels' concept, I think. We

14 both are interested in the same outcome no matter

15 what our personal opinions about capital

16 punishment might be, and that would be a painless

17 execution process.

18

That was a role which -- which matched

19 my interpretation of the Hippocratic Oath, but

20 the excerpt from the Ninth Circuit opinion, if I

21 can quote from it because I believe it's one of

22 our exhibits here --

23 Q Would you please do that.

24 A -- said that we construe the order, by which

25 I think he meant the order from this Court, as

0987

1 clearly contemplating that they, the

2 anesthesiologists, have the authority to take all

3 medically appropriate steps.

4

And then it goes on to say: "We also

5 construe 'take all medically appropriate steps'

6 language to require that the anesthesiologist

7 have supplies and a responsibility to ensure

8 Morales is and remains unconscious."

9

That was an affirmative duty to act,

10 which was a very large step beyond observation.

11 My associate and I were willing to place

12 ourselves in the unenviable opinion of being

13 slightly at variance with the AMA's stance on

14 capital punishment or involvement in a process of

15 lethal injection.

16

I was willing to stand in the chamber as

17 this inmate died because, in my professional

18 opinion, he would not suffer. I would be there

19 to see that indeed the drugs went into his system

20 and based on my clinical experience I know that

21 he would have felt no pain from the potassium

22 chloride nor suffered from his inability to

23 breathe.

24

And so I was really not placing myself

25 in an awkward position in that sense except to

0988

1 the extent that I was standing next to someone

2 who was dying and I could not intervene. But

3 even though I thought the process would run,

4 especially because I was there watching according

5 to protocol, the way the outside world would view

6 it, at least in reading this excerpt from the

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7 Ninth Circuit, would be that I had a

8 responsibility now to rescue a botched execution

9 even though I knew full well in my heart that

10 physiologically that just could not happen based

11 on my experience.

12

And so I just didn't feel like getting

13 painted as an executioner rescuing a botched

14 execution. It was just -- it was beyond my

15 limit.

16 Q So did you come to the conclusion then that

17 as you understood the way the order had now been

18 interpreted and applied by the Ninth Circuit that

19 if you were to proceed under those circumstances,

20 even if you didn't think you'd ever have to do

21 anything, the very fact that that is what was

22 anticipated would be unethical?

23 A That is correct.

24 Q And can you tell us about when it was that

25 you came to that conclusion? I believe you said

0989

1 this was the night leading up to the actual

2 execution; is that correct?

3 A In retrospect my associate and I came to

4 that conclusion probably within 30 seconds of

5 your handing me this excerpt and we then spent

6 the next many hours debating it, seeking

7 additional information from this Court, trying to

8 figure out a way out of our quandary, and that

9 was unsuccessful.

10 Q Were there discussions with respect to

11 whether the change in the language from the Ninth

12 Circuit did anticipate a greater role than the

13 one that you thought you were being asked to

14 participate in?

15 A Yes.

16 Q And ultimately you came to the conclusion

17 that you could not participate ethically in the

18 execution; is that correct?

19 A That is correct.

20 Q You could not even ethically attend the

21 execution?

22 A That is correct.

23 Q Now, did you leave the prison at some point

24 that night, the night that the execution was

25 supposed to take place?

0990

1 A Yes.

2 Q Did you ever go back to the prison the next

3 day?

4 A I did not. I recall in deposition that

5 this -- this same topic came up and I had a vague

6 recollection of -- not to make light of it, but

7 being given a tour of the warden's garden because

8 of its historical significance. And I recall

9 that happening in daylight and somehow assumed

10 that I must have gone back the next day, but on

11 discussion with my family I realized that that

12 was erroneous testimony on my part at the

13 deposition and that I went once for the practice

14 session and once the night of the planned

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15 execution and did not go back.

16 Q Now, following the ultimate stay of the

17 Morales execution was there a point in time when

18 you attended a meeting at the Governor's Office

19 pertaining to California's execution procedures?

20 A Yes.

21 Q And can you recall approximately when that

22 took place?

23 A I think it's on the order of a week later.

24 Q And what was your understanding of the role

25 that you would play at that -- in that meeting at

0991

1 the Governor's Office?

2 A Well, I was invited to participate by the

3 same person who had asked if I would be willing

4 to attend on the execution. Both events were in

5 no small part agreed to on the basis of my

6 personal association with the individual who

7 called me.

8

And so in the case of the meeting at the

9 Governor's Office it was described as a -- as a

10 chance to discuss what had happened, to ask my

11 medical opinion about -- about the protocol as I

12 had seen it practiced with an eye towards what

13 the state was going to do next.

14 Q Was the person who contacted you both with

15 respect to participating -- excuse me, attending

16 the Morales execution and to attend the meeting

17 of the Governor's Office Darc Keller?

18 A It was.

19 Q And do you know where he works?

20 A He worked for the Department of

21 Corrections. Beyond that, I've been to his

22 office once, but I don't know where, no.

23 Q Is there another connection between you and

24 Mr. Keller?

25 A Yes. As we have discussed, he is also a

0992

1 member of the Air Force Reserve and a member of

2 the same unit in which I worked for quite a few

3 years.

4 Q Now, when you agreed to attend the meeting

5 in Sacramento, did you make it known that there

6 were -- that you had some limitations on how

7 involved you were prepared to be in your

8 participation in that meeting?

9 A On more than one occasion.

10 Q And what were the limitations that you

11 placed on your participation?

12 A That I was not there to -- I was not there

13 to play 20 questions. I was not there to have

14 the state come up with a revised protocol by

15 gleaning an answer from me based on my practice.

16

I was not there to tweak the protocol,

17 but to answer medical questions based on my

18 experience and also based on what was also public

19 knowledge, drugs that had been discussed in the

20 public.

21 Q Was it your intent in participating and

22 attending this meeting to assist the state in

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23 designing a lethal injection protocol?

24 A Not at all.

25 Q Was it your understanding that you were

0993

1 there as a resource, as you just suggested, to

2 ask questions and provide information upon

3 request or questioning?

4 A I'll be honest with you. The way it was

5 actually portrayed to me is an interesting way to

6 see what goes on at the Governor's level. I'm

7 not involved in politics. It was a meeting that

8 I attended gratis. There was no fee like there

9 was associated with my participation in the

10 practice session.

11

It was one that I just -- I went to more

12 out of interest's sake than anything else as long

13 as I was able to make clear to Mr. Keller that

14 there were limits to what I was willing to talk

15 about.

16 Q Did you at this meeting in the Governor's

17 office offer any advice on how the state should

18 conduct lethal injection executions?

19 A I don't know. Is answering medical

20 questions advice? Yes? No? I certainly didn't

21 see myself as having helped them come up with the

22 revision of the protocol, which I have

23 subsequently read, although there are clear

24 components that were a reflection of our day in

25 the -- in the antechamber and the chamber during

0994

1 the practice session that revolved around how you

2 use the IV.

3

There were questions about the drugs

4 that were used and alternatives, and that was

5 where it got a little difficult for me because I

6 just was not prepared to suggest a better way of

7 doing things, if you want to put it that way.

8 Q Did you respond to questions that were asked

9 of you about the drugs that were used in the

10 protocol?

11 A Yes.

12 Q Did you respond to questions that were asked

13 of you about the procedure that was being used?

14 A Yes.

15 Q Do you recall any discussions at that

16 meeting about the amount of thiopental that was

17 currently being used by the state in its lethal

18 execution protocol?

19 A Yes. That was an area of concern to me on

20 the basis of comments that were made about past

21 executions.

22 Q And with respect to that earlier protocol,

23 was it your understanding that it was a 5 gram

24 bolus dose of thiopental?

25 A Yes.

0995

1 Q And what were the concerns you had that you

2 had expressed in response to questions at that

3 meeting?

4 A The -- the only specific one that I recall

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5 related to this use of multiple doses of

6 potassium prior to obtaining a flat line and how

7 that could possibly occur. And I had to devote

8 some thought to that because the -- the

9 expectation is that a super lethal dose of

10 potassium would give you a cardiac rhythm which

11 is not consistent with life within a very few

12 seconds and yet it was described to me and

13 subsequently confirmed in logs that were sent to

14 me that there were some minutes that had passed.

15

And as we pondered this over the meeting

16 I think the conclusion that I came to and

17 expressed to the group was that this was closest

18 to the clinical situation where I would find

19 myself with a frail patient who might receive a

20 very small dose of pentothal and immediately have

21 near unobtainable blood pressure.

22

There's indeed a spectrum of response to

23 thiopental. It's, in my opinion, not as broad as

24 I have heard it described today in testimony, but

25 nonetheless there is a range of response which is

0996

1 fairly wide. And I have seen on countless

2 occasions -- indeed, it's why we are

3 specialists. We are specialists in titrations of

4 drug to effect, and I have seen on countless

5 occasions what you would normally think of as

6 relatively small doses of thiopental producing

7 large drops in blood pressure.

8

I extrapolated from that to now even a

9 healthy patient or inmate receiving this

10 extraordinary dose of thiopental over a

11 relatively short interval and tried to imagine

12 what the physiology would be, and I could only

13 conclude that if I'd seen low blood pressure

14 before, it must be near unobtainable in no small

15 number of inmates receiving 5 grams.

16

Now, what would that cause? Well, it

17 would cause a very slow circulation, and then we

18 bantered back and forth about what the possible

19 physiological responses to that would be. I

20 expressed my discomfiture with 5 grams as a dose.

21 Q And this discussion that you just described,

22 was this in response to questions that were asked

23 of you about based on your medical background and

24 knowledge --

25 A Yes.

0997

1 Q -- what might have been going on?

2 A Yes.

3 Q Now, I'd like to ask you to take a look at

4 Exhibit 71, please. Do you have that in front of

5 you?

6 A I do.

7 Q You stated at the beginning of your

8 testimony that the one additional document that

9 you've reviewed since your deposition were the

10 notes that were made of a meet -- of this meeting

11 that we've just discussed at the Governor's

12 Office; is that correct?

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13 A Yes.

14 Q And does this Exhibit 71 appear to be the

15 notes that you reviewed last night?

16 A It is.

17 Q And having reviewed those notes, do they

18 appear to accurately reflect statements that were

19 made by you at the meeting?

20 A Well, yes and no. The meeting was not short

21 and, to the extent that two pages summarizes a

22 couple of hours of very active discussion, it

23 can't possibly match what I think I said.

24

I'm -- I am anxious over seeing

25 Mr. Slavin's note of Singler saying "that's

0998

1 perfect" because it implies, taking it out of

2 context, that somehow I was describing the

3 perfect regimen, but, in fact, was a reflection,

4 and I do recall that phrase, of being asked a

5 question, the state or someone in that group

6 suggested a change and how would that work with

7 regard to the physiology we've been discussing.

8 And I said, "Well, that's perfect. If you're

9 trying to do this, then that's the sort of thing

10 that you would have happen."

11

So, yes, these notes are pretty

12 accurate, but they don't reflect the entirety of

13 that discussion and I'm anxious about it being

14 taken out of context.

15 Q I understand. Now, subsequent to that

16 meeting did you agree to appear and testify as an

17 expert for the Defendants, the California

18 Department of Corrections and Rehabilitation in

19 this action?

20 A I did.

21 Q And in agreeing to that did you place some

22 ethical limitations with respect to what your

23 participation would entail?

24 A None different from those you had heard

25 before, that I would not prescribe revisions to

0999

1 the protocol that would produce a better

2 physiological response, a faster execution, a

3 more humane execution.

4

I would work with what was on the

5 record. I would give my opinion of the expected

6 physiological response to what was on the record,

7 but I just would find myself unable to prescribe

8 a different regimen even though in my medical

9 training and experience I might have knowledge of

10 drugs that would do the job a little

11 differently.

12

MR. GILLETTE: Your Honor, I'm going to

13 move on now to some substantive areas. I don't

14 know if you want --

15

THE COURT: It seems like as good a time

16 as any.

17

All right. We'll take a 15-minute

18 recess and start up again at five after 3:00.

19

(Recess taken.)

20

THE COURT: We'll be back on the record

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21 in the matter of Morales versus Tilton. The

22 record will reflect counsel are present.

23

Mr. Gillette, you may continue with your

24 direct examination of Dr. Singler.

25

MR. GILLETTE: Thank you, Your Honor.

1000

1 BY MR. GILLETTE:

2 Q Doctor, you stated at the beginning of your

3 testimony that you have had occasion to review

4 the current protocol, OP-770, that sets forth the

5 California procedure for conducting lethal

6 injection executions; is that correct?

7 A I have, yes.

8 Q It would like to ask you, please, to look at

9 Exhibit 17 in the binders.

10

Do you have that in front of you?

11 A I do.

12 Q Does this appear to be the protocol that

13 you've had an occasion to review?

14 A It does.

15 Q And I'd like to direct your attention

16 specifically to page 29 of the protocol.

17 A I'm sorry. My pages are not numbered.

18 Q They are numbered at the lower right,

19 very -- down at the lower right-hand corner.

20 You'll see "SQ-OP-29."

21 A Oh, yes.

22 Q And on this page does it appear to set forth

23 the drug combinations and amounts that are going

24 to be used in an execution under this protocol?

25 A Yes.

1001

1 Q And what are the -- as you understand it and

2 from reviewing this, the drugs and the amounts

3 that are to be used in a lethal injection

4 execution under OP-770?

5 A There are one and a half grams of

6 thiopental, which are mixed in a syringe and a

7 half, if you will, two syringes; a flush of

8 saline; a 40 milligram dose of pancuronium

9 bromide; and a total of 240 possible

10 milliequivalents of potassium chloride in three

11 syringes. That is supplemented by an additional

12 5 grams of thiopental to be administered as a

13 continuous infusion during the process.

14 Q You mentioned the potassium. And that's --

15 those are three 80 milliequivalent syringes; is

16 that correct?

17 A That's my understanding.

18 Q And is it your understanding that the one

19 and a half grams of the thiopental, the

20 pancuronium, and the potassium will be delivered

21 to the right arm of the inmate?

22 A Yes.

23 Q And is it your understanding that the

24 continuous infusion will take place in the left

25 arm?

1002

1 A Yes.

2 Q And what does it indicate as to the size of

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3 the syringes that are to be used?

4 A Each of the syringes is a 60 cc syringe,

5 although I think for most of them the volume is

6 less than that.

7 Q Now, I want to go through with you each of

8 these drugs and what they are and how they work,

9 but I'd like perhaps at the outset to see if we

10 can't establish some type of a time frame that if

11 this procedure is followed might take place?

12

Based on your experience as an

13 anesthesiologist, how long would it take to push

14 the two syringes containing one and a half grams

15 of thiopental through this -- from the syringes

16 into the tubing?

17 A Perhaps two minutes.

18 Q Would that be two minutes total or two

19 minutes per syringe?

20 A Two minutes total. It's -- it's only --

21 it's only 60 cc, I believe, 40 in one and 20 in

22 another.

23 Q And would that be -- could that be done with

24 the passive flow rate that you discussed earlier

25 this afternoon?

1003

1 A I think so. It could conceivably take three

2 minutes, perhaps four minutes.

3 Q So you're -- the outside estimate would be

4 four minutes to deliver?

5 A Yes. The nominal rate would be about two

6 minutes but perhaps double that, yes.

7 Q And based on your experience how long would

8 it take to start the infusion of the

9 continuous -- the continuous infusion of the 5

10 grams of thiopental in the other arm?

11 A Less than 30 seconds. The bag, I believe,

12 is already prepared, connected to the IV set, and

13 it merely requires the placement of the stopcock

14 for that arm in the correct position and then

15 rolling the roller clamp to the appropriate

16 number of drops per minute.

17 Q And once that roller clamp is open and the

18 continuous infusion has begun can you estimate

19 how long it would take the 5 grams in the

20 continuous infusion to reach the left arm of the

21 inmate?

22 A Based on the discussion today about -- about

23 the volume in the IV tubing and the lengths,

24 which roughly correlate with my personal

25 observation, a maximum of four minutes from the

1004

1 time you open that clamp to the time it reached

2 the inmate, assuming that you didn't start with a

3 fast rate to prime the tubing as would be normal

4 clinical practice.

5 Q And what is the length of tubing that you're

6 estimating here based on the discussions you've

7 heard today?

8 A Somewhere around 12 to 15 feet counting the

9 portions both inside and outside the chamber up

10 to the stopcock because the portions above that

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11 from the drip bags down to that manifold set are

12 irrelevant since they are fully charged with

13 either saline or drug.

14 Q And based on your experience, approximately

15 how long do you think it would take to deliver

16 the saline flush followed by the pancuronium?

17 A We're talking about another total of 60 cc,

18 20 plus 40. So another couple of minutes, again,

19 with a maximum of four minutes. So now I guess

20 we're up to eight or nine minutes into the

21 protocol.

22 Q And then after that approximately how long

23 based on your experience would you expect it to

24 take to deliver the first syringe of potassium?

25 A Again another two to four minutes maximum at

1005

1 the outside. So perhaps six to twelve minutes --

2 six to thirteen minutes all told.

3 Q And that would be from the initial delivery

4 of the first syringe of the thiopental bolus to

5 the completion of the delivery of the first

6 syringe of potassium; is that correct?

7 A Yes.

8 Q And what would your expectation be as to the

9 condition of the inmate upon the completion of

10 that process of the delivery of those drugs?

11 A I would expect the inmate to be undergoing

12 some sort of fatal arrhythmia by the end of the

13 first syringe of potassium chloride which is not

14 recoverable.

15

How long it takes to proceed from there

16 to this isoelectric flat line which is the

17 required end point for declaration of death from

18 what I've read here is -- is indeterminant,

19 perhaps five minutes, perhaps 20 minutes

20 depending on how long you're going to wait

21 between agonal beats.

22 Q Now, that assumes that you have not then

23 delivered the second and the third syringe of the

24 potassium; correct?

25 A It's my presumption that those deliveries

1006

1 would indeed occur until the physician present

2 had determined that you had a flat line.

3 Q Now, when you attended the training session

4 at San Quentin did you have an opportunity to

5 observe the execution team actually using the

6 syringes to push a substance through the stopcock

7 and into the tubing?

8 A Yes. They went through the entire protocol

9 from delivery of a -- of a practice inmate and

10 placement on the table and strapping up.

11 Virtually everything was the same as was

12 this portion.

13

In this case the injection was done

14 through the ports in the chamber wall and instead

15 of leading the tubing over to the practice inmate

16 they were just left in a bucket with -- I believe

17 at my suggestion we attached a bent-over piece of

18 IV catheter to simulate the nominal resistance

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19 you'd see at the patient level.

20 Q Now, is the process of pushing the syringe,

21 what you observed in terms of the training

22 program, is that some -- an activity that only

23 someone with medical training could undertake?

24 A No, not at all. It's a very simple

25 mechanical task.

1007

1 Q Could someone with no medical training be

2 properly trained to push the syringe and deliver

3 the drugs?

4 A Training and practice, yes.

5 Q Now, I want to turn specifically to the

6 sodium thiopental. Have you had occasion in your

7 practice as an anesthetist to use thiopental?

8 A Daily for nearly 20 years, but not to the

9 tune of a gram and a half.

10 Q Is there a reason that your -- well, I get

11 the impression from what you've said is that

12 you're not -- you don't use it as often now; is

13 that correct?

14 A That's correct. As has been described

15 elsewhere today, propofol has near completely

16 supplanted my practice of using thiopental

17 because it unlike thiopental has a relatively

18 short metabolic half life in addition to this

19 distributive half life that we've talked about.

20 And because of that patients have a little faster

21 recovery, less drug aftereffects.

22

So it's been a logical shift for nearly

23 the entire country away from barbiturates to

24 propofol.

25 Q Approximately how many years would you say

1008

1 that you used thiopental on a regular basis in

2 your anesthetic practice?

3 A Well, nearly exclusively for induction for

4 18, 20 years. It was late in the '90s I think

5 when I began to turn away from it rather later

6 than it was introduced. I have to admit I was a

7 little skeptical about propofol.

8

It's relatively painful on injection.

9 It requires mixing with a little lidocaine, a

10 local anesthetic to take that painful sensation

11 away. And it's mixed in an oil -- a vegetable

12 oil emulsion and I was convinced that I was going

13 to see allergic response in, you know, one in a

14 thousand and one in 10,000 patients. So I was

15 unwilling to do that.

16

So I was a little later in converting to

17 propofol than some of my colleagues.

18 Q So you were using thiopental for a fairly

19 long period of time in your practice; is that

20 correct?

21 A Almost 20 years.

22 Q And when you were using thiopental, under

23 what circumstances did you use it in your

24 anesthetic practices?

25 A I used it primarily as an induction agent to

1009

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1 quickly place a patient at surgical levels of

2 anesthesia so that I could place a breathing

3 tube.

4

I occasionally used it as a sole agent

5 for brief procedures or briefer procedures even

6 if they were a little longer that were performed

7 with the adjunctive use of local anesthetics, a

8 breast biopsy or a removal of a wart or a mole,

9 that sort of thing.

10 Q But was it a drug that in your experience

11 if it was -- I understand you to say you

12 primarily use it as an induction drug, but it

13 could also be used for longer periods of time as

14 an anesthesia to allow some surgical process to

15 take place; would that be correct?

16 A Quite easily. We had rudimentary pumps 20

17 years ago which would roll the solution in place

18 and we practiced that as residents, but it wasn't

19 common that way.

20 Q Now, in the clinical setting where you would

21 be using thiopental were -- can you identify a

22 standard dose of that drug that you would use?

23 A I'm in general agreement with what I've

24 heard today in the 3 to 4 milligram per kilogram

25 nominal dose with the caveat that -- that there

1010

1 is no small number of patients that require

2 markedly less than that if you're to stay out of

3 trouble.

4 Q There are patients that require less than

5 the standard dose to avoid what? That it's a

6 much more negative effect on them?

7 A A life threatening drop in blood pressure is

8 the primary immediate response which you see in

9 addition to unconsciousness.

10 Q And in terms of your experience using

11 thiopental, can you tell us what the largest dose

12 you ever used in a clinical situation?

13 A I can with certainty because it has stuck in

14 my mind for -- for a decade and a half, and that

15 was coincidentally to an inmate in my practice in

16 Marin County who required 750 milligrams to get

17 him to a point where I was comfortable placing a

18 breathing tube without seeing a surging in his

19 blood pressure indicating that he was

20 underanesthetized.

21

It took repeated doses totaling 750

22 milligrams. I've never exceeded that amount in

23 the 20 years that I used it exclusively, and the

24 number of times that I even approach 750

25 milligrams is less than ten.

1011

1 Q And other than the 750, what would be the

2 highest -- the largest dose that you can recall

3 giving?

4 A A couple of 500s, but more in the three to

5 four hundred milligram range were my large ones.

6 More commonly I'd give 200 to 250 milligrams.

7 Q And would those doses, the two to three

8 hundred milligrams, would that be a sufficient

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9 dose of thiopental to result in unconsciousness?

10 A Yes.

11 Q Would it be sufficient to render the

12 patient -- take the patient to a level of

13 unconsciousness if they could not experience

14 pain?

15 A That would have to be qualified by the --

16 the grade -- the severity of the painful

17 stimulus. It's fairly simple. If you have more

18 pain, you need more anesthesia.

19 Q So you might have to give a larger dose

20 depending upon the stimulus that was going to be

21 involved?

22 A Well, that's why the use of the induction

23 dose is an important marker for us here because

24 placing a breathing tube has been found in

25 experimental work. This was taught to me in my

1012

1 earliest days in residency training. And placing

2 a breathing tube is as stimulating to a patient

3 in terms of blood pressure response as making a

4 full abdominal incision for major surgery. The

5 two are equal in their stress response.

6

So the induction dose is a deep surgical

7 plane of anesthesia.

8 Q So one of the effects of -- of thiopental is

9 to result in unconsciousness; is that correct?

10 A Yes.

11 Q And based on your experience approximately

12 how quickly will it -- will a dose of thiopental

13 result in unconsciousness?

14 A You will lose a lash reflex of an

15 involuntary blink in association with the onset

16 of sleep within seconds, you know, 15, 20

17 seconds.

18

You'll see a brief period of apnea. The

19 patient will stop breathing for a moment and then

20 you'll -- you'll see a blood pressure response.

21 If you were to measure them as we occasionally

22 would in an emergency case, put your blood

23 pressure in what's called a stat mode and just

24 get sequential blood pressure, you'll see a peak

25 effect in the two-minute range.

1013

1 Q Will the speed of the onset of consciousness

2 or unconsciousness I should say, is that dose

3 dependent?

4 A To a limited extent. If you -- if you

5 increase your dose, you're going to push the

6 slope of this rise in blood level a little bit to

7 the left. And so you'll see a few seconds

8 earlier, but it's not clinically significant.

9 Q At a clinical level use of thiopental can

10 the patient wake up from the -- from the drug's

11 effects?

12 A That is our intention.

13 Q And how long would you expect that to take?

14 A It -- it depends upon the stimulus. If I

15 were to give an induction dose of thiopental to

16 our average-sized middle aged person that -- that

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17 two, three, four hundred milligrams would

18 probably result in quiet sleep for 45 minutes or

19 more. If you pinched them, you'd get a few

20 minutes earlier. If you made an incision on them

21 15 minutes out, I think you'd see a response.

22

Would it be enough to bring them up to

23 unconscious and a conscious response to pull the

24 knife away? I don't know. But I do have at

25 least five to 15 minutes of deep surgical

1014

1 anesthesia -- no, five to ten minutes of deep

2 surgical anesthesia from a single clinical dose.

3 Q Now, the amount that we're talking about

4 here under procedure 770, as you testified a few

5 minutes ago, is 1.5 grams; is that correct?

6 A Yes.

7 Q And that appears to be larger than any dose

8 you've ever given in your clinical experience; is

9 that correct?

10 A By at least a factor of two.

11 Q If you assume that 1.5 grams of thiopental

12 is successfully delivered into the vein, based on

13 your experience, in your opinion, would that

14 result in unconsciousness?

15 A Yes.

16 Q And can you estimate how quickly that would

17 happen or how quickly you would anticipate that

18 to happen, the unconsciousness?

19 A Unconsciousness sufficient to withstand a

20 painful stimulus within a minute.

21 Q And how long would you expect the individual

22 to remain unconscious to the extent that they

23 would not respond to a painful stimulus?

24 A I don't know. I -- we -- we have no

25 experimental evidence that helps us get from here

1015

1 to there. So I'm having to extrapolate from 20

2 years of clinical experience of variations in

3 that dose from one -- you know, 1/50 to half that

4 amount.

5

And I am going to guess to make an

6 educated guess that it's 12 to 15 minutes.

7 That's a minimum and an absolute minimum.

8 Q That was my next question. That would be

9 minimum amount of time you'd expect

10 unconsciousness to exist; is that correct?

11 A I believe so.

12 Q Now, is it -- could a 1.5 gram dose of

13 thiopental be considered a fatal dose?

14 A Barbiturates are not fatal. We have

15 barbiturate overdoses all the time. They are not

16 toxic to the tissues -- well, they are toxic to

17 the tissues, but they are not toxic by and to the

18 extent that that drug, in effect, kills you.

19 Q Is there an aspect of the effect of

20 thiopental that would, in fact -- that could, in

21 fact, result in fatality?

22 A Yes, I understand. And that's why I have a

23 a job. You lose your ability to breathe

24 effectively almost immediately after the onset of

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25 thiopental effect in clinical and certainly super

1016

1 clinical doses.

2 Q So if you're using thiopental, particularly

3 at a larger dose, is it necessary for you as an

4 anesthesiologist to support the breathing of the

5 patient?

6 A Yes, it is.

7 Q If you do not support the breathing, what

8 are the likely consequences to the patient?

9 A In relatively short order you turn blue.

10 You go into a hypoxic coma, hypoxic

11 unconsciousness followed by coma depending upon

12 how soon brain damage occurs, and death results

13 from hypoxic damage to not only the brain but

14 just as importantly the heart.

15 Q Now, assuming you did not support breathing

16 and based on your experience, is it still

17 possible that for some individuals there may be

18 even at a 1.5 gram level a -- a continuance or a

19 return to -- return of breathing? Is that

20 possible?

21 A The latter is -- is what I would agree with,

22 a return of breathing. Virtually everybody

23 should be apneic, a brief cessation of

24 involuntary respiratory effort. You just stop

25 breathing, but the involuntary mechanisms very

1017

1 quickly take over and depending upon how heavily

2 they are suppressed, you will sooner or later

3 return to involuntary respiratory effort.

4

Just as we snore when we're asleep, when

5 we are comatose we are less and less likely to be

6 able to keep the soft tissues of our throat out

7 of the way so that respiratory effort is

8 associated with successful breathing.

9 Q And when you mention involuntary respiratory

10 effort, is that different from breathing?

11 A It's one of a couple of forms of breathing.

12 It's mediated in the medulla oblongata in the

13 brain stem. It's more difficult to suppress than

14 your waking thinking cortex.

15

Your thinking cortex is what causes you

16 to take a deep breath voluntarily. Your

17 medullary or brain stem involuntary brain area is

18 what prompts this other type of breathing. They

19 are separate.

20 Q Is respiratory effort a voluntary or an

21 involuntary action?

22 A Both.

23 Q Now, can -- does -- well, can you describe

24 what respiratory effort would look like? Is that

25 possible?

1018

1 A In this context it's quite ugly.

2 Q And what do you mean by that?

3 A As relatives who choose to visit the bedside

4 during the terminal phases of a loved one's

5 illness will tell you, terminal events are ugly

6 events.

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7

When you lose your conscious ability to

8 keep your airway protected I guess you could

9 start by snoring, but it very rapidly progresses

10 to gurgling, to spluttering, to a blocked airway

11 when your tongue falls back. But the body's

12 drive to survive is extremely strong so that even

13 after you turn blue you will occasionally see

14 this agonal gasp or an occasional -- an

15 involuntary effort as some part of the body or

16 the brain stem tries to -- tries to rescue

17 itself.

18

So that is in part driven by a rising

19 carbon dioxide. It's driven by adrenaline. It's

20 this will to survive.

21

THE COURT: Can I interpose a question,

22 Mr. Gillette?

23

MR. GILLETTE: Yes, of course, Your

24 Honor.

25

THE COURT: Dr. Singler, would a trained

1019

1 observer, would a physician, confuse what you

2 just described with breathing?

3

THE WITNESS: It happens all the time.

4

THE COURT: Tell me how that happens.

5

THE WITNESS: It's the special domain of

6 anesthesia, if you will. I will give you the

7 lesson that I learned that was crucial to this.

8

My instructors taught me early in my

9 first year of training that if breathing is your

10 business because it's what turns things sour

11 first where you need to watch, Doctor, is here.

12

THE COURT: Indicating your --

13

THE WITNESS: This little 2 centimeter

14 circle at the top of your chest, near the top of

15 your chest, because there alone, my professors

16 would tell me -- and there are other signs, but

17 there alone will you see this little rise in the

18 chest which indicates successful breathing as

19 opposed to heaves of the abdomen or intercostal

20 effort or workings at the mouth.

21

Sound even is -- is -- is -- it will

22 mislead you because a relatively loud sound may

23 only be a small volume of air passing through a

24 narrow orifice as opposed to a nice big breath.

25

And so I was taught to watch for a rise

1020

1 in the apex. And if I had an obstructed airway,

2 as I near universally did with induction, if I

3 were not supporting respirations, until I learned

4 how to hold a mask and a jaw, he would point out

5 to me that you see that little area, he's

6 sinking. It's not rising. And that's the one

7 universal sign that I know to look for that is

8 not common to most physicians.

9

THE COURT: All right. So if there was

10 an opinion of a physician that he or she had seen

11 breathing after the administration of anesthesia

12 in this type of a dose, you would need to know

13 what that person actually observed to know

14 whether that conclusion was correct?

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15

THE WITNESS: I have no doubt that if

16 they saw movement in this area that wasn't

17 something spurious or a seizure, that it was

18 respiratory effort. I am very skeptical based on

19 my clinical experience as to whether or not it

20 was successful respiratory effort and you'd have

21 to see this area which is --

22

THE COURT: The area at the top of the

23 chest that you just indicated, if they saw that,

24 then that would suggest that they were seeing

25 actual breathing?

1021

1

THE WITNESS: Yes.

2

There is another one. I recall a lay

3 observation of fluttering lips. That's an

4 obvious exhalation. There's an easy sign. I

5 would guess that that would not be common.

6

THE COURT: That would be a sign of

7 actual breathing?

8

THE WITNESS: At least the outward half

9 of a breath, yes.

10

THE COURT: So in order to assess

11 whether these observations were, in fact,

12 observations of breathing, one would need to

13 break that down and know exactly what they saw?

14

THE WITNESS: Yes.

15

THE COURT: Okay. Thank you very much.

16

Mr. Gillette?

17

MR. GILLETTE: Thank you, Your Honor.

18 BY MR. GILLETTE:

19 Q Assume that you did observe breathing, that

20 you could determine it was breathing. Would that

21 mean that the patient was, in fact, conscious?

22 A No, no. The respiratory center, even the

23 involuntary respiratory center is not in the same

24 place in the brain as the thinking cortex.

25 Q In your opinion and based on your

1022

1 experience -- your clinical experience, if you

2 were to give an individual 1.5 grams of

3 thiopental, could they regain consciousness?

4 A Of course.

5 Q And how likely is it that would occur?

6 A Very unlikely. How long do we have to

7 wait? How long are we going to support breathing

8 or make sure that all these other events that

9 I've suggested don't -- don't do you in

10 beforehand?

11 Q Assuming you didn't support breathing, does

12 that make it less likely that someone would

13 regain conscious from a 1.5 gram dose of

14 thiopental?

15 A Absolutely. It would be a rare patient who

16 would be able to have a natural airway that would

17 allow an involuntary return to be associated with

18 enough successful respiration that you could wait

19 the hour, two, four hours for it all to wear off

20 and have that patient awaken again.

21 Q Assume that you render -- you've rendered

22 the individual unconscious with a 1.5 gram

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23 initial dose of the thiopental. Would the

24 continuous infusion of 5 grams diminish the

25 possibility, however slight based on your

1023

1 testimony just a moment ago, that the individual

2 might regain consciousness?

3 A Yes. I think we can -- we can debate the

4 amounts and -- but this goes a very long way.

5 I'm certainly happy with the dose, but I can

6 understand that others might not be. But this

7 goes a very long way to virtually eliminating the

8 possibility that this redistribution will be

9 followed by metabolism or some other dissipation

10 of effect. You're just -- you're restoking the

11 pile continuously.

12

You're effectively adding -- if 300

13 milligrams was my average clinical dose, you're

14 adding another clinical dose every three minutes,

15 every three minutes on and on. So I guess what

16 you're supposing is can somebody wake up faster

17 than three minutes, and not in my clinical

18 experience.

19 Q Can someone who's been rendered unconscious

20 experience pain?

21 A Yes.

22 Q Can they experience it at a conscious level,

23 I guess is the answer?

24 A No, no.

25 Q Can there nonetheless be reflexive responses

1024

1 even if the person is actually not consciously

2 experiencing pain to noxious stimuli?

3 A Yes.

4 Q Are responses of reflective responses of

5 that sort an indication of consciousness?

6 A There is a whole range of responses of which

7 only one type is associated or generally thought

8 to be associated with consciousness, and that's a

9 purposeful movement in the direction of the

10 offending stimulus.

11 Q Would it be possible for lay observers from

12 a remote location to be able to watch an

13 individual who has been given a large dose of

14 thiopental and determine whether any movement

15 they observed was voluntary as opposed to

16 reflexive?

17 A I don't think so. I guess it would depend

18 on the reading that they might have done. That

19 would sort of place them out of the lay

20 category. But I don't think so. It's medical

21 training.

22 Q Are blood levels of thiopental important in

23 your clinical practice?

24 A I don't measure blood levels of thiopental.

25 Q Have you ever in your experience in the

1025

1 course of anesthetizing somebody taken a blood

2 level to determine their level of consciousness?

3 A I have not.

4 Q Do you have experience with mixing

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5 thiopental?

6 A Yes. We used to do it out of the standard 5

7 gram bottle that is no longer available all the

8 time as residents.

9

We -- I was actually interested by

10 Dr. Ekin's comment about the 24-hour time limit

11 because we used to keep it in the fridge and we'd

12 have to throw it out at the end of every week,

13 but it certainly wasn't 24 hours. But, yes, we

14 do that routinely as residents.

15 Q Was it in your experience difficult to mix

16 thiopental?

17 A No. His characterization of its very rapid

18 dissolution was accurate, although I am not in

19 agreement with his comments about the color. In

20 my experience it's always -- or it's almost

21 always a very faint pale green at least at 2 and

22 a half percent solution.

23 Q And that's based on your many years of

24 experience using the drug; is that correct?

25 A Yes.

1026

1 Q Were you at present in court earlier today

2 when Dr. Heath was talking about the problem of

3 retrograde injections?

4 A I was.

5 Q And what did you understand him to be

6 saying?

7 A Well, he was commenting theoretically that

8 if you have a stopcock, which is open, as I

9 recommended in both directions, both downstream

10 and upstream, that you could, in fact, inject

11 your drug along the path of least resistance,

12 which in his testimony was back up into the bag.

13 And that's -- I'm afraid that's incorrect.

14 Q Is that incorrect because there are devices

15 that are attached to the tubing systems that

16 prevent that type of event from occurring?

17 A Yes. I'm sure it was just an omission on

18 his part because virtually every IV set that we

19 use in anesthesia, although not throughout the

20 hospital, I will concede, but virtually every one

21 we use in the operating room has what's called a

22 check valve.

23

It's a little flapper valve that

24 prevents just what he described, and I'm sure he

25 uses exactly the same device in his own practice

1027

1 on a daily basis or at least he should.

2 Q Could I ask you to look at Exhibit 26,

3 please, in the binders in front of you.

4

You have that in front of you?

5 A I do.

6 Q Do you see in this photograph the devices

7 you've just described that prevent this

8 retrograde return of the fluid into the bag?

9 A I do. They are the little white discs about

10 eight to -- eight inches to a foot below the IV

11 bag, the little white and clear discs, yes.

12 Q So below the white and above the blue plugs

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13 that you see? 14 A Correct. 15 Q Now, Doctor, it's your understanding that -16 is it not, that the second drug that's used in 17 the execution protocol is pancuronium? 18 A Yes. 19 Q Have you had experience using this drug in 20 your work as a clinical anesthesiologist? 21 A I have, yes. 22 Q And I think you mentioned that you used it 23 as recently as just two days ago; is that 24 correct? 25 A Yes. 1028
1 Q What are the effects of pancuronium? What 2 is it used for? 3 A In paralyzing skeletal musculature. It 4 prevents that muscle from contracting in response 5 to a stimulus from the nervous system. 6 Q And why would you use that in your clinical 7 practice? 8 A To make it easier for the surgeons to 9 operate by providing muscle relaxation so they 10 can get access to various organs; to suppress 11 spontaneous respiratory movement of the diaphragm 12 which may be distracting to the surgeon; to take 13 over control of -- of breathing in, say, a more 14 awake patient or a partially awake patient in the 15 intensive care unit who is fighting the 16 ventilator. 17 Q Is there in your experience a normal 18 clinical dose for pancuronium? 19 A I -- I commonly use it in a 10 milligram 20 dose, not 5, because my usual use for it is in 21 cardiac surgery, cardiac anesthesia, where we 22 require a little bit longer duration of action 23 and a little more rapid onset so that in using a 24 a larger dose we get both. 25 Q And is it your understanding that the amount 1029 1 being used in the California procedure is 40 2 milligrams? 3 A It is. 4 Q And that would be above the clinical doses 5 that you've used; is that correct? 6 A By four times. 7 Q Would a 40 milligram dose of pancuronium be 8 fatal? 9 A As with barbiturates, it does not kill you 10 through toxicity to the body, but it renders you 11 in a position incompatible with life because you 12 can no longer breathe. As with the obstructed 13 airway with barbiturates, you become hypoxic, you 14 become unconscious and die. 15 Q So it is a drug whose results can end up 16 being fatal? 17 A That is correct. 18 Q Given your experience, how long would you 19 expect a 40 milligram dose of pancuronium to 20 result in paralysis?

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21 A At least two hours.

22 Q Not how -- how long would it take for the

23 effect to occur after the delivery of the drug

24 was my question?

25 A You'd see onset of -- we commonly use a

1030

1 muscle stimulator when we're delivering

2 paralytics and you'd see partial suppression

3 within -- within 30 seconds. You'd see a near

4 complete suppression around a minute if you got

5 your drug to the musculature.

6 Q And this would be 30 seconds to a minute

7 from the time that it actually hit the vein; is

8 that correct?

9 A Correct.

10 Q If you were to give pancuronium to a fully

11 conscious person, what would they experience?

12 A Well, I nearly do that. I administer it

13 near simultaneously with narcotic in cardiac

14 anesthesia because the use of high dose narcotic

15 for cardiac anesthesia is associated with a

16 rigidity in skeletal muscles which makes the

17 patient unable to breathe and so we near

18 simultaneously administer Pavulon.

19

It's not painful on injection, but the

20 consequences can be terrifying if you were awake

21 and unable to breathe. That feeling of

22 suffocation would be terrifying.

23 Q So it has a suffocating effect?

24 A That's exactly its action.

25 Q If an individual were conscious when they

1031

1 received pancuronium, would they be able to

2 experience that suffocating effect?

3 A They don't even have to be unconscious. In

4 my experience in patients recovering from general

5 anesthesia, as they begin to awaken you tap them

6 on the shoulder, pinch them and yell their name,

7 and they will respond a little bit. They are

8 clearly waking up.

9

You take out the breathing tube and

10 you're on your way to the recovery room. And if

11 you don't support their chin, support their

12 airway, they will lapse into a position which is

13 incompatible with successful breathing. They

14 won't be able to resurrect themselves from it,

15 and yet they are not suffering.

16

They are not reacting to it and saying,

17 "Oh, my gosh. I almost suffocated." They are

18 sitting there obstructing on you and you

19 physically have to protect them from that and

20 they are clearly not unconscious. They are just

21 barely below sleep.

22 Q You indicated earlier in your testimony that

23 painful stimulus can cause someone to emerge from

24 unconsciousness; is that correct?

25 A Yes.

1032

1 Q Would the delivery of 40 milligrams of

2 pancuronium be, in your opinion and given your

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3 experience, a sufficiently painful stimulus that

4 it would cause a person who was unconscious to

5 regain consciousness?

6 A It's not painful at all. As -- as -- as you

7 experience the inability to breathe, that in

8 itself would be terrifying. If you were

9 unconscious and unaware of your inability to

10 breathe, the rise in your blood carbon dioxide

11 would provide a sufficient stimulus to awaken you

12 and then allow you to realize your condition.

13

So that also would be terrifying some

14 minutes down -- down the line. I wouldn't

15 characterize it as pain but as nonetheless an

16 undesirable state of affairs.

17 Q How deeply -- or what level of

18 unconsciousness would you have to be at before a

19 delivery of pancuronium would be sufficient to

20 perhaps bring you back to a conscious state?

21 A It's -- it's a -- it's a time-related

22 effect. As your carbon dioxide rises higher and

23 higher, you're urged to breathe. Your stimulus,

24 the adrenaline response to that, also begins to

25 increase so it would increase over time.

1033

1

But as I suggested with my patients

2 awakening from general anesthesia, it does not

3 take much to suppress that.

4 Q Would you expect someone who has received

5 1.5 grams of thiopental and is then given this 40

6 milligram dose of pancuronium within two to three

7 minutes to be at a level of unconscious from

8 which they could be aroused by the effect of the

9 pancuronium?

10 A No.

11 Q Now, you've mentioned that pancuronium has

12 an effect on breathing; is that correct?

13 A Yes.

14 Q Does it have any effect on respiratory

15 effort?

16 A Yes. If the effort is the muscular

17 contraction, successful or unsuccessful, then it

18 paralyzes that as well. It does not change the

19 drive in the brain stem that's sending signals to

20 these muscles trying to get them to breathe.

21

That doesn't change. The alarm signals

22 don't change, but your body's ability to execute

23 is suppressed.

24 Q Could the delivery of 40 milligrams of

25 pancuronium to someone who has been rendered

1034

1 unconscious by the thiopental prevent the

2 individual from regaining consciousness assuming

3 that the thiopental dose were wearing off?

4 A Well, yes, because the thiopental and the

5 pancuronium share an identical mechanism of

6 action in causing death. Wholly apart from the

7 unconsciousness caused by the thiopental you --

8 you have this disturbance of your ability to

9 breathe properly, whether you're doing it by

10 paralyzing your muscles or by rendering you

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11 sufficiently unconscious that you can no longer

12 protect your airway.

13

Both have the same end result. You are

14 unable to breathe successfully. Your oxygen

15 levels begin to drop. And if we look at, you

16 know, breath-hold skin divers or any of a number

17 of people who try to stay conscious as long as

18 possible without breathing, you can't last more

19 than -- than six, maybe eight minutes at the

20 absolute maximum before you are unconscious

21 solely as a result of low blood oxygen.

22

So what you need is a window of eight

23 minutes before hypoxia by itself relieves you

24 from -- from conscious suffering.

25 Q Would it be fair to say that a combination

1035

1 of the thiopental plus -- the 1.5 grams of

2 thiopental plus the 40 milligrams of pancuronium,

3 is that a combination that would based on your

4 experience likely result -- likely be fatal to

5 the person who's received it?

6 A Uniformly.

7 Q Would it take less time to fatality than

8 just the effects of the 1.5 grams of thiopental?

9 A Only rarely, and it depends upon how hard

10 you want to work to remove that rare

11 possibility. If you are given thiopental alone

12 in this massive dose and you are no longer able

13 to breathe effectively and get hypoxic and die,

14 that will take some length of time.

15

Pavulon doesn't change that except to

16 guarantee that that hypoxia continues against

17 this rare possibility that I've suggested that

18 someone will have a favorable area -- airway,

19 start this involuntary drive and not snore, not

20 gurgle, but, in fact, have some semi-effective

21 breathing.

22

I'm skeptical that it would be effective

23 enough to avoid brain damage some hours later

24 when the barbiturate wore off, but all the

25 Pavulon does is ensure that that same effect

1036

1 caused by the pentothal, that hypoxia, continues

2 and exerts its own unconsciousness-causing

3 effect.

4 Q So what you have then are two drugs both of

5 which are causing hypoxia leading to

6 unconsciousness?

7 A Leading to death. The unconsciousness is

8 separately provided by the pentothal, and we can

9 debate how long that unconsciousness lasts, but I

10 think I've just suggested that all we really need

11 is eight, ten minutes max before that unconscious

12 is perpetuated solely on the basis of the

13 hypoxia.

14 Q Now, Doctor, the third drug, as we discussed

15 earlier, that's used in the California protocol

16 is potassium; is that correct?

17 A Yes.

18 Q And is this a drug which you've had occasion

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19 to use in your practice as a clinical

20 anesthetist?

21 A Yes. I'm afraid I have another small

22 difference of opinion with Dr. Ekins with regard

23 to the concentrations used. Two days ago I

24 administered 40 milliequivalents in about 25

25 minutes in a patient anesthetized for heart

1037

1 surgery to correct a dangerously slow potassium

2 value.

3

And my end point, of course, was not

4 causing a cardiac dysrhythmia, but it was 0.4

5 milliequivalents per milliliter. So about one

6 fifth of the stock concentration in the bottle

7 and the patient went through it in about a half

8 an hour.

9 Q So there are legitimate medical purposes for

10 which potassium can be used in your clinical

11 practice; is that correct?

12 A Yes, even in fairly substantial doses.

13 Q Is there -- you just mentioned this dose

14 that you gave two days ago. Is there a -- is it

15 possible to identify a normal clinical dose of

16 potassium?

17 A Not really. I mean, you have maybe 6,000

18 milliequivalents of potassium in your body. What

19 we do is a drop in the bucket, but it's important

20 because it's just restricted to your vascular

21 system, a relatively small piece of that. And so

22 the answer is you give as much as you need to get

23 your total body stores at their appropriate

24 level.

25

And someone who takes a diuretic, a

1038

1 water pill, may come in with a low blood

2 potassium, and you can correct that with 20

3 milliequivalents in a single IV, but it won't

4 last because that's 20 milliequivalents diluted

5 into 6,000 and eight hours later it's, oh, it's

6 low again.

7

And so that's a learning experience for

8 all the interns that you need to give 20 and 20

9 and 20. In fact, the easier way to do it in home

10 medicine is to take it orally. You can take far

11 larger doses safely orally than you can give

12 intravenously.

13 Q Now, the amount that's being used in

14 California is 80 milliequivalents, up to three

15 syringes each of 80 milliequivalents. Would 80

16 milliequivalents of potassium necessarily be a

17 fatal dose or would it depend upon the manner in

18 which it was delivered?

19 A It's solely a function of milliequivalents

20 per unit time.

21 Q And could you describe how that works.

22 A Well, as I've just described, I gave 40

23 milliequivalents in a half an hour and didn't see

24 any dysrhythmia, but you would not see that done

25 anywhere else in the hospital but in an operating

1039

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1 room or intensive care unit where a physician was

2 watching the monitor virtually continuously

3 because you're pushing the limits. And yet such

4 was the condition of my patient that I felt

5 compelled to correct that given the other things

6 that were going on.

7

If you gave that same 40

8 milliequivalents as a push, I would have expected

9 a fatal arrhythmia. Indeed, that's just what the

10 perfusionist does when he renders the heart still

11 prior to going on -- or during going on bypass.

12 Q So this is -- the potassium is a drug that's

13 used in heart surgery to actually stop the heart;

14 is that correct?

15 A Yes.

16 Q And if you deliver 80 milliequivalents of

17 potassium in one to two minutes, what in your

18 experience would you expect that to do to the

19 individual?

20 A I would expect you would see any of a number

21 of dysrhythmias. Unfortunately, the classic

22 ventricular fibrillation followed by wild ectopy

23 followed by agonal humps on the EKG followed by a

24 flat line is not uniformly seen and we get a

25 chance to look at those possibilities every time

1040

1 we put somebody on bypass because they go through

2 a quick cardiac arrest over the course of a few

3 seconds, and it varies widely.

4

But the point is you very quickly get an

5 unsurvivable dysrhythmia and, if you don't do

6 anything about that, it proceeds to an agonal

7 bump on the EKG followed by flat line.

8 Q So that amount, in your opinion, would be a

9 fatal dose of potassium; is that correct?

10 A Assuming that it got to the heart in a

11 relatively short interval of time, yeah.

12 Q If there were problems with the circulatory

13 system, if it had been, for example,

14 substantially compromised by the thiopental or

15 anything else about the individual, maybe some

16 congenital problem, could that slow down the

17 amount of time it would take the potassium to

18 have effect?

19 A I had not considered that possibility prior

20 to looking at the execution logs, which have been

21 discussed today because I assumed, as many have,

22 that it's -- it's a rapid universal irreversible

23 phenomenon. And yet in record after record I was

24 seeing an interval which was longer than I would

25 have expected.

1041

1

And so again I was forced to confront

2 the physiology or the possible physiology.

3 Potassium unlike the other two drugs is a very

4 freely permeable ion. As I said, you've got

5 6,000 milliequivalents in your body. It changes

6 position across cell membranes in milliseconds

7 all the time over miles and miles of blood

8 tubing.

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9

And so as I saw that I was forced to

10 confront, okay, did this patient not get 80

11 milliequivalents even though the record says they

12 got 80 and that's why they didn't have an

13 immediate dysrhythmia or was something else going

14 on.

15

And as I thought about the problem, as I

16 said we discussed in the Governor's Office, this

17 profound shock, which I believe occurs in a large

18 proportion of patients given this huge dose of

19 barbiturate, suddenly I'm now confronted from

20 potassium that's not going zing to the heart in

21 about 30 seconds but is going into the blood

22 vessels and going towards the lung and from the

23 lung back to the other side of the heart and only

24 then going to the coronary arteries that supply

25 the heart and trigger this dysrhythmia.

1042

1

And if you're in profound enough shock,

2 suddenly now I have a reason why this freely

3 permeable ion may be going someplace else, and it

4 happens that quickly. In fact, that's why I can

5 get away with giving 40 milliequivalents in as

6 fast as 20 minutes in the operating room because

7 it's not going to the coronaries. It's zipping

8 off to other tissues very quickly.

9 Q So, in your opinion given your clinical

10 experience, would the fact that the initial dose

11 of potassium did not result in death and that a

12 second dose was given, does that permit any kind

13 of inference as to whether there was a failure to

14 deliver the first dose of potassium?

15 A It's possible. That's one of the

16 possibilities and that's -- and, as I looked at

17 the logs, I -- we have an old saying in medical

18 school. It's silly, but it's true. "When you

19 hear hoofbeats, you don't think zebras. You

20 think horses."

21

You need to go to what is a fairly

22 likely explanation based on my understanding of

23 human physiology and potassium in particular. If

24 you -- if you are in shock, your drug is not

25 going to get from here to there before it

1043

1 diffuses into other tissues, and that's a

2 possible explanation.

3

The alternative is that IV after IV

4 after IV after IV failed in these execution

5 logs. These patients have been awake because the

6 pentothal wasn't getting in either and they all

7 suffered, and that seems rather less probable

8 than the physiology I've described.

9 Q If after a second dose of potassium were

10 delivered the inmate then relatively quickly, if

11 not immediately, died, does that further support

12 the conclusion that it's something to do with the

13 physiology of the inmate as opposed to a failure

14 of delivery?

15 A Exactly. You've just sort of done your

16 test. You've done your research right there on

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17 the spot. If you don't think your IV is working

18 and you give another dose of the same drug and

19 now it does work, well, then maybe it just took

20 more perhaps because of this physiology we've

21 described. Otherwise you wouldn't expect that.

22 Q Now, the concerns that you've expressed that

23 you voiced in the Governor's Office and that

24 you've just discussed here, would you expect a

25 less -- would it be less likely to have that --

1044

1 that substantial and severe suppression of the

2 circulatory system with 1.5 grams followed by the

3 maintenance dose as opposed to the massive 5

4 grams that were being given under the old

5 protocol?

6 A I think it would still be fairly profound.

7 I mean, there's got to be pretty striking drops

8 in blood pressure. It's got to be near lethal in

9 its own right. But that's still enough of a

10 sluggish blood flow to get your drugs around in

11 seconds, maybe not like that, but in seconds so

12 that it worries me less than 5 grams did.

13 Q So even under the modified protocol it might

14 not be -- it might not surprise you that it took

15 perhaps two 80 milliequivalent doses as opposed

16 to just one to result in the flat line on the

17 EKG?

18 A Exactly. We've had a description of an

19 execution log for one of the last inmates, and I

20 can't recall his name, but I heard mention of his

21 being 79 years old and in poor medical

22 condition. And for him a gram and a half of

23 barbiturate may have produced the same situation

24 that 5 grams did for a younger larger inmate.

25 Q And if that individual had been given the 5

1045

1 grams, is it likely it would be even a more --

2 more suppressive effect on their circulatory

3 system?

4 A I don't know. We're out at the fringes now.

5 Q When you talked about -- earlier you

6 mentioned an agonal rhythm. Can you describe

7 what that is and why would that be an important

8 indication, if it is?

9 A It's another of the points of no return.

10 The number of times you can bring a patient from

11 an agonal rhythm back to life during a

12 cardiopulmonary resuscitation code is exceedingly

13 small, and in the case of an inmate whose

14 breathing you are not supporting it's zero.

15

So that's a marker that -- that you have

16 reached the end point that the state appears to

17 desire and now all you have to do is wait for

18 isoelectricity on the monitor, and that's just a

19 matter of waiting until this automatic muscle

20 just stops twitching of its own right. And it's

21 hard to kill. It takes a long time for muscle

22 tissue to die.

23 Q So if you have observed an agonal rhythm on

24 the EKG, you're not doing anything to support the

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25 individual or resuscitate them in any way and

1046

1 simply wait and do not give them anything else,

2 would you expect that to be an indication that

3 they are going to die?

4 A Yes. But what I suspect happened is that

5 the crew seeing that they were not isoelectric

6 said, well, let's give some more potassium. It's

7 not because it didn't have its desired effect.

8 It was merely to hasten obtaining something that

9 you could clinically call death if your end point

10 is true isoelectricity on the monitor.

11

I mean, we have had patients -- I recall

12 from training as an intern where they are

13 terminal and, frankly, the team turns off the

14 monitor because it becomes a burden to just sit

15 and wait for this little agonal bump that occurs

16 every 30 to 45 seconds. "Oh, there's another

17 one."

18

Does that mean the patient is not dead

19 yet? Well, of course not. But if that's your

20 end point, then I can see the team wanting to

21 hasten that and giving a second, third dose of

22 potassium trying to obtain that result.

23

THE COURT: There's a reference in a

24 couple of the execution logs to an

25 idioventricular rhythm. Is that what you're

1047

1 talking about?

2

THE WITNESS: It's close. That precedes

3 in this spectrum that goes from ventricular

4 fibrillation to these odd ventricular beats,

5 that's a slightly better oxygenated heart muscle

6 giving an idioventricular, which means typically

7 a wide complex bump, but not quite that little

8 mountain.

9

THE COURT: Not quite the same thing as

10 an agonal rhythm but getting there?

11

THE WITNESS: It's three minutes.

12

THE COURT: Upstream to get that.

13 BY MR. GILLETTE:

14 Q Following up, if I may, on the judge's

15 question, would that also be in your clinical

16 experience an indication that the individual is

17 dying?

18 A Yes. Unsupported by a resuscitative effort,

19 absolutely.

20 Q Now, if you were to deliver very quickly one

21 to two minutes a dose of 80 milliequivalents of

22 potassium to a person who was fully conscious,

23 would that be a painful experience?

24 A Yes.

25 Q In what sense? Is there any way that you

1048

1 can based on your clinical experience describe

2 that?

3 A Maybe. Because in your question you didn't

4 stipulate how it could be delivered. We --

5 Q Well, let's talk about a bolus dose directly

6 into the vein.

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7 A Into a peripheral vein?

8 Q Correct?

9 A As opposed to one of these central catheters

10 in a large vein. Because I've heard testimony

11 today, which I agree with completely, it's a

12 concentration-related phenomenon. If I give 0.4

13 milliequivalents per milliliter in a peripheral

14 vein to an awake patient who needs rapid

15 intravenous replacement, and I don't have any

16 other option, that patient will complain of

17 burning.

18

And they will accept that because

19 it's -- I'm going to do it over a half an hour to

20 an hour and it's the only access to the patient's

21 veins that we may have. I've done that before.

22 It's painful and patients don't like it.

23

We're now talking about a concentration

24 that's five times higher than that also

25 administered into a peripheral vein and that,

1049

1 too, has happened accidentally on the wards.

2

Potassium in that concentration is no

3 longer released to the wards the way it used to

4 be when I was in training. It's husbanded in the

5 pharmacy because of misadventure. You know,

6 we've gone through labeling changes and red

7 labels and red caps, and that has not been

8 sufficient to prevent the accidental use of a

9 vial that looked like what the nurse thought she

10 was supposed to give in injecting some heparin

11 into an IV to keep it open and instead gave

12 potassium.

13

The patient, at least on the basis of

14 the anecdotal reports, which I heard about -- I

15 have not read a study. I'm reaching back in time

16 because this has been described to me. We've had

17 what are called morbidity and mortality

18 compositions where that's been discussed. The

19 patient reacts immediately. "Oh, it's -- it's

20 ouch."

21

Now, that's the concentration we're

22 talking about. It's clearly painful. I imagine

23 there was a whole group of patients that would

24 describe that as excruciating, but the key

25 question to me is what level of anesthesia it

1050

1 requires to block that. And I am not convinced

2 that that requires a surgical plane of

3 anesthesia.

4 Q What, in your opinion and given your

5 clinical experience, would be a sufficient level

6 of anesthesia to oblate the effect of an 80

7 milliequivalent dose of potassium directly into

8 the vein?

9 A If I -- let me give you a comparison. When

10 my ophthalmology colleagues are doing cataract

11 surgery part of that anesthesia they deliver

12 themselves is the injection right under the

13 eyeball through the eyelid of a dose of local

14 anesthetic which tends to sting, as Novocaine

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15 does, under the skin, and they inject it right

16 underneath the eyeball, right through the

17 eyelid.

18

I had to give those patients 60, 75

19 milligrams of thiopental when I used to use

20 thiopental for cataract surgery to stick a needle

21 underneath your eyeball.

22

How long do I need to keep doing that?

23 Well, until you finish delivering this 2

24 milliequivalents per milliliter in the 60 cc

25 syringe over two minutes, so do I need to give 75

1051

1 and 75 and 75 and 75, about 300 milligrams? Do I

2 need to double that or triple that for safety

3 even if we're looking at lethal injection?

4

I don't know. I'm skeptical, but I feel

5 fairly confident on the basis of my experience

6 talking about an area which has no experimental

7 data to say that this does not require surgical

8 anesthesia and it requires it only for the two

9 minutes of duration that you're injecting this

10 into a patient who is already hypoxic, who's

11 already had some dose of barbiturate hopefully on

12 board. And I don't think it's anywhere near 5

13 grams much less a gram and a half.

14 Q So would it be fair to say that, in your

15 opinion -- well, let me ask you this: If you

16 assume that the patient is unconscious, are they

17 going to be able to experience any pain as a

18 result of the delivery of the 80 milliequivalents

19 of potassium?

20 A They will experience it at some nerve level

21 and it will not rise to the level of conscious

22 suffering.

23 Q There will be no conscious result to the

24 individual; is that correct?

25 A That's correct.

1052

1 Q Is that -- is the delivery of that amount of

2 potassium a sufficiently noxious stimulus that it

3 could have the effect of bringing someone out of

4 the anesthetic effect?

5 A You're asking me to give an educated guess

6 based on experience which is a leap of faith, is

7 a bit of a jump from there to here. I don't

8 think so, but Dr. Heath disagrees, and I don't

9 know how to bridge that gap for you.

10

THE COURT: There's no studies that

11 either of you could point to?

12

THE WITNESS: Not that I am aware of.

13

The closest I can come is the anecdotal

14 reports of the nurse who accidentally gave that

15 concentration to the patient on the ward, and the

16 patient said, "Ow, that's horrible."

17

Now, what does it take to block that?

18 We don't know.

19

THE COURT: You're both extrapolating

20 from the experience in your practice?

21

THE WITNESS: That is correct.

22 BY MR. GILLETTE:

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23 Q Doctor, it's your understanding, is it not,

24 that the thiopental in the initial bolus dose,

25 the pancuronium and the potassium, are all

1053

1 delivered through the same catheter in the right

2 arm of the inmate; is that correct?

3 A Yes.

4 Q If you were to assume that the IV failed

5 during the delivery of the thiopental, is it --

6 in your opinion and given your clinical

7 experience, would it nevertheless be possible

8 that the same IV would nonetheless deliver a

9 sufficient amount of pancuronium to paralyze the

10 inmate?

11 A In only two possibilities that I can think

12 of. In reading Dr. Heath's declarations he has

13 repeatedly gone to this point, and it concerns

14 me, because while it sounds logical if I give 20

15 percent of this drug and 20 percent of that and

16 20 percent of that, then I may have a lethal

17 combination of the Pavulon and the potassium, but

18 I don't have enough pentothal to make sure you're

19 unconscious.

20

And that sort of logically makes sense.

21 The problem is how do you physically have that

22 happen with an IV catheter in clinical practice.

23 When an IV infiltrates it can infiltrate for a

24 couple of reasons, but the predominant one is

25 that there is a hole somewhere in the vein.

1054

1 You've already blown it apart hydraulically.

2 We'll set that one aside.

3

You've punctured it with the tip of the

4 needle as you've hunted around for an access

5 site. And we have testimony to suggest that that

6 was a problem in at least one execution where the

7 IV didn't just drop into place and you have a

8 potential that there's a hole in the vein.

9

But then what happens next really makes

10 Dr. Heath's assertion problematic for me. It

11 could fall into one of two realms. The way the

12 original protocol was -- was described -- was

13 written, the concentration of thiopental that was

14 administered was quite high. And it may be 10

15 percent, it may be 20 percent. I'll have to look

16 at the numbers, but in any case it was four times

17 what we use in clinical practice.

18

And, indeed, if you only gave 20

19 percent, only gave 1 gram, then theoretically

20 some minutes downstream you might have a patient

21 who might rise to consciousness in response to

22 pain.

23

Well, how do you get that? You get that

24 by putting the other 30 or 40 milliliters

25 somewhere else. If you have a faulty tubing

1055

1 connection as it was described today, it will be

2 on the floor. And the same would happen for your

3 next drug, 80 percent of that goes on the floor,

4 80 percent of that goes on the floor.

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5

That's a possibility and I cannot

6 exclude that. It seems improbable that that

7 happened six times in a row where I'm seeing a

8 delayed effective drug.

9

What's the other possibility? That this

10 pentothal is now going out through the holes that

11 somebody has made in the vein in their attempt to

12 place the IV in the first place.

13

Well, 10 percent pentothal is -- is

14 caustic. I mean, lye is alkaline. 10 percent

15 pentothal is alkaline. It hurts. And I don't

16 know if it hurts as much as potassium. That's

17 all speculation, but the point is it hurts.

18

Indeed, if you inject 2.5 percent

19 pentothal underneath the skin, the patient will

20 complain some minutes to hours later of burning

21 and may slough that skin. It may just kill the

22 skin. There are case reports describing that.

23

So the point is it's an irritating

24 substance at that concentration at 10 percent or

25 20 percent. If you put three quarters of your

1056

1 dose in the arm, before you ever get to the

2 Pavulon your patient is going to be letting you

3 know right away that something is wrong.

4

And so it doesn't seem very likely that

5 that's what happened to me.

6

Now, the second possibility is that we

7 switch from that concentrated one to a very

8 dilute solution, a much larger volume. And it is

9 improbable to me from physics that you can inject

10 a lemon or two lemons worth of fluid underneath

11 the arm and have the next drug through that same

12 IV work. It just will be blocked off.

13 Q If the IV had infiltrated, can it recover?

14 I mean, can you have it infiltrated and then

15 suddenly with the next drug it's working okay

16 now?

17 A With peripheral IV infiltration it does not

18 work that way.

19 Q Can the possibility of infiltration be

20 avoided by the speed at which the drugs are

21 delivered through the syringe -- from the

22 syringe?

23 A I think so. It's being conservative, but

24 that's why I recommended that change in practice

25 with the stopcock to the -- to the team, but

1057

1 we're trying to make it belt and suspenders in

2 terms of reliability and safety.

3

In clinical practice I push hard on

4 antecubital IVs all the time. That's how we

5 resuscitate patients in shock. We give large

6 volumes through those IVs that are inserted in

7 the field by paramedics. That's all we've got,

8 to rush in in shock and you're just pumping

9 fluids and blood and you're certainly not using

10 passive flow rate as a limitation.

11

MR. GILLETTE: Thank you very much,

12 Doctor.

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13

Your Honor, I have no further questions

14 at this time.

15

THE COURT: Okay. We have about 15

16 minutes. Do you want to get started?

17

MR. GRELE: If Your Honor wants us to

18 start, I can start.

19

CROSS-EXAMINATION

20 BY MR. GRELE:

21 Q Good afternoon, Doctor.

22 A Good afternoon.

23 Q I know it's been a long day for you here.

24 So I just wanted to ask you about a couple of

25 things and that is -- can you look at Exhibit 136

1058

1 up there, please.

2

Do you see that, Doctor?

3 A I do.

4 Q Okay. Is that your handwriting there?

5 A It is.

6 Q Okay. And when did you put that handwriting

7 on that -- on that document?

8 A Somewhere around the time I was asked to be

9 an expert for the state. The -- I started

10 putting my thoughts together about, you know,

11 what led us to the decisions we made, the two

12 anesthesiologists, and how I felt about the

13 various materials that I had been supplied for

14 evaluation.

15 Q You had been supplied this on the night of

16 Mr. Morales's scheduled execution; is that

17 correct?

18 A Yes.

19 Q This is a page from the Ninth Circuit order;

20 isn't that right?

21 A I don't know. It appears to be.

22 Q Okay. It says: "We construe the order as

23 clearly contemplating that they," meaning you and

24 the other anesthesiologists, "have the authority

25 to take, quote, 'all medically appropriate

1059

1 steps.'"

2

Do you see that?

3 A I do.

4 Q And then it says: "Either alone or in

5 conjunction with the team to immediately place or

6 return Morales into an unconscious state or to

7 otherwise alleviate the painful effects of

8 pancuronium bromide or potassium chloride."

9

Do you see that?

10 A I do.

11 Q Okay. Was it your understanding that this

12 court's order that you were to take all medically

13 appropriate steps did not include somehow

14 signaling to the team that Mr. Morales was in

15 distress?

16 A Before we proceed, it was my understanding

17 that this was not an order. This was an opinion

18 by the Ninth Circuit regarding the order that

19 emanated from this Court, and that was part of

20 what caused our confusion as to how -- how we

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21 should regard this difference of opinion.

22 Q Now, who told you that this was not an

23 order, that it was an opinion?

24 A I don't remember. It was titled an opinion

25 is what I was told.

1060

1 Q And what -- who told you that it was an

2 opinion?

3 A I do not know.

4 Q Okay. Was it somebody from the Attorney

5 General's Office; do you know?

6 A It was one of people in the warden's office

7 that evening, but I had never met any of them

8 besides Mr. Slavin or Mr. Gillette before. So

9 I'm afraid I can't answer your question.

10 Q Okay. When Mr. -- so it wasn't Mr. Slavin

11 or Mr. Gillette, the only two people you remember

12 being there; is that your testimony?

13 A It could indeed have been more. I just

14 don't remember.

15 Q Did Mr. Slavin or Mr. Gillette jump up and

16 say, "Well, wait a second. An opinion from the

17 Ninth Circuit is indeed a court order"?

18 A You're talking to a layperson. That may be

19 the case. I don't know.

20 Q You don't remember any such thing?

21 A All I remember is that there was some

22 discussion regarding how we were to regard this

23 language. We informed the people in the warden's

24 office it was really problematic for us.

25 Q I understand that. And I notice on the top

1061

1 here it says in your handwriting "excerpt from

2 the Ninth Circuit opinion dated 2/19."

3

Do you see that?

4 A Yes.

5 Q "Delivered to us at 9:00 p.m. 2/20/06 in the

6 warden's office."

7

Do you see that?

8 A Yes.

9 Q It's significant to you the date of the

10 order and when you got it; isn't that correct?

11 A Yes.

12 Q And the bottom I see with two stars next to

13 it. So I imagine that's also significant as

14 well. It says: "Attorney General's Office had

15 this for two days," with two or three exclamation

16 points next to it. Do you see that with the two

17 stars?

18 A I do.

19 Q So, again, it was pretty significant to you

20 that this thing had been -- this order or

21 decision or opinion had been out there for two

22 days and had not been given to you; isn't that

23 correct?

24 A Yes.

25 Q Okay. And then I see at the bottom where it

1062

1 says in quotes: "Didn't see a problem."

2

Do you see that?

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3 A Yes. 4 Q Now, that's information that was given to 5 you from the Attorney General's representative; 6 isn't that right? 7 A I'm afraid I don't recall who handed it to 8 me. I believe it was Mr. Gillette. 9 Q Okay. 10 A But in any case, it demonstrated for me a 11 bit of the gulf in understanding between the 12 physicians and their issues with regard to 13 medical ethics and the legal approach to this 14 process. It's -- it's no one's fault. It was 15 just an unfortunate series of events that -16 Q Well, that's a matter for history, Doctor, 17 whether it's somebody's fault. But what I'm 18 interested in is your subject of your sentence 19 here is "Attorney General's office had this for 20 two days." 21 A Uh-huh. 22 Q And then the next sentence: "Didn't see a 23 problem." 24 A Yes. 25 Q That wasn't your language that you didn't 1063 1 see a problem, was it? 2 A No. That was Mr. Gillette's statement. 3 Q Okay. All right. And did he -- well -4 now, you went to -- are you familiar with the 5 concept bait and switch? 6 A I have heard that term used before, yes. 7 Q Okay. Now, your understanding was that you 8 were only to monitor Mr. Morales's condition; 9 isn't that correct? 10 A That's how I interpreted it as a layperson, 11 the order that came from this court. 12 Q And you had spoken with representatives from 13 the CDCR and Mr. Gillette's office about that; 14 isn't that right? 15 A Minimally before the night of the planned 16 execution. 17 Q You had spoken to them in the context of 18 your run-through, isn't that right, your practice 19 session? 20 A No. We didn't talk a lot about the court 21 order. It was sort of an assumption that we 22 would be proceeding, that I and my associate had 23 agreed to proceed on the basis of our 24 understanding and, no, we concentrated on the 25 clinical issues that day. It was not a topic of 1064 1 discussion. 2 Q Okay. Did you have a conversation -- did 3 Mr. Keller inform you as to what the appropriate 4 parameters of your involvement were? 5 A He did not. 6 Q Okay. Did you inquire of him? 7 A No. 8 Q Did the warden instruct you as to what the 9 parameters of your task were? 10 A Instruct me? No. We -- we discussed our

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11 roles that night in the warden's office in some

12 detail. At least if, you know, based on the

13 amount of time it took, no, I didn't get

14 instructions from the warden.

15 Q I'm sorry, Doctor. I'm referring to when

16 you first became involved in this process.

17 A I did not meet the warden until that -- that

18 day of the practice run.

19 Q Okay. And did you have a discussion with

20 the warden then about what you felt your

21 understanding of the process was?

22 A Yes, I did.

23 Q And you made it clear to him that your

24 understanding was that you were going to monitor

25 Mr. Morales; isn't that correct?

1065

1 A Yes.

2 Q Okay. And he didn't inform you that there

3 was any other obligations on your part or

4 expectations of you?

5 A That's correct.

6 Q Okay. All right. And when you were there

7 for the training sessions was Mr. Gillette there

8 as well?

9 A I believe so.

10 Q Okay. And he didn't instruct you that it

11 was any different, did he?

12 A I have no recollection of that, no.

13

MR. GRELE: Okay.

14

THE COURT: Mr. Grele, let me know when

15 you're done with this area and we'll stop for the

16 day.

17

MR. GRELE: That's the Ninth Circuit

18 order. I'm done with that, Your Honor.

19

THE COURT: Okay. You're going to go on

20 to medical matters now?

21

MR. GRELE: I was going to -- yes.

22

THE COURT: Okay. All right. Let's

23 stop because it seems like a reasonable point.

24

We'll be in recess until 9:00 o'clock

25 tomorrow. I just want to go over some

1066

1 administrative issues before we break.

2

I've been keeping time. It's clear to

3 me that one and perhaps both sides may exceed the

4 allotted time. I'm not terribly worried about

5 that depending on what else is left. So I just

6 want to make sure that I know what's left.

7

I assume that we'll finish with

8 Dr. Singler, that you've got some substantial

9 cross.

10

Anything else from the defense side?

11

MR. GILLETTE: No, Your Honor.

12 Dr. Singler is our last witness.

13

THE COURT: All right. Do you

14 anticipate any rebuttal witnesses?

15

MR. GRELE: We have a little bit of

16 rebuttal depending upon the testimony that it's

17 in court from Dr. Heath, but at this point I tend

18 to think it's going to be fairly minimal, Your

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19 Honor.

20

THE COURT: So we'll in all likelihood

21 be done by noon tomorrow?

22

MR. GRELE: I would hope that that does

23 happen.

24

THE COURT: All right. If that's our

25 working assumption, then I'm not going to sweat

1067

1 the time clock. I just want to make sure that we

2 don't go over the time that we've allotted for

3 the hearing. I think we're okay.

4

MR. GRELE: Thank you, Your Honor.

5

THE COURT: All right. So we will be in

6 recess until 9:00 o'clock tomorrow.

7

(Whereupon, the proceedings adjourned

8 for the day.)

9

10

---oOo---

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1068

1

CERTIFICATE OF REPORTER

2

3

4

5

I, Peter Torreano, Official Court

6 Reporter of the United States District Court for

7 the Northern District of California, 280 South

8 First Street, San Jose, California, do hereby

9 certify:

10

That the foregoing transcript is a

11 full, true and correct transcript of the

12 proceedings had in Morales v. Tilton, Case Number

13 C-06-0219-JF, dated September 28, 2006; that I

14 reported the same in stenotype to the best of my

15 ability, and thereafter had the same transcribed

16 by computer-aided transcription as herein

17 appears.

18

19

20

21

22

23

_______________________

PETER TORREANO, CSR

24

License Number C-7623

25

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1068

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4 MICHAEL ANGELO MORALES,

) C-06-0219-JF

)

5

Plaintiff,

)

) San Jose, CA

6

vs.

) September 29, 2006

)

7 JAMES TILTON, et al.,

) Volume 5 of 5

) PP. 1068-1219

8

Defendants. )

____________________________)

9

TRANSCRIPT OF PROCEEDINGS

10

BEFORE THE HONORABLE JEREMY FOGEL

UNITED STATES DISTRICT JUDGE

11

A P P E A R A N C E S:

12

For the Plaintiff:

Law Offices of John R.

13

Grele

By: JOHN R. GRELE

14

703 Market Street

Suite 550

15

San Francisco, CA

94103

16

McBreen & Senior

17

By: DAVID A. SENIOR

1880 Century Park East

18

Suite 1450

Los Angeles, CA 90067

19

Jenner & Block

20

By: GINGER D. ANDERS

601 13th Street, NW

21

Suite 1200 South

Washington, DC 20005

22

23

(APPEARANCES CONTINUED ON THE NEXT PAGE)

24 Court Reporter:

PETER TORREANO, CSR

License Number C-7623

25

1069

1 A P P E A R A N C E S (Continued):

2 For the Plaintiff:

Jenner & Block LLP

By: RICHARD P.

3

STEINKEN

One IBM Plaza

4

330 N. Wabash

Suite 4500

5

Chicago, IL 60611-7603

6 For the Defendants:

Office of the Attorney

General

7

By: DANE R. GILLETTE,

DAG

8

RONALD S. MATTHIAS,

DAG

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9

455 Golden Gate Avenue

Suite 11000

10

San Francisco, CA

94102-7004

11

State of California

12

Department of

Corrections and

13

Rehabilitation

Office of Legal

14

Affairs

By: K. L. McCLEASE

15

1515 S Street

Suite 314 South

16

Sacramento, CA 95814

17

18

19

20

21

22

23

24

25

1070

1 San Jose, California

September 29, 2006

2

P R O C E E D I N G S

3

THE COURT: At this time we are back on

4 the record in the matter of Morales versus

5 Tilton. Let the record reflect that counsel are

6 present, and we will resume with the

7 cross-examination of Dr. Singler.

8

MR. GILLETTE: Your Honor, before we

9 begin.

10

THE COURT: Yes.

11

MR. GILLETTE: You may recall that

12 Mr. Grele had subpoenaed Bruce Slavin as a

13 possible witness. He is here today. We've asked

14 him to remain outside at the request of counsel.

15

Mr. Grele has advised me that the extent

16 to which it may be necessary to call him could

17 depend upon a series of questions he's going to

18 ask the witness, and at my request he's going to

19 cover that area first so we can decide whether

20 Mr. Slavin needs to remain, either to testify or

21 outside the courtroom.

22

THE COURT: That's fine. Very good.

23 Thank you very much and thanks for your

24 cooperation.

25

MR. GRELE: I know the Court wanted to

1071

1 hear the medical stuff, but in light of this I

2 mean it's --

3

THE COURT: That's fine.

4

MR. GRELE: Okay. Thank you.

5

ROBERT SINGLER, M.D.,

6 being called as a witness on behalf of the

7 Defendant, having been previously duly sworn,

8 resumed the stand and testified as follows:

9

RESUMED CROSS-EXAMINATION

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10 BY MR. GRELE: 11 Q Now, you attended a meeting at the 12 Governor's office, Doctor? 13 A I did. 14 Q And certain individuals with CDC were 15 present? 16 A I believe so. 17 Q Okay. And some lawyers from the Governor's 18 office and Mr. Gillette as well? 19 A Yes. 20 Q Okay. All right. And you've had an 21 opportunity to review what's Exhibit 71, the 22 notes of that meeting by Mr. Slavin? 23 A I have. 24 Q Okay. And you were asked a little bit about 25 that by Mr. Gillette early in your examination; 1072
1 do you recall that? 2 A I do. 3 Q Okay. And you had some difficulties with 4 some of the information that's chronicled in 5 those notes; is that correct? 6 A No. 7 Q Okay. All right. Just the appearance of 8 what those notes may imply is what you said, I 9 think? 10 A Yes. 11 Q Okay. All right. All right. And I think I 12 take it from your testimony and I know from 13 earlier in deposition that you were concerned 14 about whether or not they could imply that you 15 had skirted an ethical boundary that you had 16 established for yourself in these proceedings; 17 isn't that right? 18 A That is correct. 19 Q Okay. That's not an ethical boundary that's 20 prescribed by law; is that right? 21 A Not to my knowledge. 22 Q Physicians can participate in executions in 23 California by law; isn't that correct? 24 A I don't know. 25 Q Okay. Now, in these notes it describes 1073 1 quite a bit of conversation by you. Are the 2 notes an accurate recitation of the conversation? 3 A To the extent that two pages can represent a 4 discussion lasting some hours, yes. 5 Q Okay. Now you say "some hours." Are you 6 disagreeing with the stipulated fact by the 7 parties that the meeting took place over an hour 8 to an hour and a half? 9 A I don't have a precise recollection. If 10 that's what was stated, I won't disagree with 11 that. It seemed longer to me. 12 Q Maybe travel time was included? 13 A Perhaps. 14 Q Okay. And in here it seems that you are 15 describing some -- some processes concerning 16 lethal injection; isn't that correct? 17 A Yes.

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18 Q Okay. In the first note it says "agrees 19 with," and I can't read that and I assume you 20 can't either? 21 A I cannot. 22 Q Okay. All right. "We need to address both 23 the drugs and the mechanical administration 24 issues." Isn't that right? 25 A Yes. 1074
1 Q So there were two issues in your mind when 2 you attended this meeting. One is some of the 3 pharmacokinetic dynamics that you've described in 4 your direct and another was issues of mechanical 5 administration, is it being done mechanically 6 properly by the proper people; isn't that right? 7 A Yes. 8 Q Okay. All right. And the rest of the 9 conversation here appears to be devoted to the 10 first topic and not the second; is that correct? 11 A The first topic being mechanics? 12 Q Being the pharmacokinetics, how the drugs 13 work, what -- what the doses would be, those 14 kinds of things. 15 A All right. That seems reasonable. 16 Q Okay. But do you recall any discussion 17 about what you -- what you referred to as 18 mechanical administration issues at the 19 Governor's meeting? 20 A Not precisely. If we can use these notes to 21 prompt me, but, no, nothing springs to mind. 22 Q Okay. Well, there's nothing in the notes. 23 So I don't know how it could prompt you, but if 24 it does, let us know. Okay? 25 A All right. 1075 1 Q And by -- and your opinion you expressed at 2 the meeting was effectively based on the protocol 3 you have a one-drug protocol; isn't that right? 4 A That was a conclusion I reached -- probably 5 yes. That's the short answer. 6 Q All right. And the basis for that is, and I 7 think you testified to this on direct, was you 8 have such a high dose of thiopental, that 5 gram 9 dose, that the other drugs aren't getting -10 moving around in the system in the way you would 11 expect them to move normally; isn't that correct? 12 A The response to those drugs, which we are 13 indeed, seeing is not occurring in the time 14 sequence which we expect. 15 Q Which you would expect. Okay. And when you 16 mean the time sequence meaning it's taking longer 17 for inmates to expire; is that correct? 18 A It's taking longer for the -- for the bodily 19 response that you expect to see to take place, 20 cessation of respiratory effort or the onset of a 21 fatal arrhythmia or a flat line that's taking 22 longer in both cases for a number of inmates. 23 Q Okay. All right. And so you said that 5 24 grams of thiopental is lethal by itself, but slow 25 would take up to 45 minutes. Is that your

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1076

1 opinion?

2 A Yes.

3 Q Okay. Now, this is -- obviously you're

4 extrapolating from your clinical experience.

5 You've never given anyone 5 grams of thiopental?

6 A That's also correct.

7 Q Okay. All right. And is that a linear

8 measurement? Can you linearly go there? Can you

9 say I know what it does at 750 milligrams and so,

10 therefore, I can predict what it's going to do at

11 5,000 milligrams?

12 A Okay.

13 Q I think we've heard this term "leap of

14 faith." Is that one of those leaps of faith?

15 A Well, I prefer to consider it a combination

16 of so many thousands of uses, personal uses of

17 thiopental on my patients, observing the effects,

18 couple that with my medical training and

19 extrapolating. So it's a bit more than a leap of

20 faith for me.

21 Q Okay. All right. Then the next comment is

22 one that I'm -- I'd like to ask you about. You

23 represented to the meeting that if you don't want

24 to risk the death rattle then want to use the

25 paralyzing agent, the Pavulon.

1077

1

Do you see that comment?

2 A I do.

3 Q Was that your representation to the group?

4 A That was a response to a discussion which

5 had ranged around the table regarding the

6 cosmetics, if you will, of the death process and

7 I --

8 Q I'm sorry. That's fine, Doctor. I just

9 want to ask you another question about that

10 then.

11

And the cosmetics were whether or not

12 the visible manifestations of death would be

13 disturbing or misinterpreted; isn't that correct?

14 A No, that's not correct.

15 Q Okay.

16 A The way the discussion ranged was --

17 "cosmetics" is an inappropriate term. The

18 occurrence of visibly disturbing phenomena during

19 the death process rose as a topic of discussion

20 and my response was that if you wish to eliminate

21 them then Pavulon would do that.

22 Q Okay.

23 A That was not represented to me that that was

24 what the state was after. It was merely a topic

25 of discussion.

1078

1 Q I understand that. I understand that. The

2 state never represented to you that they were

3 considering removing that drug from the protocol,

4 did they?

5 A That was not a topic of discussion.

6 Q Okay. And I think later on you said, if

7 you're stuck with these drugs, then you give

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8 thiopental as a continuous infusion; isn't that

9 correct?

10 A We discussed whether or not you could move

11 to pentobarbital because that drug was in the

12 record, whether or not -- since pain was an issue

13 whether or not the state wanted to add a

14 narcotic, which was the obvious drug for pain,

15 and it was represented to me that the state

16 wanted to stay with the three drugs that it had.

17 Hence my comment.

18 Q Thank you. Your comment was if they were

19 stuck with these three drugs, then you go to the

20 continuous infusion method; isn't that correct?

21 A I don't recall whether those were my precise

22 words. Those are the notes that were made.

23 Q Okay. Do you have any reason to disagree

24 with that representation of your wording?

25 A I don't know if it's the terminology that I

1079

1 would have used, but it's a small point.

2 Q Okay. All right. Approximates the concept

3 that you were interested in conveying?

4 A Yes, yes.

5 Q Okay. All right. Now, you're saying that

6 the problem is the physiology -- the heart almost

7 collapses from thiopental. So the other drugs

8 don't flow effectively and the potassium diffuses

9 out slowly.

10

Is that correct? That's your statement?

11 A That's my statement.

12 Q Okay. And that was what you testified to

13 today.

14

Now, one comment I noticed here, and

15 we've had some discussion about that in our

16 proceedings throughout, you said it would be

17 preferable to use phenobarbital; isn't that

18 correct?

19 A No, I did not say phenobarbital. I believe

20 that's a transcription error. I believe my

21 choice of drug was pentobarbital. I tried to

22 restrict myself to drugs that were already in the

23 record as far as I --

24 Q In the record, you mean, in terms of what

25 people had considered for similar processes --

1080

1 A Yes.

2 Q -- in other states and things of that

3 nature?

4 A Yes.

5 Q All right. What other states were

6 considering using pentobarbital?

7 A I don't know.

8 Q Okay. And where did you get the note -- was

9 it drawing upon your clinical experience or

10 perhaps pentobarbital was a better drug?

11 A If you are using a single-drug protocol and

12 if you are concerned about possibilities, small

13 possibilities although they might be some minutes

14 to half an hour to an hour out, and if the rare

15 inmate has a favorable airway that allows this

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16 involuntary respiration to resume, then you 17 prefer to have a non-ultrashort-acting 18 barbiturate still in the system to assure 19 unconsciousness. Pentobarbital would provide 20 that in a single-drug protocol. 21 Q Okay. And if you had somebody there 22 monitoring the situation and the inmate -- and 23 this is, again, we're talking about the extremely 24 rare case; isn't that correct? 25 A In my opinion, yes. 1081
1 Q I mean, if you load somebody up with 9 grams 2 of pentobarbital, they are going to expire; isn't 3 that correct? 4 A I believe so. 5 Q Okay. With near 100 percent certainty; 6 isn't that right? 7 A Yes. 8 Q And so we're talking about an extreme 9 outlier. Do you know percentages, one in 10,000, 10 one in 100,000? 11 A I do not. 12 Q Okay. All right. But, anyway, in this 13 extreme inmate situation that you're describing 14 or hypothesizing, if you had somebody there at -15 at the side of the inmate or in proximity to the 16 inmate and able to monitor the inmate, they could 17 induce an additional dose of sedative at that 18 point if there was a problem; isn't that correct? 19 A If it were that person's duties, yes. 20 Q And that may alleviate the concerns of one 21 in 10,000 or one in 100,000 inmates that might 22 live past 9 grams of pentobarbital; isn't that 23 correct? 24 A No. It wouldn't change that. What you are 25 positing is an inmate with this rare favorable 1082 1 airway who's receiving a non-paralyzing drug so 2 with this additional dose that you were 3 prescribing would merely perpetuate the sleep, 4 and that could go on ad infinitum until the brain 5 damage that presumably is also occurring is the 6 fatal event, but now we're talking many hours 7 out. 8 Q I understand. Brain damage occurs within 9 six to eight minutes; isn't that right? 10 A If you have complete apnea, but that's not 11 what you're positing here. You're positing a 12 favorable airway. 13 Q All right. But somebody would be able to 14 tell, somebody such as yourself with the 15 experience that you've bought to this endeavor 16 could be able to tell whether or not somebody has 17 a positive airway or not; isn't that correct? 18 A Yes. There are devices that would provide 19 the same information. 20 Q And you were going to use them at the 21 Morales execution; isn't that right? 22 A I was. 23 Q Okay. And then you came up -- then it says

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24 here the answer is 1 gram of thiopental and then

25 the pentobarbital. Do you see that comment?

1083

1 A I do.

2 Q Okay. Does that reflect your -- the message

3 you conveyed at the meeting?

4 A That reflects the -- my final comment on a

5 discussion which was revolving around the issue

6 of fast onset, long duration. So we had two

7 drugs in the record, if you will, one of which

8 was known for extremely fast onset. We have

9 another drug which is known for longer duration

10 of action. If you were after both issues, you

11 might consider combining the two.

12 Q Okay. And here you're still sort of trying

13 to maybe push the discussion in a direction that

14 you understand at this point the state is

15 somewhat reluctant to go; isn't that right?

16 A I'm offering medical alternatives to what --

17 to the protocol that I was -- that was described

18 to me prior to the meeting.

19 Q Okay. All right. And they were not --

20 obviously they were not adopted by the state;

21 isn't that correct? I mean, they are not --

22 A Apparently not.

23 Q Okay. And then Mr. Gillette said, "Okay.

24 Do it 1, 2, 3, 1, 2, 3 in lower doses." Do you

25 see that?

1084

1 A I do.

2 Q Does that reflect his comment?

3 A I believe he's ascribing that -- oh, yes.

4 Mr. Gillette, yes.

5 Q Okay. And --

6 A And you will see that I followed then with

7 or 1, 2, 3, 1. The discussion, what those

8 numbers mean --

9 Q If you could, Doctor, actually, you missed

10 an important feature here, your comment "that's

11 perfect."

12 A Well, that was just what I described

13 yesterday as my concern about this being taken

14 out of context.

15 Q I understand.

16 A I was offered a very simple -- I was offered

17 an attorney's description of a medical procedure

18 when we were talking about 1, 2, 3, sleep drug,

19 paralytic drug, potassium. And he repeated that

20 back to me and I said, "yes, that's -- you have a

21 perfect understanding of that concept" as we were

22 talking about it at that time.

23

It does not mean to be an endorsement of

24 the protocol. It's merely a description of the

25 three-drug steps and that attorney's

1085

1 representation back to me of what we were talking

2 about.

3 Q Okay. "That's perfect." It's at that

4 point, of course, that they adopt -- that they

5 decide that they are going to go with the 1, 2, 3

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6 method; isn't that correct? 7 A The 1, 2, 3 method is what they had anyway. 8 Q I understand. But you had offered them some 9 alternatives to consider perhaps in your expert 10 opinion as a clinician? 11 A I merely said that the five grams was an 12 excessive dose in my mind. It was far more than 13 was necessary to be lethal, that in combination 14 with the second and third drugs it might be an 15 explanation for why those subsequent two drugs 16 did not act in the fashion that was expected. 17 Q But that is an earlier discussion. The 18 discussion that immediately precedes the 1, 2, 3 19 comment is a discussion of alternatives that 20 you're suggesting perhaps the state should 21 consider; isn't that correct? 22 A You're connecting a discussion in a fashion 23 that does not follow the way the discussion went. 24 Q So Mr. Slavin is recording the conversation 25 piecemeal and injecting parts that came before as 1086 1 after. He's not chronologically -2 A No. The chronology is correct. You're 3 trying to connect the discussion of thiopental 4 and pentobarbital herein described as 5 "phenobarbital" with the subsequent discussion of 6 1, 2, 3. We have maybe 10, 12 bullets here of an 7 hour's discussion, that the two are not 8 connected. They were different issues. 9 Q Okay. All right. So but then you offer 10 another alternative, 1 to 2 to 3 to 1. Do you 11 see that? 12 A Yes. 13 Q And then you offer another alternative, 14 continuous infusion after 3; is that correct? 15 A Yes. 16 Q And then you offer another alternative, 17 continuous in one arm of 1 and then 2 and 3 in 18 the other arm. Do you see that? 19 A Yes. 20 Q Okay. Now, by the way, Mr. Gillette had 21 offered the audience or the meeting participants 22 a sort of brief run-through or a listing of what 23 other states are doing; isn't that correct? 24 A Yes. 25 Q Okay. And are you aware of the difficulties 1087 1 that have occurred in other states when they use 2 that method of the one drug in one arm and the 3 two drugs in the other arm? Are you aware? 4 A I am not. 5 Q Okay. And then did Mr. Gillette describe 6 them to you, the problems that they've had in 7 Oklahoma, for instance, the very great 8 difficulties they've had as a result? 9 A He did not. 10 Q Okay. And, by the way, what would the 11 purpose be of putting a dose of thiopental at the 12 end of a dose of potassium chloride? 13 A The reason we seem to be here is this

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14 disbelief that the huge overdose of barbiturate 15 persists. And so it seems fairly simple from a 16 medical perspective that, if you are concerned 17 about continued sleep no matter what else is 18 happening, then add more sleep drug. 19 Q Okay. Are you familiar with the North 20 Carolina procedure that had a similar kind of -21 well, I shouldn't say "similar," but had a dose 22 before and after the proceeding? 23 A I'm not. 24 Q Okay. And you're not aware of 25 Dr. Dershwitz's recommendation that they remove 1088
1 that? 2 A I'm not. 3 Q Okay. Now, there was a -- the next -- if 4 you turn the page, the next page, there is some 5 discussion by some other participants here Warden 6 Ornoski. Do you see that? 7 A I do. 8 Q Okay. By the way, and then Ms. Hoch and 9 she -- would you disagree with Warden Ornoski's 10 representation that Ms. Hoch did most of the -11 most of the running of this meeting? 12 A I really don't recall. 13 Q Okay. 14 A Almost all of these people were new to me 15 and so that's not something that I track. 16 Q All right. But she asked the most questions 17 and talked the most? 18 A I don't know. 19 Q Okay. All right. Would you have any reason 20 to disagree with that representation? 21 A No. 22 Q It's a stipulated fact by the parties. 23 A Not at all. 24 Q Now, her comment there was: "Fewer changes 25 will be better." Do you see that? 1089 1 A I do. 2 Q Was that a general comment that you 3 perceived at the meeting or was it a particular 4 comment by Ms. Hoch? 5 A I don't recall the comment at all. 6 Q Okay. All right. Now, you said in the rare 7 case you may need -- there may be a problem 8 because the barbiturate would only cause 9 permanent sleep. And I take by that that you 10 mean not death; is that right? 11 A Yes. We were once again returning to this 12 favorable airway hypothesis. 13 Q Okay. All right. And then you said: "If 14 you can't get to Pavulon and potassium within two 15 minutes" and then it says "done." 16 A Yes. 17 Q Okay. So that -- they would be dead at that 18 point; right? 19 A I don't -- I don't -- I am trying to recall 20 when I read this yesterday what this note means, 21 and I don't recall the conversation that -- I

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22 don't know what "done" means here.

23 Q Okay. And you recommended then -- and then

24 Mr. Gillette talked about the continuous infusion

25 and keeping the other two drugs; isn't that

1090

1 right?

2

It said: "Let's have a continuous

3 infusion, 40 grams of Pavulon, and then we have

4 potassium until death."

5

Do you see that comment?

6 A I see that comment.

7 Q Do you remember that comment by

8 Mr. Gillette?

9 A Not specifically, but I have no reason to

10 doubt these notes.

11 Q Okay. All right. And then -- and then you

12 said: "1 gram push with 4 grams in the bag for

13 the drip." Do you see that?

14 A I do.

15 Q Okay. Now, there you're correcting

16 Mr. Gillette; isn't that correct?

17 A Well, to the extent that this one line says

18 that Mr. Gillette was suggesting you could only

19 have a continuous infusion, I am disagreeing with

20 that. I don't think that is what he was

21 representing. That's not how the discussion ever

22 went.

23

There was never any discussion that I recall

24 about abandoning bolus dosage in favor of only a

25 continuous infusion of barbiturate.

1091

1 Q Okay. And you raised -- again you raised

2 another drug that perhaps they should consider as

3 part of the process, and that's a narcotic that

4 would eliminate pain; isn't that right?

5 A Yes.

6 Q There's nothing really, no analgesic

7 involved in this process as it now stands; isn't

8 that correct?

9 A An overdose of barbiturate of this degree is

10 analgesic.

11 Q Okay. That's a process as opposed to a

12 particular drug; isn't that right?

13 A No. It's the barbiturate effect in

14 overdose --

15 Q In overdose?

16 A -- is analgesic.

17 Q And Mr. Gillette's response was when you

18 said "why not use it" his response was "because

19 all three drugs are currently upheld by the

20 courts." Isn't that right?

21 A Yes.

22 Q And Ms. Hoch then said stay with -- quote:

23 "Stay with three bags and tweak with Heath

24 testimony as Singler's suggestions." Do you see

25 that?

1092

1 A I do.

2 Q And you recall that comment?

3 A I recall something along those lines, yes.

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4 Q All right. And then you followed up with 5 some discussion about the line collapsing; isn't 6 that correct? 7 A It appears now we've switched finally to our 8 mechanical topic, yes. 9 Q Okay. All right. All right. Now, these 10 notes then represent basically your understanding 11 of the discussion about the development of this 12 protocol; isn't that right? 13 A I think it's better than I could have done 14 from my recollection. 15 Q Okay. Because you remember in deposition we 16 had a back and forth about that and there was 17 some gaps? 18 A It's very hard for me to recall that 19 meeting, yes. It was early in this process. 20 Q Okay. Now, did you have an opportunity 21 prior to that meeting to consult with a 22 pharmacokineticist about -- about the action of 23 these drugs? 24 A No. 25 Q Okay. Would it be perhaps -- and how about 1093 1 a pharmacist such as Dr. Ekins that testified 2 here? 3 A I consulted with no one prior to this 4 meeting. I didn't know this meeting was going to 5 occur until a couple days before, a few days 6 before. 7 Q And so the only expertise that was brought 8 to bear at this meeting was your clinical 9 expertise; isn't that correct? 10 A Yes. 11 Q All right. Now, bringing expertise to 12 the -- speaking of bringing expertise to the 13 process, you did bring some expertise to the 14 process when you visited San Quentin on Saturday 15 before Mr. Morales's scheduled execution; isn't 16 that right? 17 A Yes. 18 Q Okay. And you recommended some changes. I 19 think you've talked about your additions to this 20 endeavor that were part of the process that day; 21 isn't that correct? 22 A Consistent with my obligations under the 23 court order then in effect. 24 Q Okay. You thought -- you offered them some 25 discussions about twisting the catheter I think 1094 1 you described? 2 A The stopcock, yes. 3 Q Or the stopcock, but also the catheter so 4 you can get an approximation of the push; isn't 5 that right? 6 A Oh, yes. The -- yes, I do recall that 7 comment. 8 Q Okay. And the alteration of the stopcock; 9 isn't that right? 10 A Yes. 11 Q Now, after that initial discussion you

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12 went -- during the training you spent your entire

13 time inside the chamber; isn't that right?

14 A I spent the two run-throughs inside the

15 chamber. That followed some significant period

16 of time where the team described for both of us

17 what they did, demonstrated for both of us what

18 they did.

19 Q Okay. Now, I think you testified in

20 deposition that you did not know if the team

21 practiced this new stopcock method or not during

22 these run-throughs?

23 A That's correct.

24 Q Okay. All right. And you don't have any

25 knowledge whether or not they've actually

1095

1 practiced that procedure at all; isn't that

2 correct?

3 A I do not.

4 Q Okay. And --

5 A I should note for the record that I don't

6 think it matters. We're trying to -- we're

7 trying to protect against this mythical

8 infiltration IV that I am still skeptical has

9 occurred.

10 Q I understand you're skeptical of it, but we

11 have these breathing records that are a problem

12 and we're looking for some solutions and you're

13 talking -- you're saying that's a zebra and

14 you've got a horse, but it's still out there --

15 A It is, it is.

16 Q -- as a potential problem.

17 A The possibility is not zero.

18 Q And I wanted to ask you in particular about

19 one of the more important recommendations that

20 you made because I think it sheds some light on

21 some other issues in this case.

22

You also discussed a change in the flow

23 rate. Do you recall that?

24 A Yes. In general terms, yes.

25 Q In general terms. Okay. And I'm slightly

1096

1 confused about it. So I wanted to ask you some

2 questions just because I'm confused. Okay?

3 A That's fine.

4 Q All right. Now, when you went there what

5 was the flow rate that you saw on the saline bag

6 for the right arm? What were they using?

7

Well, let me back up. That's a poor

8 question. I'll rephrase it. I'm sorry, Doctor.

9 Okay? I understand the pause. Okay?

10

They did not -- they were not able to

11 describe to you a particular flow rate that was

12 in operation for that -- for that drip, were

13 they? They weren't able to say it's three drops

14 per minute or 15 mL per minute or anything like

15 that, were they?

16 A It's irrelevant under the protocol then in

17 effect because you're flushing the drugs in.

18 There wasn't a continuous infusion for the -- for

19 the bolus drugs. So I'm -- I don't understand

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20 the importance of the question.

21 Q Well, it's -- okay. The importance of the

22 question is something that perhaps we understand

23 from testimony that you weren't here for.

24 A Okay.

25 Q Okay? So why don't we focus on answering

1097

1 the question instead of trying to understand the

2 importance of it.

3 A I don't recall what you said.

4 Q All right. Do you recall your testimony in

5 deposition where you asked about it and they said

6 "drip drip drip drip drip" --

7 A Yes.

8 Q -- and that was about as good a description

9 as you could get from them; isn't that right?

10 A All right.

11 Q Okay. You don't have any reason to disagree

12 with that characterization of your testimony?

13 A I do not.

14 Q Okay. And then you said you instructed them

15 to perhaps do it faster such that they could

16 monitor their own push of the chemicals as a

17 result; isn't that right?

18 A I -- yes, that is correct.

19 Q Okay. And -- and, again, you don't know if

20 they actually ended up doing that, do you?

21 A I do not.

22 Q Okay. All right. And let me understand

23 this concept because I don't understand it and I

24 need some help with it.

25

The idea here was -- and you refer to it

1098

1 several times in your deposition as a passive

2 flow rate; isn't that correct?

3 A I do.

4 Q Now, the passive flow rate could be any

5 particular rate; isn't that right?

6 A Yes.

7 Q It could be from the slowest rate that you

8 have to wide open; isn't that right?

9 A No. It's all wide open. The passive flow

10 rate is what that vein will accept with the

11 stopcock wide open, how much will that IV accept

12 in passive flow.

13 Q Okay. All right. And they weren't at

14 passive flow, were they, when you first got

15 there? They were at somewhere -- some sort of

16 figure that they were unable to describe; isn't

17 that right?

18 A That's correct.

19 Q Okay. Were you aware of the fact that it's

20 the maintenance man at San Quentin that sets that

21 mechanism during an execution?

22 A Sets what mechanism?

23 Q The roller clamp that adjusts the drip rate

24 of the saline bag.

25 A You're telling me that a maintenance man is

1099

1 a member of the execution team?

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2 Q I am not telling you who is or is not on the

3 execution team. I'm saying were you aware of the

4 fact that a maintenance man was responsible for

5 adjusting the drip rate during executions at San

6 Quentin?

7 A I am aware that a member of the execution

8 team adjusted the drip rate and they described

9 their training to me. I have no idea what they

10 do when they are not on the execution team.

11 Q Now, the idea here was that you would make

12 sure you have that passive flow rate, which is

13 wide open; isn't that right?

14 A Yes.

15 Q And that you -- and then the injection would

16 be able to -- the person doing the injection

17 would be able to see whether or not it's

18 eliminating that drip; isn't that right?

19 A Yes.

20 Q And that's the adjustment of the stopcock

21 that allows them to do that?

22 A Yes.

23 Q Isn't that right?

24

And so in your testimony, and maybe I'm

25 confused about it and you can clarify it, you

1100

1 said: "According to my interpretation of my

2 charge from the court, was to ask them to not

3 inject the drug any faster than would allow

4 infinitesimally slow drip from the bag but not

5 complete cessation?

6 A Yes.

7 Q All right. So the idea was it's going to

8 displace some of the liquid, but as long as it

9 keeps dripping some at that slow rate it's okay

10 because you're not going to blow a vein?

11 A And that continues even if you haven't set

12 the IV at wide open. You don't have to have the

13 IV roller cock -- roller clamp wide open to see

14 that.

15 Q Okay. But it's not -- you're going to have

16 some effect on the drip rate depending upon -- by

17 the push; isn't that right?

18 A Yes.

19 Q Okay. All right. You're going to slow it

20 down somewhat; right?

21 A Yes.

22 Q So the sort of premises behind this is they

23 are going to keep it wide open or at least

24 running fast enough so that you can see some

25 difference; isn't that right?

1101

1 A All you have to see is that it doesn't stop

2 and that's why it doesn't really matter where the

3 roller clamp is.

4 Q Okay. And if they were to interpret that to

5 mean that they are to go at a KDO rate for that

6 drip and then measure their push as to whether or

7 not it changes that KDO rate, is that consistent

8 with your instruction or somewhat at variance?

9 A It merely means that you won't be able to

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10 assess the vigorousness of your push except for

11 one drop every few seconds as opposed to

12 something going drip drip drip that then

13 decreases.

14 Q I understand.

15 A It decreases the sensitivity. We're just

16 trying to fine-tune a pressure, a rate of

17 injection in a vein that probably doesn't need it

18 in the first place.

19 Q Well, it's a timing mechanism?

20 A Yes.

21 Q It's a way for them to gauge timing because

22 they are unable to really gauge it from feel --

23 A That is correct.

24 Q -- given the mechanical circumstances

25 involved; isn't that right?

1102

1 A That is correct.

2 Q The length of line and the size of the

3 syringe?

4 A The length of line is irrelevant. The size

5 of the syringe is relevant.

6 Q Okay. All right. So, by the way, do you

7 know whether or not they -- they understood what

8 you were saying or did -- or not?

9 A From the deposition testimony of the team

10 leader in -- that I read subsequently, it's clear

11 that he understood. To the extent that he was

12 responsible for training the team, I would hope

13 that he transmitted that understanding to them.

14 So I know that firsthand, I do know.

15 Q So it's your testimony that in his

16 deposition transcript somewhere there's an

17 accurate depiction of this instruction by you?

18 A No. There is an accurate description of

19 what he would expect to see when using this

20 technique that indicated his understanding to me.

21 Q Okay. All right. And it's not going to

22 slow down the push at all?

23 A Yes. It will potentially slow down the push

24 because you can push that syringe in in ten

25 seconds using a lot of hydraulic force.

1103

1

Given this theoretical concern for

2 infiltrating the IV on the basis of that push

3 strength, the compromise I suggested was to

4 assure that the IV was still functioning by

5 slowing it down to no faster than the passive

6 flow rate of the IV. That is a potential drop in

7 speed of injection. It's not clinically

8 significant, in my opinion.

9 Q I understand -- I understand your opinion

10 about significance of timing mechanisms and stuff

11 like that, but it would, in fact, slow down the

12 push if they are measuring from a very slow drip

13 rate as opposed to a faster drip rate?

14 A No.

15 Q No, it would not?

16 A No.

17 Q Okay. Now, in your discussion in direct

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18 from earlier today or yesterday, you described

19 sort of your plan during the Morales execution;

20 is that correct?

21 A Yes.

22 Q Okay. And your plan for monitoring, as I

23 understand it, was -- and you've said this, I

24 think, in your notes and in testimony, that you

25 were going to monitor until the pancuronium

1104

1 bromide was administered; isn't that correct?

2 A No. I was going to monitor throughout.

3 Q So you were going to stand there

4 throughout?

5 A Yes.

6 Q So why -- but your testimony was you were

7 going to monitor until the pancuronium bromide

8 was administered?

9 A That -- that was my court-imposed

10 obligation.

11 Q Okay. All right. And --

12 A There was no provision for me to leave the

13 chamber before the pancuronium or at the time the

14 pancuronium began.

15 Q Right. You were going to hear as to when

16 the pancuronium was administered; right?

17 A That is correct.

18 Q Okay. Now, one of the other recommendations

19 you made when you went there was to -- was to

20 perhaps reduce the dose of thiopental; isn't that

21 correct?

22 A Not at San Quentin, no.

23 Q Well, if -- you read the deposition

24 testimony of witness number 3; isn't that

25 correct?

1105

1 A Yes.

2 Q Okay. And witness number 3 is -- says, "The

3 only discuss" -- quote: "The only discussions I

4

recall about that would have been with

5

anesthesiologists that were scheduled to

6

be there for the Morales execution."

7

"Question: And what was said in those

8

discussions?

9

"Answer: "That it would be -- according

10

to them, it would be less than one

11

syringe of pentothal that he," meaning

12

Morales, "would be rendered completely

13

unconscious.

14

"Question: "And what was the quantity

15

of pentothal in the one syringe?

16

"There were 5 grams and four syringes.

17

So it was one and a quarter grams. It

18

was their opinion that it would go

19

faster not giving the full amount of

20

pentothal."

21

"Question: "What do you mean by 'go

22

faster'?

23

"Answer: "That the execution would go

24

faster because the pentothal, the large

25

amount would slow down the circulation

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1106

1

so it didn't act as quickly."

2

Do you recall that testimony?

3 A I do.

4 Q Is that accurate?

5 A Yes.

6 Q Okay.

7 A That is not an instruction to the team. It

8 was a duplication of the sort of discussion, the

9 tone of the discussion that we had had at the

10 Governor's Office. It was an expression of my

11 opinion that 5 grams was far more than was

12 necessary to assure unconsciousness.

13 Q Okay. But then he goes on, and he says

14 according to them they said, quote: "They said

15

it would be less than that, but they

16

decided to finish with the syringe

17

rather than take the syringe off with

18

some of the pentothal in it. I don't

19

know who made that decision, but it was

20

decided to complete the syringe. The

21

anesthesiologist in the room was willing

22

to turn on a light to let people outside

23

the chamber know when he was

24

unconscious."

25

Do you recall that?

1107

1 A I do.

2 Q Is that correct that there was a decision

3 made to use one syringe?

4 A There was never a decision not to use -- not

5 to follow the protocol. What this witness is

6 confusing was the discussion that was had about

7 the science versus whose orders would be

8 followed.

9

There was no suggestion by either of us

10 that we were trying to change the protocol on the

11 fly. There was a discussion as to what the

12 physiology was that we expected to see, and I

13 expressed the same thing that I expressed in the

14 Governor's Office, that this patient would be

15 unconscious before the end of the first syringe.

16 Q So when he says that there was a discussion

17 made to complete the one syringe, he's incorrect?

18 A No. You complete the one syringe and you

19 complete the other syringes as well. The

20 protocol was to be followed.

21 Q Okay. Well, and then the question: "And

22

did the anesthesiologist make a

23

recommendation that less than 5 grams of

24

sodium thiopental would be used in the

25

execution?"

1108

1

"Answer: It was my understanding that

2 it was their decision as to when he was

3 unconscious and when to proceed with the other

4 chemicals.

5

"Question: So it was their call on how

6 much pentothal to give the inmate?

7

"Answer: Correct."

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8 A That is incorrect, I'm afraid, and I

9 don't -- I don't recall seeing that one word in

10 the deposition. What my -- what we agreed to do

11 was to inform those in the antechamber -- what I

12 agreed to do was to inform those in the

13 antechamber by turning on this light, by

14 transmission of a message by radio when I felt

15 this inmate was unconscious.

16 Q Okay.

17 A I specifically indicated to the team that

18 what they did at that point was up to them.

19 Q Okay. So witness number 3 is now wrong for

20 the second time when he says it was your decision

21 as to how much pentothal to give?

22 A That is absolutely true. It was not my

23 decision.

24 Q And then the third time this topic comes up

25 in deposition it says: "Question: And,

1109

1

therefore, it wasn't mandatory that the

2

inmate get 5 grams?

3

"Answer: "To my understanding, no."

4

Is that correct?

5 A Is what correct?

6 Q Is his characterization that it was no --

7 not mandatory that the inmate get 5 grams

8 correct?

9 A That was not a decision I could have made at

10 the time nor could have made in the chamber

11 during the event. I was isolated from the entire

12 proceeding. I expressed my opinion as to what

13 the physiology was. I indicated that more than a

14 gram was irrelevant in my opinion, but we made no

15 changes to the protocol except for this stopcock

16 issue and my concerns about the rate that these

17 drugs were pushed.

18 Q So you understand that this is one of the

19 medical personnel involved in the execution;

20 isn't that right?

21 A I don't know who witness number 3 is.

22 Q Okay. If I were to represent to you that

23 witness number 3 is one of -- is an MTA. Okay?

24 A All right.

25 Q All right? Now, you were aware that there

1110

1 were MTAs involved in the process?

2 A I was.

3 Q Okay. And you knew who they were at the

4 time of the training; isn't that correct?

5 A I was introduced to them. I don't know who

6 they are.

7 Q Okay. But you understood from their roles.

8 I mean, they were the ones mixing drugs and

9 passing syringes; isn't that correct?

10 A I believe so. I don't know which was done

11 by the MTA and which was done by the team leader

12 or the correctional officer.

13 Q Okay.

14 A That is not something I recall.

15 Q Okay. Well, first of all, there was no

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16 run-through of the mixing of the chemicals, was

17 there?

18 A No. The chemicals were premixed, if you

19 will. There were saline-filled syringes in place

20 on the tray at the time we entered the chamber.

21 Q So there was no mixing of the thiopental?

22 A I don't know what was in the syringe. I

23 would presume that it was not thiopental.

24 Q Okay. All right. And so one of the

25 additions that I was interested in, Doctor, was

1111

1 this check valve that you pointed out to us on

2 direct.

3 A Yes.

4 Q Okay. Now, that is not in -- as far as I

5 can tell, and, you know, I read through again it

6 last night -- through it again last night, that's

7 not in the old protocol, is it?

8 A Well, to the extent that the equipment that

9 I saw, which is different from the equipment in

10 your photographs, had the same mechanism, I

11 assumed that that's the equipment they always

12 used.

13

If they had not introduced check valves

14 earlier in the earlier years, then it wouldn't

15 have been here, but it's irrelevant because the

16 stopcock changing technique was only introduced

17 by me after confirming that check valves were in

18 the system.

19 Q Okay. Now, do you have any idea why in the

20 equipment lists of materials that are used in the

21 lethal injection process the check valves don't

22 appear?

23 A There's no need for them in the protocol as

24 described.

25 Q You don't -- you don't -- you understand in

1112

1 the protocol there's an extensive list of the

2 equipment involved in an execution; isn't that

3 correct?

4 A I do.

5 Q I mean, it's pretty precise, is it not?

6 A No, not to the extent of saying this IV set

7 will be 10 drops versus 15 drops, will be 72

8 inches versus 105 inches, we'll have a check

9 valve, not have a check valve, no, it is not --

10 Q I mean, it goes -- it goes -- it's as

11 precise as listing the number of claves involved;

12 isn't that right?

13 A Yes, but not the part number, if you will,

14 not the 16 different versions of IV sets that you

15 could possibly buy.

16 Q All right. All right. All right. I guess

17 it's a relative term how involved it is.

18 A Yes.

19 Q But, I mean, it describes everything in

20 there, that the clave is there.

21 A It does.

22 Q The line is there; isn't that right?

23 A Yes.

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24 Q The stopcock is there; isn't that right?

25 A Yes.

1113

1 Q The roller clamp is there; isn't that right?

2 A Is that on the list or is that just an

3 assumed part of the IV set? I don't recall

4 seeing a roller clamp on the list.

5 Q We'll just -- okay. And the standard drip

6 bag set is there; isn't that correct? It says

7 standard --

8 A That's part of the IV set.

9 Q Standard IV set; isn't that right?

10 A I think all it says is standard IV set.

11 Q Right, but it says -- no, it says --

12

THE COURT: Finish your answer,

13 Dr. Singler.

14

THE WITNESS: I believe it said a

15 standard -- why don't we look at the list. That

16 would be the easiest way to address this.

17 BY MR. GRELE:

18 Q Well, the list is in evidence and we know

19 what the list is.

20

But, anyway, now, when you talked about

21 check valves and your comment was that you

22 assumed Dr. Heath knew about them and used them

23 in his practice or you hoped he did; isn't that

24 correct?

25 A I did say that.

1114

1 Q Now, you're aware, of course, that there are

2 many medical institutions that don't use check

3 valves on a routine basis; isn't that right?

4 A That's not right. I don't know that.

5 Q Oh, you don't know that. Okay. Columbia

6 University Medical Center, for instance, do you

7 know whether or not they use check valves there?

8 A I would hope they do in their operating

9 suite.

10 Q Do you know whether or not they do?

11 A I do not know.

12 Q Okay. Now, what I'm going to ask you about

13 is something a little abstract here about these

14 check valves. As I understand how they operate,

15 they operate to prevent backflow; isn't that

16 right?

17 A Yes.

18 Q Okay. Now, in an IV setup is it -- the

19 point of resistance is the size of the catheter;

20 isn't that correct?

21 A There are many points of resistance. In a

22 fluid pathway, it is typically the point of

23 greatest resistance that determines the maximum

24 flow rate.

25 Q Okay. And that -- and in a regular line

1115

1 you're injecting into, it's usually the catheter

2 that is smaller than the line; isn't that

3 correct?

4 A Yes.

5 Q And so that's usually the point of

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6 resistance; isn't that correct?

7 A Well, often in many of these it's just

8 actually the vein slightly downstream that's the

9 point of maximum resistance.

10 Q Now, you know, Doctor, of course, that I'm

11 not talking about the human anatomy. I'm talking

12 about the mechanism of the IV. Okay? All right?

13

Now, in the mechanism of the IV it's the

14 catheter at the end that is the point of

15 resistance; isn't that correct?

16 A It is probably the most significant point of

17 resistance.

18 Q Okay. All right. And that's what impedes

19 flow; isn't that right?

20 A It is one of the things that impedes flow.

21 Q Okay. Now, and sometimes when you want

22 really quick infusions and really quick action,

23 that's sort of something that you need to

24 consider is what kind of catheter we have here;

25 isn't that correct?

1116

1 A Well, not only that. You'll have large bore

2 IV sets where the length and internal diameter of

3 the tubing do not matter. You won't have a check

4 valve because that's -- the little flapper valve

5 is a point of resistance. Those are all issues

6 that you're concerned with with high volume, high

7 flow resuscitation IV sets, yes.

8 Q Okay. And, in fact, the check valve,

9 somebody actually did a study on this, didn't

10 they? They said -- they ranked devices that

11 impede flow; isn't that correct?

12 A I'm sure it is.

13 Q All right. And would you disagree with the

14 department of anesthesiology at Brigham and

15 Women's Hospital at Harvard that the check valve

16 ranks third in its -- in the level of devices

17 that impede flow; isn't that correct?

18 A I don't know if it's correct, but that does

19 not surprise me.

20 Q Fluid warmer being first, the 16-gauge

21 catheter being second, the check valve being

22 third, then the 14-gauge catheter, and then all

23 the way down to other aspects of the tubing;

24 isn't that correct?

25 A I -- I accept that representation.

1117

1 Q Okay. So the check valve is something that

2 actually impedes flow in the process pretty

3 significantly; isn't that correct?

4 A No, not at all significantly. As I just

5 described to you, it is the most significant

6 impedance which determines the maximum flow

7 rate. So if it is not the 16-gauge IV, but you

8 have a 14-inch IV, which is a very large IV, then

9 the number 2 item in the list becomes the

10 determinant, the long IV tubing.

11

And if it's not the long IV tubing, then

12 finally we get to the check valve. But I don't

13 think we're in a resuscitation mode here in the

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14 execution chamber and having a wide open maximum

15 flow rate of some liters per minute is really not

16 of great concern.

17 Q Okay. So -- and that -- that, I think, goes

18 back to your earlier testimony in response to my

19 examination. It really didn't matter what the

20 flow rate was on that -- on that drip mechanism

21 in terms of procedure?

22 A It's not a critical item.

23 Q Okay. All right. Now, when you first

24 arrived at San Quentin you asked for the

25 protocol; isn't that right?

1118

1 A I asked for it actually on several occasions

2 prior to that.

3 Q Okay.

4 A I did not see it in writing until after the

5 night of the planned execution.

6 Q Okay. You know that sort of goes in line

7 with some of the testimony we've had in this

8 case, but I just wanted to point it out to you.

9

Were you aware of the fact that almost

10 universally no team member has read the

11 protocol? Did you know that?

12 A No.

13 Q Okay. And some don't even know it exists;

14 did you know that?

15 A I did not.

16 Q These are stipulated facts. The nurse

17 mixing the chemicals did not even know that 770

18 exists. Are you surprised by that?

19 A Somewhat.

20 Q Okay. Because the protocol is an important

21 part of the procedure; isn't that correct?

22 A For the person directing the proceedings,

23 most certainly. For those that need more than

24 instructions to perform their duties, that would

25 also be true.

1119

1 Q And I'm not talking about the custodial

2 staff that moved an inmate back into the

3 chamber. I'm talking about the medical people

4 involved don't know what's in the protocol.

5 A I accept your representation.

6 Q Okay. Now -- and perhaps the most important

7 part of the protocol is the amount of drugs that

8 are put in -- in what volume in how many

9 syringes; isn't that correct?

10 A Only the first part of your statement. The

11 only important part is the total volume of drug.

12 Q Okay.

13 A How you dilute it is relatively less

14 significant.

15 Q Well, you talked about some pain that may be

16 involved if you dilute -- if you don't dilute

17 thiopental enough.

18 A And you have an infiltrated IV. That

19 actually is a valuable marker.

20 Q Right.

21 A It has been lost with the dilution to two

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22 and a half percent. 23 Q Okay. And, now, were you aware of the fact 24 that there was no description of any drug mixing 25 or any number of syringes or volume in those 1120
1 syringes that existed at San Quentin that anyone 2 has been able to locate that describe the 3 four-syringe 1.25 gram dose of thiopental? 4 A Does your automobile handbook instruct you 5 on how to turn on your car? I think some things 6 are assumed. You are taught in training. Some 7 things are so elementary that if those are not 8 taught to the team members, then we have a 9 problem. 10 Q Okay. Now I'm going to ask you. This a 11 stipulated fact, Doctor, that they never train on 12 mixing the thiopental. 13 A That would be of concern. 14 Q Okay. Because not only do you not have the 15 training knowledge, the oral knowledge, you don't 16 even have it written down; isn't that right? 17 A It's not a difficult process, but that is 18 correct. That's a problem. 19 Q And if you change personnel over time, that 20 could be a problem; isn't that right? 21 A I think maybe two practices would be enough 22 to learn how to mix thiopental, but I'll agree 23 that not knowing how is a problem. 24 Q And if they describe the thiopental mixture, 25 as you've described it, greenish, they describe 1121 1 it differently than that, it could be another 2 problem; isn't that right? 3 A No. I think what you're seeing there is the 4 difference between the standard thiopental mixed 5 at 2 and a half percent that I described as a 6 very pale green and the 20 percent mixture, which 7 is that concentrated color and might be of 8 concern, as it was to Dr. Ekins not knowing quite 9 how concentrated that solution was. 10 Q Okay. 11 A I don't read a lot into that testimony. 12 Q All right. But the testimony was that even 13 at the 1.25 gram dose in four syringes for which 14 there's no documentation that they were mixing it 15 at -- with a brownish color. 16 A All right. 17 Q All right? And that's the -- that's the 18 regular concentration; isn't that right? It's a 19 2 percent concentration? 20 A Two and a half percent. 21 Q Yeah. Isn't that right? 22 A I believe so. 23 Q Okay. Now, were you aware that evidence has 24 come out in this hearing that inmates were given 25 perhaps only 625 milligrams of thiopental in some 1122 1 executions? 2 A I was not aware that that has come out of 3 this hearing.

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4 Q That's a gross deviation from the protocol 5 as you understand it; isn't that correct? 6 A Yes. 7 Q One that would cause grave concern; isn't 8 that correct? 9 A It is less than the maximum dose I have ever 10 used to induce unconsciousness. That would be of 11 concern to me, yes. 12 Q Okay. And, in fact, in deposition you 13 discussed the Stanley Williams execution, and you 14 said given his stature and what was involved in 15 that process as you've reviewed it, you might 16 want to kick up the dose another half gram from 17 the 700 grams that was your maximum dose in those 18 circumstances; isn't that correct? 19 A Yes. 20 Q Okay. And so now we're talking about 1,200 21 grams; isn't that correct? 22 A 1,200 milligrams. 23 Q 1,200 milligrams. I'm sorry. 24 A If you were to eliminate all possibility. 25 Q Right. I understand. 1123 1 A That I would be concerned about him resuming 2 unconsciousness given his size, his age and his 3 musculature, yes. 4 Q Okay. 5 A That I've been described. It totals out to 6 1,200 milligrams. 7 Q Okay. So if he was only given 425 8 milligrams, as we've had some testimony that 9 infers, and I'll give you that there's dispute 10 about that testimony, but, if he was, that would 11 cause you great concern, wouldn't it? 12 A It would cause me concern, but -- but only 13 if -- if we all agreed that the pain from 14 potassium chloride is so excruciating that it 15 requires surgical anesthesia, and I don't accept 16 that. 17 Q I understand. 18 A Only if we forget conveniently about the 19 unconsciousness and pain relief that ensues from 20 the hypoxia from even the 425 milligrams. So, 21 yes, it causes me concern, one, because it's a 22 deviation from the protocol, and that is a bad 23 thing. 24 Q Okay. And -25 A Two, because it's less than the dose that's 1124 1 stipulated, but medically do I think that someone 2 who received 425 milligrams even of his size was 3 awake? I do not. 4 Q All right. Well, you understand that he's 5 one of the ones for which there was a great deal 6 of breathing after the administration of 7 pentothal; isn't that correct? 8 A A great deal of breathing? 9 Q Well, you know, it's not the one minute that 10 everybody has testified that they would expect. 11 A We repeatedly saw records where there was

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12 not the one minute that people expect. 13 Q And Mr. Williams was one of them, wasn't he 14 not -- was he not? Well, while we're looking 15 for -16 A He may have been. 17 Q Okay. And while we're looking at that, and 18 this is sort of a side note about the process 19 that you observed and how you've studied it and 20 rendered opinions about it, you read witness 21 number 4's testimony that -- or witness number 22 3's testimony, I'm sorry, about the misadventure 23 during the Stanley Williams execution; isn't that 24 right? 25 A Yes. 1125
1 Q And his testimony, as I understand it, was 2 that he had went -- the individual on the left 3 arm was having some difficulty; isn't that right? 4 A That's what I read. 5 Q Okay. And that both of them thought at that 6 point -- at some point in time that she had 7 actually gotten the catheter right, that they had 8 the vein; isn't that right? 9 A I believe so. 10 Q And then they left the chamber; isn't that 11 right? 12 A I believe so. 13 Q And as they were leaving the chamber, as 14 they were at the chamber door -- and you've been 15 there. That's only what? A foot and a half from 16 Mr. Williams' head; isn't that correct? 17 A Yes. 18 Q As they were leaving the chamber door one of 19 them heard somebody else say, "It's not working"; 20 isn't that correct? 21 A I don't recall that, but I'm sure I could 22 find the testimony. I accept that that was what 23 was described. 24 Q Okay. You accept that that was described. 25 And then the chamber door was locked and the 1126 1 warden said proceed; isn't that correct? 2 A I'll accept that. 3 Q So the last thing Mr. Williams heard after 4 the struggling with this IV, the last thing he 5 heard in his life was "it's not working"; is that 6 correct? 7 A If that's the sequence of events that 8 occurred, then that's what he would have heard, 9 yes. 10 Q Okay. Now, in terms of you talked a little 11 bit about observers and the ability to observe 12 the execution; isn't that correct? 13 A Yes. 14 Q Okay. And witness -- you did not have an 15 opportunity to read the deposition testimony of 16 witnesses number 6 and 7; isn't that correct? 17 A That is correct. 18 Q All right. The two RNs that have been on 19 the team; isn't that correct?

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20 A I don't know what their function is.

21 Q Okay. I understand. Were you aware that

22 their testimony was that the third medical person

23 involved stood at the back by the phones and not

24 at the window observing?

25 A I don't know what their testimony was.

1127

1 Q Okay. So you're unaware of that?

2 A I have not read their depositions.

3 Q Okay. You thought there was a medical

4 person standing in the window watching the

5 inmate; isn't that correct?

6 A Yes.

7 Q Okay.

8 A If we included the medical persons, the MTAs

9 as well as the RNs.

10 Q I understand that. We have one person at

11 the cart was what you saw; right?

12 A Yes.

13 Q And then at the other end of the cart closer

14 to the person administering the drugs was another

15 person?

16 A I was unaware that either of them were RNs.

17 Q I know. They are not, but let's -- let's

18 call them medical people. Okay?

19

So there was one at the cart and then as

20 we're moving closer to the window there's another

21 one at the other end of the cart, and they are

22 doing the syringe passing and sticking it in the

23 Luer-Lok; isn't that correct?

24 A Yes.

25 Q Now, was it your understanding there was a

1128

1 third medical person standing right there in

2 front of the window? Is that your understanding

3 of how it would go?

4 A I don't recall the third medical person. I

5 don't know where the team leader stood.

6 Q Okay. I understand. I understand. I think

7 we all know where the team leader stood, but did

8 you read witness number 4's description in his

9 deposition testimony that he was back behind the

10 canister to the left?

11 A The canister?

12 Q All right. Could you look -- I understand

13 that. That's perhaps a technical --

14

THE COURT: Could I just get a sense of

15 where you're going with this whole line of

16 questioning.

17

MR. GRELE: Okay. Your Honor, this is a

18 line of questioning that we've had developed

19 through Dr. Heath about the members of the team,

20 what they know and what they understand and how

21 they perform their functions and how there's a

22 great difficulty in that process part of the

23 case. And I can move on.

24

THE COURT: Okay. I think -- I think at

25 this point it's cumulative.

1129

1

MR. GRELE: Okay. Sure. I'll move on.

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2

It's not me, Your Honor, but it reminded

3 me that I'm on.

4 BY MR. GRELE:

5 Q You testified that sodium thiopental mixes

6 instantaneously; isn't that right?

7 A Very quickly, yes.

8 Q Okay. You disagree with Dr. Dershwitz that

9 it's necessary to shake the thiopental?

10 A No. We always used to shake the bottle when

11 we mixed it.

12 Q Okay. And that's what dissolves it;

13 correct? Is that correct?

14 A It helps dissolve it, yes.

15 Q And the package says you have to mix it;

16 isn't that correct?

17 A Yes.

18 Q Okay. Now, I think you gave in your report

19 that there was -- there was an MTA at the window

20 that would notice any infiltration. Did you see

21 that in your report?

22 A Yes.

23 Q You said somebody would notice the

24 infiltration?

25 A I believe if they didn't, they should.

1130

1 Q They should. Okay. All right. And I'll

2 tell you -- I'll just represent to you that

3 witness number 4 was in a position where he could

4 not see the inmate. Okay?

5 A Witness number 4 being?

6 Q The other MTA.

7 A The one at the window or the one behind the

8 cart?

9 Q The one at the window.

10 A Okay.

11 Q He was behind -- he was back. Okay?

12 A All right.

13 Q All right? Now let's get to the

14 pharmacokinetics of it. In looking at the

15 pharmacokinetics of the process you relied on a

16 declaration from Dr. Dershwitz; isn't that right?

17 A I did.

18 Q Okay. And that was Dr. Dershwitz's

19 description of a 3 gram dose; isn't that correct?

20 A Yes.

21 Q Okay. And from -- from North Carolina in

22 2004; isn't that correct?

23 A I don't recall.

24 Q Okay. And you recall some question in the

25 deposition why you weren't provided with the 1.5

1131

1 graph by Dr. Dershwitz?

2 A I remember the discussion.

3 Q Okay. All right. And you were not --

4 A Is there a graph of 1.5?

5 Q I believe so. But, anyway, are you aware

6 that Dr. Dershwitz has indicated that a

7 one-minute half life would last over for several

8 minutes of the initial phase of thiopental?

9 A A one-minute half life would last over

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10 several minutes of the initial phase of

11 thiopental? I'm not quite sure what that

12 statement means.

13 Q Okay. There's a redistribution phase of

14 thiopental; isn't that correct?

15 A Yes.

16 Q And, in fact, your graph kind of graphed it

17 out?

18 A Yes.

19 Q Isn't that correct?

20

And it had half lives; isn't that

21 correct?

22 A It didn't have them. It could be concluded

23 from the slope of the graph, yes.

24 Q Okay. All right. And were you aware that

25 it's approximately one minute for each half life,

1132

1 and it lasts for several minutes?

2 A I think one minute is short in the range for

3 thiopental, but it's possible, yes.

4 Q Do you have any reason to disagree with it?

5 A Yes, my clinical experience. I think it's a

6 little bit longer than that, but we're quibbling

7 here.

8 Q Okay. Now, I remember in your deposition

9 testimony that you said that if one gram were

10 given, it would be barely sufficient if the rate

11 of administration was four minutes. Do you

12 recall that testimony?

13 A Yes. Generally, yes.

14 Q Okay.

15 A Barely sufficient for what? What was the

16 subject of our discussion at the time?

17 Q To sedate.

18 A Well, if that's what I said, then, you know,

19 I must have misconstrued your comments because

20 1 gram is more than I use clinically and even

21 over several minutes of time. So we're going to

22 probably need to go back to exactly the specifics

23 of what we were talking about.

24 Q All right. Let's back up then. Your

25 deposition testimony was that the normal rate of

1133

1 administration of thiopental, an initial bolus

2 dose, was ten seconds; isn't that correct?

3 A I think we were talking about lethal

4 injection protocol at that time, not clinical

5 practice, yes.

6 Q But your impression was that it was ten

7 seconds; isn't that correct?

8 A You could inject a syringe at that time.

9 Q Okay. And your impression was that lethal

10 injection was ten seconds; isn't that correct?

11 A I -- I think -- it was my impression that

12 syringes had been injected fairly quickly as I

13 looked at the logs, yes.

14 Q Okay.

15 A So they could be injected as quickly as ten

16 seconds.

17 Q Okay. And so -- and you understood -- and I

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18 think we went through this in deposition. I

19 won't recount it here -- that the slower you

20 administer the thiopental, the less peak effect

21 it has; isn't that correct?

22 A Almost. The lower your peak blood level is.

23 Q Okay. All right.

24 A If the peak -- if the effect is above the

25 clinical threshold, then you have passed that

1134

1 threshold for as long as you stay above that

2 threshold.

3 Q Speaking of that threshold, in the Dershwitz

4 model I think your graph indicated that he used

5 19 micrograms per milliliter as a threshold that

6 you had put on the graph, but that Dr. Dershwitz

7 had used 7 micrograms per milliliter. Do you

8 remember that?

9 A I don't know what threshold Dr. Dershwitz

10 chose. I chose his percentage of three patients

11 in 10,000 being conscious as an arbitrary

12 threshold.

13 Q Okay. And do you recall the testimony that

14 when you looked at his underlying declaration, he

15 had, in fact, used a 10 micrograms per milliliter

16 figure for determining an unconsciousness?

17 A For a different percentage of patients. I

18 was merely transcribing directly from his graph.

19 So both are true, just for a different number of

20 patients.

21 Q I understand. I understand. And we've had

22 some testimony about that before, about his

23 practice of doing that. Okay?

24

Now, you indicated that if -- if at one

25 point 1.5 grams -- excuse me, Your Honor -- at

1135

1 1.5 grams administered over an eight-minute

2 period would cause you some concern. Do you

3 recall that testimony?

4 A Uh-huh.

5 Q Okay. Now, when we're talking about

6 barbiturates, you talked about barbiturates that

7 are not used for suicide?

8 A I don't recall the testimony, but I'm sure

9 we can find it together.

10 Q I'm not going to spend time looking at

11 testimony, but barbiturates are frequently used

12 for suicide; isn't that correct?

13 A I don't have much expertise. From newspaper

14 accounts that I've read, yes. I would agree.

15 Q All right. Some fairly famous individuals

16 have taken their lives that way; isn't that

17 correct?

18 A I'm sure that's correct.

19 Q Okay. Now, when you use an oral dose of a

20 barbiturate, it has a much different reaction in

21 the body than an intravenous dose; isn't that

22 correct?

23 A No. It has exactly the same reaction. Its

24 absorption is significantly delayed and

25 prolonged.

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1136

1 Q Okay. I'm sorry. I was imprecise in my

2 question and that's the exact answer I wanted.

3 So thank you.

4

So when you use an oral dose you get --

5 it will take much longer; isn't that correct?

6 A For onset.

7 Q For onset. And how about duration?

8 A That may be similarly prolonged, but if the

9 end point is death, duration becomes irrelevant.

10 Q Okay. All right. And that's where you were

11 coming up with this phenobarbital as an

12 alternative; isn't that correct? If not from --

13 I'm sorry. That's a bad question and I'll

14 withdraw it. Okay?

15

When you were talking about the

16 phenobarbital that you were suggesting, it was

17 intravenously; isn't that correct?

18 A I did not suggest phenobarbital. If we're

19 talking about pentobarbital, yes, it was

20 intravenous.

21 Q Okay. Thank you. And so not oral because

22 oral would drag out the process and make it much

23 longer; isn't that correct?

24 A I never considered at all the administration

25 of drugs, although the protocol does allow for

1137

1 sedative administration of oral Valium before the

2 execution.

3 Q Now, you're aware of the fact that that's a

4 method of physician-assisted suicide is an oral

5 dose of barbiturate; isn't that correct?

6 A I have no -- but, yes, from newspaper

7 accounts I accept that.

8 Q Not an intravenous dose; isn't that right?

9 A No. Both are used.

10 Q Okay. Now, in terms of the breathing

11 testimony that we had from you, and this is -- I

12 think goes to one of the hearts of the case. So

13 I wanted to ask you to look at Exhibit 74, if you

14 could.

15

THE COURT: Would you remind me what

16 that is, Mr. Grele? Is that the graph?

17

THE GRELE: That's the graph, yes.

18

THE COURT: All right.

19

MR. GRELE: It's buried in the back of

20 volume 2.

21

THE COURT: Different shades of purple.

22 BY MR. GRELE:

23 Q Do you see Exhibit 74?

24 A I do.

25 Q Do you have another document in front of you

1138

1 that you're referencing?

2 A Well, I'm looking at the execution logs

3 because I've never seen this time cessation of

4 respiration graph before, and I'm intrigued that

5 this judgment can be made from the logs and I was

6 going to try and cross-check as you

7 cross-examined.

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8 Q Okay. Now, if you would give me your

9 undivided attention, I'd appreciate it. Okay?

10

Now, this -- assuming that the graph is

11 accurate, this is what caused you such concern

12 when you first became involved in the process;

13 isn't that right?

14 A I don't think I'm willing to accept that

15 this graph is accurate.

16 Q Okay.

17 A I prefer to go to the execution logs, and we

18 can talk about any individual case you'd like.

19 Q All right. It's often much better to get a

20 sort of global picture of where we are, Doctor.

21 So let me just ask you a couple questions.

22

And if -- what caused you concern was

23 your knowledge that individuals were seen

24 breathing for much longer than you would expect

25 given a 5 gram dose of thiopental; isn't that

1139

1 correct?

2 A Almost. Individuals were seen exhibiting

3 respiratory effort for a longer period of time

4 than I would expect, that's correct.

5 Q Okay. All right. And that's when you

6 started going looking for horses; isn't that

7 right?

8 A If you wish.

9 Q Okay. Because this was obviously the sound

10 of hoofbeats; isn't that right?

11 A Yes.

12 Q Okay. Now, your horse that you located here

13 in court was that it probably was the doctors who

14 were incorrect in what they were observing; isn't

15 that correct?

16 A No. It doesn't matter whether the inmates

17 were truly breathing or just exhibiting the

18 respiratory effort that I believe is more likely

19 the case. Something was going on past this

20 one-minute mark that we assume would be the

21 threshold for pancuronium action passed the

22 seconds to one-minute mark that we would expect

23 potassium chloride to create a chaotic rhythm or

24 perhaps even a flat line. Something was taking

25 longer.

1140

1 Q Okay. Now, you had a little sort of trick

2 of the trade that you talked about?

3 A Yes.

4 Q With this little part of the upper airway;

5 isn't that right?

6 A Yes.

7 Q Okay. And that's what you were looking for

8 for it to -- was it rise or sink?

9 A Rise.

10 Q And it was your supposition that, one, none

11 of these doctors, these three doctors who have

12 observed respirations, were aware of that trick

13 of the trade; right? That was your -- that's

14 what you're supposing?

15 A No, it wasn't a supposition. All I was

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16 describing was a technique which is somewhat

17 arcane outside of anesthesia, which is a subtle

18 sign, and I wasn't aware how many physicians were

19 aware of it. I made no more suppositions than

20 that about the individual skills of these

21 physicians.

22

In fact, the records show definitive

23 statements regarding breathing versus chest

24 movement. It's on a couple of records. So I

25 would assume that those observers had greater

1141

1 skill.

2 Q And agonal breathing; isn't that correct?

3 A I don't recall a note regarding agonal

4 breathing. I only recall a note regarding agonal

5 cardiac rhythm, but it may be there.

6 Q And brief spasmodic movements, for instance;

7 isn't that right? They distinguished those?

8 A What is a brief spasmodic movement? Yes,

9 I've seen the term in the record.

10 Q And then they also distinguish between

11 respirations and shallow respirations; isn't that

12 right?

13 A Yes.

14 Q Okay. All right. But it's still

15 nonetheless described as respirations; isn't that

16 correct?

17 A Yes.

18 Q Now, measuring breathing, I mean, is not a

19 rocket science for a physician, is it?

20 A I think I disagree. That's why I have a

21 specialty.

22 Q Okay. Now, you did not have an opportunity

23 to review the deposition testimony of the two

24 doctors -- of two of the doctors that had made

25 observations, did you?

1142

1 A I did not.

2 Q Okay. Were you aware that Dr. Heath had, in

3 fact, done that?

4 A No.

5 Q Okay. And I think the Court said it would

6 be best if we heard from those -- what they had

7 said; isn't that correct?

8 A I don't know, but that's a good thing.

9 Q Okay. Now, Dr. Calvo who measured

10 respirations or, as you like to call them,

11 breathing efforts or movements described what he

12 saw. And he said, quote, "They are rhythmic at a

13 certain rate," and then he's describing this

14 particular individual, which I believe was

15 Mr. Rich, "and they are shallow, and then I

16 noticed at this particular time, which is a

17 minute later, that the spasm, this is not

18 breathing."

19

Were you aware --

20

MR. GILLETTE: Your Honor, could we just

21 get a page reference?

22

MR. GRELE: Sure. I believe that's at

23 page 160 -- or I'm sorry. Maybe 162.

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24 BY MR. GRELE:

25 Q You did not know of that testimony, did you?

1143

1 A I did not.

2 Q He's making a distinction there not only

3 between breathing and non-breathing, but

4 breathing with rhythm; isn't that correct?

5 A Well, the statement you just made or the

6 recitation of his testimony that you just gave me

7 is -- is a little concerning because standing

8 outside the chamber distinguishing between normal

9 respiratory effort and shallow respirations is

10 not something that you can do.

11 Q Okay.

12 A You can --

13 Q So you're saying -- you're saying -- you're

14 saying -- you're not -- you're saying that the

15 description must be inaccurate because he

16 couldn't have observed that from where he was

17 standing?

18 A You cannot distinguish -- yes.

19 Q Okay. All right. You don't have any idea

20 where he was standing, do you?

21 A No, I do not.

22 Q Okay. All right. Now --

23 A There is only one window in the

24 antechamber.

25 Q We've all been there, Doctor. So we know

1144

1 how many windows there are.

2

Now, he's asked again about it, and it

3 said -- and he's asked, "How were you measuring

4 it?"

5

And I think this is at 150, Counsel.

6

And he says, "I'm counting."

7

And I asked, "Well, you're counting as

8

the inmate is breathing?"

9

"Correct."

10

"Question: "All right. Do you count

11

for a full minute?

12

"Correct."

13

"Or do you count for 15 seconds and

14

multiply by four?"

15

And, by the way, that's another way to

16 measure breathing, isn't it?

17 A It's another way to measure respiratory

18 effort.

19 Q Okay.

20 A Or the frequency of respiratory effort.

21 Q "Well, you could do that, you can count for

22

a minute. I don't recall which I did,

23

but I think I was counting for a full

24

minute."

25

"For a full minute. Okay."

1145

1

"Answer: Well, yes. Observing

2

respirations and counting respirations

3

is something that I have been doing for

4

40 years. So it is not something that's

5

difficult to do."

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6

You were not aware of that testimony,

7 were you?

8 A That testimony does not indicate that this

9 patient was making effective breathing versus

10 respiratory effort. What you've described is

11 what a layman sees when he sees an abdomen or a

12 chest heave in somebody with an obstructed

13 airway. There's no information in this testimony

14 that tells me that this patient was breathing

15 effectively.

16 Q You're telling me that a physician that's

17 been measuring breathing for 40 years is a

18 layman?

19 A No. I am telling you that what you have

20 just recited in testimony does not offer

21 sufficient discrimination to differentiate

22 between respiratory effort with an obstructed

23 airway, which I would think 99 percent of inmates

24 have after any substantial dose of barbiturate,

25 and effective respiration.

1146

1

In fact, if they were breathing

2 effectively, it goes to my point of this rare

3 favorable airway or it goes to your point of

4 having gotten only a fraction of the thiopental

5 and having this patient awake, and now we're in

6 hoofbeat territory.

7 Q And you appear to be looking for zebras.

8 I'll withdraw that.

9

Now, when -- you testified, I think,

10 that you had sort of recitation of agonal

11 breathing and how it would be very unpleasant; do

12 you recall that?

13 A I do.

14 Q That's something that doctors would

15 recognize, wouldn't it, or they should recognize;

16 isn't that correct?

17 A Yes.

18 Q Okay. All right. Now, are you familiar

19 with the concept of EEG flat line?

20 A I am.

21 Q Okay. And EEG flat line, is it your

22 testimony that individuals will still be

23 breathing when they are anesthetized?

24 A No.

25 Q Okay. Also, it was your testimony, I think,

1147

1 in deposition that you --

2 A Ah. You know, I withdraw that. I don't

3 know the answer to that question because what you

4 have just described is cortical flat line, and I

5 know from my own clinical experimentation during

6 the introduction of EEG devices some years ago,

7 we could produce electrical flat line in our

8 patients with heavy doses of vapor anesthetic.

9

What I don't know is whether or not

10 their medulla was functioning enough to provide

11 involuntary respirations because those patients

12 were paralyzed. I don't know the answer to your

13 question.

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14 Q That, by the way, Doctor, is a perfect 15 description as to what's happening to inmates and 16 why we can't tell what's really going on. They 17 are paralyzed; isn't that correct? 18 A No, that's not correct. 19 Q Okay. Now, in deposition you were not able 20 to tell us how long apnea would result after a 5 21 gram dose; isn't that correct? 22 A I'm sorry. How long what would result? 23 Q This apnea, the initial apnea, which is the 24 cessation of breathing. 25 A Yes, because we have this whole issue of 1148
1 short injections versus long injections. Does 2 the sudden introduction of barbiturate give you 3 more than temporary apnea, that is correct. 4 Q Okay. And then -- well, once you get that 5 temporary apnea you don't know how temporary that 6 is; isn't that correct? 7 A That is correct. 8 Q And the same with 1.5 grams; isn't that 9 correct? 10 A That is correct. 11 Q Okay. All right. But you know that it 12 would be expected to start in one minute; isn't 13 that correct? 14 A That what would be expected to start? 15 Q The apnea. 16 A Yes. 17 Q Okay. All right. 18 A In fact, I expect it would occur much sooner 19 than that. Usually that's one of the first 20 things we see after this initial yawn that 21 patients often give at the onset of barbiturate 22 anesthesia. They immediately stop breathing, and 23 then you can start your clock, if you will. 24 Q Okay. And then in terms of the starting 25 breathing -- and your position was that they 1149 1 could have started breathing after the initial 2 apnea? 3 A Yes. 4 Q Okay. But you don't know how long that 5 initial apnea should be? 6 A It's a -- it's a fairly brief phenomenon. 7 Q How brief? 8 A Well, in my clinical experience, it's not 9 relevant to these proceedings because the doses 10 are one-eighth of what you're using. 11 Q That's right. And that's why you couldn't 12 tell us how much -- how the length of the apnea 13 was; isn't that right? 14 A That's correct. 15 Q Okay. All right. Now, one of the things 16 you said was the sheer number of records raises 17 questions about either the pharmacy, the 18 pharmacology involved or the delivery involved; 19 is that correct? 20 A That is correct. 21 Q Okay. Or it could be both; isn't that

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22 right?

23 A Yes.

24 Q Okay. All right. When you described the

25 breathing sort of trick of the trade yesterday

1150

1 you said -- you said, quote: "I will give you

2 the lesson that I learned that was crucial to

3 this. My instructors taught me early in my first

4 year of training that if breathing is your

5 business because that's what turns things sour

6 first, where you need to watch, Doctor, is here,"

7 and then you pointed to a little 2 centimeter

8 circle at the top of your chest, quote, "because

9 there alone, my professors would tell me, there

10 are other signs, but there alone will you see

11 this little rise in the chest which indicates

12 successful breathing as opposed to the heaves of

13 the abdomen or the intercostal effort or workings

14 at the mouth."

15

Is that what you told me?

16 A I recall that testimony.

17 Q All right. "Because a relatively loud sound

18 may be only a small volume of air in a narrow air

19 orifice. So I was taught to watch for a rise in

20 the apex if I had an obstructed airway, as I

21 universally did with induction."

22

Do you see that?

23 A Yes.

24 Q All right.

25 A I recall that.

1151

1 Q Okay. So -- and I think that you went on to

2 describe -- you're -- you're at that point where

3 you're inducing induction, and -- and then you

4 said, "Until I learned how to hold a mask and a

5 jaw, he would point out to me, see that little

6 area, he's sinking, it's not rising, and that's

7 the one universal sign I know to look for that is

8 not common to most physicians."

9

That's your testimony?

10 A I recall that testimony.

11 Q So what you're describing there is a process

12 by which you're supporting somebody to induce --

13 to induce; isn't that right?

14 A Yes.

15 Q Okay. All right. Now, when you're inducing

16 breathing you're employing positive pressure;

17 isn't that correct?

18 A When I am inducing breathing, yes. When I

19 am delivering breaths, I am delivering with

20 positive pressure.

21 Q Positive pressure.

22 A Yes.

23 Q Okay. But that's not the way our body works

24 by itself in terms of breathing, is it?

25 Negative --

1152

1 A What was that when I was describing that

2 testimony?

3 Q Well, you gave an example, and we'll stick

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4 with your example, in -- in the body you have

5 negative pressure that --

6 A Yes. That's why I testified to the sink in

7 the apex of the chest. That patient is respiring

8 spontaneously or is making spontaneous efforts,

9 but they are failing because of an obstruction in

10 the upper airway, hence, the sinking of the apex

11 in the chest. It's a subtle sign.

12 Q The sinking that I'm talking about, though,

13 Doctor, is the sinking of the diaphragm that

14 opens the chest; isn't that right?

15 A The sinking of the diaphragm just happens.

16 Q Right. That's how we breathe; isn't that

17 right?

18 A That's -- that's part of how we breathe,

19 yes.

20 Q Okay. So the sinking -- it's different than

21 how we breathe when you're inducing air; isn't

22 that correct?

23 A Most definitely.

24 Q It's a negative pressure; isn't that

25 correct?

1153

1 A Yes.

2 Q And so you're saying with this negative

3 pressure you'll still see a rise in the top of

4 the chest?

5 A Yes.

6 Q Okay.

7 A That's the magic of it.

8 Q As opposed to --

9 A That's the subtlety which calls into some

10 question Dr. Calvo's comments about merely

11 counting respirations. It's a subtle sign.

12 Q Okay. So it's a rise in the chest that

13 you'll see --

14 A Even when you have this negative pressure.

15 Q Negative pressure.

16 A Because it's a volume phenomenon. When you

17 inflate a balloon or when you suck a balloon

18 open -- let's say you put a balloon inside a

19 canister with a cylinder. You pull that

20 cylinder, canister down, and the balloon

21 inflates. It gets bigger. And that is

22 equivalent to this little rise in the chest that

23 you see with negative pressure.

24 Q When do you see with positive pressure?

25 A Same thing.

1154

1 Q You see in both?

2 A It's a measure of the --

3

THE COURT: I'm sorry, gentlemen.

4

THE WITNESS: I apologize.

5

THE COURT: I need to interrupt.

6 There's just way too much talking.

7

Mr. Grele, if you could wait until the

8 doctor answers the question because I think we'll

9 have a much better record.

10

MR. GRELE: Sure. Can I rephrase my

11 question, Your Honor?

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12

THE COURT: Sure. Go ahead.

13 BY MR. GRELE:

14 Q Is it your testimony that in both positive

15 and negative pressure breathing situations you

16 will see the same type of movement on this area

17 of the chest?

18 A Yes.

19

MR. GRELE: Okay. Thank you.

20

THE COURT: Mr. Grele, can I get an

21 estimate as to how much more you have?

22

MR. GRELE: I have a few more areas to

23 go, Your Honor. I'm hoping that --

24

THE COURT: Half hour or less?

25

MR. GRELE: I would think that maybe it

1155

1 might be a half hour. It might be somewhat

2 more. These are the main points in the case.

3

THE COURT: Right. I don't mean to cut

4 off anything that's important. I just want to

5 get a sense of what we have left to do.

6

Mr. Gillette, do you anticipate any

7 significant redirect?

8

MR. GILLETTE: At this point, Your

9 Honor, I think it's unlikely there will be any

10 redirect.

11

THE COURT: All right. And I have some

12 very brief questions of Dr. Singler.

13

What are we going to do with

14 Mr. Slavin?

15

MR. GRELE: I'm sorry. I just need to

16 confer with counsel for a second. I think we're

17 okay on that, Your Honor. If I can just --

18 I thought maybe we'd get to break and I'd be able

19 to resolve that issue.

20

THE COURT: We're going to get a break

21 right now.

22

MR. GRELE: Okay.

23

THE COURT: I just wanted to get a sense

24 of what we have left to do. We may go until

25 12:30 if we can finish this morning. I'd like to

1156

1 get the matter done by the noon hour.

2

MR. GRELE: Okay.

3

THE COURT: Okay. We will take a

4 15-minute recess.

5

(Recess taken.)

6

THE COURT: We'll go back on the record

7 in the matter of Morales versus Tilton. Let the

8 record reflect that counsel are present.

9

And, Mr. Grele, you may continue with

10 your cross-examination.

11

MR. GRELE: Thank you very much, Your

12 Honor.

13 BY MR. GRELE:

14 Q Just one more -- a couple more points on

15 this breathing issue. When I asked you in

16 deposition whether or not you knew at what blood

17 level thiopental affects the cerebral cortex but

18 does not affect the brain stem, you responded

19 that you did not know and it was beyond your

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20 expertise; is that correct? 21 A That is correct. 22 Q Now, on the circulatory collapse hypothesis 23 that's been presented here as one sort of 24 explanation for what we see in these logs, do you 25 understand what I'm talking about? 1157
1 A I do. 2 Q Okay. You did not have an opportunity to 3 review the EKGs in this case, did you? 4 A I did not. 5 Q Okay. And as I recall your deposition 6 testimony, and correct me if I'm misunderstanding 7 it, Doctor, the heart rate -- when somebody is 8 anesthetized the heart rate will either go up or 9 down; isn't that correct? 10 A Yes. 11 Q Okay. It's variable; isn't that correct? 12 A Yes. 13 Q Okay. Now, that's different, of course, 14 from the EKG wave, isn't that right, the heart 15 rate? 16 A One would hope that the two happened at the 17 same time. 18 Q I understand that, but as a measurement. 19 A They should be identical. 20 Q Okay. So if somebody says a heart rate is 21 ten beats, you're going to have the same type of 22 wave each time? 23 A You should see ten complexes on the EKG if 24 those are effective contractions. 25 Q Okay. All right. Now, also in terms of the 1158 1 pancuronium bromide, you reviewed Dr. Heath's 2 declarations in this case; isn't that correct? 3 A I did. 4 Q And you recall the portion of his 5 declaration where he talks about the pancuronium 6 bromide and that it nullifies the ability of 7 witnesses to discern whether or not the condemned 8 prisoner has experienced a peaceful or agonizing 9 death; do you recall that? 10 A I do. 11 Q And then he says, "The use of pancuronium, 12 in my opinion, therefore, prevents the press from 13 fulfilling its essential function of informing 14 the citizens, officials and courts of California 15 about whether an execution by lethal injection is 16 in a manner consistent -- that is 17 constitutionally compliant and humane"; isn't 18 that correct? Do you recall that? 19 A I do recall that. 20 Q And then he concludes there -- he 21 concludes -- he agrees with CDC, that the doses 22 of pentothal, potassium chloride are lethal doses 23 and, therefore, it's unnecessary to administer 24 the pancuronium bromide in the course of an 25 execution if it is quickly followed by a lethal 1159 1 dose of potassium chloride. Do you understand --

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2 do you remember those opinions?

3 A I do recall that.

4 Q Okay. "It serves no legitimate purpose and

5 only places a chemical veil on the process that

6 prevents an adequate assessment of whether or not

7 the condemned is suffering in agony and greatly

8 increases the risk that such agony will ensue.

9 Removal of pancuronium from the protocol would

10 eliminate the risk of conscious paralysis from

11 occurring. It also would eliminate the risk that

12 an inhumane execution would appear humane to

13 witnesses."

14

Do you recall those statements?

15 A Yes.

16 Q And I noted that in the margin of that you

17 put "has a point"?

18 A Yes.

19 Q Do you agree with that?

20 A I don't agree with his position, but he has

21 a point.

22 Q He has a point. Okay.

23 A Let me be more specific. I don't agree with

24 the position that it is unnecessary. The Pavulon

25 serves a legitimate medical purpose, especially

1160

1 with the use of thiopental, that is different

2 from the concealment of awareness which might

3 conceivably occur.

4 Q And it particularly serves more of a purpose

5 now that the amount of thiopental has been

6 dramatically reduced in the initial bolus dose;

7 is that correct?

8 A No, that is not correct. If you have an

9 overdosage above the threshold, then how much you

10 exceed that threshold is irrelevant.

11 Q Now, we talked a little bit about time and

12 the pharmacology of time, and that's a little

13 beyond your expertise; isn't that correct?

14 A A little bit. I'm familiar enough with

15 pharmacokinetics to perhaps help you with some

16 answer.

17 Q I mean, we've had enough pharmacokinetics,

18 believe me.

19

Anyway, but the essential point is that

20 if you give 1.5 grams over three minutes, you're

21 going to see a markedly different curve than the

22 graph that you drew in your report; isn't that

23 correct?

24 A Yes, but irrelevant.

25 Q And -- but you said, quote, "it would be

1161

1 interesting to see"; isn't that correct?

2 A Yes.

3 Q Okay. And then you said about the pentothal

4 drip that it accumulates faster than

5 redistribution would allow; isn't that correct?

6 A If I said that, that is not strictly

7 correct.

8 Q Okay. But then you went on to say that you

9 may be wrong. You would need a model; isn't that

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10 correct?

11 A There you are.

12 Q Is that correct?

13 A That is correct.

14 Q Okay. Now, as I understand it and, you

15 know, this realm of the case is a little thick,

16 so, as I understand it, what we're talking about

17 there is the pentothal drip mechanism as it moves

18 up and reaches a certain concentration will sort

19 of level off over time; isn't that correct?

20 A Yes.

21 Q Okay. All right. So it's an upward sloping

22 curve, a time-dose curve; isn't that correct?

23 A It's really the level portion that we're

24 concerned with here. But, yes, it does -- it

25 does initially rise and then reach some -- well,

1162

1 it may not be level.

2

It may, in fact, tend to decrease over a

3 long period of time if metabolism and further

4 redistribution exceeds what is required at 100

5 milligrams a minute. I don't know the answer to

6 that.

7 Q You don't know the answer to that, but at

8 some point in time it's going to sort of slope

9 up, slowly slope up and then reach a certain

10 level, assuming the maintenance dose is

11 maintained; isn't that correct?

12 A Yes.

13 Q Okay. Now, whereas the -- the drug -- the

14 other drug, the bolus dose, has that curve that

15 you did in your graph where it comes sloping

16 down; isn't that correct?

17 A Well, in the case of a delayed injection or

18 a slow injection, what's missing from that curve,

19 what's missing from Dr. Dershwitz's model is that

20 same initial assent which now takes eight

21 minutes, if you will, to reach its peak and then

22 begin a descent. The area under the curves

23 remains approximately the same.

24 Q Okay.

25 A But the picture changes a bit.

1163

1 Q Okay. So you end up with a curve that kind

2 of slopes up, slopes down and slopes up again;

3 isn't that correct?

4 A No. When you add those curves, what you

5 have is a curve which slopes up and slopes down

6 at a slightly less rapid rate because you're

7 adding those two together mathematically.

8 Q Okay. But your first slope is reduced by

9 the amount of pentothal that's been given; is

10 that correct?

11 A Yes, the rise is.

12 Q And the timing of it; isn't that correct?

13 A Yes.

14 Q Okay. In your opinion, can you kill a human

15 being in a manner in which they would not kill

16 animals?

17 A I have no reference to answer that

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18 question. I have no experience with animal

19 euthanasia.

20 Q In your opinion, in terms of human

21 euthanasia, there was some description of a

22 procedure used in Holland where they use a

23 sedative and then Pavulon. Are you familiar with

24 that?

25 A I'm not.

1164

1 Q Okay. All right. Do you know whether or

2 not there's a physician at the bedside for that?

3 A I do not.

4 Q Okay. Now, you also made some

5 recommendations in your report that -- that

6 you -- that you perhaps didn't have an

7 opportunity to talk about it on direct, and that

8 is that we have a backup procedure in place now

9 that there's two lines being used for the -- for

10 the dosage mechanisms. Do you recall that?

11 A I don't recall that. In fact, my

12 recollection is that is a flaw in both the old

13 and the current protocols, that there is not a

14 backup plan. What we now have is use of both

15 IVs, but we don't have a backup plan in the event

16 of failure of either of those IVs, at least

17 described in the protocol. We have some logical

18 steps that I would assume individuals would take,

19 but that is not written down.

20 Q Okay. And you were not concerned about

21 having a backup plan when you were there at San

22 Quentin that night of Mr. Morales's scheduled

23 execution?

24 A I was not. And that deserves a little

25 amplification because I was there to ensure that

1165

1 what I expected to see would, in fact, occur.

2 Hence, the need for a backup became so small that

3 that was a risk that I was willing to take.

4 Q Okay. And you indicated -- so it was your

5 expertise that you brought to the endeavor, your

6 ability to monitor, your ability to ensure the

7 process was going appropriately that --

8 A No. I did not have a duty in my mind to

9 ensure the process was going correctly.

10 Q Okay.

11 A I was to get the process to a point and that

12 point was such that I had virtual certainty in my

13 mind that things would unfold as I expected them

14 to physiologically.

15 Q By the way, on pancuronium, would you

16 disagree with Dr. Dershwitz's statement that,

17 quote, "Question: "Can you think" -- and that is

18 from the Walker transcript, Your Honor, in -- or

19 Evans v. Saar, the recent Maryland case.

20

"Can you think of any reasonably

21

likely -- can you think of any reason

22

why a state would want to use Pavulon

23

other than to prevent involuntary muscle

24

contraction?"

25

"Answer: No."

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1166

1

Do you disagree with that statement?

2 A I do most certainly.

3 Q Okay. And when you're talking about the

4 pain that potassium may or may not cause, I think

5 you -- you talked a little bit about that you

6 didn't think that the painful stimulus was

7 equivalent to a surgical process.

8 A I did say that.

9 Q Okay. All right. And, now, when I asked

10 you about this in deposition didn't you say that

11 you were using your clinical experience to

12 extrapolate the effect of this high dose of

13 potassium chloride and that it may not be valid;

14 isn't that correct?

15 A I said that at that time and at that time I

16 had not thought about those rare anecdotal cases

17 of inadvertent erroneous administration of two

18 milliequivalents per milliliter of potassium on

19 the ward by a nurse who thought she was choosing

20 another drug. I had not thought about those

21 cases.

22 Q So an anecdotal experience for which there

23 is no ability for us to look at and examine and

24 test is the basis for your opinion that it

25 doesn't hurt?

1167

1 A I did not say that it doesn't hurt.

2 Q Okay. That it isn't a sufficient stimulus

3 equivalent to surgery?

4 A That's a big difference, sir.

5 Q Okay. All right. Are you aware that the

6 parties have previously agreed and the Court has

7 previously found that it would cause an

8 excruciating death in an anesthetized person?

9 A I have, and I disagree with that decision of

10 the Court or that stipulation by the parties. I

11 think that's erroneous, but that's my opinion. I

12 think that was an erroneous early stipulation by

13 the state because it remains, as does my

14 statement, unproven, and difficult to prove in

15 any case.

16 Q So you disagree, and, again, this was

17 with -- this is from the Dershwitz testimony in

18 the Walker case recently in Virginia, Your

19 Honor.

20

"Question: You said on page 5 of your

21

report that it would be agonizing for an

22

awake person to be given 240

23

milliequivalents of potassium chloride?

24

"Answer: I believe that's true."

25 A You can see I'm struggling with the accurate

1168

1 words to describe the level of pain. I

2 consistently do not believe that it is pain which

3 requires a surgical level of anesthesia to

4 block. I do not dispute that it's painful. I do

5 not dispute that doing it in an awake person is

6 unconscionable.

7 Q Do you think -- do you disagree with the

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8 statement, quote, "as the medication worked its

9 way into their vein in the arm, they would feel

10 intense pain, I would think, and they would

11 scream out"? Do you disagree with that?

12 A I don't disagree with that. That is

13 correct.

14 Q You don't disagree that it's intense pain?

15 A I do not.

16 Q Okay. Now, the process by which you're

17 talking about the circulatory collapse has an

18 anesthetic property as well; isn't that correct?

19 A The way you asked your question is not

20 correct. So please try again.

21 Q Okay. Oh, by the way, when you were

22 reviewing Dr. Heath's declarations you indicated,

23 I think, when he's describing about the second

24 dose of potassium, you say 5 grams would

25 suffocate the guy. And you're talking about the

1169

1 5 grams of --

2 A Thiopental.

3 Q -- thiopental. So it's your belief that 5

4 grams would suffocate somebody?

5 A That is my estimate of the mechanism of

6 death in a sole drug regimen.

7 Q Okay. Now, when we were talking about that

8 hypoxia operation of the brain that goes on, do

9 you remember that?

10 A I do.

11 0q Now, that has an -- your testimony is it

12 has an anesthetic effect on its own?

13 A It has an unconsciousness-inducing effect of

14 its own.

15 Q Okay. And so that's not an anesthetic

16 property?

17 A We're splitting hairs here. I would

18 hesitate to give anesthesia by making someone

19 hypoxic, but, yes, strictly speaking, you could

20 call that an anesthetic property to the extent

21 that that word means you are unaware of painful

22 stimuli.

23 Q So that's in addition to the anesthetic

24 property of the barbiturate? And I'm just

25 talking about --

1170

1 A Precisely. That is exactly correct.

2

I apologize for interrupting.

3 Q Thank you. I'm just talking about the

4 anesthetic depth -- I'm just talking about using

5 solely the barbiturate, the pentobarbital that

6 you suggested at the Governor's meeting. That

7 would also have the hypoxic effect that you're

8 talking about as well; isn't that correct?

9 A It would.

10 Q Okay. And that would be an additional sort

11 of sedative effect, if you would, of using solely

12 a barbiturate?

13 A Yes. Now, we -- we are, therefore,

14 dispensing with the possibility that you have

15 this -- this inmate, this unusual inmate with a

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16 favorable airway. What is the extent to which

17 the state wants to ensure that its outcome is 100

18 percent assured.

19 Q All right. And is favorable -- I mean -- I

20 mean, so you disagree with Dr. Dershwitz that

21 even at 2 grams, all breathing would stop?

22 A When? Are we talking about temporary apnea

23 or subsequent resumption of involuntary

24 respiratory effort?

25 Q Well, first of all, is there any notation in

1171

1 any of the logs that once the individual has

2 stopped breathing, they started breathing again?

3 A There is none.

4 Q Okay. All right. And, in fact, they

5 have -- they -- do you have any data that

6 suggests that at 5 grams of sodium thiopental,

7 anybody would start breathing again?

8

Well, let me rephrase that. I know

9 you're a clinician and not a researcher. Okay?

10 And you've never obviously given 5 grams of

11 thiopental.

12

But assuming 5 grams of thiopental is --

13 is administered appropriately, you would see

14 somebody stop breathing within a minute; isn't

15 that correct?

16 A That would be true if they had gotten as

17 little as 250 milligrams, one-twentieth of the

18 dose.

19 Q They would stop breathing in a minute and

20 that that -- that cessation of breathing would

21 last for quite a long time; isn't that correct?

22 A No. That is the part that's in dispute

23 here. That seems to dose related. That's the

24 part which goes beyond my clinical experience.

25 How long it's going to last with 5 grams or a

1172

1 portion of 5 grams is what is unknown. That's

2 the thing I'm having difficulty wrestling with in

3 interpreting these very minimal logs.

4 Q And would it take over 20 minutes for them

5 to start breathing?

6 A To start breathing?

7 Q Again.

8 A From 5 grams?

9 Q Yeah.

10 A One would think so. To start breathing

11 again, yes.

12 Q It would be over 20 minutes?

13 A Well, clearly not if they had the apnea that

14 I'm positing, and yet we're seeing an observation

15 in the log that they were still breathing eight

16 minutes later. We have an issue here.

17 Q Okay. And what you're doing by saying that

18 is you're excluding, one, the possibility that

19 they were given varying doses of the thiopental?

20 A I'm not excluding that at all. That is

21 indeed in the realm of possibility.

22 Q And the possibility that we have untrained

23 individuals without -- without adequate

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24 procedures administering these drugs?

25 A If you will accept that there's also the

1173

1 possibility that physiology plays a role in here,

2 I'll say they're all true. They are all possibly

3 true.

4

MR. GRELE: They are all possibly true.

5

Okay. Thank you.

6

THE COURT: Mr. Gillette, do you have

7 anything further?

8

MR. GILLETTE: Nothing further, Your

9 Honor.

10

THE COURT: I just have a couple areas

11 I'd like to pursue to complete the record,

12 Dr. Singler, and I appreciate your insights.

13

Since we were just talking about

14 pancuronium let me start there. You said that

15 you believe that there is a valid medical purpose

16 for the use of pancuronium; is that correct?

17

THE WITNESS: I do.

18

THE COURT: Do you believe that that's

19 true even in an execution?

20

THE WITNESS: Yes.

21

THE COURT: All right. And what is that

22 purpose?

23

THE WITNESS: With the drug chosen by

24 the state, thiopental, we have a clear question

25 of redistribution. If we are to complete this

1174

1 process of execution within the usual physiologic

2 realm of action of thiopental, this

3 ultrashort-acting agent, it is prudent to ensure

4 that all processes are brought to an end within a

5 reasonable period of time, by which I mean less

6 than 20 minutes or so absent flat line. Let's

7 say to an agonal rhythm within 20 minutes or so.

8

If hypoxia plays a significant role in

9 this apart from the actions of potassium, then

10 it's important to maintain that hypoxia.

11

The documents I've examined seem to be

12 stretching to ensure that we have a 100 percent

13 success rate. There is 100 percent absence of

14 pain and suffering, and there's a 100 percent

15 incidence of death. If we are reaching for that

16 fringe, then even though it is likely that a

17 large dose of barbiturate by itself will

18 render -- will be lethal, it does not exclude the

19 possibility that as we now go into this

20 redistribution phase as we talk about carbon

21 dioxide and the possible resumption of

22 respiratory effort, the state has an interest in

23 maintaining that hypoxia.

24

THE COURT: So putting this in lay

25 terms, the pancuronium would keep a person who is

1175

1 already unconscious from waking up?

2

THE WITNESS: Yes. Due to the

3 maintained hypoxia, correct.

4

THE COURT: If a person was conscious at

5 some level, then is it correct to say that the

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6 pancuronium would conceal that fact?

7

THE WITNESS: It would.

8

THE COURT: Okay. So what I understand

9 you to be saying is that assuming that the

10 thiopental or other anesthetic works correctly,

11 the value of the pancuronium is simply is make

12 sure that as the half lifes continue to occur,

13 that there won't be a reemergence from

14 consciousness?

15

THE WITNESS: Especially since we are

16 using such large doses that now the effect of

17 this potassium is not having its split-second

18 action that we expect perhaps due to this shock

19 phenomenon.

20

THE COURT: Okay. And so the critical

21 question, I guess, that the Court has to look at

22 is what evidence is there that there may be a

23 problem of consciousness. Would you agree with

24 that?

25

THE WITNESS: I would.

1176

1

THE COURT: Okay. All right. Let me

2 move on to a different area.

3

You said that you believe that the

4 reports of respirations in these execution logs

5 could likely be erroneous in the sense that they

6 are -- they could be reports of respiratory

7 effort that are misperceived as actual breathing;

8 is that correct?

9

THE WITNESS: That is correct, Your

10 Honor.

11

THE COURT: How long after receiving

12 5 grams of thiopental, which was the dose under

13 the old protocol, would you expect to see

14 respiratory effort?

15

THE WITNESS: After five or six minutes

16 it starts to enter the realm of possibility for

17 me. Before that it's problematic.

18

THE COURT: I'm sorry. Could you

19 explain that? In other words, let's assume that

20 an inmate is given 5 grams of thiopental and they

21 actually get 5 grams of thiopental. All right.

22 Let's take the five or six minutes immediately

23 following the injection of the thiopental.

24

Would you expect to see any respiratory

25 effort during that period?

1177

1

THE WITNESS: It's a compound problem.

2

THE COURT: Okay.

3

THE WITNESS: During that five or six

4 minutes the body is still alive and metabolizing

5 and carbon dioxide is rising. Hence, the

6 stimulus to the brain stem is significant. I

7 mean, even a 10 percent increase in your carbon

8 dioxide level will cause you to hyperventilate.

9 And so if you double that over five or six

10 minutes, then you have a tremendous alarm going

11 off in the brain stem.

12

The second piece of the problem,

13 however, for me, Your Honor, is that while the

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14 5 grams may have indeed gone into the vein and is

15 now in the body, the profound drop in blood

16 pressure, which I have seen repeatedly with

17 fractions of this dose, leads me to believe

18 that -- well, it leads me to question where that

19 5 grams is going.

20

Is it -- is it coming in fits and starts

21 to the brain? Is the brain indeed seeing an

22 equilibrated 5 gram dose passing across the blood

23 brain barrier or is it seeing these little pulses

24 of barbiturate as the patient sort of goes in and

25 out of shock? I'm having difficulty accepting

1178

1 that getting 5 grams into the patient means that

2 we're seeing a 5 gram effect.

3

THE COURT: Fair enough. So what I'm

4 interested in is actually a couple of periods of

5 time. Assuming that your shock theory is

6 correct, would we see breathing? And I want to

7 make the distinction. My question specifically

8 is breathing.

9

Would we see breathing during a five- to

10 seven-minute period following the injection of

11 the thiopental?

12

THE WITNESS: It's extremely unlikely

13 that you would have effective breathing and

14 whether or not you'd have a respiratory effort

15 is -- is problematic that early.

16

THE COURT: So you would actually -- if

17 the shock theory is correct, you would expect to

18 see respiratory effort later. If I'm hearing you

19 correctly, you'd expect to see respiratory effort

20 after five minutes or so following the

21 injection?

22

THE WITNESS: I'm sorry. I

23 misinterpreted your question, Your Honor.

24

If we're bringing this shock theory into

25 it, what that is -- the way I'm interpreting your

1179

1 question is that we're not really seeing 5 grams

2 immediately and, therefore, you could have early

3 respiratory effort. Whereas, once this 5 grams

4 is equilibrated in the system, then true apnea

5 ensues.

6

THE COURT: All right. So one possible

7 interpretation of the data in the logs is that

8 after the 5 grams, because all the logs were

9 under the 5 gram protocol, after the 5 grams are

10 injected, there's still some what you just said

11 was early respiratory effort going on.

12

THE WITNESS: Yes.

13

THE COURT: All right. Now, is that

14 person breathing or are they engaging what you

15 characterize as respiratory effort?

16

THE WITNESS: 99 percent of them are not

17 breathing. They are not breathing effectively

18 because their tongue has fallen back obstructing

19 their airway. They are getting hypoxic. They

20 are dying.

21

THE COURT: And would you expect to

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22 see -- and I believe you used the words

23 "gurgling," "spluttering," "quite ugly." Would

24 you expect to see that type of a manifestation

25 during that period?

1180

1

THE WITNESS: I think that would begin

2 to appear later at the six- to ten-minute mark,

3 if there was one. As the CO2 level rises so high

4 this patient or this inmate who's barely alive is

5 making some final effort to move air. And that's

6 when you would see some muscular attempt to open

7 the airway, some sputtering.

8

This is approaching conjecture for me,

9 Your Honor.

10

THE COURT: Right. Well, and I don't --

11 I'm just puzzled by this, as I sense that you

12 are. And I just want to make sure that I've got

13 all of the real reasonable possibilities in my

14 mind and all the unreasonable possibilities out

15 of my mind.

16

So there's a five-minute period, and I

17 think the longest period in the log is seven

18 minutes in one case, where after the thiopental

19 is injected there's a report of respirations.

20 And I'm just trying to understand how that could

21 be.

22

And we've already gotten into -- you

23 went into it with Mr. Gillette and Mr. Grele, the

24 difference between respiratory effort and real

25 breathing. But I'm just trying to understand

1181

1 from the standpoint of respiratory effort, if

2 somebody gets 5 grams of thiopental and it's

3 effectively delivered all at once, if the shock

4 theory doesn't apply, then you would not expect

5 to see anything; correct?

6

THE WITNESS: That is correct.

7

THE COURT: So -- so if the shock theory

8 is accurate, you would expect to see some degree

9 of respiratory effort?

10

THE WITNESS: I believe so.

11

THE COURT: Okay. So then when we get

12 back to the question, again, I'm trying to in my

13 own mind focus on what's really at issue here,

14 what the doctors in the prison saw when they

15 characterized what they saw as respirations.

16

THE WITNESS: I don't think it matters,

17 Your Honor. The more important issue is the one

18 you've just identified, why are they moving at

19 all. And it's they may not get the drug or is

20 something physiologically at the fringes

21 happening here, and it's one of those two

22 possibilities in my mind.

23

THE COURT: Okay. The next question I

24 have is -- has to do with the shock theory

25 itself.

1182

1

Did you have a chance to review the

2 execution logs?

3

THE WITNESS: I did.

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4

THE COURT: All right. And I note

5 that -- and let me just pick one. I think we

6 were looking at Mr. Massey earlier.

7

Do you have that one in front of you?

8

THE WITNESS: I do.

9

THE COURT: Okay. This was a case where

10 there's a five-minute reported gap between the

11 projection of the pentothal and the cessation of

12 respirations. In fact, there's a four-minute gap

13 between the injection of the pancuronium bromide

14 and the cessation of respirations --

15

THE WITNESS: Yes.

16

THE COURT: -- which is really

17 interesting.

18

Your hypothesis is that the size of the

19 thiopental dose is -- is such that it causes

20 extremely low blood pressure and then ineffective

21 circulation of the drug; is that right?

22

THE WITNESS: Yes.

23

THE COURT: I realize that blood

24 pressure and heart rate are not the same thing,

25 but the logs as to Mr. Massey indicate that his

1183

1 heart rate was actually quite high during this

2 exact period of time that we're talking about.

3

Since I'm not a doctor and this is

4 really an area I don't understand, what is the

5 relationship, if any, between the heart rate and

6 blood pressure?

7

THE WITNESS: In this instance none,

8 although there is a reflex reaction, which as

9 blood pressure falls, your heart rate tends to

10 rise. I don't think that reflex is active in

11 either a wide-awake patient or a patient who has

12 been anesthetized with barbiturate to this

13 degree.

14

There is an independent what we call

15 ganglionic blocking action of pancuronium when

16 it's injected. Typically heart rates go up after

17 that, although going from 130 -- am I reading 160

18 here next?

19

THE COURT: I can't tell.

20

THE WITNESS: I can't tell either.

21

That -- that raises the question as to

22 whether or not this inmate was awake. I don't

23 dispute that.

24

THE COURT: Okay. And then what

25 about -- if you look at the next one, the Stephen

1184

1 Anderson one, there's five minutes in that one as

2 well. And the heart rate, it's 120 when the

3 chamber door is locked. It's 130 when the

4 pentothal is started and then it goes down to 115

5 when the pancuronium is started. And, again, you

6 have a report of respirations three minutes after

7 the administration of the pancuronium.

8

THE WITNESS: Yes.

9

THE COURT: Based on everything I've

10 heard both in this week's testimony and back in

11 February when this case first came, none of that

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12 makes sense to me.

13

So is there any explanation that you can

14 offer?

15

THE WITNESS: Well, this one is a little

16 bit more consistent with this shock theory than

17 the Massey log, or at least it doesn't raise the

18 question that is raised by a potential of a heart

19 rate going up to 160. I just don't have enough

20 data to reach back.

21

As I think about this with an eye

22 towards the future, the answer is let's just

23 confirm that the IV is working. It's a fairly

24 simple maneuver for the MTAs to do.

25

THE COURT: Right.

1185

1

THE WITNESS: And that will eliminate

2 that, but it doesn't answer the question for the

3 past. There is just not enough data here.

4

THE COURT: These heart rates don't have

5 anything to do -- they are not inconsistent with

6 your theory that Mr. Anderson, for instance, had

7 a terminally low blood pressure and that may have

8 --

9

THE WITNESS: No. As I say, I don't

10 think that reflex is very active here. I think

11 this is initial anxiety in the chamber gradually

12 decreasing as your adrenaline levels drop over

13 the next ten minutes.

14

THE COURT: Okay. Thank you.

15

I'm going to ask you about checking the

16 IV in a minute, but I have a list of things I

17 wanted to ask you.

18

With regard to the protocol itself, as

19 I understand both the old one and the new one,

20 there is a flush after the thiopental is

21 injected, but there is not a flush between the

22 Pavulon and the potassium.

23

THE WITNESS: Yes, Your Honor.

24

THE COURT: Is there anything remarkable

25 or significant about that?

1186

1

THE WITNESS: No. That's appropriate.

2 There is a potential for precipitation of this

3 combined thiopental/Pavulon mix if the two drugs

4 are in contact with each other. That potential

5 does not exist between Pavulon and potassium

6 chloride. Hence, the absence of a need for a

7 flush.

8

THE COURT: So the fact that the drugs

9 end up mixing together to some degree doesn't

10 affect anything chemically?

11

THE WITNESS: It does not.

12

THE COURT: Okay. Is there any -- is it

13 at all significant if a person who's being given

14 a large dose of barbiturate has a preexisting

15 tolerance for barbiturates?

16

THE WITNESS: Yes.

17

THE COURT: All right. So if you have

18 a -- I believe you gave an example yesterday of

19 someone you -- an inmate who had been a patient

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20 of yours?

21

THE WITNESS: Yes.

22

THE COURT: And you reported that as a

23 case where there was a particularly high dose of

24 something that you had used?

25

THE WITNESS: About 200 percent of my

1187

1 usual dose.

2

THE COURT: Right. And could that or do

3 you have an opinion as to whether that might have

4 had something to do with that person's prior use

5 of barbiturates?

6

THE WITNESS: It could be age, prior use

7 of barbiturates, prior use of alcohol, things

8 that stimulate liver enzymes all can contribute

9 to increased tolerance, and then you need to add

10 on top of that anxiety which may raise your

11 anesthetic requirement.

12

THE COURT: So if you have an inmate

13 who's obviously aware that he's about to be

14 executed and who perhaps as a matter of lifestyle

15 had been a habitual user of barbiturates, would

16 you need a higher dose of barbiturate in a person

17 like that to achieve the same effect?

18

THE WITNESS: I believe so. That was

19 what prompted my comment in the Governor's Office

20 of a gram. I was assuming, of course, that the

21 drug would get into the circulation. I was

22 searching for one that wouldn't produce the shock

23 that -- that concerned me in reviewing the logs.

24 And so I picked a number that was 30 percent

25 higher than I had ever used before and said

1188

1 there's a starting place. That was as far as I

2 was willing to go in prescribing a protocol.

3

THE COURT: Okay. But this is another

4 factor.

5

THE WITNESS: It is.

6

THE COURT: Okay. Now, the one question

7 I've really been having some difficulty getting a

8 bead on, and perhaps you can help me and perhaps

9 you can't, is how long it would take a massive

10 dose of a barbiturate to actually achieve an EKG

11 flat line.

12

And I've heard a wide variety of

13 answers, and I realize that there's no clinical

14 data on this because you couldn't do the study

15 with a human being, but do you have an opinion as

16 to -- let's just pick arbitrarily a dose like 3

17 grams of -- start with thiopental.

18

What's the range of time it would take

19 for that dose of thiopental to result in a flat

20 line EKG in a human being?

21

THE WITNESS: I think we have a fair

22 equivalent in -- in every hypoxic terminal death

23 that occurs in the intensive care unit in a

24 patient who has a do-not-resuscitate order. For

25 whatever reason they obstruct their airway and

1189

1 die in the terminal phases of their illness,

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2 assuming they don't die quickly of a heart

3 attack, that sort of thing. And when that

4 happens I think we are looking at 20 minutes at

5 the low end and 40 minutes at -- towards the

6 upper end.

7

A similar occurrence would be when we do

8 organ harvesting -- no. That's less -- that's

9 less relevant because we use some drugs to

10 produce shock, but even so it's many minutes, at

11 least 20 minutes, because the flat line is a very

12 strict standard of EKG death.

13

The heart is an automatic muscle and

14 when the pacemaker fails the heart will seek to

15 stimulate itself from a lower junction, and when

16 that fails the muscle itself will produce these

17 idioventricular beats that you mentioned

18 yesterday, and muscle tissue takes longer to die

19 than the brain.

20

THE COURT: Okay. So 20 to 40 minutes

21 would be your estimate based on other instances

22 where someone died as a result of hypoxia?

23

THE WITNESS: Correct.

24

THE COURT: Now, there's been testimony

25 that the -- that the injection of a large dose of

1190

1 a barbiturate -- and by "large" I mean even more

2 than the one and a half grams in the protocol,

3 say, double that -- not only causes hypoxia, but

4 it also can cause immediate damage to the heart;

5 is that right?

6

THE WITNESS: I'm not sure I agree with

7 that.

8

THE COURT: Okay. Sometimes -- or

9 what's the basis of your disagreement?

10

THE WITNESS: The direct myocardial

11 toxicity of barbiturates is not something that I

12 have any experience with because my doses are

13 much lower, and I just don't recall that from my

14 study being a significant risk, but I don't have

15 enough familiarity with 3 grams to dispute that

16 possibility.

17

THE COURT: All right. So it's just

18 outside your experience?

19

THE WITNESS: It is.

20

THE COURT: Okay. Now, with regard to

21 pentobarbital, we know from what you've said and

22 other experts have said that it takes -- the

23 onset take longer, but it lasts longer; is that

24 right?

25

THE WITNESS: Yes.

1191

1

THE COURT: In terms of the time that it

2 would take pentobarbital to result in an EKG flat

3 line, is there any significant difference between

4 pentobarbital and thiopental?

5

THE WITNESS: As long as you start your

6 clock at the moment when ineffective respirations

7 begin, then the same 20 to 40 minutes will

8 ensue. So the question then relates to what is

9 the onset time for ineffective respirations after

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10 a dose of pentobarbital alone.

11

THE COURT: So all barbiturates

12 essentially work the same way in that regard?

13

THE WITNESS: Yes.

14

THE COURT: And would the addition of a

15 narcotic to the cocktail make any difference?

16

THE WITNESS: Narcotics directly depress

17 respiratory drive and are -- I'm on thin ice

18 personally here.

19

THE COURT: I don't imagine it's

20 something you've ever done, but --

21

THE WITNESS: No. I didn't mean it from

22 that standpoint, sir. I really meant with regard

23 to how I feel compelled not to assist the state

24 in improving the protocol.

25

THE COURT: Oh. Fair enough. I have

1192

1 the same -- same discussion with Dr. Heath and I

2 respect where both of you are coming from

3 ethically.

4

I guess what I'm trying to understand

5 here is just from an abstract chemical

6 standpoint, if you had a very large dose of -- of

7 any barbiturate and you added a narcotic to that,

8 would the 20- to 40-minute window that you

9 testified to be the same, more, or less?

10

THE WITNESS: It would be the same

11 because it would begin at now an earlier point at

12 which ineffective respirations begin. That's

13 what a large dose of narcotics would do. That's

14 what happens in the heart room. They just stop

15 breathing.

16

THE COURT: So that the time -- the

17 clock would start sooner?

18

THE WITNESS: If we're talking about

19 pentobarbital now which has this potential for

20 delayed onset, yes, it would start sooner.

21

THE COURT: And would the thiopental

22 with a narcotic make any difference just in terms

23 of when the clock started?

24

THE WITNESS: No, not when the clock

25 started. It may have an effect now as you look

1193

1 for this redistribution drop in blood levels of

2 barbiturate the potential for involuntary

3 activity. That would be further suppressed by

4 the addition of a narcotic.

5

THE COURT: So it -- and, again, I want

6 to emphasize I'm just trying to understand the

7 chemistry. It would not prolong the process in

8 gross time terms and it could shorten it?

9

THE WITNESS: That is correct.

10

THE COURT: Now, are you at all familiar

11 with the protocol that's used in the state of

12 Virginia? Has that come up?

13

THE WITNESS: No.

14

THE COURT: All right. I'm just going

15 to read a portion of this from -- it's from the

16 decision of the district court in the case of

17 Walker versus Johnson, which was just issued a

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18 couple weeks ago.

19

And the judge there is describing the

20 conditions in the execution chamber.

21

"The execution takes place in a one-room

22 chamber. The inmate is strapped to a gurney in

23 the front of the chamber, and the executioner, IV

24 team, and the physician that pronounces death are

25 behind a curtain in the rear of the chamber. The

1194

1 curtain has two holes so the executioner and IV

2 team can observe the inmate during the

3 administration of the drugs.

4

"The IV team members have backgrounds in

5 relevant medical fields and train on placing IV

6 lines. The IV team places two IV lines in the

7 inmate. The IV lines are connected to several

8 feet of tubing that allows the drugs to be

9 administered by the executioner from behind the

10 curtain. The IV team checks the IV lines by

11 using a saline drip. Once the IV team verifies

12 that the IV line works, the IV team signals the

13 executioner and moves behind the curtain to

14 continue to monitor the saline drip.

15

"The executioner has training to

16 determine whether the IV line is flowing properly

17 as he administers the drugs. Also, the

18 executioner can see the inmate and the IV line to

19 determine whether the drugs are entering the

20 inmate's body properly. If the first IV line is

21 not working properly, the executioner can switch

22 to the second IV line."

23

Now, my question, and hopefully it's

24 not too complicated, is do you have an opinion as

25 to whether what I've just read to you is of any

1195

1 value in assessing the conditions that you

2 observed at San Quentin?

3

THE WITNESS: There are some

4 improvements -- potential improvements in what

5 you have just described compared with the

6 conditions at San Quentin, and I'm making some

7 suppositions here.

8

I'm making some suppositions that the

9 distance from the curtain to the inmate is not

10 greater than -- than it is in the chamber, that

11 the little holes in the curtain are not worse

12 than the large window which was the site of

13 observation in the chamber, and that -- that

14 brief phrase about the ability to see the inmate

15 and the IV tubing really focused on what we're

16 interested in, which is the site of action of

17 this IV. Can you clearly see in the lighting

18 conditions of that room whether the IV is

19 infiltrating.

20

The missing piece in that is -- is the

21 part where they tested the IV by flow, and I

22 would suggest that you need to put a suspender on

23 that belt by -- by not only testing flow of the

24 IV through the drip chamber, but through a test

25 injection of saline to simulate the conditions

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1196

1 that would follow with the injection of drugs to

2 make sure that that is not a precarious IV which

3 will blow at the first occurrence of extra

4 pressure.

5

THE COURT: Is the distance of the

6 observers from the injection site that you

7 observed at San Quentin, do you think that is a

8 situation which requires some attention?

9

THE WITNESS: No. Distance is not the

10 issue. Positioning of the inmate in the chamber

11 is a potential issue. Turned at right angles

12 once he has been strapped down and the IVs have

13 been inserted may or may not represent a problem

14 for the visibility of the far elbow area, but the

15 distance is reasonably short.

16

The lighting is not optimal, and I think

17 you could improve the lighting there to improve

18 the visibility of the observers and change the

19 mirror coating in the window so that the people

20 in the antechamber could not be identified. That

21 would be a rough corollary to this curtain with

22 holes in it.

23

You can improve the lighting. The

24 distance is not a problem.

25

THE COURT: It's not the distance as

1197

1 such. It would be at an extreme. If you were 60

2 feet away, it would be a problem?

3

THE WITNESS: Even less than that.

4

THE COURT: Yeah. But the distance that

5 you observed isn't a problem, but the sight lines

6 and the lighting may be?

7

THE WITNESS: Yes. I think the sight

8 lines should be checked, and I do not do that

9 personally.

10

THE COURT: Okay. I think that may be

11 all, but let me just make sure.

12

Thank you very much, Dr. Singler.

13

Mr. Gillette, Mr. Grele, do you have any

14 follow-up questions?

15

MR. GILLETTE: No further questions for

16 Defendants, Your Honor.

17

MR. GRELE: I just have one -- a couple

18 on these areas, Your Honor, if I may.

19

THE COURT: Okay.

20

MR. GRELE: And that's the familiarity I

21 have with Walker, as the Court does.

22 BY MR. GRELE:

23 Q The procedure that -- that the Court just

24 described to you about -- in the Walker case he

25 was reading from the court's order about the

1198

1 Virginia procedure. Do you know whether or not

2 the executioner there who's doing all the

3 evaluation is a medical person with some degree

4 of medical training?

5 A I don't know.

6 Q Okay. All right. And in terms of

7 conditions at -- at San Quentin, I recall in your

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8 deposition testimony that one of your initial

9 concerns when you arrived there was because of

10 the placement of the inmate in the gurney you

11 made some inquiry about the ability of team

12 members to be able to get an IV. Do you recall

13 that?

14 A Yes.

15 Q Okay. Because it's fair to say fairly tight

16 quarters for that kind of procedure?

17 A It is.

18 Q Okay. And they responded, yeah, it's a

19 difficult situation and we don't always get it

20 right the first time, but we get it. Is that a

21 fair characterization of your testimony?

22 A I guess that was more a conclusion than a

23 response to direct questioning. I asked about

24 inserting the IV, and I was reassured that they

25 didn't find it insurmountable. It wouldn't be

1199

1 the way I would choose to do it, but, I mean,

2 EMTs that respond to accidents do -- do similar

3 actions in far worse conditions.

4 Q I understand. And they have some emergency

5 conditions that allow for error. We give them

6 that room for error because of those emergency

7 conditions; is that correct?

8 A I don't know. I'm not -- I'm not sure what

9 you mean by your question.

10 Q And let me see. In terms of the gurgling

11 issue that came up just now and that you've

12 talked about before, it's my understanding that

13 one of your -- your theories about the case was

14 that these -- these logs that we see as the shock

15 theory, the circulatory collapse theory; is that

16 right?

17 A Yes.

18 Q Okay. And I think you even expressed it to

19 the MTA, at least witness number 3. His

20 rendition of your statements was that they were

21 dying a pentothal death, a sodium pentothal

22 death, and I think you repeated that to the

23 Governor's Office in those notes.

24 A Yes.

25 Q Okay. All right. Now -- and there's no

1200

1 notation in the logs or any notes that even

2 though they are dying this thiopental death, that

3 there's this quite ugly and unpleasant gurgling

4 that you've described, is there?

5 A No. That would be the case when somebody

6 was -- was receiving much less barbiturate and

7 able to mount that sort of more vigorous

8 respiratory response than we are seeing here.

9 Q Okay. And when we were talking about the

10 heart rate issue, and you thought the Massey

11 heart rate went up and that was -- that was

12 somewhat perplexing, didn't -- did the heart rate

13 also go up in Williams?

14

THE COURT: Which Williams? Stanley?

15

MR. GRELE: You're right.

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16

THE WITNESS: That perplexity is only if

17 this indecipherable figure is 160 beats per

18 minute.

19 BY MR. GRELE:

20 Q I understand that. I understand that.

21 A I know that I'm not looking at 100 --

22 Q Right.

23 A -- inscribed over the top of something

24 else. So that's conjecture on my part.

25 Q Right, right. I understand that, but I'm

1201

1 asking about the Stanley Williams execution now.

2

THE COURT: It went from 90 to 115,

3 according to the log.

4

THE WITNESS: That is perfectly

5 consistent with pancuronium's effect. That's

6 what I see in the heart room all the time. A

7 20-point rise in heart rate in response to

8 pancuronium is common.

9 BY MR. GRELE:

10 Q Even though -- so in terms of that, then,

11 the pancuronium is getting there?

12 A Apparently.

13 Q Okay. Now, in your discussion of

14 respiratory effort, did you indicate that blood

15 pressure would go down and you had a question

16 about where that 5 grams was going; do you recall

17 that testimony?

18 A I do not.

19 Q Okay. Just a few minutes ago you said you

20 had some questions about whether or not that 5

21 grams was being properly circulated throughout

22 the body?

23 A Yes.

24 Q Okay. And one of the ways that that

25 happens, that that could happen, for instance, is

1202

1 if you had a protracted rate of administration of

2 the thiopental; isn't that right?

3 A That seems to be what is sort of happening

4 here with the Williams execution, that we have

5 six minutes going by and the notation of shallow

6 respirations three minutes into that six-minute

7 period in a big young guy. We have a spread-out

8 curve and so persistent ability to mount

9 involuntary respiratory effort in response

10 nonetheless to a large dose of barbiturate, yes.

11 Q And this is one of the sort of much more

12 extended administrations of the barbiturate, I

13 think; is that correct?

14 A Six is long, yes, in the records I've

15 examined.

16 Q And the longest is nine; isn't that right?

17 A I don't know, but I'll accept that.

18 Q There's quite a bit of variation in the

19 amount of time it's taken to administer that

20 initial dose; isn't that correct?

21 A Yes.

22 Q Okay. Now, would you disagree with the

23 statement -- I'm sorry.

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24

There was one issue we talked about that

25 you mentioned just briefly, which was IV access,

1203

1 issues about the IV access --

2 A Yes.

3 Q -- difficulties?

4

And I know you took -- took some issue

5 with Dr. Heath about potential difficulties or

6 the degree to which they are difficulties, I

7 should say.

8

And -- and I remember in the deposition

9 that there was this issue about percentages that

10 may get into the body if there's a nick or a

11 problem with one of the sites; is that correct?

12 A That was in our discussion about

13 infiltration, yes.

14 Q All right. So the idea is that you could

15 have an inadequate IV, yet still get a good

16 percentage of the drugs. It just isn't perhaps

17 the percentage -- the desired percentage?

18 A Well, the flaw in that logic is that in your

19 line of questioning you were positing some

20 fraction, let's pick 20 percent, that was

21 happening, and it would always be 20 percent over

22 the course of time. And that's where I take

23 issue. It doesn't remain constant unless the

24 loss is to the floor.

25 Q Okay. I understand that, but -- and it

1204

1 doesn't remain constant either way whether or not

2 it's to the floor or not?

3 A Well, no. If you had a leak, then 80

4 percent of what you were injecting could end up

5 on the floor every time. Physiologically,

6 though, if you have an infiltrated IV, you have

7 one that gets worse over time. And so positing

8 that one is only getting a fraction of the

9 thiopental dose immediately and yet nonetheless

10 gets a large enough dose of potassium two drugs

11 later to immediately still the heart is -- is not

12 consistent in my mind.

13 Q Okay. So you get 80 percent of each of the

14 drugs and it's still not enough potassium

15 chloride; is that right?

16 A No. I think we were positing in getting 20

17 percent of each of the drugs.

18 Q Well, let's posit 80.

19 A Okay. If you posit 80, then the shock

20 theory takes over, and that's where egress of

21 potassium makes that not an immediate answer.

22 Q Okay. I understand.

23 A But 80 percent function of the IVs is fairly

24 adequate here, although the infiltration is still

25 a significant problem. That needs to be

1205

1 addressed.

2 Q Okay. And then, finally, would you disagree

3 with Dr. Dershwitz in the Baze v. Kentucky case,

4 quote, "subjecting them to potassium chloride is

5 painful, similar to a surgical stimulus," closed

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6 quote?

7 A Yes, I have already discovered that. It is

8 not similar to a surgical stimulus unless --

9 there's a whole range of surgical stimuli. Yes,

10 there is a potassium injection which could

11 produce a response similar to a surgical

12 stimulus.

13

Now, what surgical stimulus are we

14 talking about? We're talking about something

15 less than an abdominal incision requiring a full

16 injection dose of thiopental.

17

MR. GRELE: I understand. I

18 understand.

19

Okay. Thank you.

20

THE COURT: Actually, Dr. Singler, I

21 just have two questions I forgot to ask you.

22

In the Virginia order the court notes

23 that the dose of thiopental that's used to induce

24 anesthesia is 2 grams. Okay. So that's what

25 they use in Virginia. And the court found that a

1206

1 second set of potassium chloride has been

2 administered in nine of 66 of lethal injection

3 executions in Virginia.

4

So assuming that those facts are correct

5 and those were the court's factual findings, what

6 does that -- any comment as to what that evidence

7 is with respect to the shock theory?

8

THE WITNESS: I think it's corroborative

9 evidence that there is -- with the rapidity of

10 potassium flow across cell membranes and some

11 significant drop in circulatory function that now

12 time becomes an issue with the injection, and the

13 effect of potassium goes from the venous side,

14 through the lungs and finally around the arterial

15 side to the coronaries where it acts.

16

THE COURT: And then the last question,

17 and I'm embarrassed that I don't remember this,

18 but I know that there is a standard reference

19 that physicians use that talks about the effects

20 and side effects of various drugs.

21

Do you know what I'm talking about?

22

THE WITNESS: The PDR.

23

THE COURT: PDR. That -- would that be

24 a reasonable source to use with regard to the

25 effects and side effects of potassium?

1207

1

THE WITNESS: It would not. Any drugs

2 that -- that leave patent and become generics

3 have progressively smaller and smaller entries in

4 the PDR and some disappear altogether, and I

5 would hesitate even to recommend an anesthesia

6 textbook in this regard.

7

THE COURT: So there's not a -- and,

8 again, we're talking about doses that would be

9 far beyond anything that would be used in a

10 clinical setting, but is there any reference work

11 that you can think of that would shed any light

12 here on this professional disagreement that

13 you're having with the other doctors?

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14

THE WITNESS: About the shock theory or

15 about potassium?

16

THE COURT: No. About potassium.

17

THE WITNESS: About potassium? Well, I

18 think a biochemistry text might -- might be the

19 closest approximation of describing the basic

20 mechanism action, the speed of traversing of

21 membranes, the circulatory effects. I think a

22 biochemistry text coupled with an introductory

23 medical text might give you two handles.

24

THE COURT: Thank you.

25

Any further questions of Dr. Singler?

1208

1

MR. GILLETTE: No, Your Honor.

2

MR. GRELE: No, Your Honor. Thank you.

3

THE COURT: You may step down. Thank

4 you very much.

5

Mr. Gillette, does the state have any

6 other witnesses?

7

MR. GILLETTE: No, Your Honor. We

8 rest. Defendants rest.

9

THE COURT: Mr. Grele, any further

10 witnesses for Mr. Morales?

11

MR. GRELE: No, Your Honor. We rest

12 subject to exhibits and other matters.

13

THE COURT: All right. And let's talk

14 about that. We have a number of important

15 administrative details to take care of here.

16

Much of the evidence -- and counsel know

17 this. I don't know that the press and the public

18 know that much of the evidence the Court is

19 receiving in this case is coming in by way of

20 written submission. There are, however,

21 stipulated facts. There are some other facts

22 that are disputed that the Court will not hear

23 live testimony on, but there will be voluminous

24 written evidence concerning.

25

Just in terms of how we deal with the

1209

1 admission of the evidence, Counsel, do you have a

2 suggestion as to how the Court ought to proceed

3 with that?

4

MR. GILLETTE: Your Honor, we're not

5 opposed to all these exhibits coming in with the

6 caveat that we are not stipulating that they are

7 necessarily relevant. There may be questions

8 about the adequacy of some of them, but there's

9 no reason they can't all be before the Court for

10 your consideration.

11

THE COURT: So you're preserving all of

12 the relevance objections and so forth that you

13 made earlier and the motions in limine that were

14 made before the hearing commenced, as is the

15 Plaintiff, but the Court can consider all of the

16 documents in the exhibit binders.

17

MR. GILLETTE: That's true. And I have

18 one caveat on that, Your Honor.

19

Exhibit 17, which has been mentioned by

20 several of the witnesses, is the current -- the

21 March version of the 770 protocol. As the Court

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22 is aware, a new version of that in the sense that

23 it has now been signed is available. It is, with

24 a minor exception on the name of one of the

25 people -- or one of the parties involved,

1210

1 indistinguishable from the one that we've been

2 using and the exact -- and all the critical

3 things about the drugs.

4

I would ask that we substitute the

5 signed version for Exhibit 17 in the exhibits

6 that are before the Court.

7

THE COURT: Well, it makes sense.

8 Without objection, that's the protocol the Court

9 will evaluate since as to the substance of what

10 the Court is looking at, there's no difference.

11

MR. GILLETTE: And I will -- I have

12 those copies and I'll provide them to the Court.

13

THE COURT: Mr. Grele, with regard to

14 the state of the evidence, do you have any

15 disagreement with what Mr. Gillette says?

16

MR. GRELE: Well, I -- somewhat, Your

17 Honor. The first one is I -- we do have some

18 objections to some of the exhibits. Not a lot,

19 but some of them. And there's some problems with

20 some of the exhibits. They are not exactly done

21 correctly, and I apologize to the Court for

22 that. We're going to have to go back.

23

Like, for instance, the old protocol

24 that should be in there is in separate pages in

25 separate places, and it's got to be fixed, and

1211

1 there are some photographs in there that we would

2 like to withdraw from the case.

3

THE COURT: Well, how about this. Let

4 me just see if we can work something out here.

5

Would it be possible -- I mean, any

6 objections that have been previously made by way

7 of motions in limine or other issues that have

8 been preserved through discovery motions or

9 whatever, those do not need to be reasserted.

10 But if either side has any other evidentiary

11 objections that they would like to lodge with the

12 Court, would a week be a sufficient time to do

13 that?

14

MR. GRELE: Absolutely, Your Honor. You

15 know, we may be able to come to agreement on many

16 of these things.

17

THE COURT: Exactly. You may be able to

18 work them out. So I'll ask you to meet and

19 confer. And if there are any unresolved

20 objections to any of the exhibits, we can get

21 that within a week.

22

And then here's what I propose to do in

23 terms of actually getting the case submitted.

24 Obviously, there's a lot to digest from four days

25 of testimony. There also are 148 exhibits, and I

1212

1 think the Court would like an opportunity to

2 review the entire record, and I think that can be

3 done in relatively short order because many of

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4 the exhibits are very brief. Some of them are

5 photographs or one-page documents, but then there

6 are others that are reserved testimony and so

7 forth.

8

And what I'd like to do in about two

9 weeks, and this is just a very rough timetable,

10 maybe a week to make sure I've got all of the

11 objections in the record that are going to be

12 there, and then in about two weeks I'll actually

13 send out a memo to you indicating particular

14 issues I'd like you to address in your closing

15 brief.

16

This is not to preclude you addressing

17 any other issues you want to address, but I know

18 I'm going to have questions for you. I know I'm

19 going to want you to address particular factual

20 and legal questions. And I think rather than

21 doing it piecemeal, getting an initial closing

22 brief and then getting supplemental briefing

23 later, I'd rather get one brief that addresses

24 all of the Court's questions and all of the

25 issues you want to argue.

1213

1

And I think I should be able to get that

2 memo to you about two weeks from today, roughly

3 speaking.

4

And then it seems to me we'd be talking

5 about whatever counsel believe is a reasonable

6 time to get a closing brief submitted, and I'm

7 thinking about a two- to three-week window and

8 preferably two because I'd like to get a decision

9 out as soon as possible.

10

So would the 27th of October be a

11 workable date for getting a closing brief?

12

MR. GILLETTE: What is the date again,

13 Your Honor?

14

THE COURT: 27th of October, four weeks

15 from today.

16

MR. GILLETTE: That would be four weeks

17 from today. Certainly, Your Honor.

18

MR. GRELE: Your Honor, we're going to

19 need the transcript.

20

THE COURT: That's something you and

21 Mr. Torreano can work out. We've got -- I do

22 this to him all the time. We've worked together

23 for many years and this is -- I don't even need

24 to see the expression on his face.

25

But -- but that said, assuming that he

1214

1 can do it without our employment relationship

2 being permanently destroyed, is four weeks a

3 sufficient amount of time to -- to get a closing

4 brief in?

5

MR. GILLETTE: We can meet that

6 deadline, Your Honor.

7

MR. GRELE: I have to confer with my

8 co-counsel, Your Honor. It may be that I'm not

9 on the brief. So let me confer with co-counsel.

10

There was another issue of Dr. Ebling's

11 supplemental -- any supplemental report that we

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12 had talked about.

13

THE COURT: As a result of the new

14 matter that was considered by --

15

MR. GRELE: That's correct. And we just

16 haven't had an opportunity to run these articles

17 by Dr. Ebling to see if they make any difference

18 whatsoever.

19

THE COURT: All right. Well, let's --

20 let's -- of course, the Court can always modify

21 its orders, but let's say that at this point I

22 will get a list of questions to you by the 13th,

23 and I may even get it to you sooner than that.

24

I want to stress time is of the

25 essence. I want to get this -- I want to get

1215

1 this done so that people can move on to the next

2 level of review.

3

Let's say the 27th is the tentative due

4 date for the closing brief. And then it's my

5 expectation, if I need any oral argument, I will

6 let you know immediately. And I'm determined to

7 get a decision out as soon after the 1st of

8 November as possible. I don't want this to be

9 prolonged.

10

MR. GRELE: Your Honor, you know, we'll

11 make every effort, but everybody is telling me we

12 need six weeks and I -- I just don't know that --

13

THE COURT: Well, let's try this. I

14 heard the comment. Let's see if I can get you

15 the questions in a week. I mean, this is

16 something I feel strongly about.

17

MR. GRELE: Okay.

18

THE COURT: And I don't want to rush

19 headlong into doing anything in a case this

20 important. At the same time I do not want to

21 delay the matter. And I think what we'll do is

22 I'll try to get the questions to you by Friday of

23 next week and then I'd like to see closing brief

24 by the 27th. And if you just can't do it and you

25 can show good cause, I can always grant an

1216

1 extension of time, but I'd like to get the case

2 in the can, as they say, by the end of October so

3 that I can -- I can get a decision out.

4

MR. GILLETTE: There is one more issue,

5 Your Honor --

6

THE COURT: Yes, Mr. Gillette?

7

MR. GILLETTE: -- which will be a part

8 of this procedure putting it all together.

9

As you know, there's been a substantial

10 list of stipulated facts or agreed-upon facts

11 already, the significance of which we may argue

12 about, but that we've agreed from the

13 depositions.

14

Over the course of this week, there have

15 been continuing discussions and Mr. Senior has

16 prepared a much more substantial and additional

17 list. We're going to be looking at that. We've

18 agreed, I think, on pretty much everything that's

19 in there, but there are -- in its current form it

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20 will need to be redacted consistent with what the

21 Court already allowed, and there are two or three

22 items we think may need some additional minor

23 redactions.

24

Our intent is as soon as we get the

25 final version from the Plaintiff is to make those

1217

1 changes, submit them to you through the clerk

2 with our requested redactions for your approval,

3 and that should all be completed by the end of

4 next week as well.

5

THE COURT: Great.

6

Okay. Well, then, I'd like to thank

7 counsel for an extraordinary level of cooperation

8 in getting this case presented to the Court in

9 the time that was allowed and stipulated as many

10 things as they have. I think that's greatly

11 facilitated getting this done. And I know I will

12 gain a lot from reading your briefs.

13

It's my intention, as I said, to issue a

14 decision as soon after receiving the closing

15 briefs as I can consistent with my duty to do a

16 thorough and effective job of analyzing the facts

17 and the law, and then we'll see where it goes

18 from there.

19

But I do want to thank counsel for the

20 professional manner in which this hearing

21 proceeded.

22

I guess the only other thing I want to

23 say is that -- just to reiterate something I said

24 at the outset of the hearing. It's very

25 important to focus on what the issues in this

1218

1 case are because there are lot of other issues

2 that swirl around this case, people's feelings

3 about the death penalty, people's concern about

4 the rights of victims and victims' families, all

5 of which are extraordinarily important matters.

6

And, of course, the Court has to operate

7 in the context of those concerns, but the Court

8 has a very specific job to do here and the Court

9 is going to do that job to the best of its

10 ability.

11

And with that, the matter is submitted

12 subject to receiving the objections and the

13 additional documents and the closing briefs.

14

Yes, Mr. Grele?

15

MR. GRELE: I'm sorry, Your Honor. I'm

16 sorry to raise this. But Your Honor had said

17 that you may consider leaving the hearing open

18 regarding discovery disputes.

19

THE COURT: That is something that you

20 can raise --

21

MR. GRELE: Thank you.

22

THE COURT: -- anew in your submissions.

23

MR. GRELE: Thank you.

24

THE COURT: Okay? Thank you. We are

25 adjourned.

1219

1

MR. GILLETTE: Thank you, Your Honor.

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2

(Whereupon, the proceedings concluded.)

3

4

---oOo---

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

0025

1

CERTIFICATE OF REPORTER

2

3

4

5

I, Peter Torreano, Official Court

6 Reporter of the United States District Court for

7 the Northern District of California, 280 South

8 First Street, San Jose, California, do hereby

9 certify:

10

That the foregoing transcript is a

11 full, true and correct transcript of the

12 proceedings had in Morales v. Tilton, Case Number

13 C-06-0219-JF, dated September 29, 2006; that I

14 reported the same in stenotype to the best of my

15 ability, and thereafter had the same transcribed

16 by computer-aided transcription as herein

17 appears.

18

19

20

21

22

23

_______________________

PETER TORREANO, CSR

24

License Number C-7623

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 Case 5:06-cv-00219-JF Document 256 Filed 10/03/2006 Page 1 of 3

**E-filed 10/3/06** 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

12 Michael Angelo MORALES,

13

Plaintiff,

14

v.

15 James E. TILTON, Acting Secretary of the California Department of Corrections and
16 Rehabilitation, and Robert L. Ayers Jr., Acting Warden of San Quentin State Prison,
17 Defendants.
18

Case Number C 06 219 JF RS Case Number C 06 926 JF RS DEATH-PENALTY CASE REQUEST FOR BRIEFING
[]

19

Pursuant to the schedule established at the conclusion of the evidentiary hearing on

20 September 29, 2006, the parties’ closing briefs are due on or before October 27, 2006. In

21 addition to any arguments the parties wish to address in their closing briefs, the Court is

22 interested in the parties’ views with respect to the following questions:

23

1. In light of the evidence in the record, what steps can and should Defendants take to

24 improve their actual implementation of the three-drug protocol described in OP 770? In

25 answering this question, please address, without limitation:

26

(a) the qualifications, recruitment, screening, and training of the execution team;

27

(b) the physical aspects of the execution chamber and apparatus, including the

28

available space, lighting, sight lines, length and positioning of IV tubing, and

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1

monitoring equipment; and

2

(c) record-keeping, including the preparation, content and reliability of execution logs

3

and records indicating the disposition of drugs used in training and in executions.

4 The Court is particularly interested in the parties’ views as to whether the experience of other

5 jurisdictions that use a three-drug execution protocol might be useful with respect to these

6 matters.

7

2. Assuming the continued use of pancuronium bromide and potassium chloride in

8 executions, what are the advantages and disadvantages of using a longer-acting barbiturate, such

9 as pentobarbital, with or without the use of a narcotic, to induce unconsciousness? What

10 modifications to OP 770 would be necessary?

11

3. Again assuming the continued use of pancuronium bromide and potassium chloride in

12 executions, what steps, in addition to those discussed in response to the first question above, can

13 and should Defendants take to monitor inmates’ levels of unconsciousness prior to and following

14 injection of these drugs? For example, would the reliability of the protocol be improved by the

15 use of a BIS monitor or an EEG? Is the involvement of medical professionals necessary, and if

16 so, what type(s) of medical professionals should be involved in what ways? In the context of this

17 question, what would be the advantages and disadvantages of eliminating pancuronium bromide

18 from the protocol?

19

4. What would be the advantages and disadvantages of an execution protocol that

20 achieves its purpose by using one or more sedatives, such as sodium thiopental or pentobarbital,

21 with or without a narcotic, and eliminates the other two drugs that currently are used? Should a

22 single dose, multiple doses, a continuous infusion, or some combination of these be used? What

23 modifications to OP 770 would be necessary?

24

5. What additional evidence, if any, remains to be submitted in connection with the

25 evidentiary hearing?

26

This Request for Briefing should not be read as indicating in any way how the Court

27 intends to rule in this matter, nor shall the Court construe any response to this request as a waiver

28 of a party’s arguments with respect either to the constitutionality of the current version of OP 770

2
Case Nos. C 06 219 JF RS & C 06 926 JF RS REQUEST FOR BRIEFING (DPSAGOK)

Case 5:06-cv-00219-JF Document 256 Filed 10/03/2006 Page 3 of 3

1 or any other legal issue or procedural question presented by the instant case.

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4 DATED: October 3, 2006 5

__________________________________ JEREMY FOGEL United States District Judge

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Case Nos. C 06 219 JF RS & C 06 926 JF RS REQUEST FOR BRIEFING (DPSAGOK)

 
 Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 1 of 51

1 BILL LOCKYER Attorney General ofthe State of California
2 MARY JO GRAVES Chief Assistant Attorney General
3 GERALD A. ENGLER Senior Assistant Attorney General
4 RONALD S. MATTHIAS Supervising Deputy Attorney General
5 DANE R. GILLETTE Senior Assistant Attorney General
6 State Bar No. 65925 455 Golden Gate Avenue, Suite 11000
7 San Francisco, CA 94102-7004 Telephone: (415) 703-5866
8 Fax: (415) 703-1234 Email: dane.gillette@doj.ca.gov
9 Attorneys for Defendants

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13 MICHAEL ANGELO MORALES,

CAPITAL CASE

14 Plaintiff, C 06-219 JF RS

15
v.

16 JAMES E. TILTON, Acting Secretary; ROBERT L.

17 AYERS, JR., Acting Warden,

18

Defendants.

19

20

DEFENDANTS' POST-HEARING BRIEF AND

RESPONSE TO COURT'S QUESTIONS

21

22

23 24 25 26 27 28

Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 2 of 51

1

TABLE OF CONTENTS

2

Page

3 STATEMENT OF FACTS

3

4

A. OP 770

3

5

1. Development And Revision Of Op 770

3

6

2. Execution Team and Procedure

4

7

B. Past Executions

7

8

1. Execution Witnesses

7

9

2. California Executions

9

10

3. Plaintiffs Scheduled Execution

11

11

C. Plaintiffs Expert Witnesses

12

12

1. Dr. Kevin Concannon

12

13

2. Dr. William Ebling

13

14

3. Dr. Mark Heath

15

15

a. Development And Defense Of OP 770

16

16

b. Drugs

17

17

c. Execution Team

19

18

d. Execution Chamber

20

19

e. Monitoring Anesthetic Depth

20

20

D. Defendants's Expert Witnesses

21

21

1. Dr. Brent Ekins

21

22

2. Dr. Robert Singler

22

23 ARGUMENT

24

24

CALIFORNIA'S LETHAL INJECTION PROCEDURE IS

CONSTITUTIONAL

24

25

A. Applicable Constitutional Standards

25

26 B. There Is No Evidence That Any Prior Execution Resulted In The

27

Unnecessary And Wanton Infliction Of Pain

26

28

Defendants' Post-hearing Brief And Response To Court's Questions - C 06-219 JF RS

Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 3 of 51 TABLE OF CONTENTS (continued)

1

Page

2

1. IVs And Delivery Of Drugs

26

3

2. Bonin Execution

27

4

3. Delivery Of Additional Potassium

28

5

4. Execution Witnesses

28

6

5. Respirations

29

7

C. There Is No Evidence To Establish That Any Execution Under The Current

8

Version OfOP 770 Will Result In The Unnecessary And Wanton Infliction

OfP~n

32

9

1. Monitoring And The Presence Of A Physician

32

10

2. Application Of AVMA Guidelines

34

11

3. General Procedural Complaints

35

12 RESPONSE TO REQUEST FOR BRIEFING

36

13 CONCLUSION

45

14

15

16

l7

18

19

20

21

22

23

24

25

26

27

28

Defendants' Post-hearing Brief And Response To Court's Questions - C 06-219 JF RS
11

Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 4 of 51

1

TABLE OF AUTHORITIES

2

3 Cases

4 Abdur'Rahman v. Bredesen
5 181 S.W. 292 (Tenn. 2005)

6 Beardslee v. Woodford 395 F.3d 1064 (9th Cir. 2005)
7 Bieghler v. State
8 839 N.E.2d 691 (Ind. 2005)

9 Calderon v. Thompson 523 U.S. 538 (1998)
10 California First Amendment Coalition v. Woodford
11 299 F.3d 868 (9th Cir. 2002)

12 Campbell v. Wood 18 F.3d 662 (9th Cir. 1994)
13 Cooper v. Rimmer
14 379 F.3d 1029 (9th Cir. 2004)

15 Fierro v. Gomez 865 F.Supp. 1387 (N.D. Cal. 1994)
16 Garcetti v. Ceballos
17 126 S.Ct. 1951 (2006)

18 Gregg v. Georgia 428 U.S. 153 (1976)
19 Hill v. McDonough
20 126 S.Ct. 2096 (2006)

21 In re Kemmler 136 U.S. 436 (1890)
22 Lenz v. Johnson
23 443 F.Supp.2d 785 (E.D. Va. 2006)

24 Louisiana ex rei. Francis v. Resweber 329 U.S. 459 (1947)
25 Malicoat v. State
26 137 P.3d 1234 (Ok. 2006)

27 Morales v. Hickman 415 F.Supp.2d 1037 (N.D. Cal. 2006)
28

Defendants' Post-hearing Brief And Response To Court's Questions - C 06-219 JF RS
111

Page
26, 27, 34-36 25
25,35 45 38
24,25,28 29,36 29,31 39 25,34 24 25 38 25
25,29,31 1,11,24,29

Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 5 of 51 TABLE OF AUTHORITIES (continued)

1

Page

2 Morales v. Hickman

3 438 F.3d 926 (9th Cir. 2006)

12

4 Overton v. Bassetta

539 U.S. 126 (2003)

25

5 Reid v. Johnson 6 333 F.Supp.2d 543 (E.D. Va 2004)

24-26,36

Sims State

7 754 So.2d 657 (2000)

34

8 State v. Webb 9 750 A.2d 448 (Conn. 2000)

33,36,42

Taylor v. Crawford

10 2006 WL 1779035 (W.D. Mo. 2006)

33

11 Taylor v. Crawford

12 457 F.3d 902 (8th Cir. 2006)

37

13 Thorburn v. Department ofCorrections

66 Cal.App.4th 1284 (1998)

34

14 Turner v. Safley

15 482 U.S. 78 (1987)

39

16 Walker v. Johnson _F.Supp.2d_
17 2006 WL 2619857 (E.D. Va. 2006)

25,26,28,33,34,36,42

18 Williams v. State

S.E.2d

19 2006 WL 2659781 (Ga. 2006)

38

20

Wilson v. Seiter 501 U.S. 294 (1991)

25

21

22 Statutes

23 42 United States Code

24

§ 1983

24

25

California Penal Code § 3603

38

26

§ 3605(c)

43

27

28

Defendants' Post-hearing Brief And Response To Court's Questions - C 06-219 JF RS
IV

Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 6 of 51 TABLE OF AUTHORITIES (continued)
1
2 Other Authorities
3 4 Jennifer McMenamin, Lethal Practice,
Baltimore Sun, October 22, 2006 5 Robert Steinbrook, M.D., New Technology, Old Dilema6 Monitoring EEG Activity During Executions,
354 New Eng. 1. Med. 2525 (2006) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
22
23 24 25 26 27 28
Defendants' Post-hearing Brief And Response To Court's Questions - C 06-219 JF RS
V

Page 43 42

Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 7 of 51

1 BILL LOCKYER Attorney General of the State of California
2 MARY JO GRAVES Chief Assistant Attorney General
3 GERALD A. ENGLER Senior Assistant Attorney General
4 RONALD S. MATTHIAS Supervising Deputy Attorney General
5 DANE R. GILLETTE Senior Assistant Attorney General
6 State Bar No. 65925 455 Golden Gate Avenue, Suite 11000
7 San Francisco, CA 94102-7004 Telephone: (415) 703-5866
8 Fax: (415) 703-1234 Email: dane.gillette@doj.ca.gov
9 Attorneys for Defendants

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13 MICHAEL ANGELO MORALES,
14 Plaintiff,
15
v.
16 JAMES E. TILTON, Acting Secretary; ROBERT L.
17 AYERS, JR., Acting Warden,

CAPITAL CASE
C 06-219 JF RS
DEFENDANTS' POSTHEARING BRIEF AND RESPONSE TO COURT'S QUESTIONS

18

Defendants.

19

20

In an order filed February 14 the Court denied Plaintiff's motion to enjoin his scheduled

21 execution under the state protocol for lethal injections, conditioned on Defendants (1) using only

22 barbiturates for the execution or (2) having an anesthesiologist present to verify that Plaintiff was

23 unconscious before additional drugs were administered. Doc. 62; Morales v. Hickman, 415

24 F.Supp.2d 1037 (N.D. Cal. 2006). The Court's conditional order was premised on concerns about

25 anomalies in the logs ofpast executions suggesting a possibility that some inmates might not have

26 been unconscious throughout the execution. When Defendants were ultimately unable to proceed

27 with either alternative, the execution was stayed and an evidentiary hearing was conducted in

28 September; additional testimony and a tour ofthe execution facility were conducted at San Quentin

Defendants' Post-hearing Brief And Response To Court's Questions - C 06-219 JF RS
1

Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 8 of 51

1 on March 30, 2006. Following the hearing the Court ordered briefing and asked the parties to

2 respond to several specific questions. Doc. 256.

3

Plaintiff has failed to prove that the protocol creates the risk of arbitrarily inflicting

4 unnecessary pain upon him or that any California condemned inmate suffered any arbitrary or

5 unnecessary pain under the former state procedure. Instead, the evidence demonstrates that the

6 current version of OP 770, like the version used in past executions, is a rational and humane

7 procedure that poses no arbitrary or wanton risk that Plaintiff, or any other condemned inmate, will

8 suffer unnecessary pain. California's three-drug protocol quickly renders the inmate unconscious

9 with the injection ofa potentially lethal bolus dose followed by a continuous infusion of thiopental,

10 and hastens the dying process with pancuronium by suppressing reflexive breathing efforts before

11 ending the inmate's life by stopping the heart with the administration of potassium.

12

Allegations that condemned inmates in past executions were still conscious when given

13 potassium rest on the lay impressions ofdefense lawyers who watched their clients die from afar and

14 speculative inferences drawn from vague and imprecise references to "respirations" made on San

15 Quentin execution logs. The record provides no reasonable basis for finding that any condemned

16 inmate was conscious after delivery of thiopental and before the injection of pancuronium or

17 potassium.

18

The record establishes that all reasonable measures are taken to ensure a constitutional

19 execution. The condemned inmate is evaluated prior to the execution to ensure that he has usable

20 veins, the IVs are inserted only by RNs or MTAs who have been trained and certified to administer

21 IVs, and steps are taken to monitor and prevent either dislodging ofthe IV, or rupturing the inmate's

22 veins. The drugs are numbered, color-coded, named, and organized in the proper order of

23 administration, with backup doses at hand. Further protection against an inmate regaining

24 consciousness is provided by the continuous administration ofthiopental through a separate IV. The

25 execution team members responsible for all of these tasks train for the execution by conducting

26 numerous rehearsals.

27

Although free ofany constitutional deficiency, California's lethal injection procedure, like

28 any matter of human design, can always undergo continual improvement. The state, as a matter of

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2

Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 9 of 51

1 civic responsibility, is, and shall always remain, committed to that effort. But Plaintiff, having failed

2 to carry his burden of showing a violation of the Eighth Amendment, is not entitled to relief in this

3 proceeding.

4

STATEMENT OF FACTS

5 A. OP 770

6

Lethal injection executions in California are governed by OP 770, which sets forth the

7 combination of drugs and procedures to be followed. The current version, dated March 6, 2006,

8 Exh. 17, provides for the delivery of 1.5 grams of sodium pentothal, also known as thiopental,

9 through an IV in the inmate's right arm. The drug is administered from two syringes, one containing

10 1.0 gram and the other 0.5 gram. After the drug has been delivered, a continuous infusion of 5.0

11 grams of thiopental will be started in the inmate's left arm. After the infusion has been started, the

12 right arm IV will be flushed with 20 cc of saline, followed by one syringe containing 40 mg of

13 pancuronium bromide, sometimes referred to by the trade name Pavulon. Three syringes each

14 containing 80 mEq of potassium will then be delivered to the right arm until all have been injected

15 or a flat line appears on the EKG, whichever occurs first. Exh. 17 at 29-32.

16

1. Development And Revision Of OP 770

17

OP 770 was developed by former San Quentin Warden Daniel Vasquez, who adopted the

18 procedure used in Texas. UF 248-250Y He relied on information obtained during a visit to Texas

19 and did not consult with medical personnel in drafting the protocol. UF 259.

20

The original procedure called for 5.0 grams of thiopental, 100 mg of pancuronium

21 delivered in two syringes each containing 50 mg, and 100 mEq of potassium from one or two

22 syringes. Exhs. 67, 78 at 44. In early executions the thiopental was delivered from a single syringe

23 containing the entire 5.0 grams. UF 293; Exhs. 67, 78 at 44. In later executions the thiopental was

24 delivered in four syringes, each containing 1.25 grams; the change resulted from the manner in which

25 the thiopental was packaged. UF 28, 292. All eleven of the lethal injection executions conducted

26

27

1. UF designates the Undisputed Facts agreed to by the parties and set forth in the Amended

Joint Pre-hearing Conference Statement. The numbers following citations to "UF" correspond to

28 the numbered paragraphs in the Undisputed Facts.

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3

Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 10 of 51

1 by California to date used 5.0 grams ofthiopental.

2

The current protocol was adopted in March 2006 after events precluded the State from

3 undertaking Plaintiff s execution as scheduled on February 21,2006. The Court's order in this case

4 and possible changes to the protocol were thereafter discussed at a meeting in the Governor's office

5 attended by various CDCR officials and counsel for Defendants. Also present was Dr. Robert 6 Singler, a board-certified anesthesiologist who had originally agreed to attend Plaintiffs execution, 7 but later determined in light of intervening judicial decisions that redefined his role that he was 8 ethically unable to do so. UF 116-117d; RT 990-991.~/ Dr. Singler made clear he was not 9 participating in the meeting to assist in revising the protocol but to answer medical questions based

10 on his experience, background, and knowledge. RT 992, 996-997. Some ofthe discussion that took

11 place is reflected in notes taken by CDCR General Counsel Bruce Slavin. RT 997-998; Exh. 71.

12 During the meeting the doctor expressed some concerns that a 5.0 gram dose of thiopental could

13 result in a drop in blood pressure and very slow circulation. RT 995-996.

14

Following the meeting, former Warden Steven Ornoski asked Witness # 1, then the

15 execution team leader, to draft what became the current version of OP 770. UF 285, 288. Dr.

16 Thomas Rosko, an anesthesiologist and Chief Psychiatrist at San Quentin, provided assistance on

17 the formula for mixing the bag containing 5.0 grams of thiopental for the continuous infusion. UF

18 119-120, 288. The revised version of OP 770 was signed by Acting Warden Robert Ayers on

19 September 14, 2006, and by Director of Adult Institutions John Dovey on September 18. Exh. 17

20 at 32.

21

2. Execution Team and Procedure

22

Participation on the execution team is voluntary, RT 19, and new members must be

23 unanimously approved by the existing team. RT 130-131. The team answers directly to the warden

24 at San Quentin, RT 132-133, who approves members and selects the team leader. UF 7-8, 87bb,

25 129. Participation on the team is not disclosed to other staff, RT 20, although the identity of the

26
27 2. RT designates the transcript ofthe evidentiary hearing, beginning with the hearing at San
28 Quentin on March 30, 2006.

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 11 of 51

1 team leader may become known to some personnel during preparation for an execution. UF 127.

2 In order to maintain their confidentiality while participating in an execution, team members wear no

3 identifying tags, badges, or rank insignia. RT 20-21.

4

When informed that an execution has been scheduled, the team begins training on a weekly

5 basis. RT 21-22. One week before the scheduled execution, the team goes on detached duty and

6 trains for eight hours a day. RT 133-134. The training mainly consists of conducting simulated

7 executions. RT 22; UF 29-30. Every aspect of the procedure is rehearsed except for the actual

8 insertion of catheters into the vein of the training subject. UF 30. Training includes practice on

9 pushing the syringe to deliver the drugs. RT 51-52.

10

About one hour before the execution, the necessary syringes ofeach drug are prepared and

11 attached to a cart in spaces designated by name and color-coded. The syringes are numbered in the

12 order they will be used. RT 26, 75-76; Exh. 27. Backup syringes are also prepared and attached to

13 the cart. RT 26-27,81-82. Thiopental, which is packaged by the manufacturer as a dry powder, has

14 to be mixed with saline before drawn into the syringes. It is easy to mix as the drug is highly soluble

15 and immediately goes into solution. RT 857-858,1025.

16

Before an execution the inmate is moved to a death watch cell. At the direction of the

17 warden he is brought into the chamber by five members ofthe team, who assist him onto the gurney

18 and apply the straps. RT 27. Restraints are attached to the wrists and ankles, with straps across the

19 shoulders, chest, waist, and groin area, all of which connect in the center of the body. RT 28. The

20 straps are cinched tightly enough to prevent the inmate from getting loose but without restricting

21 circulation to the arms or legs. RT 28-30.

22

Once the inmate is restrained an MTA2/ or RN inserts a catheter into each arm and secures

23 it with surgical tape. RT 30-31, 137-138, 182-183; UF 49-50, 50h. A different person sets each arm.

24

25

26

27

3. MTAs, or Medical Technical Assistants, are Licensed Vocational Nurses and must have

an IV certification on their license to participate in an execution. Witness # 3 and Witness # 4, the

28 current MTA team members, have the required license. Exhs. 16, 30.

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 12 of 51

1 RT 31-32.11 Tubing connected to the saline bags, which are maintained in the antechamber, see Exh. 2 4, is attached to the catheters after each is set. RT 32-33. After both IVs are established officers

3 wrap the inmate's hands to the arm boards in order to prevent any leverage that might dislodge a

4 catheter. RT 34-35. The gurney is then turned and locked into place; leads attached to the inmate

5 are plugged into the EKG monitor, and the chamber door is closed. RT 33-35; Exh. 18. Although

6 there are no doctors on the execution team, a doctor monitors the EKG reading and fills out the

7 execution log. RT 39; UF 5, 63b.

8

When the order to start the execution is given, the appropriate syringe is removed from the

9 cart by an MTA, attached to a stopcock on the outside of the chamber, and the contents pushed into

10 the inmate through the tubing. RT 39-41, 44-45; Exh. 6. As each syringe is emptied it is returned 11 to its designated location on the cart and the next syringe is attached. RT 39-41,44-45. The person 12 delivering the drugs maintains a steady, even pressure to avoid rupturing or "blowing" the vein. RT 13 48-49. Pushing the syringe is a simple, mechanical task that can be taught to someone with no

14 medical background. RT 1006-1007. An MTA is assigned to monitor the inmate's right arm during 15 the execution. RT 38-39. The doctor pronounces death when there is a flat line on the EKG. RT

16 52.

17

After the inmate is strapped to the gurney and the door to the chamber has been closed,

18 the lights in the antechamber are lowered in order to prevent the witnesses from identifying any of

19 the execution team members. RT 60-61. The light inside the chamber remains on throughout the

20 execution, RT 62, as does a red light illuminating the saline bags in the antechamber. RT 69,98;

21 UF 41, 63a; Exh. 4. Two doctors who had attended executions testified that the low light affected 22 their ability to fill out the execution logs. UF 44, 63b. After the door is shut and locked, only 23 muffled noises can be heard from inside the chamber. RT 115. During several executions there 24 were a number ofCDCR officials in the anteroom, see, e.g., UF 43,46,206,324, which occasionally 25 obscured the doctors' ability to observe the inmate and complete the execution log, see, e.g., UF 43b-

26
27 4. The inmate is evaluated prior to the execution to determine ifhe has useable veins. UF
28 74; Exh. 19 (memorandum re: S. Williams's veins); Exh. 20 (memorandum re: Allen's veins).

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 13 of 51

1 44, and whose presence could potentially interfere with the execution team. See, e.g., UF 45, 1882 189. 3 B. Past Executions

4

1. Execution Witnesses

5

Plaintiff presented testimony from three witnesses to lethal injection executions; one of

6 these executions was conducted in California, the other two in North Carolina.

7

The California witness, Margo Rocconi, represented Stephen Anderson for six years and

8 became friends with him. RT 240,247. It appeared to Rocconi that after Anderson's IVs were set,

9 RT 241-243, and an announcement made that the execution was beginning, Anderson was holding

10 his breath. RT 244-245. His chest and stomach area heaved about 30 times and he appeared to have

11 three"convulsions" over four to five minutes. RT 245-247. Sometime after the movements stopped

12 Anderson was pronounced dead. RT 246. Rocconi is not a physician nor does she have any medical

13 training, and she could not tell whether the movements she observed were voluntary or whether 14 Anderson was conscious. RT 248-249Y Attending the execution was not a pleasant experience.

15 RT 247-248.

16

Heather Wells represented Edward Hartman for five years and became friends with him.

17 Attending his execution was an unpleasant experience. RT 200-201,209. Throughout the execution

18 Hartman was on a gurney and covered with a sheet from his feet to his collarbone. RT 202-203.

19 Soon after it was announced that the execution would begin, Hartman's eyes closed, then opened

20 about halfway. RT 204-205. His throat started pulsating and shaking, there was rapid and violent

21 heaving of his chest, and his torso seemed to rise offthe gurney. RT 205-206. Wells believed the

22 shaking lasted about five minutes. RT 206. Hartman's muscles looked slack and his skin seemed 23 to pull down from his face. RT 206. The twitching slowed, then lessened for about a minute, after 24 which Hartman closed his eyes and became still. RT 206-207. The execution took about 15 25 minutes. RT 207-208. Wells did not think Hartman's movements were voluntary, and she did not

26

27 5. Dr. Singler did not believe a lay observer would be able to determine whether movement
28 was voluntary or reflexive. RT 1024.

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 14 of 51

1 know if Hartman was conscious. RT 211-213. Wells found it painful to watch the procedure, but

2 she did not know if Hartman himself was in any pain. RT 213.ft

3

Cindy Adcock witnessed several executions of death row inmates she had represented.

4 RT 229-230. The first, of Zane Hill, occurred in 1998. RT 216-217. Adcock first saw Hill on the

5 gurney covered with a blanket; he had been given drugs for an anxiety disorder and appeared to be

6 unconscious. He never moved. RT 218-219. Adcock saw Hill take a few breaths after the execution

7 began and could not tell when he died. RT 219-220.

8

Adcock represented Willie Fisher in federal habeas and clemency proceedings. RT 220,

9 230-231. After the execution began, Fisher yawned and closed his eyes. A couple of minutes later

10 his chest began heaving, his neck went back, and his mouth opened as ifhe were gasping for breath.

11 RT 221-23. The behavior continued for about ten minutes, then gradually stopped. RT 223-226.

12 Adcock thought the execution lasted about 21 minutes. RT 226. She did not know whether the

13 movements were voluntary or whether Fisher was conscious. RT 232-233. Watching the execution

14 was not pleasant for Adcock, particularly because one of Fisher's family members became

15 distraught. RT 233.

16

The execution ofTimothy Keel, whom Adcock had represented in clemency proceedings,

17 lasted about 18 minutes. RT 226, 229, 233. Keel appeared to be trying to communicate even after

18 the execution began. He started gasping for breath but then stopped; his eyes stared and his mouth

19 gaped open. Keel was shaking and heaving for about 10 minutes and his face was twitching. RT

20 227-229. Adcock could not tell whether Keel was conscious or whether his movements were

21 voluntary, and she found the experience uncomfortable. RT 234-235.

22

Finally, Adcock attended the execution of Steven McHone in 2005. He exhibited one big

23 jerk, his head went up and mouth opened, and he was in an odd contorted position. There was no

24 other movement beyond some minor twitching in his face. RT 235-236. The execution lasted about

25
26
27 6. No evidence was introduced about the date of Hartman's execution or the protocol used
28 by North Carolina at that time.

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 15 of 51

1 10 minutes.:u

2

2. California Executions

3

Evidence about prior California executions was introduced primarily through the execution

4 logs~ and Undisputed Facts. California has conducted 11 lethal injection executions beginning with

5 William Bonin in 1996, Exh. 29, through Clarence Ray Allen in January 2006. Exh. 15A. Under

6 the former version of OP 770, all of the drugs were delivered through the right arm IV with the left

7 arm established solely as a backup. UF 81, 279; Exh. 78 at 45-46. It is undisputed that the

8 redundant left-arm IV was not properly established in the Stanley Williams execution. UF 50a-50g. 9 There was no evidence presented that the right arm IV failed during any execution, including 10 Williams's.

11

Inmates Jaturun Siripongs, Robert Massie, Stephen Anderson, and Clarence Ray Allen

12 were given an additional dose ofpotassium. UF 125; Exhs. l1A, 12A. In each case, the extra dose 13 was authorized by the warden because the inmate had not demonstrated a flat line EKG within a 14 reasonable time. UF 196-199. Prior to receiving the additional potassium, the EKG for Siripongs 15 demonstrated an "agonal rhythm," Exh. 8A, while Anderson had displayed an "idioventricular

16 rhythm." Exh. 12A. Those conditions indicate thatthe inmates were already dying. RT 1045-1047.

17

The printed execution log is filled out by a doctor and contains spaces to enter the heart

18 and respiration rate ofthe inmate and to note the time at which various events occur. See, e.g., Exh.

19 29. Dr. Calvo, who was present for every execution from Bonin through Anderson, measured

20 "respirations" by counting them for a full minute. UF 65. Dr. St. Clair measured "breathing" during

21 the executions of Stanley Williams and Allen by counting breaths for 15 seconds and multiplying

22 by four. UF 73. The length of the executions, from injection of thiopental to pronouncement of 23 death, varied from 4 minutes for Keith Williams, Exh. 25, to 20 minutes for Allen, Exh. 15A, with

24

25

26

7. No date was given for the executions of Fisher and Keel, nor did Plaintiff introduce any

evidence regarding the drug protocol used in any of the executions observed by Adcock.

27 8. Defendants have been unable to locate the log for the execution of Thomas Thompson.

28 UF 125a.

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1 the average being 11.3 minutes)Y The experts did not agree on the significance, if any, of the

2 respiration notations.

3

Dr. Heath was concerned that breathing continued to be reported after the thiopental had

4 been delivered. RT 533-534. Because the doctors who created the logs were confident they were

5 . recording breathing, Dr. Heath accepted that interpretation. RT 535. He conceded, however, that

6 he could not know for certain whether any inmate was actually breathing, noting there is a difference

7 between respiratory effort and actual breathing. RT 537-538, 730-731. Dr. Heath acknowledged

8 that without a good view it would be possible to confuse breathing with involuntary respiratory

9 effort. RT 732-733. He agreed that with the chamber door closed it would be impossible to hear

10 any sounds indicating respiration the inmate might exhibit, that the doctors had difficulty getting to

11 the window to make their observations, and that the low lights hindered them in filling out the log.

12 RT 736-739; see UF 43b-44, 63b. Because Dr. Heath was not present and must rely on the doctors's

13 accounts of what they observed, RT 731, "[o]ne has to be open-minded" about what actually

14 occurred during the executions and what the doctors might have seen when they recorded

15 "respirations." RT 537.

16

Dr. Singler explained that involuntary respiratory effort is different from voluntary

17 breathing, noting that even a trained physician might confuse the two. RT 1017-1020. One has to

18 look for movement in a small area at the top of the chest as opposed to any heaving in the abdomen

19 or intercostal muscles. RT 1018-1020. Standing outside of the chamber one could not distinguish

20 between normal respiratory effort and shallow respirations. RT 1143. Dr. Calvo's deposition

21 testimony did not provide sufficient information to differentiate between effective respiration and

22 respiratory effort. RT 1020-1021, 1144-1146. Even if the inmate were actually breathing, that

23 would not necessarily establish that he was conscious. RT 1021.

24

Dr. Brent Ekins testified that while visible manifestations ofbreathing would be expected

25 to disappear within a minute or less after a 5.0 gram dose ofthiopental, automatic or reflexive efforts

26

27 9. The average does not include Thompson for whom the printed log is missing, although
28 the handwritten log indicates that his execution took five minutes. Exh. 7.

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 17 of 51

1 at breathing could continue until the pancuronium was delivered. All effort would cease within a 2 minute or two of receiving pancuronium. RT 953-955. Dr. Ekins agreed it would be necessary to 3 know what the doctors at the executions were measuring and the basis for their conclusion that the

4 inmates were breathing. RT 959-960.

5

In addition to the printed form, a handwritten log is maintained by a member of the

6 execution team who is stationed at a desk near the death watch cell, which is behind and closed off 7 from the antechamber. UF 131; see, e.g., Exhs. 7, 98. The officer writes down everything the 8 inmate does based on the officer's own observations. UF 133-134. Information pertaining to

9 portions ofthe executions not visible to the officer must be obtained either from the printed log kept

10 by the doctor or from someone else on the execution team. UF 133-134,299,319.

11

3. Plaintiff's Scheduled Execution

12

In its order conditionally denying an injunction, the Court allowed Plaintiffs execution

13 to proceed if Defendants met one of two conditions, the second of which required "independent

14 verification through direct observation and examination by a qualified individual or individuals, in

15 a manner comparable to that normally used in medical settings where a combination of sedative and

16 paralytic medications is administered, that Plaintiffin fact is unconscious before eitherpancuronium 17 bromide or potassium chloride is injected." The Court required that monitoring be continuous until 18 Plaintiffwas pronounced dead. It further ordered that the identity ofthe person or persons involved

19 could remain confidential. Morales v. Hickman, 415 F.Supp.2d at 1047-1048.

20

Dr. Singler agreed to be present for the February 21 execution, based on his understanding

21 from the Court's order that his role was to monitor unconsciousness from the time the anesthetic 22 drug was delivered until the pancuronium was begun. He would be in the chamber with Plaintiff 23 throughout the execution. RT 977-978 ..!.Q1 Although he had some initial concerns about his role, Dr. 24 Singler was confident that if the procedure proceeded in accordance with the protocol there was

25

26

10. Defendants also obtained a second expert as a backup and his identity has remained

confidential. RT 978; UF 93. Anesthesiologist # 2 testified in a deposition as to his understanding

27 ofthe limited role, if any, he would play in the execution. UF 94-99, 106-108. But for the expanded

role articulated by the circuit court's opinion, Dr. Singler would have been present during Plaintiffs

28 execution as required by this Court's order.

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1 virtually no chance Plaintiff would suffer any pain. RT 979,982-983. Dr. Singler understood that

2 his role was limited to monitoring consciousness. RT 1063.

3

Two or three days before the scheduled execution Dr. Singler attended a practice session

4 at San Quentin. While there the execution team conducted a complete run-through ofthe procedure,

5 followed by discussion and a second practice run. RT 979-980. Although the doctor was

6 uncomfortable with changing the protocol, he did suggest that the team consider adjusting the

7 stopcock so that the drugs were delivered from the syringe at the passive flow rate of the IV, a

8 procedure that could help avoid blowing the vein but would not significantly slow delivery of the

9 drugs. RT 982-984, 1102-1103. Other than discussing the equipment he would use, Dr. Singler

10 made no other suggestions on how the team should conduct the execution. RT 984-985. He never

11 instructed the team on how much thiopental to deliver or suggested they should give less than 5.0

12 grams, but did express his beliefthat it was likely Plaintiff would be unconscious before the entire

13 dose was delivered. RT 1104-1109.

14

On the eve ofthe execution Dr. Singler was given a copy of an opinion issued on February

15 19 by the Ninth Circuit. See Morales v. Hickman, 438 F.3d 926 (9th Cir. 2006). The circuit court

16 concluded that if the anesthesiologists were unable to ensure that Plaintiff remained unconscious,

17 they were authorized to take appropriate steps alone or in conjunction with the execution team to

18 return Plaintiff to an unconscious state. Id. at 931; Exh. 136. Dr. Singler concluded that the court,

19 by requiring the doctors to take all medically appropriate steps necessary to ensure unconsciousness,

20 imposed upon him an affirmative duty that went beyond mere monitoring. In effect he felt he would

21 have been put in the position of being perceived as the executioner, which he felt was at variance

22 with the American Medical Association's ethical standards. RT 985-988. Ultimately both doctors

23 concluded that they could not ethically attend the execution under these circumstances. RT 988-989;

24 UF 112.

25 C. Plaintiff's Expert Witnesses

26

1. Dr. Kevin Concannon

27

Dr. Concannon, a doctor of veterinary medicine and expert in veterinary anesthesia, RT

28 252,255-257, testified that he would not recommend the use ofOP 770 for his veterinary patients.

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1 RT 257-258.!.!I He based his conclusion on the lack of direct contact with the "patient" and concern 2 that the combination of drugs and manner of delivery could result in pain and suffering. RT 258.

3 Dr. Concannon, who has no expertise in human anatomy, physiology, or anesthesiology, RT 272-

4 273, referenced the American Veterinary Medical Association (AVMA) guidelines for animal

5 euthanasia as the best source of information on euthanizing a living animal. RT 259, 270-271; Exh.

6 42.

7

The doctor was familiar with the preface to the AVMA guidelines stating that they are not

8 intended to apply to executions, RT 273; Exh. 42, and acknowledged that the AVMA had advised

9 that the guidelines should not be "extrapolated" to humans. RT 272-274; Exh. 47. He nonetheless

10 felt they contained valuable information, if for no other reason than the lack of scientific data on 11 human euthanasia. RT 273-275,280. But animal-to-human extrapolation is, for Dr. Concannon,

12 something of a one-way enterprise: That a particular method of human execution was deemed

13 constitutional by the courts, for example, would not justify its use as a method ofanimal euthanasia.

14 RT 279.

15

2. Dr. William Ebling

16

Dr. Ebling, an expert in pharmacokinetics and pharmacodynammics, RT 315-316, was

17 involved in several studies of anesthetic agents including thiopental. RT 295-297. Because the

18 ability to conduct testing on humans is limited, much ofhis resesarch involved animals, in particular

19 rats, from which he develops mathematical models designed to understand the effects of drugs in 20 humans. RT 303-306, 308. In one study that included human subjects, blood samples and EEG

21 readings were used to investigate the relationship between the blood level of thiopental and 22 responses to various stimuli. RT 306-307, 368-369. All of his work involved clinical doses of 23 thiopental in the range of 250 to 300 mg. RT 369-370. The doctor is unaware of any studies

24 involving the massive 5.0 gram dose used in past California executions or even the 1.5 gram dose 25 in the current version of OP 770. RT 350. Indeed, he did not know of anyone receiving 1.5 grams

26
27 11. The doctor's testimony was supplemented by an affidavit from Dr. Concannon dated
28 September 26,2006, and provided to Defendants on the first day of the hearing. Exh. 145.

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 20 of 51

1 in a clinical setting. RT 409.

2

Thiopental rapidly puts someone in a plane ofsurgical anesthesia, but then rapidly wears

3 off. RT 298-299. It is designed to oblate the ability of the brain to respond to noxious stimuli. RT

4 335-336. The drug initially goes to perfused organs such as the brain, heart, and lungs but easily

5 diffuses into and out of the brain through the venous flow. RT 323-324. Increasing concentration

6 in the arterial blood relates to an increasing depth of anesthesia, RT 334, but after an injection there

7 is a rapid decline in the blood concentration. RT 325. After a standard clinical dose of250 to 300

8 mg, one would expect the patient to open his eyes within five to eight minutes. RT 331.

9

Dr. Ebling concluded that OP 770 creates the risk of a painful execution because there is

lOa possibility the inmate could emerge from the anesthetic effect ofthe thiopental. RT 318-319. He

11 expressed concern that the protocol did not allow for variability and the need to fine tune anesthesia,

12 RT 319-320, but acknowledged that the concern in a clinical setting to both give just enough-but

13 not too much-ofthe anesthetic does not apply in the context ofan execution. RT 367-368. Without

14 modeling, which would be extensive and complex, RT 385-386, the doctor could only state that it

15 was "possible" an execution under the current procedure will result in a painful death, but could not

16 identify the level of risk involved. RT 388. Based on his review of the execution logs Dr. Ebling

17 could not say whether any California inmate had suffered a painful death. RT 388-389.

18

Peak concentrations of thiopental will be lower at the end of a slow infusion as opposed

19 to a quick push, RT 351-352, and the timing and administration of the drug influences the time

20 course of blood concentrations and effects the time course of concentration in the brain. RT 356.

21 Although 1.5 grams of thiopental administered over two and a half minutes would induce

22 unconsciousness by the end ofthe infusion, Dr. Ebling could not say when the individual might wake

23 up; however, he agreed there would be at least some minutes of unconsciousness. RT 389-391. He

24 agreed that 1.5 grams could be fatal, RT 420, but he would only be speculating about how many

25 people might not be adequately anesthetized by that amount ofthe drug. RT 396-397. With a bolus

26 dose followed by a continuous infusion there could be an initial drop in peak concentration followed

27 by a rise in concentration. RT 354-355. Dr. Ebling believed that under the existing California

28 procedure it would take four minutes for the continuous drip to reach the left arm, by which time the

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1 other drugs would have been delivered, thus precluding any contribution by the additional thiopental

2 to ablating consciousness. RT 401-403. That potentiality could be avoided simply by delaying

3 delivery of the pancuronium. RT 404.

4

Changes in a person's cardiovascular status, such as that resulting from anxiety or fright,

5 can cause a higher distribution rate, which affects concentration levels and thus the level of

6 anesthetic depth. RT 357-358,361-362. Assuming based on high initial pulse rates reflected in the

7 execution logs that some inmates are anxious and frightened, RT 381-382, Dr. Ebling was concerned

8 that OP 770 does not mandate premedication which could compensate for the increased cardiac

9 output. RT 361-362, 382.

l O A barbiturate such as thiopental can be fatal at higher doses because it causes respiratory

11 and cardiovascular collapse. The higher the dose, the faster death will ensue. RT 419-420. Death

12 from barbiturate overdose, however, is "ugly" and slow; "it's not pretty to watch." RT 429-430.

13

3. Dr. Mark Heath

14

Dr. Heath is a board-certified anesthesiologist and clinical professor at Columbia

15 University, RT 431-433, as well as a self-professed "expert" on lethal injection procedures.J1i He

16 has testified eight to nine times in challenges to lethal injection procedures, RT 435, five ofthem,

17 including this case, in 2006, RT 656-657, and provided declarations in some 20 to 40 other cases, 18 always in support of attacks on the state procedure. RT 435,657-658.111 Based on his review of

19 protocols from virtually every state that has conducted a lethal injection execution and familiarity

20 with other state practices, Dr. Heath believes he can make comparisons between the states and their

21 specific practices, RT 437, while nonetheless acknowledging that no two protocols are exactly the

22 same. RT 663. In his opinion the closest any state comes to reasonably ensuring a humane

23 execution has occurred in Missouri, but only if the state officials adopt the requirements set forth in

24 an order of the federal district court. RT 438-439, 673, 703-704.

25
26 12. Dr. Heath testified on direct examination that he opposes the death penalty. RT 438.
27 13. Before his involvement in this case Dr. Heath had filed declarations in support of
28 challenges to California's protocol in the Cooper and Beardslee cases. RT 658; Exhs. 57, 58.

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1

Dr. Heath agreed to testify in this case because OP 770 does not comport with the

2 veterinary standards set forth in the AVMA euthanasia guidelines. RT 439-440, 441. He believes

3 it is inevitable that there will be an inhumane execution in California, assuming that has not already

4 occurred, but believes the risks are "easily correctable." RT 440-441. While acknowledging that

5 his testimony reflected "just [his] opinions," RT 667, and was at times nothing more than "total

6 conjecture," RT 559, Dr. Heath nonetheless opined on a number ofmatters unrelated to his medical

7 training and experience, including (1) the manner in which OP 770 was originally developed and

8 later revised; (2) the members of the execution team, including their background, training, and

9 selection; (3) the physical layout of the execution chamber and equipment used; (4) prison record

10 keeping; and (5) the manner in which the state's legal counsel had litigated the instant lawsuit. Dr.

11 Heath ranked California in the lower 25 percent ofstates using lethal injection in terms ofthe quality

12 of its protocol, RT 664, but ultimately conceded that he lacked sufficient information to conclude

13 that any California inmate was actually conscious when either the pancuronium or potassium was

14 delivered. RT 730. Dr. Heath does not equate a constitutional procedure with a humane one, RT

15 791-792, and did not believe California should either. RT 668-669. Indeed, he was highly critical

16 of state officials for trying to "meet a legal finish line, I think, instead of a medical humane finish

17 line." RT 626. We detail Dr. Heath's criticisms of California's procedure.

18

a. Development And Defense Of OP 770

19

Dr. Heath concluded that CDCR must determine goals and priorities in consultation with

20 someone who understands the drugs in order to achieve a humane execution. RT 441-442.

21 Adopting the procedure used in another state, as California did, will not suffice. RT 597, 612, 659-

22 660. It is equally inappropriate, in his opinion, to consider whether the particular protocol has been

23 approved in other states. RT 600-601,612,625-626. The doctor concluded that the meeting at the

24 governor's office was convened only in service of ensuring that the protocol survived legal

25 challenges, not to make the procedure more humane, RT 616, and he expressed his concern that

26 lawyers would have any say in how the execution was conducted. RT 666,670. Indeed, Dr. Heath

27 even considers it inappropriate to focus on the legal requirements applicable to an execution;

28 humaneness, in his opinion, is solely a medical question. RT 669.

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1

While acknowledging the AVMA' s advisory not to extrapolate from its animal euthanasia

2 guidelines to human executions, Dr. Heath thought the veterinary guidelines should be followed and

3 that it would be a disservice not to consider and compare them. RT 660, 719-720. Indeed, he was

4 dismayed that state officials had moved to exclude testimony from Dr. Concannon and about the

5 AVMA guidelines. RT 666-667, 671. When confronted with a recent federal court decision finding

6 that animal euthanasia standards "has no bearing" on state lethal injection procedures, Walker v.

7 Johnson, 2006 WL 2619857; Exh. 147, Dr. Heath professed not to understand the legal issues but

8 thought it "a common sense matter of dignity" that a state would not use a method of execution not 9 approved for animal euthanasia. RT 796-797.13/

10

b. Drugs

11

A 5.0 gram dose ofthiopental as used in the former protocol, ifproperly delivered, would

12 stop anyone from breathing, would result in a deep level ofunconsciousness that would last beyond

13 the duration ofthe execution, and would eventually be independently fatal. RT 461-462,494,791.

14 The 1.5 gram bolus dose provided for in the current version of OP 770 is more than a clinical

15 amount, and it would result in unconsciousness and death for the great majority ofpeople. RT 625,

16 695, 791. Dr. Heath believes unconsciousness could result in as little as 30 seconds after thiopental

17 hit the veins and with a 1.5 gram dose could, as he testified in his deposition, last "several tens of

18 minutes." RT 697-699. If the inmate were unconscious it would not matter if pancuronium were

19 used or how much potassium was delivered. RT 457, 706-707. Although Dr. Heath had insisted in

20 earlier declarations that a continuous infusion of thiopental was essential, Exhs. 53, 57, he had not

21 expected the state would adopt that procedure while also lowering the initial bolus dose. RT 691-

22 694. Despite his earlier endorsement ofusing a continuous infusion, the doctor now insists the new

23

24

25

26

14. Nonetheless, when later asked by the Court about the Virginia procedure as described

27 in Walker v. Johnson, Exh. 147, Dr. Heath stated that it ameliorates some of the flaws he identified

in California, even though Virginia uses the same combination of drugs and does not have a doctor

28 present to monitor anesthetic depth. RT 839-842.

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1 procedure adds complexity and false assurance to the process. RT 624-625.121

2

Dr. Heath also noted Dr. Ebling's testimony that medication should be given before the

3 execution to reduce anxiety and narrow the range of physiological responses to the thiopental. RT

4 546-547. Although in an earlier California case Dr. Heath had been critical of the provision in OP

5 770 offering Valium to the inmate before he was executed, RT 682-683; Exh. 57, he now objects to 6 the exclusion of that provision from the current protocol. RT 684-685.!§1

7

Dr. Heath characterized delivery of pancuronium as the "cosmetic phase" of the

8 execution, see Exh. 141, noting that some officials have said it is used to stop death movements

9 which could be disturbing to witnesses. RT 460. Although admitting that he had never been shown

10 any statement from a California official that pancuronium was used only for cosmetic effect, Dr.

11 Heath insisted that he had never seen any rejection of statements by state experts that the drug can 12 have that effect. RT 707-708.!11 Despite asserting that he was unaware of any state that used only

13 thiopental and potassium in its protocol, RT 710-711, the doctor had, in an earlier California case, 14 noted that New Jersey's procedure omitted pancuronium. RT 711-713; Exh. 57. That might make

15 the New Jersey procedure more humane, Dr. Heath opined, but emulating that procedure by

16 removing pancuronium from California's protocol would not be enough because wholesale

17 adoption ofanother state's procedure is not "due diligence." RT 714-715. Dr. Heath opposed using 18 pancuronium because it created a risk that the inmate might be in pain during the execution but

19 unable to tell anyone. RT 455.

20

Dr. Heath concluded that potassium is, in the majority ofthe cases, the drug that kills the

21 inmate. RT 447-448. Accordingly, he conceded that an execution using potassium would

22

23

15. Although a procedure using a single barbituric agent would more closely resemble

veterinary euthanasia practices, Dr. Heath was critical of the state's decision to take that approach

24 as an alternative to using the anesthesiologists because the execution team would have had

25 insufficient time to rehearse the new single-drug procedure. RT 715-717.

26

16. Dr. Ebling had identified Valium as a drug that could be used for premedication. RT

398-399.

27 17. He also admitted that he was unaware of any evidence suggesting that Texas used

28 pancuronium solely for cosmetic effect. RT 708.

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1 necessarily take less time to complete than one using only thiopental. RT 779-780. Concentrated

2 potassium given to a conscious patient would result in excruciating pain, RT 448,452, 826-827,

3 and it was "completely incorrect" to suggest otherwise. RT 453. The doctor noted that some

4 inmates had been given an additional dose of potassium, presumably because there had not been

5 a flat line on the EKG. RT 554. He did not know what circumstances led to the administration of

6 additional potassium, but acknowledged it could have been related to depression of the inmate's

7 circulatory system. RT 831.

8

c. Execution Team

9

Dr. Heath concluded that the execution team consisted of the "wrong group" of people

10 because they did not understand the drugs, were not prepared to react to problems, and were not

11 familiar with the protocol. RT 442-443. He insisted that all the team members had to read the

12 protocol, RT 560-561, and must understand how the drugs work in case they make a mistake. RT

13 758-759. He also found it unacceptable that there was no written procedure for every contingency.

14 RT 576. The doctor found it "appalling" that one retired team member exhibited confusion in her

15 deposition about the process for mixing drugs, RT 504, and was critical of several past execution

16 team members for not being able to adequately describe the procedures in which they had

17 participated. See, e.g., RT 495-496,509-510,561-569. While acknowledging that most of the

18 witnesses had retired several months to years earlier, and conceding that their lack of recall did not

19 mean the executions in which they participated were inhumane or that the team members did not

20 know what they were doing at the time, Dr. Heath thought an execution would be a memorable

21 event and he expected the participants to have better recall of its details. RT 765-769. Although

22 rehearsals are important, RT 570-571, Dr. Heath had never attended a practice session in California

23 or any other state. RT 680. He nonetheless insisted there was inadequate training and identified

24 the entire process as "dysfunctional." RT 510.

25

Dr. Heath opined that CDCR must completely change its procedure for recruiting and

26 selecting team members. RT 576-577,579. He thought it was cruel to allow someone diagnosed

27 with PTSD to be on the team, RT 578, and it showed poor judgment that someone who had once

28

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1 been suspended for bringing "illegal narcotics" into the prison, was on the team. RT 578-579,l.§/

2 Dr. Heath did concede that he simply had a different opinion from the warden as to who should

3 participate in an execution. RT 787.

4

d. Execution Chamber

5

Dr. Heath described the drug delivery system as needlessly complex and bizarrely located.

6 RT 443-444. He complained that the antechamber was too dark, RT 580-591; that the execution

7 area was too crowded, RT 585-586; that the chamber door should not be sealed, RT 589-591; that

8 the IV bags are hung too high and in a "bizarre" location, RT 591-592,596; and that the injection

9 should not be effected from the antechamber. RT 594. He also opined that cramped conditions in

10 the chamber could cause problems setting the IVs and did not provide a good working space. RT

11 635-636. Although Dr. Heath was concerned that the drugs might not be delivered in the correct 12 order, he could not say whether there had been a failure to deliver all ofthe drugs or to deliver them

13 in the correct order in any execution. RT 765.

14

e. Monitoring Anesthetic Depth

15

The centerpiece of Dr. Heath's testimony was his insistence that the use of potassium

16 required monitoring to ensure the thiopental places the inmate in a surgical plane of anesthesia. RT

17 478,480,484. Monitoring is both "art and science," RT 481-482, and it is important in a surgical

18 context to insure that the patient is made sufficiently unconscious to undergo the procedure, yet can

19 thereafter be awakened. RT 744-745. Dr. Heath acknowledged that the objectives are different in

20 a lethal injection execution, where an intentional overdose is employed. RT 745. Nonetheless, in

21 Dr. Heath's view, monitoring is still required. RT 485. Indeed, monitoring is not enough; the

22 monitor must be able to act ifthere appears to be inadequate anesthesia. RT 745.

23

In order to insure proper monitoring, it must be conducted by someone with training in

24 anesthesiology. RT 487. Dr. Heath was certain that if a good faith effort were made, a doctor

25 willing to do the job could be found, RT 484-485, although he assumed searching for one would

26
27 18. Dr. Heath offered this opinion without knowing the drug was a small amount of
28 marijuana or how long ago the event had occurred. RT 782-785.

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1 be a "fairly lengthy process." RT 808. He was aware that Missouri had been unable to find a 2 doctor as required by a district court order but was convinced the state had not made sufficient 3 efforts. RT 676-677.1J)

4

Dr. Heath conceded that the participation required by the Missouri court order would

5 violate AMA ethical limitations, and he personally believed it would be unethical for any doctor

6 to follow that order. RT 674-675.IQI He also agreed that the American Society ofAnesthesiologists

7 viewed involvement in an execution as unethical. RT 798-800; Exh. 62. To satisfy Dr. Heath, the

8 state would thus be required to find a doctor whose ethics varied from that of his profession and

9 who was willing to act in violation of professional ethical standards. RT 749, 791-792.

10 D. Defendants's Expert Witnesses

11

1. Dr. Brent Ekins

12

Dr. Ekins is a clinical pharmacist with a Doctorate in Pharmacy and specialization in

13 toxicology. RT 844-846. He was familiar with the uses and properties of thiopental, although he

14 had not worked with that drug. He had experience using pancuronium and potassium. RT 849.

15

Thiopental is used primarily to induce unconsciousness before surgery. RT 851-854. At

16 induction doses it can oblate pain as quickly as 27 seconds after delivery and result in a higher level

17 of unconsciousness within a minute. RT 854-855. Larger doses have a larger peak and thus work 18 more quickly. RT 855. Based on his review of the literature, Dr. Ekins testified that a 1.5 gram 19 dose was above clinical levels and would cause unconsciousness lasting at least 10 to 15 minutes. 20 RT 855-856. The continuous induction provided for in OP 770 would result in a maintenance dose 21 of thiopental at the rate of 100 ml per minute. RT 857. The thiopental would result in a surgical

22 plane of anesthesia and an inability to perceive pain within one minute. RT 870-871. In surgery 23 the anesthesiologist is trying to maintain a fine line between a sufficient level of unconsciousness

24

25

19. The doctor also concluded that California had not adequately determined in advance

26 what the anesthesiologists they contacted for Plaintiffs execution would be willing to do. RT 629-

630.

27 20. Indeed, given his opposition to the death penalty Dr. Heath did not think anyone should

28 participate in an execution to any extent. RT 723.

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1 and losing blood pressure. The execution procedure goes "well beyond" that line. RT 919.

2

Dr. Ekins reviewed Dr. Ebling's report, deposition testimony, and the articles he cited,

3 including some in which Dr. Ebling was an author. RT 859. Dr. Ekins concluded that neither drug

4 half-life nor redistribution rate were relevant considerations in a lethal injection execution given the

5 short time frame ofthe procedure and the size ofthe dose. RT 865-866, 869-870. Dr. Ebling's

6 research has examined blood levels in both rats and humans, but such measurements are never made 7 in a clinical setting. RT 860-861, 914-915.1li It was also impossible to determine from many

8 studies whether the researchers were measuring arterial or venous blood, which can make a

9 difference given a 23 percent lower concentration on the arterial side before steady state is achieved.

10 RT 916-917,946-947. More significantly there are no studies ofthiopentallevels in the brains of

11 humans. RT 868-869. In Dr. Ebling's opinion it is not possible to translate clinical level studies

12 of drug effect to lethal injection doses without making a "leap of faith." RT 924.

13

Even at deeper levels of anesthesia there can be an automatic drive to breath. RT 952-

14 953. It may take longer for thiopental to cut off that drive, which has nothing to do with the actual

15 depth ofunconsciousness. RT 958-959. Pancuronium prevents respiratory effort by paralyzing the

16 diaphragm. RT 873-874.

17

Potassium in large quantities disrupts the impulses necessary to an effective heart beat.

18 An 80 mEq dose delivered in one to two minutes would be fatal. RT 876-877. If the inmate went

19 into shock from the dose of thiopental it could limit how rapidly the other drugs took effect. RT

20 956-957. In an unanesthetized person potassium is a painful irritant. Although Dr. Ekins would

21 not describe the pain level as excruciating, he concluded from descriptions ofpatients inadvertently

22 given potassium that it is very painful. RT 966-967.

23

2. Dr. Robert Singler

24

Dr. Singler used thiopental almost exclusively for twenty years, both as an induction agent

25 and on occasion as the sole anesthetic for some procedures. RT 1007-1009. The common

26

27 21. Dr. Singler agreed that thiopental drug levels are never measured in a clinical setting.
28 RT 1024-1025.

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1 induction dose range was 200 to 250 mg, with the largest amount he ever used being 750 mg on one 2 occasion. RT 1010-1011. A dose of 200 to 300 mg is enough to cause unconsciousness, creating 3 a peak effect within two minutes and a deep surgical plane of anesthesia lasting about five to ten

4 minutes. RT 1011-1014. Dr. Singler believed that a 1.5 gram dose of thiopental successfully

5 delivered would result in unconsciousness sufficient to withstand painful stimulus within a minute.

6 Although there is no precise clinical data available, he believed deep anesthesia would last at least

7 12 to 15 minutes. RT 1014-1015. Although unlikely, it is possible someone given 1.5 grams of

8 thiopental and no breathing support could regain consciousness. That possibility is virtually

9 eliminated by the continuous infusion of additional anesthetic. RT 1021-1023.

10

Pancuronium paralyzes the muscles and can be fatal because it obstructs breathing. RT

11 1028-1029. If delivered to a conscious person the drug would not be painful but the suffocating

12 effect could be terrifying. RT 1030. Dr. Singler would not expect someone who had received 20 13 mg of pancuronium within two to three minutes after a 1.5 gram dose of thiopental to be aroused 14 to consciousness by the effects of pancuronium. RT 1032-1033. He concluded that pancuronium 15 facilitates the execution by suppressing the ability to execute any breathing effort and preventing

16 the inmate from regaining consciousness. RT 1033-1034, 1159-1160, 1173-1175. Thecombination

17 ofthiopental and pancuronium would be uniformly fatal, but death would not likely ensue any more

18 quickly than if thiopental alone were used. RT 1033-1036.

19

Delivering 80 mEq of potassium in one to two minutes would be fatal. RT 1039-1040.

20 The most reasonable explanation for the delay in death following delivery of potassium in some

21 California executions is shock to the system resulting from drop in blood pressure, which caused
22 less efficient distribution of the drug by the circulatory system. RT 1040-1043. Dr. Singler found
23 support for this theory (as opposed to there being a problem with the delivery system) by evidence 24 establishing that death occurred shortly after the additional dose of potassium was injected. RT 25 1043.J]! He thought it unlikely that an IV could fail during delivery ofthe thiopental yet nonetheless
26
27 22. Similar experience with additional doses ofpotassium in Virginia further reinforced the
28 doctor's opinion. RT 1205-1206; Exh. 147.

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1 deliver sufficient amounts of pancuronium to paralyze and of potassium to be painful. RT 1053-

2 1056.

3

Although it would be unconscionable to inject a fully conscious person with a large dose

4 of potassium, Dr. Singler did not think it would result in an agonizing death. RT 1167-1168. He

5 did not dispute it would be painful, but did not think a surgical plane of anesthesia was necessary

6 to oblate any associated pain. RT 1047-1050. A large dose of potassium would not constitute a

7 sufficient stimulus to restore consciousness. RT 1052.

8

ARGUMENT

9

CALIFORNIA'S LETHAL INJECTION PROCEDURE IS

10

CONSTITUTIONAL

11

At the outset of the evidentiary hearing the Court explained that the issue in this case is

12 not the "morality or the effectiveness or the desirability of capital punishment," nor is it about

13 "lethal injection in the abstract." Rather, the issue "is California's implementation of lethal

14 injection." RT 190-191. Plaintiffs Second Amended Complaint purportedly seeks to enjoin his

15 execution pursuant to the current version of OP 770, not to prevent him from being executed at 16 all.~ In an attempt to make his case Plaintiffrelies on evidence allegedly demonstrating problems

17 with past executions and argues in reliance on his experts that the current version of OP 770 is

18 constitutionally deficient. Any analysis of a state execution procedure must "look to objective

19 factors to the maximum extent possible." Campbell v. Wood, 18 F.3d 662,682 (9th Cir. 1994) (en

20 banc); Morales v. Hickman, 415 F.Supp.2d at 1039. Dr. Heath's views on the matter

21 notwithstanding, the "critical question in this case 'is not what is optimally desirable,' as, for

22 example in a surgical setting, but rather 'what is minimally required' to avoid a violation of the

23 Eighth Amendment." Patton v. Jones, 2006 WL 2468312 at *3 (10th Cir. 2006). "It is not this

24 Court's function to suggest [a] more humane or medically acceptable execution protocol, but to

25 determine whether the method adopted by [California] is constitutionally sound." Reid v. Johnson,

26

27

23. Indeed, were Plaintiff to seek an order foreclosing the State from executing him at all

he would be required to proceed by way ofhabeas corpus rather than under 42 U.S.C. § 1983. Hill

28 v. McDonough, 126 S.Ct. 2096, 2103-2104 (2006).

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1 333 F.Supp.2d 543,548 (E.D. Va 2004).~/

2 A. Applicable Constitutional Standards

3

A punishment is cruel within the meaning of the Eighth Amendment when it involves

4 "torture or lingering death." There must be "something inhumane and barbarous-something more

5 that the mere extinguishment oflife." In re Kemmler, 136 U.S. 436,447 (1890). The Constitution

6 "forbids the infliction ofunnecessary pain in the execution ofthe death sentence." Louisiana ex rei.

7 Francis v. Resweber, 329 U.S. 459, 463 (1947). Simply put, "the punishment must not involve the 8 unnecessary and wanton infliction of pain. " Gregg v. Georgia, 428 U.S. 153, 173 (1976) (opinion

9 of Stewart, Powell, and Stevens); accord Wilson v. Seiter, 501 U.S. 294,297 (1991).

10

Plaintiff"is not entitled to a painless execution, but only to one free ofpurposeful cruelty.

11 [Citation omitted.] The risk of accident cannot and need not be eliminated from the execution

12 process in order to survive constitutional review." Campbell v. Wood, 18 F.3d at 687. Accord

13 Malicoat v. State, 137 P.3d 1234, 1238 (Ok. 2006); Bieghler v. State, 839 N.E.2d 691,695 (Ind.

14 2005) (there is "no authority for the proposition that [a condemned inmate] is entitled to a 'pain

15 free' execution"). "Thus, only that unnecessary pain that [Plaintiff] is likely to experience which

16 is 'serious' or 'significant' will be weighed." Reidv. Johnson, 333 F.Supp.2d 543,551 (E.D. Va.

17 2004). Neither the "risks involved in virtually every method of execution," Beardslee v. Woodford,

18 395 F.3d 1064,1075 (9th Cir. 2005), nor "an unforeseen accident," Francis v. Resweber, 329 U.S.

19 at 464, can support Plaintiff s claim for relief. "Plaintiffcannot rely on the possibility ofsomething

20 going wrong during an execution as the grounds for substantial risk ofhann." Walker v. Johnson, 21 _ F.Supp.2d _,2006 WL 2619857 (E.D. Va. 2006).~2/ Rather, he has the burden of proving

22 that OP 770 will actually result in the infliction of unnecessary and wanton pain. See Overton v.

23 Bassetta, 539 U.S. 126, 132 (2003) (the burden is not on the state to prove the validity of prison

24

25

24. By contrast it is the state's duty-not as a matter of constitutional compulsion, but in the

26 sound discharge of its governmental responsibilities-to continuously explore and reassess its

protocol, with a view toward enhancing its effectiveness and otherwise improving it. We discuss

27 this point more fully in response to the Court's questions.

28

25. A copy of this opinion was introduced at the hearing as Exh. 147.

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1 regulations "but on the prisoner to disprove it").

2

B. There Is No Evidence That Any Prior Execution Resulted In The Unnecessary And

3

Wanton Infliction Of Pain

4

Plaintiff attempts to demonstrate that in some prior executions using 5.0 grams of

5 thiopental the inmate might have been conscious when the pancuronium and potassium were

6 injected, thus resulting in the infliction of unnecessary pain to an inmate unable to report his

7 condition. Although Dr. Heath opined at some length about things that might have gone wrong in

8 prior executions, "speculation" alone will not suffice to make Plaintiffs case. Abdur'Rahman v.

9 Bredesen, 181 S.W. 292, 308 (Tenn. 2005). While Dr. Heath could not say whether California had

10 ever performed a humane execution, RT 55, he admitted a lack of information to assert that any

11 inmate was conscious when the pancuronium or potassium was delivered. RT 730.?:2! The

12 complaint, Dr. Heath, and this Court's February 14 order identified several issues relating to past

13 executions.

14

1. IVs And Delivery Of Drugs

15

Under the original version of OP770 only the right arm IV was used to deliver the drugs,

16 with the left arm as a backup. It is undisputed that the left arm IV was not properly set or

17 functioning during the execution ofStanley Williams. There is, however, no evidence that the right

18 arm IV failed in that or any other execution. The likelihood that an IV could fail to deliver

19 sufficient thiopental to render the inmate fully unconscious, but nonetheless allow for enough

20 pancuronium to result in paralysis and sufficient potassium to cause pain and death, "is so remote

21 as to be nonexistent." Reid v. Johnson, 333 F.Supp.2d at 551; see RT 1053-1056; Walker v.

22 Johnson, 2006 WL 2619857 at *4 (failure to deliver the first drug but not the others through the

23 same IV "cannot reasonably be expected," and is "not a reasonably foreseeable problem with the

24 protocol"). Although Dr. Heath criticized the preparation ofthe syringes and mixing ofthe drugs,

25 he could not state that in any execution the drugs were not delivered or were delivered in the wrong

26

27 26. Dr. Heath also commented that he could not "think of another state where there's been
28 more discovery provided." RT 665.

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1 sequence. RT 765.?:1!

2

Dr. Heath described delivery ofpancuronium as the "cosmetic" phase of the execution,

3 insisting that its use could prevent an inmate from reporting that he was in pain from the potassium.

4 RT 455,460; Exh. 141. He insisted that its only purpose in the process was to block involuntary 5 movements associated with the end of life, RT 460-461, but conceded he was unaware of any 6 statements by California officials describing that as the reason for using pancuronium, nor had he 7 seen any evidence ascribing such a motive for its use in Texas. RT 707-708. As Dr. Ekins and Dr.

8 Singler explained, however, pancuronium effectively blocks the automatic drive to breath, 9 preventing respiratory effort by paralyzing the diaphragm, and thereby providing additional

10 assurance that the inmate does not regain consciousness. RT 873-874, 958-959, 1033-1034, 115911 1160, 1173-1174. Use of pancuronium does not violate Plaintiffs constitutional rights. 12 Abdur 'Rahman v. Bredesen, 181 S.W.3d at 307 ("usingPavulon in the lethal injection protocol does 13 not violate contemporary standards of decency").l§'

14

2. Bonin Execution

15

The log for William Bonin, the first lethal injection execution conducted by California,

16 notes that he was given pancuronium at 0009 and at "0010 2nd Pavu10n given," Exh. 29, raising

17 a question during the litigation over why a second dose ofthe paralytic drug was administered. The

18

19

27. Plaintiff introduced evidence reflecting on the adequacy of the record keeping by San

20 Quentin's pharmacy as it relates to distribution of thiopental. Dr. Heath conceded that it was

impossible to determine from the records whether any drugs were diverted or if any inmate was not

21 given the full dose of thiopental. RT 521-523. Plaintiffs "diversion" theory, which indulges the

22 unsubstantiated and utterly implausible assumption that thiopental is a commodity worth diverting

in the first place, see RT 846-847, provides no support for his claim that the execution procedure

23 violates the Eighth Amendment.

24

28. Dr. Heath relied in part on articles relating to ethical limits on neuromuscular blocking

agents such as pancuronium during end-of-life care. RT 462-466. He did agree, however, that the

25 ethical dilemma arises particularly in cases where the patient is taken offofa ventilator. Under those

26 circumstances the depressive effect ofthe pancuronium on respiration would hasten death, an effect

that a physician cannot ethically promote. RT 780-781. See Exh. 63 at 2 (noting that use of

27 neuromuscular blocking agents at end oflife and "their ethical implications have not been thoroughly

explored"). By contrast, in the context of an execution, hastening death is an objective that prison

28 officials may legitimately pursue; indeed, some would argue that they are obligated to do so.

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1 record demonstrates that the version ofOP 770 in place at the time provided for the delivery of one

2 syringeofthiopental and "two syringes" ofpancuronium. Exh. 67; Exh. 78 at 44. There is nothing

3 in the record to suggest that the notation reflected anything other than administration ofthe second

4 syringe, as called for under the procedure. The Bonin execution, which took five minutes, provides

5 no support for Plaintiffs claims.

6

3. Delivery Of Additional Potassium

7

The record establishes that four inmates were given an additional dose ofpotassium. UF

8 125. In one case the execution log notes the inmate exhibited an "agonal rhythm" on the EKG

9 before the second dose, Exh. 8A, while another displayed an "idioventricular rhythm." Exh. 12A.

10 Both are indications the inmate was dying. RT 1045-1047. Dr. Singler thought the failure of the

11 drugs to act with complete effect more quickly was most likely attributable to a shock to the

12 circulatory system occasioned by the effects of thiopental. RT 956-957. Dr. Heath conceded that

13 the subsequent doses ofpotassium could have been related to depression of the circulatory system.

14 RT 831. Some states have a policy ofproviding additional potassium ifdeath does not occur within

15 a specified amount of time. See Walker v. Johnson, 2006 WL 2619857 at *1 (noting that in nine

16 of sixty-six executions Virginia administered additional potassium). That the inmates all expired

17 shortly after delivery ofthe backup dose ofpotassium defeats any suggestion that the IV had failed;

18 rather, it confirms that delivery of the thiopental was entirely successful and that the drug was, if

19 anything, "too" effective. RT 1043.

20

4. Execution Witnesses

21

Plaintiffintroduced testimony from witnesses to several executions in North Carolina and

22 to the Anderson execution in California. Given Plaintiff s failure to establish that the amounts of

23 drugs and procedures used for any of the North Carolina executions were similar to the drug

24 amounts and procedures in California, that testimony lacks a foundation and should not be

25 considered. See Campbell v. Wood, 18 F.3d at 685-686 (finding no abuse of discretion in district

26 court's refusal to consider evidence of hanging executions under procedures different from those

27 used in Washington). In any event, none of the witnesses could say whether the behavior they

28

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1 observed was purposeful or reflexive, whether the inmates were conscious, or whether they were

2 in pain. RT 211-213,232-233, 234-235, 248-249. It is unlikely a lay observer watching from

3 outside the chamber could determine whether movements were voluntary or reflexive. RT 1024.

4 "There is no way for this Court to determine, years after those executions, whether eyewitness

5 reports ofmovement were accurate or signified anything with regard to those defendants' conscious

6 or unconscious state." Malicoatv. State, 137 P.3d at 1238; see Cooperv. Rimmer, 379 F.3d 1029,

7 1033 (9th Cir. 2004) (noting that the possibility of unnecessary pain and suffering based on the

8 observations of execution witnesses is "purely speculative"). Any reliance on the witness 9 observations to support relief is misplaced.~

10

5. Respirations

11

The printed execution log includes a box for recording "respirations." The form is filled

12 out by one ofthe doctors attending the execution. See Morales v. Hickman, 415 F.Supp.2d at 1044,

13 fn. 10 (noting that "respirations" was the term used by CDCR on the printed form). Dr. Calvo and

14 Dr. St. Clair described the manner in which they counted "respirations" for the form. UF 65, 73.

15 "While there is no direct evidence that any condemned inmate actually was conscious when

16 pancuronium bromide was injected," the Court nonetheless noted that based on its review of the

17 execution logs breathing "may not have ceased" as soon as expected in six ofthe eleven California

18 lethal injection executions. Morales, 415 F.Supp.2d at 1046. The Court's concern about this

19 anomaly was explored at the hearing.

20

21

22 29. In a 1994 order finding California's lethal gas protocol unconstitutional, the District
23 Court described observations oflay witnesses as "objective data upon which medical judgments are 24 based," but noted such witnesses "may be less reliable than observations ofmedical personnel." The
Court also "gave much less weight" to the testimony oflay witnesses with a personal relationship 25 to the condemned inmate because their observations "were necessarily shaded by the passion of an
emotionally-charged event." Fierro v. Gomez, 865 F.Supp. 1387,1400 & tn. 18 (N.D. Cal. 1994).
26 Each of the three witnesses who testified at the hearing had previously represented and befriended 27 the inmates whose executions they observed and each described the event as painful, unpleasant, or
uncomfortable. RT 213,233,234-235,247-248. Their testimony should be further discounted for 28 the reasons discussed in Fierro.

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1

Dr. Heath was eager to credit the doctors with having observed actual breathing as

2 opposed to respiratory efforts. RT 535. He conceded, however, that he could not know whether

3 this was correct. RT 537-538, 730-731. Indeed, without a good view it would be difficult to

4 distinguish between breathing and mere effort. RT 732-733. Dr. Heath acknowledged that he

5 himself had criticized certain features of the execution procedure which made it difficult for the

6 doctors to accurately observe and report any movements by the inmates. RT 736-739.

7

Dr. Singler explained there is a difference between voluntary breathing (true respirations)

8 and involuntary respiratory effort, noting that even physicians could have difficulty distinguishing

9 between them, particularly from a remote location. RT 1017-1020, 1143. There was insufficient

10 information in the records or the testimony of the doctors to differentiate after the fact between

11 effective respiration and respiratory effort. RT 1020-1021,1144-1146.

12

According to Dr. Ekins, one would expect visible manifestations ofbreathing to disappear

13 within a minute or less after receiving 5.0 grams of thiopental, but automatic, reflexive efforts at

14 breathing could continue until the pancuronium was delivered. All efforts might cease within a

15 minute or two after administration of pancuronium. RT 953-955. The logs report cessation of

16 "respiration" after delivery of the thiopental and simultaneously with delivery of the pancuronium 17 in three cases. Exh. 20 [Bonin]; Exh. lOA [Rich]; Exh. 15A [Allen]. Two logs do not indicate

18 when "respiration" ceased but note zero in the respiration column at the time pancuronium was 19 begun. Exh. 13A [Beardslee]; Exh. 14A [So Williams]. In two executions "respirations" ended one 20 minute after delivery of pancuronium, Exh. 25 [K. Williams]; Exh. 8A [Siripongs]; in one

21 execution "respirations" ceased two minutes after pancuronium, Exh. 9A [Babbitt]; and in another

22 the noted ending for "respirations" occurred at three minutes after pancuronium. Exh. 12A

23 [Anderson]. The longest delay between delivery of pancuronium until the reported cessation of 24 "respirations" was four minutes in the Massie execution. Exh. 12A.2.Q1

25

26

30. There is no indication that the recorded times expressed in terms ofthe hour and minute

27 of the day necessarily reflect the elapse of full-minute units. For example, ifthe starting point of an

event recorded as "12:01" actually began at 12:01 :59 and its endpoint, recorded as "12:04" actually

28 occurred at 12:04:01, the duration between those events would appear to have been three minutes,

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1

Except for Massie and possibly Anderson all ofthe reports are consistent with Dr. Ekins'

2 time line, assuming the accuracy ofthe time reports. See footnote 30. More importantly, the minor

3 variations do not constitute objective evidence that either Massie or Anderson was subjected to the

4 willful and wanton infliction ofunnecessary pain. Indeed, there is no evidence the inmates suffered

5 any pain at all. Unlike Fierro v. Gomez, 865 F.Supp. at 1401-1403, where the Court noted

6 descriptions of volitional behavior by the inmates after exposure to the lethal gas and before they

7 appeared to become unconscious, there is no description from any California lethal injection

8 execution ofbehavior that could be fairly characterized only as voluntary and purposeful. Because,

9 as Dr. Heath admitted, there is insufficient evidence to conclude that any California inmate was

10 actually conscious when either pancuronium or potassium was delivered, RT 730, any reliance on

11 the logs-reflecting on uncertain events, measured imperfectly-to carry Plaintiffs burden would

12 be speculative at best and insufficient to warrant relief.l!.l As Dr. Ekins explained, variations in the

13 execution logs cannot be fully explained without knowing what the doctors were measuring and

14 what it meant. RT 959. On this record one cannot "speculate on whether mistakes may have been

15 made in past executions." Malicoat v. State, 137 P.2d at 1238 (rejecting testimony from Dr. Heath).

16

17

18 although the event actually spanned only two minutes and two seconds. Rounding up or down would result in similar imprecision: A 62-second event occurring between 12:15:29 and 12: 16:31
19 would be recorded as a two-minute event. Dr. Calvo, who filled out the log for both the Massie and 20 Anderson executions, UF 64-65, stated that he began measuring "respirations" when he heard an
instruction to deliver each ofthe drugs. UF 66. He was also noting the time of those events as they 21 occurred adding further impression to the process. Dr. Heath admitted that the standard way of
measuring respiratory rate is "not a precise method," RT 736, and that rounding the time up or down 22 by the doctors could have affected the time lines on Exh. 74. RT 735-736. Our point is not to
criticize the doctors who kept the logs, but to demonstrate that reliance on the reported times is a 23 wholly insubstantial basis for suggesting that any past execution violated the Eighth Amendment.

24

31. Dr. Heath described the execution logs as "sort ofhybrid" in that they were documenting

25 on the one hand the induction of anesthesia, which he characterized as a medical procedure, but, on

the other hand, were also documenting "non-medical things such as giving potassium." RT 742.

26 Defendants submit the logs are not medical records at all, but rather are intended solely to document

27 the fact that the inmate was executed pursuant to the judgment and death warrant. Because the level

of precision one would expect to see reflected in a medical record is simply not applicable to the

28 execution logs, these logs cannot be put, in a post hoc manner, to the purposes Plaintiff proposes.

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1 C. There Is No Evidence To Establish That Any Execution Under The Current Version OfOP 770 Will Result In The Unnecessary And Wanton Infliction Of Pain
2

3

Plaintiff argues that execution under the current protocol will subject him to pain and

4 suffering. In attempting to prove this claim he relies almost exclusively on the testimony and

5 opinions of Dr. Heath. As summarized above, Dr. Heath, an anesthesiologist, criticized at great

6 length virtually every aspect of California's lethal injection protocol, from its formation to its

7 implementation. He attacked, inter alia, the selection, background, and training ofexecution team

8 members; their powers of recall; the prison's record keeping procedures; the perceived

9 preoccupation of the state on ensuring that its procedure is constitutional, rather than "humane" as

10 measured by some non-legal standard; and the manner in which CDCR chose to defend against the

11 instant lawsuit. At some point Dr. Heath's extensive second-guessing and unrelenting criticism

12 "begins to look less like the rational thought process of a detached scientist and more like the biased

13 rationalizations of a professional who is wedded to his own particular theories." Fierro v. Gomez,

14 865 F.Supp. at 1404.w Neither his testimony, nor anyofthe other evidence introduced by Plaintiff,

15 supports the claim for injunctive relief. We discuss what Defendants perceive to be Dr. Heath's

16 principal complaints.

17

1. Monitoring And The Presence Of A Physician

18

The central focus of Plaintiffs case is the alleged need for a medical professional to

19 monitor anesthetic depth throughout the execution. Because California uses potassium in its

20

21 32. There is also a "bait-and-switch" feel to some of Dr. Heath's opinions. For example, he
22 had insisted in this case, Exh. 53 at 9, and in an earlier challenge to California's protocol that a continuous infusion of thiopental was "essential." Exh. 57 at 8. Although OP 770 now includes a
23 continuous infusion of thiopental, Dr. Heath has remained critical of the protocol, expressing 24 surprise that California would adopt his suggestion while reducing the initial dose ofthiopental. RT
624-625,691-694. Similarly, Dr. Heath complained in another California case about the provision 25 in OP 770 that made Valium available to inmates prior to the execution. Exh. 57 at 8. Now that the
provision for Valium has been deleted, Dr. Heath endorses Dr. Ebling' s suggestion that 26 premedication with a drug such as Valium might reduce anxiety and allow the thiopental to operate 27 more efficiently in some inmates. RT 546-547. Dr. Heath claims that what he really meant by his
earlier criticism was that CDCR should not give the inmate enough Valium to build up a tolerance 28 to it. RT 684-685.

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1 protocol, Dr. Heath insisted that it is necessary to deliver an anesthetic drug first and to that extent

2 the execution has the attributes of a medical procedure. RT 742-744. Although the state, even in

3 the current version ofOP 770, is using a large overdose of thiopental, the "medical" component of

4 the procedure requires that the inmate reach a surgical plane ofanesthesia; this, in Dr. Heath's view,

5 requires someone with medical training, preferably an anesthesiologist, to be present to monitor and

6 ensure that the necessary depth is achieved and maintained. RT 478, 480, 484-485, 487. Although

7 the AMA and American Society of Anesthesiologists ethical guidelines preclude any physician

8 involvement in an execution, see Exh. 62, and Dr. Heath personally believes it would be unethical

9 for any physician to participate in the manner he would require, RT 674-675, he nonetheless insists

10 that the state should be required to find a doctor whose ethics depart from those of his profession

11 and who would be willing to act in violation of professional ethical standards. RT 749, 791-792.

12 Despite the problems that resulted in this case when efforts were made to expand the scope of the

13 anesthesiologists' role in the execution procedures, as described in Dr. Singler'S testimony, RT

14 977-979,982-983, and the inability of Missouri to find a doctor who would undertake the tasks 15 mandated by a federal court orderlll, RT 676-677, Dr. Heath remains confident a doctor can be

16 found. In his view Missouri had simply made an inadequate effort. RT 484-485,676-677.

17

The central flaw in this argument lies in its mistaken premise-that an execution should

18 be treated like a medical procedure. "An execution by lethal injection is not a medical procedure

19 and does not require the same standard of care as one." Walker v. Johnson, 2006 WL 2619857 at

20 *4. In rejecting a similar claim the Connecticut Supreme Court observed that the "circumstances

21 surrounding an execution do not require" the "delicate balance between unconsciousness and death"

22 that applies in a surgical setting. State v. Webb, 750 A.2d 448,456 (Conn. 2000). Both Dr. Ebling

23 and Dr. Heath conceded that the concerns in a clinical setting are much different from those

24 applicable to an execution. RT 367-368, 744-745. Simply put, "the circumstances surrounding an

25 execution, namely the extreme doses and ultimate objective, are unique to the execution process."

26 State v. Webb, supra. Unlike a medical procedure, an execution is not a life-saving action. Indeed,

27

28

33. Taylor v. Crawford, 2006 WL 1779035 (W.D. Mo. 2006).

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 40 of 51

1 it is the antithesis, a life-terminating action.

2

Because the analogy to a medical procedure fails, Plaintiff's insistence that a doctor be

3 present to measure anesthetic depth must also be rejected. Absent a showing that the drugs will or

4 ever have failed in their intended purpose, there is no reason to have a doctor involved. Moreover,

5 the experience in this case and in Missouri demonstrates that requiring a doctor to be present to

6 manage the execution in the manner demanded by Dr. Heath would be all but impossible for

7 Defendants to satisfy. A court may not place "totally unrealistic conditions" on use of the death

8 penalty. Gregg v Georgia, 428 U.S. at 199, fn. 50 (opinion of Stewart, Powell, and Stevens).

9 Defendants should not be put to the task finding a doctor willing to contravene AMA ethical

10 requirements, especially where Plaintiff has failed to show that any California condemned inmate

11 has ever suffered unnecessary and wanton pain during the execution process due to the improper 12 delivery of thiopental.d11

13

2. Application Of AVMA Guidelines

14

Dr. Heath, supported by Dr. Concannon, a veterinarian, argued that the AVMA

15 Guidelines on Euthanasia, Exh. 42, should be consulted and followed in formulating a lethal

16 injection policy. Both experts acknowledged the AVMA has warned that the guidelines are not

17 intended to apply to executions nor should they be extrapolated from animals to humans. RT 272-

18 274, 660, 719-720; Exh. 47. Nonetheless, Dr. Heath agreed to testify in this case because

19 California's procedure "doesn't comply or comport with veterinary standards," RT 439, and was

20 incredulous that anyone would think otherwise. RT 667, 671. Nonetheless, the district court in

21 Virginia found "the standards of animal euthanasia [have] no bearing on death penalty matters."

22 Walker v. Johnson, 2006 WL 2619857 at *5; see also Abdur'Rahman v. Bredesen, 181 S.W.3d at

23

24

34. Even ifDr. Heath's demand for an anesthesiologist's participation could be satisfied (and

it certainly cannot credibly be asserted that the failure to provide for such is an "easily correctable"

25 feature, RT 441 , ofthe existing protocol), the "cure" he prescribes would only spawn more litigation.

See, e.g., Sims State, 754 So.2d 657, 667 (2000) (finding claim that physicians and nurses would

26 violate professional ethical norms by assisting in an execution "has no impact on the

27 constitutionality" of lethal injection executions). California has already litigated a similar issue,

Thorburn v. Department ofCorrections, 66 Cal.App.4th 1284 (1998), and would likely face it again

28 if required to include a physician as an active participant in the execution.

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 41 of 51

1 312-313 (rejecting testimony from Dr. Heath and a veterinarian that state animal euthanasia

2 standards should be applied to lethal injection protocol). As Dr. Concannon testified, the fact a

3 particular method of execution might be deemed constitutional would not justify its use in animal

4 euthanasia. RT 279. Neither should the procedures adopted by the AVMA for animal euthanasia

5 be extrapolated to human executions.

6

3. General Procedural Complaints

7

Dr. Heath voiced a number of objections to the development and implementation of OP

8 770. None establish that the protocol is unconstitutional.

9

According to Dr. Heath, it was inappropriate for California to rely on the procedures used

10 in other states as the basis for its own protocol, regardless whether those procedures have been

11 found constitutional. 597,601,612,625-626,659-660. Rather, he believes state officials should

12 have conducted a "ground-up" evaluation of California's protocol. RT 597. There is, however,

13 "nothing arbitrary, irrational, improper or egregious" in a state's development ofits lethal injection

14 procedure based on "studying the lethal injection protocols of other states and the federal

15 government and by using those protocols as models for the creation" of OP 770. Abdur'Rahman

16 v. Bredesen, 181 S.W.3d at 310 (state procedure developed by committee consisting of corrections

17 officials but no physicians or medical personnel which studied other state protocols and eventually

18 adopted Texas procedures); see also Bieghler v. State, 839 N.E.2d at 696 (developing the state

19 protocol "without input from a person trained in clinical anesthesiology" provided no basis for

20 relief).

21

Dr. Heath criticized every aspect of the state procedure from selection of the team

22 members~ to the physical layout of the execution chamber. He identified a number of concerns

23 about the manner in which the execution is conducted, any of which might in his opinion result in

24

25 35. Plaintiffintroduced evidence challenging the background ofsome past and present team
26 members. None of those complaints demonstrate that the execution protocol is unconstitutional or 27 that any executed inmate was subjected to the imposition ofunnecessary pain. Indeed, as explained
in Defendants' motion in limine, the evidence has no probative value and should not be considered
28 in resolving the issues before the Court.

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 42 of 51

1 the unnecessary infliction of pain. But, "[t]here is simply no reason to believe the speculative list

2 of horribles described" by Dr. Heath. Reid v. Johnson, 333 F.Supp.2d at 551 (referencing Dr.

3 Heath's testimony in that case). A court cannot foreclose all chance of human error, but given the

4 record and the lack of evidence demonstrating a failure in the past, "the possibility of a 'botched'

5 execution is extremely remote." State v. Webb, 750 A.2d at 456; see also Abdur'Rahman v.

6 Bredesen, 181 S.W.3d at 308 (court "cannot judge the lethal injection protocol based solely on

7 speculation as to problems or mistakes that might occur," rejecting testimony by Dr. Heath)

8 (emphasis in original). The "possibility of something going wrong during an execution" does not

9 establish the "substantial risk of harm" that Plaintiff is required to prove in order to obtain relief.

10 Walker v. Johnson, 2006 WL 2619857 at *4.

11

What "could be done to update or even improve the protocol is not the appropriate legal

12 inquiry ...." Abdur'Rahman, 181 S.W.3d at 309. Rather, the issue is whether Plaintiffhas proven

13 an "unnecessary risk of unconstitutional pain or suffering ...." Cooper v. Rimmer, 379 F.3d at

14 1033. Because he has not, he is not entitled to relief.

15

RESPONSE TO REQUEST FOR BRIEFING

16

In an order filed October 3,2006, the Court propounded several questions to the parties.

17 Doc. 256. Defendants' response follows. (Several ofthe issues have already been touched upon in

18 argument; as to those matters, we provide any necessary amplification here.)

19

"1. In light of the evidence in the record, what steps can and should Defendants

20 take to improve their actual implementation ofthe three-drug protocol described in OP 770?

21 In answering this question, please address, without limitation:

22

(a) the qualifications, recruitment, screening, and training ofthe execution team;

23

(b) the physical aspects of the execution chamber and apparatus, including the

24

available space, lighting, sight lines, length and positioning of IV tubing, and

25

monitoring equipment; and

26

(c) record-keeping, including the preparation, content and reliability of execution

27

logs and records indicating the disposition of drugs used in training and in

28

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 43 of 51

1

executions.

2 The Court is particularly interested in the parties' views as to whether the experience of other

3 jurisdictions that use a three-drug execution protocol might be useful with respect to these

4 matters."

5

Response to this question entails consideration of several interlocking issues: Is the

6 current version of OP 770 unconstitutional and if not, is there any basis for a federal court to order

7 changes in the procedure? If the current protocol is unconstitutional, does a federal court have the

8 authority to compel a state to adopt an execution protocol which includes specific conditions?

9 What, if any, obligation does a state have to regularly modify or amend its execution protocol? The

10 response also depends to some extent on how much, ifany, credence should be given to Dr. Heath's

11 opinions regarding what might be an acceptable lethal injection procedure and how it should be

12 developed.

13

Defendants appreciate that the testimony and exhibits at the hearing highlighted areas in

14 which the state execution procedure might arguably be improved, not because the current version

15 is unconstitutional, but because it can be made to operate in a more efficient manner. For example,

16 issues pertaining to crowding in the antechamber, the amount oflighting, positioning ofthe IV bags,

17 and testing of the IVs after being set can (and will) be explored by the warden and members of the

18 execution team. The pharmacy's procedure for tracking the drugs used by the team for practice and

19 executions should be improved. Not surprisingly, other states faced with similar legal challenges

20 have made changes or improvements based on information developed in the litigation. See, e.g.,

21 Patton v. Jones, 2006 WL 2468312 at *3 (noting revisions made to Oklahoma protocol after suit

22 filed and while denial of relief was on appeal). Absent a showing that some aspect of the state's

23 procedure is so flawed as to unreasonably risk the imposition of wanton and unnecessary pain, a

24 showing that Plaintiffhas been unable to make, changes or modifications may be encouraged, but

25 enforcement of Plaintiff s death judgment may not be conditioned on such changes. See Taylor v.

26 Crawford, 457 F.3d 902, 904 (8th Cir. 2006) (while district court clearly had authority "to

27 determine the constitutionality ofthe then existing execution procedures originally presented, to set

28

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 44 of 51

1 forth in detail its reasons for such holding, and to enter its ... order," and to grant an injunction or

2 to deny relief totally or conditionally, circuit court questioned whether the district court had the

3 equitable power to order state to adopt a revised lethal injection protocol).

4

Similarly, the Court, like Defendants, might profitably look to the experience in other

5 states when reviewing California's procedure. However, as Dr. Heath noted, no two state protocols

6 are exactly alike. RT 663. Many of the differences may be the result of state-specific restrictions

7 on where the execution is to take place,d§! or physical limitations relating to the mandated location 8 or other court orders.lZI As such, procedures that are workable in one jurisdiction simply might not

9 be feasible in another. In any event, as discussed above, the ultimate inquiry must be the

10 constitutionality of California's protocol, not a comparative analysis with other jurisdictions.

11

It should also be noted that this case "is but one of hundreds of similar complaints that

12 have made their way to the federal court system in recent years." Lenz v. Johnson, 443 F.Supp.2d

13 785, 792 (E.D. Va. 2006). That they involve "a familiar procedural history, substantially

14 overlapping facts, and nearly identical arguments to many similar complaints that have been

15 rejected ... in other federal courts across the country," id., has not deterred a rash of new, even

16 successive, filings. Williams v. State, _ S.E.2d _,2006 WL 2659781 (Ga. 2006) (noting that

17 defendant's challenge "failed to identify any particular aspect ofthe evidence admitted in the trial

18 court that would require this Court to depart from its prior decisions holding lethal injection to be

19 a constitutional form of execution"). Indeed, the evidence in this case demonstrates that 20 incorporating procedures found sufficient in one state will not satisfy Plaintiff and his expert. See,

21 e.g., RT 839-842 (where Dr. Heath opines that the Virginia procedures outlined in Walker v.

22 Johnson, Exh. 147, a case in which he signed a declaration challenging the state protocol, RT 794,

23
24 36. For example, California law mandates that executions be conducted at San Quentin State
25 Prison. Cal. Penal Code § 3603.

26

37. For example, in California federal court orders require all procedures from the time the

27 inmate is brought into the chamber until death is pronounced, including insertion ofthe IVs, be done

in full view of all the witnesses. California First Amendment Coalition v. Woodford, 299 F.3d 868

28 (9th Cir. 2002).

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 45 of 51

1 ameliorated some of the flaws he perceives in OP 770, but declines to endorse their adoption); RT

2 714-715 (where Dr. Heath opposes adoption of New Jersey's elimination of pancuronium as

3 inconsistent with "due diligence"); RT 704-705 (where Dr. Heath acknowledges that he had raised

4 complaints similar to those about California when testifying one week earlier in Maryland). The

5 simple fact is that some people will never be satisfied no matter what the Court orders or the state 6 does~/

7

Questions relating to the selection of execution team members are even less susceptible

8 to intervention by the courts. Personnel assignments are quintessentially a matter of state

9 prerogative. See Turner v. Safley, 482 U.S. 78, 89 (1987). The warden is responsible for approving

10 the team. Beyond second-guessing the wardens, which Dr. Heath freely did, Plaintiff suggests no

11 good reason for this Court to mandate procedures for selecting members ofthe execution team. To

12 conclude otherwise risks "permanent judicial intervention in the conduct of governmental

13 operations to a degree inconsistent with sound principles of federalism and the separation of

14 powers." Garcetti v. Ceballos, 126 S.Ct. 1951, 1961 (2006). Similarly, the type and amount of

15 training is an issue best left to the team members and the warden. In short, while CDCR can

16 review, reassess, and modify its procedures as necessary, there is no constitutional basis for

17 compelling it do so.

18

"2. Assuming the continued use of pancuronium bromide and potassium chloride

19 in executions, what are the advantages and disadvantages of using a longer-acting

20 barbiturate, such as pentobarbital, with or without the use of a narcotic, to induce

21 unconsciousness? What modifications to OP 770 would be necessary?"

22

There is no provision of state law that would preclude CDCR from using pentobarbital,

23 or any other drug, instead ofthiopental, and the warden at San Quentin could simply modify OP 770

24

25

38. For example, in Missouri, the federal court, at Dr. Heath's suggestion, required, inter

alia, a physician to mix the drugs and at least observe their delivery, the use ofno less than 5.0 grams

26 ofthiopental, monitoring of anesthetic depth, and a contingency plan, Taylor v. Crawford, 2006 WL

27 1779035 at *8-*9. Nevertheless, the most Dr. Heath will say about Missouri is that it is "coming

very close" to a humane protocol, RT 438-439, but only ifthe state incorporated all ofthe procedures

28 ordered by the court. RT 703-704. We note that the Missouri case is currently on appeal.

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1 to reflect that change. As discussed above, Plaintiff has failed to carry his burden of proving that

2 the current procedure is unconstitutional or, more importantly for purposes ofthis question, that use

3 of thiopental poses an unacceptable risk that unnecessary pain will be inflicted by the process. To

4 that extent, there is no constitutional compulsion for Defendants to change. There is certainly

5 nothing in the record to suggest that making such a change would render the execution process any

6 more or less acceptable from an Eighth Amendment standpoint, much less insulate it from

7 Plaintiffs ever-evolving and unrelenting criticisms.

8

Thiopental is an ultrafast-acting barbiturate, meanmg that it both rapidly causes

9 unconsciousness and also wears off more quickly than some other similar drugs. RT 815-816.

10 There is no dispute, however, that thiopental is "a very good induction agent." RT 815. Dr. Singler

11 used it almost exclusively for twenty years, primarily for inducing unconsciousness but also as the

12 exclusive agent for some shorter procedures. RT 1007-1009. While it is possible that thiopental

13 could wear off, that seems improbable at the excessive doses used in executions, particularly with

14 the current provision for a continuous infusion after the initial bolus overdose. Dr. Singler testified

15 that he would expect a 1.5 gram dose of thiopental to result in unconsciousness sufficient to

16 withstand painful stimuli within a minute, and to provide deep anesthesia for at least 12 to 15

17 minutes, more than enough time to complete the execution. RT 1014-1015.fV Even Dr. Heath

18 conceded that thiopental could cause unconsciousness in as little as 30 seconds after delivery of 1.5

19 grams, and that it could last several tens of minutes. RT 697-699.

20

By contrast, Dr. Ebling described pentobarbital as "a sluggish barbiturate that has slow

21 onset and slow offset." RT 425; accord RT 1190.±Q/ In other words, it takes longer to get to the

22 requisite anesthetic depth, but "it won't boil off' as quickly once delivery is suspended. RT 426.

23

24 39. In his clinical practice Dr. Singler found that substantially lower doses of200 to 300 mg
25 were sufficient to maintain a surgical plane of anesthesia for five to ten minutes. RT 1011-1014.

26

40. In the meeting at the Governor's office Dr. Singler identified pentobarbital as a longer-

27 lasting barbiturate, particularly for a single-drug protocol. RT 1079-1080. He also mentioned a

"medical alternative" using a combination ofthiopental to induce unconsciousness and pentobarbital

28 to maintain it. RT 1082-1083.

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1 Pentobarbital is the drug of choice for veterinarians because it lasts longer, RT 286, and Dr. Heath

2 insisted that when given in high doses (as in animal euthanasia) pentobarbital becomes fast-acting.

3 RT 816-817.

4

Nothing in the record suggests there would be any overall advantage to switching from

5 thiopental to pentobarbital. Absent a change in the delivery system or adoption of Dr. Heath's

6 demand for a physician to monitor anesthetic depth, neither of which is necessary, we think it

7 unlikely a change in the drugs alone would satisfy Plaintiff.i!/ As discussed above, if properly

8 delivered thiopental will quickly result in unconsciousness, and the 1.5 gram bolus dose followed

9 by a continuous infusion of an additional 5.0 grams will maintain the necessary depth of anesthesia

10 for as long as is required to complete the execution. There is nothing in the record to suggest that

11 pentobarbital would be any easier to use or deliver. In short, there is no reason, constitutional or

12 otherwise, to effect a change in the anesthetic drug.

13

"3. Again assuming the continued use of pancuronium bromide and potassium

14 chloride in executions, what steps, in addition to those discussed in response to the first

15 question above, can and should Defendants take to monitor inmates' levels of unconsciousness

16 prior to and following injection of these drugs? For example, would the reliability of the

17 protocol be improved by the use of a BIS monitor or an EEG? Is the involvement of medical

18 professionals necessary, and if so, what type(s) of medical professionals should be involved

19 in what ways? In the context of this question, what would be the advantages and

20 disadvantages of eliminating pancuronium bromide from the protocol?"

21

Defendants' response to this inquiry, as with the first two questions, begins with the

22 caveat that absent proof that the current protocol creates a substantial risk that Plaintiff will suffer

23 unnecessary and wanton pain during the execution, the state is under no legal compulsion to change

24 any aspect of OP 770 or the execution procedure. That does not mean the state is unwilling to

25 review, reassess, and amend its procedures, but the fact that OP 770 might be improved does not

26

27

41. Certainly Plaintiff has not assured the state otherwise. And Dr. Heath, we note again,

was unwilling to give assurances that adoption of the court-ordered procedures in Missouri would

28 preclude further criticism by him.

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 48 of 51

1 establish that legally it must be improved.

2

Although Plaintiff insists that Defendants must continuously monitor anesthetic depth,

3 the record does not support the conclusion that it is constitutionally necessary to do so. We begin

4 by rejecting Plaintiffs assertion that a lethal injection execution must be treated like a medical

5 procedure. As noted above, an execution "is not a medical procedure and does not require the same

6 standard ofcare as one." Walker v. Johnson, 2006 WL 2619857 at *4. All of the experts agree that

7 surgery requires giving enough anesthetic to ensure that the patient will not experience the pain

8 associated with the procedures but not so much that the patient will suffer brain damage or die.

9 State v. Webb, 750 A.2d at 456 (surgery involves "the delicate balance between unconsciousness

10 and death"). Executions do not call for maintaining this delicate balance. To the contrary, the

11 inmate is given a substantial overdose ofanesthetic, enough in most cases to be independently fatal,

12 followed under OP 770 with a continuous maintenance dose until the execution is completed.

13 Monitoring ofthe inmate is functionally unnecessary and certainly not constitutionally compelled.

14

Defendants are nonetheless always prepared to explore modifications to the procedure

15 that would allow for closer examination ofthe inmate during the execution process. One approach

16 might be the use of a BIS monitor but, as has been represented to the Court on earlier occasions,

17 CDCR has been unable to obtain this equipment. See Robert Steinbrook, M.D., New Technology,

18 Old Dilema-}4onitoring EEG Activity During Executions, 354 New Eng. J. Med. 2525 (2006)

19 (noting objections of manufacturer to providing BIS monitor for use in executions). The monitor

20 was approved by the district court in North Carolina, over the objections of Dr. Heath, who insisted

21 that a physician was still necessary to monitor consciousness. Brown v. Beck, 06-3018 (E.D.

22 N.C.).iY Defendants cannot be put to an impossible task, as the imposition of an insurmountable

23 obstacle to performing an execution cannot, by definition, be what the Constitution requires. Use

24 ofan EEG to monitor brain activity and thus anesthetic depth may be feasible, depending upon how

25 much physician involvement was required to monitor and interpret the results, although, again,

26

27

42. Because the relevant orders in that case were not published and are not available in

28 Westlaw, copies are attached as Appendix A to this brief.

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1 Defendants are under no constitutional obligation to use that or any other equipment.~

2

The role of medical professionals has two aspects. Defendants agree that only persons

3 with the appropriate training and certification should be responsible for inserting the catheters

4 through which the drugs are delivered. It is also appropriate to have a physician present to monitor

5 the EKG and pronounce death. However, no additional physicians should be involved, particularly

6 for the purposes of monitoring anesthetic depth and controlling the execution as Dr. Heath would

7 demand.

8

As discussed above, it is unlikely the state could find an anesthesiologist, or any other

9 appropriately trained physician, to do what Plaintiff contemplates. Indeed, the events ofthis case

10 demonstrate our point. Moreover, the state is prohibited from compelling any physician, including

11 CDCR employees, from attending an execution, nor may any personnel action be taken against a

12 physician who declines to attend. Cal. Penal Code § 3605(c). At least one medical professor has

13 made it a practice to lodge complaints with local medical licensing boards against any physician

14 publicallyidentified as having participated in an execution. Jennifer McMenamin, Lethal Practice,

15 Baltimore Sun, October 22, 2006. Requiring that a physician monitor anesthetic depth is

16 unnecessary and would likely prove impossible to implement.

17

The only reason to eliminate the use of pancuronium would, arguably, be to assist the

18 execution team in determining, based on any physical movements the inmate might exhibit or

19 statements he might utter, if he has regained consciousness when potassium is injected. This

20 assumes, of course, that the thiopental is insufficient to establish and maintain unconsciousness,

21 something Plaintiffhas failed to prove. More importantly, and contrary to Dr. Heath's description

22 of it as purely "cosmetic," RT 455, pancuronium facilitates the execution by preventing respiratory

23 effort. Blocking the automatic drive to breath further insures that an inmate does not regain

24 consciousness. RT 873-874, 958-959, 1033-1034, 1159-1160, 1173-1174. There is no advantage

25 to excluding pancuronium and no constitutional mandate to do so.

26

27

28

43. There is currently no EEG monitor at San Quentin.

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 50 of 51

1

"4. What would be the advantages and disadvantages of an execution protocol that

2 achieves its purpose by using one or more sedatives, such as sodium thiopental or

3 pentobarbital, with or without a narcotic, and eliminates the other two drugs that currently

4 are used? Should a single dose, multiple doses, a continuous infusion, or some combination

5 of these be used? What modifications to OP 770 would be necessary?"

6

As stated in response to Question 2, there is no legal impediment to modification ofOP

7 770 to reflect any of the scenarios suggested by this question. The issue, again, is whether there is

8 any compelling reason, constitutional or otherwise, to do so. Defendants do not view a single-drug

9 protocol as a preferable alternative to the current procedure.

10

Dr. Heath testified that because potassium appears to be the lethal agent in most

11 executions, it necessarily takes less time to complete the procedure using at least that drug in

12 combination with thiopental than ifan anesthetic drug were used alone. RT 447-448, 779-780. Dr.

13 Ebling believes that a dose of 1.5 to 3.0 grams of thiopental would be fatal but is not certain how

14 long it would take for death to ensue. RT 420. He did described a death by barbiturate overdose

15 as "ugly" and slow; "it's not pretty to watch." RT 429-430. Dr. Singler estimated that death cause

16 by an overdose ofthiopental alone would take from 20 to 40 minutes. RT 1188-1189. Dr. Heath

17 expressed concern that use of a barbiturate alone could leave the inmate alive but brain damaged.

18 RT 833-835. Because the state has a legitimate interest in ensuring that the execution be completed

19 as expeditiously as possible consistent with its constitutional obligations, any procedure that might

20 extend the process should be discouraged.

21

Including a narcotic with the anesthetic as part of a single-bolus cocktail provides no

22 advantages and has potential disadvantages. At best an execution in which a narcotic-barbiturate

23 combination was utilized might be somewhat shorter than one in which just a barbiturate was

24 employed. RT 1191-1193. Dr. Heath testified that if given enough narcotic any sensation of pain

25 would be blocked, but added, "if the thiopental has gotten in, then you wouldn't need it in the first

26 place." RT 614-615. Moreover, the record demonstrates that even if a narcotic were added to the

27 cocktail Dr. Heath would insist upon monitoring, presumably by a physician. RT 613. Plaintiffhas

28

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Case 5:06-cv-00219-JF Document 269 Filed 11/09/2006 Page 51 of 51

1 not established that use ofa narcotic in conjunction with a barbiturate is constitutionally necessary,

2 or even feasible.

3

"5. What additional evidence, if any, remains to be submitted in connection with

4 the evidentiary hearing?"

5

Defendants do not anticipate submitting any additional evidence. We do reserve the right,

6 if necessary, to file objections, to request an opportunity for cross-examination, or to submit

7 additional testimony, exhibits or deposition excerpts in response to any additional material Plaintiff

8 may offer.

9

CONCLUSION

10

A state invokes its "entire legal and moral authority" when executing ajudgment ofdeath.

11 Calderon v. Thompson, 523 U.S. 538, 556 (1998). An execution is a solemn event, one governed

12 by the prohibition against infliction of wanton and unnecessary pain. Defendants have been fully

13 mindful ofthose obligations in designing and implementing OP 770. Because there is no evidence

14 that any condemned inmate has been or will be executed in a cruel and inhumane manner pursuant

15 to California's lethal injection protocol, Plaintiff is not entitled to injunctive or any other relief.

16

Dated: November 9, 2006

17 18 19 20 21 22 23 24 25 26
DRG:pl 27

Respectfully submitted,
BILL LOCKYER Attorney General of the State of California MARY JO GRAVES Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General RONALD S. MATTHIAS Supervising Deputy Attorney General
lsi Dane R. Gillette
DANE R. GILLETTE Senior Assistant Attorney General Attorneys for Defendants

28

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 Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 1 of 37

David A. Senior (# 108579) 2 McBreen & Senior
1880 Century Park East, Suite 1450 3 Los Angeles, California 90067
4 Telephone: (310) 552-5300 Fax: (3lO) 552-1205
5 dsenior@mcbreensenior.com

6
John R. Grele (# 167080) 7 Law Offices of John R. Grele
703 Market Street, Suite 550 8 San Francisco, California 94103 9 Telephone: (415) 348-9300
Fax: (415) 348-0364 10 j grele@earthlink.net

11
Richard P. Steinken (admitted pro hac vice) 12 Jenner & Block LLP
13 One IBM Plaza Chicago, Illinois 60611-7603
14 Telephone: (312) 923-2938
15 Fax: (312) 840-7338 rsteinken(p,jenner.com
16

17 Attorneys for Plaintiff MICHAEL ANGELO MORALES
18

19

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

20

SAN JOSE DIVISION

21
MICHAEL ANGELO MORALES,

) CASE NO. C 060219 (JF) (RS)

22

)

C 06-926 (JF) (RS)

Plaintiff,
23

) ) AMENDED JOINT PRE-HEARING

24

vs.

) CONFERENCE STATEMENT

)
25 JEANNE WOODFORD, Secretary of the ) REDACTED PURSUANT TO COURT

26 California Department of Corrections; )

ORDER-PART I

EDDIE YLST, Warden, San Quentin State) 27 Prison, San Quentin, CA; and DOES 1-50,) HEARING DATE: Sept. 26, 2006

28

) TIME:

9:00 a.m.

Defendants.

) COURTROOM: 3

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

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 2 of 37
Pursuant to the Court's Order Scheduling Evidentiary Hearing and Pre-
2
Hearing Conference dated August 11, 2006, and the Standing Order re Pretrial
3
Preparation, the parties submit the following supplement to their joint pre-hearing
4
5 conference statement:
6
7
FACTUAL BASIS OF THE ACTION
8
9 (l) Undisputed Facts (Although not disputed, defendants reserve the right to dispute the
10 admissibility relevancy of all facts marked "*").
11
1. No V/atden has appmved and signed Operational Procedme 770, March 6,

2. Defendants concluded that the modifications to Operational Procedure 770,

March 6, 2006, will allow a lethal injection execution to proceed more quickly and

efficiently. The changes were not made from any concern about the effectiveness or

18 constitutionality of the former procedure (Supp. Response to Interrogatory #6).
19
3. Defendant CDCR employs the people who execute inmates for the State of
20
21 California. These people are execution team members. Typically there are up to 14

22 members on the team.

23
4. The teammates select replacement members to the team as needed by
24
unanimous vote by the team, and thereafter solicit the new members to join the team.
25

26

5. There are no doctors on the execution team.

27

6. Currently, there are no Registered Nurses ("RN") on the execution team,

28

and there are no requirements that an RN be on the team.

2

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 3 of 37

7. Warden Arthur Calderon presided over four lethal injection executions.
2
At one time, Calderon claimed he personally selected all the teammates that conducted
3
4 executions when he was Warden.

5

8. Jeanne Woodford was Chief Deputy Warden at San Quentin in 1998 and

6
was responsible for the day-to-day operations of San Quentin. Woodford became
7
Warden in 1999. At one time, Warden Woodford claimed she personally assured herself
8

9 that each member of the execution team had a high degree of skill, competence,

10 professionalism, patience, and stability necessary to be on the team. Warden Woodford
11
presided over four lethal injection executions. Woodford was the Secretary of CDCR

during the scheduled execution of Michael Morales on February 21, 2006.

9.* Witness #5, a licensed peace officer employed as a guard at San Quentin

State Prison, was terminated by defendant CDCR, then reinstated with a five-month

suspension without pay for bringing illegal narcotics into San Quentin State Prison.

18

10. Thereafter, Witness #5 was approved by Wardens Calderon and Woodford

19
for membership on the execution team, was selected by Warden Calderon to be the
20
execution team leader after Witness # 10 was removed from the team. Witness #5 has
21

22 participated in 10 California executions, and was the team leader for the last eight

23
California executions.
24
lOa. Warden Ornoski testified that there are no rules or regulations that "require
25
26 [the Warden] to evaluate the bona fides of the execution team members." Warden

27 Ornoski did not "review any of their qualifications, or their experience, or their training."
28
Other than observing a training session and ensuring that they had practice time, Ornoski

3

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 4 of 37

did nothing to satisfy himself "that the members of the execution team were properly

2
trained or qualified to be on that team."
3

4

11. Warden Omoski left it to Witness #5 to select the teammates. Warden

5 Omoski presided over the executions of Stanley Williams and Clarence Ray Allen, and

6
the scheduled execution of Michael Morales on February 21,2006.
7
12. Witness #5 did not review the personnel files of any team members before
8
9 extending invitations to them to join the team. Witness #5 never periodically reviewed

10 the personnel file of any execution team member while he was the execution team leader.
11
13.* In 1995, Witness #1 was diagnosed with psychiatric disorders, including

clinical depression and Post-Traumatic Stress Disorder as a result of years of working in

the prison system. Witness #1 was found to be mentally disabled and could not attend

work at CDCR for several months. Witness #1 was treated for these psychiatric disorders

from 1995 to 1998.

18

14. * In 1998, Witness #1 was arrested and convicted for driving a vehicle while

19
intoxicated in Sacramento County. His blood a1cohollevel was 0.12 - 50 percent over
20
21 the legal limit. This conviction was reported to defendant CDCR, and thereafter became

22 part of Witness #1 's disciplinary record at CDCR.

23
15. * Witness #1 was invited to join the execution team in 1997, and has
24
participated in the executions of eight inmates between 1999 and 2006.
25

26

16.* In January 2006, Witness #1 again was diagnosed to be clinically depressed,

27 and was prescribed 300 mg of daily anti-depressant medication. At the time, Witness #1
28
had been elevated to be the co-team leader of the execution team. Among other things, he

4

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 5 of 37

was responsible to observe the mixing of the thiopental sodium for the execution of
2
Clarence Ray Allen in January 2006. While clinically depressed and medicated, Witness
3
4 #1 participated in Allen's execution in a learning position to take over as team leader.

5

17. Execution team members are not required, upon entry to the execution team,

6
to undergo psychological testing.
7
18. The team leader gives all directions to the execution team during an
8

9 execution; all team members are under his direction. According to Warden Woodford, it

10

11

o
~ r-- 12

o:=~~g

Q z
W

'e3n
...;

g
'c<II

~ 1?' J

13

~ ~ ~ ~ rn 14 Ul~1!)
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.a ~ ~~ W W~C .!-!UIlQc:i: 15

u ~ <t:.!!I 16

:EUUlQ)

oor-

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17

is important to have an execution team leader in charge who is able to give clear and concise direction as to what the team ought to be doing.
19. * In February 2006, Witness # 1 became the sole team leader for the execution
team, and for the execution of Michael Morales scheduled for February 21,2006. On February 20-21,2006, Witness #1 still was receiving treatment for clinical depression, and was taking his daily dose of 300 mg of prescribed anti-depressant medication as he

18 led the execution team for 24 hours.

19

20. * Witness #l3 is another execution team member who has been convicted of

20

drunk driving charges. This conviction was reported to defendant CDCR and was known
21

22 by team leader Witness #1. Neither defendant CDCR nor Witness #1 took any action to

23
preclude Witness #13's subsequent participation in the executions of Donald Beardslee,
24
Stanley Williams, Clarence Allen, and/or the scheduled Michael Morales execution as a
25

26 result of this conviction.

27

20a. It is a rule that you cannot be working in the condemned area of the prison

28
and be on the execution team. There are no exceptions to the rule.

5

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 6 of 37

20b. Warden Woodford was willing to assign an officer to be a member of

2
the execution team who was known by the inmate who was being executed.

3

4

21. * Witness #5, the team leader for the last eight California executions, regularly

5 worked in the condemned inmate areas of the prison since 1978, including in the

6

7

8

9

10

11

In that period of time, every condemned inmate that arrived at San

Quentin State Prison

including plaintiff.

23. * Over the past several years, Witness #5 worked

17

here plaintiff is housed.

working

18 per each watch.

19

24. * Since being the execution team leader, Witness #5 was disabled from work -

20

requiring a number of medical appointments for a couple of years - as a result of injuries
21

22 sustained in a physical altercation with an inmate.

23

25. The RNs and LVNs on the execution team sometimes work in the condemned

24

prisoner area of San Quentin, and condemned inmates are treated by the RNs and LVNs
25

26 where they work in the prison.

27

25a. Witness #5 testified that the only reason why the identities of execution team

28
members should remain confidential is because "[i]t's a solemn process, it's a process that

6

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 7 of 37

is carried out by the State, and it's not just open for common communication or coffee talk

2
or coffee conversation." Witness #5 can think of no security issues with respect to the
3
inmate, the execution team, or San Quentin personnel to support the confidentiality policy.
4

5

25b. Operational Procedure 770 requires that, "[d]uring the afternoon immediately

6
preceding an execution by lethal injection, a member of the injection team shall proceed to
7
the pharmacy to obtain the necessary agents (drugs) for the procedure."
8

9

25c. For the last eight California executions, Witness #5 claims he would retrieve

10 the controlled substances for the execution from the prison pharmacy a week before a
11
scheduled execution, not the afternoon before.

25d. Witness #5 states that "two people [are] required to go get the drugs." Either

this procedure was in place when Witness #5 joined the execution team, or he initiated the

procedure. Witness #5 always was involved in retrieving the drugs for the last eight

executions. "[O]n a number of occasions," he secured the controlled substances along with

18 Witness #1.
19
25e. Witness #5 testified that they dealt with a specific female pharmacist "more
20
21 than 85 percent of the time" for the eight executions when he was team leader.

22

25f. Witness #1 always made arrangements to obtain thiopental sodium from

23
pharmacist Rosa Nugyen at the San Quentin pharmacy.
24
25g. A pharmacist practicing in California is a person that holds a license issued by
25
26 the State of California to dispense drugs which are classified by the federal government as

27 controlled substances.
28

7

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 8 of 37

25h. Thiopental sodium is classified by the federal government as a controlled
2
substance. In the United States it is illegal to obtain thiopental sodium other than through a
3
4 licensed pharmacist.

5

25i. The San Quentin pharmacy is required by federal law to keep a perpetual

6
inventory log regarding its inventory of thiopental sodium. Whenever thiopental sodium is
7
either dispensed or received, it is the policy and practice at the San Quentin pharmacy to
8
9 record that in the inventory logs on the same day that the inventory transfer occurs.

10

25j. The San Quentin pharmacy controls thiopental sodium in a locked cabinet and

11
it does periodic inventory inspections and counts which are required by federal law. The

San Quentin pharmacy is required to perform these inventory counts for thiopental sodium

on an annual basis.

25k. David Silacci is the Pharmacist in Charge ("P.Le.") of the San Quentin

pharmacy. He is a licensed pharmacist by the State of California, and has a doctorate

18 degree in pharmacy. As part of Mr. Silacci'sjob as P.LC. at San Quentin, he testified that
19
he is "obviously concerned about drug diversion issues," and "it's my job to minimize or
20
21 eliminate drug diversion at any time."

22

251. If thiopental sodium is lost or stolen at the San Quentin pharmacy, Mr. Silacci

23 as P.Le., is required to report the incident to the federal Drug Enforcement Agency which
24
in tum will conduct an investigation. Mr. Silacci also is required to report the incident to
25
26 the Warden and the Chief Medical Officer at San Quentin for the prison to conduct its own

27 internal investigation.
28
25m. As P.LC., Mr. Silacci currently reviews the thiopental logs every month.

8

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 9 of 37

25n. Fifteen 500mg vials of thiopental sodium were released by San Quentin
2
pharmacist Rosa Nugyen to Witness #1 for "practice" on January 5,2005. Nugyen
3
4 recorded this in the San Quentin pharmacy "Controlled Substance Inventory Log" which is
5 kept by the San Quentin pharmacy pursuant to federal law and San Quentin internal policy
6
(Exhibit 76).
7
250. Pharmacist Nugyen again released 25 500mg vials of thiopental sodium to
8
9 Witness #1 for "practice" on November 16,2005. Nugyen recorded this in the San Quentin
10 pharmacy "Controlled Substance Inventory Log" which is kept by the San Quentin
11
pharmacy pursuant to federal law and San Quentin internal policy (Exhibit 76).

26. The execution team uses regular saline or water in the syringes during training

or practice sessions. The execution team does not practice mixing thiopental.

26a. The packaging material for each 500mg vial of Pentothal includes the

following warning in two separate locations: "Warning: may be habit forming" (Exhibit 2).

18

26b. On January 14,2005, pharmacist Rosa Nugyen released 25 500mg vials of

19
thiopental sodium to "Witness #1 team" for the execution of "(D Beardsley) 1119/05."
20
Nugyen recorded this in the San Quentin pharmacy "Controlled Substance Inventory Log"
21

22 which is kept by the San Quentin pharmacy pursuant to federal law and San Quentin

23
internal policy (Exhibit 76).
24
26c. On November 23,2005, pharmacist Rosa Nugyen released 25 500mg vials of
25
26 thiopental sodium to Witness #1 for the execution of "Tookie Williams 12113/05." Nugyen

27 recorded this in the San Quentin pharmacy "Controlled Substance Inventory Log" which is
28

9

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 10 of 37

kept by the San Quentin phannacy pursuant to federal law and San Quentin internal policy

2
(Exhibit 76).

3

4

26d. Phannacist Rosa Nugyen released 25 500mg vials of thiopental sodium on

5 January 5,2006 to Witness #1 for the execution of "(Clarence Allen) 1117/06." Nugyen

6
recorded this in the San Quentin phannacy "Controlled Substance Inventory Log" which is
7
kept by the San Quentin phannacy pursuant to federal law and San Quentin internal policy
8

9 (Exhibit 76).

10

26e. Five grams of thiopental were required for each execution. The execution

11
team never broke a vial of thiopental during preparation for an execution.

26f. While 5 grams of thiopental sodium were required for an execution, between

January 4,2005 and January 18,2006, 12.5 grams of thiopental sodium were released to

Witness #1 on three different occasions by the prison phannacy for each scheduled

execution (as 25 500mg vials). Another 20 grams of thiopental sodium were released to

18 Witness # I for practice.
19
26g. Between January 4,2005 and January 18,2006, no thiopental sodium was
20
returned to the phannacy by Witness # I, Witness #5, any other execution team member, or
21
22 by anyone. This is confinned by the Controlled Substance Inventory Log maintained by the
23 San Quentin phannacy pursuant to federal law and by San Quentin policy (Exhibit 76).
24
26h. On April 6, 2006, one 500mg vial of thiopental sodium was returned to the
25
26 prison phannacy, and is recorded as such in the Controlled Substance Inventory Log
27 maintained by the San Quentin phannacy pursuant to federal law and by San Quentin policy
28
(Exhibit 76).

10

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 11 of 37

26i. There were always unused drugs after every execution. Witness #S claims
2
that in each instance he returned them to the pharmacy. Witness #5 did not institute a
3
4 policy for the execution team that two people were required to be present to return any

5 unused drugs to thc phannacy.

6
26j. No thiopental sodium was dispensed by the San Quentin pharmacy or was
7
returned to the San Quentin pharrnacy between January 6,2006 and April 5,2006.
8

9

26k. Mr. Silacci testified that he has seen Witness #1 "with a bag, a brown bag, or

10

11

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<tl"-

12

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0:::0100

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cC
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O
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c / l L-"J,. Jr=oo~

14

zrn()!2

Wa.uia.; W ~~ c

15

O:::::::lO1O

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16

oo-l

00
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17

something like this, taking something out ofthc phannacy." Mr. Silacci further testified that he has never seen Witness # J returning any thiopental sodium to the phannacy.
261. Mr. Silacci understands that the reason why Witness #1 requests thiopental sodium from the pharmacy is that it is used in San Quentin's execution protocol. There is no policy at San Quentin that allows Mr. Silacci to review the quantity of Witness #1 's requests for thiopental sodium, or the reasons for the request.

18

26m. The exeeutioll team has "to get the drugs" from San Quentin pharmacy to

19
conduct an execution. "rW]e get them from the pharmacy."
20

21

26n. The execution team leader calls the phannacy to "make sure the proper

22 inventory [of necessary drugs] is there at least two weeks prior to the execution."

23
260. The execution team leader has "to physically go to the pharmacy" to get the
24
drugs in order to conduct an execlltion.
25

26

26p. Witness #s testified that UpOil arrival at the phalmacy, the execution team

27 leader has to "locate the pharmaci~t, inform her that we're there to pick up the drugs.
28
They'll take us back into a secured area of the pharmacy, get the drugs from the storage

1 1

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 12 of 37

area and give them to us. And usually we have a bag to carry them in, and then we exit and

2
go to the chamber."
3

4

26q. David Silacci is employed by Drug Consultants, Inc. to work at San Quentin

5 as the director of its pharmacy. Drug Consultants, Inc. was retained by the State of

6
California to bring the practice of pharmacy at San Quentin up to an acceptable community
7
standard of practice. Mr. Silacci is responsible to report to, among others, the receiver
8

9 appointed to manage the standards of medical care provided at San Quentin.

10

27. Between January, 1996 and January 18,2006, five grams of thiopental were

11
required to be used in an execution under the protocol. A single back tIp sYIinge of

thiopental was plepaIed fOl each execution which contained 1.25 grams.

28. Starting with the Siripongs execution and for every execution thereafter,

Witness # 1 claims the procedure changed to using four syringes of sodium thiopental, each

containing 1.25 grams of sodium thiopental.

18

29. Certain execution team members have testified that prior to the execution, the

19
execution team trains two times a week leading up to the week before the scheduled
20
execution. The team then comes off post and trains continuously, eight hours a day, a week
21

22 before leading up to the execution. Witness #3 testified that the team goes through it "over,

23
and over, and over," at least seven or eight times in the course of two hours because it is
24
important that everybody is comfortable with their roles and what they are doing.
25

26

30. Execution practice sessions consist of meetings and dry runs through the

27 procedure exactly as it is expected to proceed at an execution, except that the thiopental is
28
not actually mixed into solution; the catheters are not inserted into anyone's veins; water is

12

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 13 of 37

used in the syringes and IV bags; the IV lines empty the fluid into a bucket; the RN
2
typically takes the position of the Warden; and team members simulate the position of the
3
4 inmate.

5

30a. Witness #6 is a RN and participated in eight California lethal injection

6
executions between 1998 and 2006.
7
30b. Witness #6 recalls that the execution team practices for an hour or two - "it
8
9 depends" - during the three days before an execution. "If the warden want to come and see

10 us, then - then we have to stay and wait. Otherwise, we practice and we go."
11
30c. Witness #6 added that "[w]e don't have training, really." "We get together a

few days before and just practice." "We just get to the chamber and we back there. Then

we go home." "An hour or two."

30d. Pursuant to the execution training attendance logs, the execution team has

practiced only 72 times since 1997. Witness #3 was present for training only 34 times

18 pursuant to the training logs.
19
3 1. There are no documents that are referred to at the training or generated during
20
the training. No one takes down any notes while the training is going on.
21

22

32. For each execution, the lethal drugs are mixed by the medical membel s of the

23
execution team (RNs and LVNs. ), along with the person charged with administering the
24
dt ugs and the team leader.
25

26

33. During the last eight California executions, there were no practice sessions

27 where people practiced mixing Pentothal. Witness # 1 has not been trained in mixing the
28
drugs. Witness # 1 was responsible to ensure that the drugs are mixed correctly.

13

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 14 of 37

34. The first time Witness #4 mixed Pentothal was on the evening of a scheduled
2
execution. Prior to mixing Pentothal for an execution, Witness #4 had never received any
3
4 training in doing that. On each of the four occasions when Witness # 4 mixed the lethal

5 drugs, he would mix the drugs with Witness # 1. Witness #4 observed that when the

6
Pentothal is mixed, it is a yellowish, brownish tan color.
7
34a. The packaging material for each 500mg vial of Pentothal provides: "Use
8

9 reconstituted solution only if it is clear, free from precipitate and is not discolored."

10

34b. LVN Witnesses #3 and #4 claim in their depositions that they prepare the

11
Pentothal by following the instructions.

35. The packaging material for each 500mg vial of Pentothal states that each

500mg of thiopental sodium is to be dissolved in 20 mL of sterile water. Accordingly, one

gram of Pentothal is to be dissolved in 40 mL of sterile water.

36. The new Operational Procedure 770, March 6, 2006, provides that 5 Gm of

18 Sodium Pentothal will be mixed thoroughly with the 250 mL bag of Sodium Chloride

19
(saline).
20

21

36a. Under the new Operational Procedure 770, March 6, 2006, each one gram of

22 Pentothal is to be dissolved in 50 mL of a solution of sodium chloride of unknown

23
concentration, rather than in 40 mL of sterile water.
24
37. In the new Operational Procedure 770, March 6, 2006, the thiopental drip is
25

26 set at a rate such that it will last 20 to 30 minutes for all the fluid to run out.

27

38. The drip rate for the IV saline bags is set by the team member who

28

administer s the dr tlgs.

14

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 15 of 37

39. The saline drips are supposed to be set so that the MTAs can tell from looking

2
at the IV drip whether they have successfully placed the catheters.
3

4

39a. Witness #4 cannot conduct an inspection to see if the catheter is set properly

5 without entering the execution chamber.
6
40. The packaging material for each 500mg vial of Pentothal provides: Store at
7
controlled room temperature 15° to 30°C (59° to 86°P). See USP. Keep reconstituted
8

9 solution in a cool place.

10

41. Under new Operational Procedure 770, March 6, 2006, an IV drip bag

11
containing five grams of thiopental sodium is to be hung above the execution chamber with

two other IV bags. The drugs are to be mixed sometime after 11 :00 p.m. The IV bag is

then placed at a distance of roughly six to nine inches from a lamp fixture consisting of an

incandescent light bulb with red glass and a silver, cylindrical reflective metal sheath. On

the night of a scheduled execution, this lamp is turned on at approximately 11 :40 p.m.

18

42. While the execution team attempts to begin the execution fairly close to

19
midnight, the execution sometimes does not start until a little later. The execution team did
20
not begin to administer Pentothal until 12:22 a.m. during the execution of Stanley Williams,
21

22 and until 12: 18 a.m. in the executions of Donald Beardslee and Clarence Allen.

23
43. The anteroom is the location where the execution team administers the lethal
24
drugs into the IV lines during an execution. The room would "comfortably accommodate"
25

26 16 or 17 people, "but certainly not any more than that." Hon. 1. Pogel RT 3/30/06 at 185;

27 see also 122. During an execution, howevel, thele ale a few mOle than that, "it's a bit more
28
crowded" in the antechamber than 16 or 17 people. Dr. Calvo testified that there are "so

15

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 16 of 37

many people ... in the room that you didn't even know who they were and [why] they were
2
there." Warden Ornoski reports that he would "shuffle from side to side a foot or two, but I
3
mean, it's fairly crowded back there. There's not much room for me to maneuver." During
4

5 Clarence Allen's execution, "it was even more crowded at that time, and I don't believe I

6
could move from my spot much, if any."
7
43a. Witness #1 testified that the doctor is usually right at the window to the right
8

9 side, viewing the inmate, during an execution.

10

43b. Dr. Calvo testified that "two or three people" would stand in between him and

11
the window to the chamber.

44. During Stanley Williams' execution, Dr. St. Clair noted that "[s]ome big

fellow from Sacramento" "was in [his] way." "[I]f I recall, I'm holding a clipboard, and he

kind of hit me ..." The same individual stood in front of Dr. St. Clair during the execution

of Clarence Allen. "[0]ne of the problems with the big guy was not only was he [was]

18 blocking -- he'd block this way, but he'd block the light that comes from that little room

19
that helped to allow me to see what I'm doing."

20

21

45. During Stanley Williams's execution, a "rather large" CDCR official was

22 standing in front of the antechamber window to the execution chamber. The large man did

23
not take any part or role in the execution of Mr. Williams. Witness #4 was attaching the
24
syringe of lethal drugs to be administered to Stanley Williams to the stopcock, and the large
25
26 man "was standing in Witness #4's way." Witness #4 had to nudge him a couple of times

27 because it was a territorial imperative. He was a large gentleman, and he was tending to
28
take up more and more space. Dr. St. Clair stood behind this large person.

16

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 17 of 37

46. It "was a packed house" during the Thompson lethal injection execution.
2
46a. Between twenty-nine and thirty-three people were to be present in the
3
4 anteroom for the scheduled execution of Michael Morales.

5

47. The three phones in the anteroom of the execution chamber are dedicated to

6
the clerk at the state Supreme Court, the Attorney General's office, and to the prison's
7
operations center. There is no phone to the Governor's office.
8

9

47a. Currently, there is no execution team member, or any other person, assigned

10 to monitor the telephones in the antechamber. The role was taken by non-team members
11
for the executions of Stanley Williams and Clarence Allen.

47b. To execute an inmate, officers bring the inmate from a holding cell across the

hall from the execution chamber, through the anteroom of the execution chamber, and into

the chamber. Witness #1 believes that five peace officers walk the inmate into the chamber;

Witness #4 thinks it's four; and Witness #9 thinks it's six.

18

48. The inmate is then restrained on the gurney with restraints on the wrist,

19
shoulders, across the chest, over the waist and through the groin area. Some execution team
20
21 members depart from the chamber before catheters are inserted into the inmate.

22

49. Catheters are regularly set in the inmates' arms by LVNs during executions.

23
Witness #3, a LVN, has set catheters in seven of nine executions since he has been on the
24
execution team. He has set the catheter in the inmate's right arm in, among others, the
25

26 executions of Donald Beardslee, Stanley Williams, and Clarence Allen. Witness #3 only

27 recalls setting the catheter in the inmate's left arm on one occasion.
28

17

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 18 of 37

50. Witness #4, a LVN, set a catheter in Donald Beardslee's left arm for his

2
execution, after initially blowing the inmate's vein.
3

4

50a. During Stanley Williams's execution, Witness #6, a RN, was responsible to

5 set one catheter. The vein blew when she started the IV. She attempted again to start the
6
IV and the vein blew again.
7
50b. Witness #6 was frustrated and became upset; she was visibly upset to other
8

9 execution team members.

10

50c. Unbeknownst to Witness #6 and Witness #3, Witness #6 then failed to

11
properly set the catheter a third time. Witness #6 subsequently taped the catheter to

Williams's arm, and began to exit the chamber.

50d. While Witness #3 and Witness #6 were exiting the chamber, it was said that

"it wasn't flowing, the drip wasn't flowing." The RN couldn't believe that it wasn't

running again. After Witness #6 exited the chamber - while the chamber door still was

18 open - it was said a second time that "the left wasn't running."
19
50e. Warden Omoski was standing in the center of the anteroom, looking at the
20
21 door. The team leader was present at the chamber door.

22

50f. Witness #4 was under the impression that the team leader was responsible to

23
monitor the IV drip as a result of all the training he went through for Williams, as well as
24
other executions.
25

26

50g. The Warden then said, "Proceed," "after the comments were made that the Ie

27 IV had failed." The execution proceeded without the IV line in the left arm properly set or
28
operating.

18

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 19 of 37

50h. The catheters are set in the inmates' anns by either a RN or LVN as part of

2
the execution process.
3

4

51. Witness #3 and Witness #4, two LVNs, were assigned to set the catheters in

5 Michael Morales during his scheduled February 21, 2006 execution.

6
51 a. MTAs are not RNs at San Quentin. MTAs are LVNs who also are licensed
7
peace officers. San Quentin has had a LVN training program where inmates were trained to
8

9 be LVNs.

10

51 b. The MTA Pocket Reference, Instructor's Guide, Scope of Practice for MTAs,

11
published by CDCR provides: "Licensed Vocational Nurses (LVNs) are NOT independent

practitioners. It is not within the scope of LVN practice to function independently. The

LVN must practice under the direction of a licensed physician or Registered Nurse (RN) at

all times. Such direction may be provided verbally, telephonically, or by written order."

52. There were no medically licensed individuals on the execution team for the

18 scheduled execution of Michael Morales other than Witness #3 and Witness #4.
19
53. Witness #4 may have read 10 or 12 pages of Procedure 770, but only once
20
21 and only after Beardslee's execution. Witness #3 never has read Procedure 770. Dr. Calvo,
22 who was present for the executions of Keith Williams, Babbitt, Siripongs, Anderson, Rich,
23
Massey, and Stanley Williams, and perhaps others, has not read Procedure 770.
24
54. The doctors present at executions do not have any supervisory responsibilities
25
26 during the execution. The LVNs do not act under the direction of a physician during an
27 execution. The setting of these catheters is perfonned in the execution chamber, not in a
28
health care facility.

19

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 20 of 37

55.* Witness #3 never has taken any course work or training to become an RN.

2
was trained to set catheters
3

over 14 years

ago. _instructional training regarding setting catheters took place all within a
4

5 minute. As an LVN at CDCR for the past 11 years, Witness #3 has received no medical

6
training from CDCR.
7
56.* LVNs do not set catheters at San Quentin's Treatment and Triage Area
8
9 ("TTA"); that is the responsibility of a registered nurse or physician. General anesthesia is

10 not applied in the TTA.
11
57. * It is very infrequent that an IV line is placed in an inmate in the medical units

at San Quentin other than in the TTA. 58. * Witness #3 is a LVN assigned to

59.* Witness #4 is a LVN assigned 59a. A RN is assigned to work each shift in the TTA, and two RNs are assigned to

18 work on two of the three shifts.

19
59b. Occasionally, an IV is set at the Outpatient Housing Unit, but only by a RN.
20
60.* Fourteen years ago, Witness #3 practiced setting
21

22 _

After demonstrating three successful venal punctures or IV starts, Witness #3

23 became certified by CMF to start IVs as a LVN. Witness #3 has no estimate regarding how
24
long his CMF IV training or IV course lasted, and he does not know upon whom he set the
25
26 catheters.

27

28

20

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 21 of 37

61. An LVN who is training for an execution does not practice setting the
2
catheter in the simulated inmate's arm; they tape the catheter to the outside of the simulated
3
4 inmate's arm.

5

62. Procedure 770 requires that two catheters be properly set in the inmate and

6
operating before an execution begins.
7
63. During the Massie execution, there was a difficulty with one of the IV lines.
8

9

63a. After the RNs or LVNs leave the execution chamber, the lights are turned

10

11

o

';i r--. 12

~~~g

Q z

'5
(f)

g
.!!l

~ N

13

W ...; c LO

cfiSJ~)~~~~~ 14

z tii 0_!2

f ~WwQ~~.c~nQ~cj 15

:::!!!c3cn w 16 o c~oo-lf- 17

down in the anteroom before the execution begins. The lights are turned very low. Under the anteroom's subdued lighting, the syringes containing the lethal drugs are present, taped to a cart.
63b. During the Allen execution, Dr. St. Clair, the doctor filling out the execution record, could not see where his entries were supposed to be without the aid of a small flashlight.

18

63c. If the thiopental sodium drip stops during an execution, there is no written

19
procedure for what is to take place next.
20

21

64. For the executions of Keith Williams, Bonin, Siripongs, Thompson, Rich,

22 Babbit, Massie, and Anderson, respirations were measured by Dr. Calvo who has observed

23
and counted respirations for almost 40 years.
24
65. For the executions of Keith Williams, Bonin, Siripongs, Thompson, Rich,
25
26 Babbit, Massie, and Anderson, Dr. Calvo measured respirations by watching the inmate for

27 a full minute and counting the number of respirations.
28

21

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 22 of 37

66. When measuring respirations, Dr. Calvo started when he heard the instruction

2
for each of the three drugs given.
3

4

67. When recording respirations, Dr. Calvo recorded rhythmic breathing

5 movements at a certain rate.

6
68. When observing the execution of Manuel Babbit, Dr. Calvo noted shallow
7
respirations after the administration of pancuronium that were at the same rate as previously
8
9 noted, but were not deep breaths.

10

69. When observing Manuel Babbit, Dr. Calvo noted spasmodic, jerking

11
movements of the upper abdomen and chest area one minute after the administratiori of the

pancuronium which lasted a minute, after which all breathing stopped.

70. When observing the execution of Darrell Rich, Dr. Calvo noted that after

respirations ceased, Mr. Rich had what Dr. Calvo characterized as agonal breathing

movement which was not rhythmic one minute after the administration of the pancuronium,

18 that lasted a minute at least but could have been two minutes, which he considered to be

19
unusual.
20
71.
21

The saline flush administered after the sodium thiopental flushes the

22 remaining sodium thiopental in the tubing into the inmate.

23

72. For the executions of Keith Williams, Bonin, Siripongs, Thompson, Rich,

24

Babbit, Massie, and Anderson, Dr. Calvo observed the administration of a saline flush
25

26 before the administration of the pancuronium and before the administration of the

27 potassium chloride, and after the administration of the potassium chloride.
28

22

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 23 of 37

73. For the executions of Stanley Williams and Clarence Allen, Dr. St Clair

2
measured breathing by counting breaths for 15 seconds and multiplying by four.
3

4

74. Inmates are evaluated prior to execution to determine if they have useable

5 veins. They are not evaluated to determine if they have any condition or characteristic that

6
may alter the effect of any of the drugs administered during the lethal injection process.
7
75. When the Warden orders the execution to commence, the execution team is
8

9 required to first administer Pentothal to the inmate. To do so, an execution team member

10 selects a syringe from the top of a cart where syringes containing Pentothal, pancuronium
11
bromide, sodium chloride, and saline are placed.

76. When a syringe is selected, it is inserted into a stopcock on the outside wall of

the execution chamber and the syringe's contents are plunged into the stopcock, which is

attached to an IV line that flows from an IV bag of saline hung on top of the execution

chamber to the stopcock and then through the execution chamber wall to a catheter set in

18 the inmate's arm.
19
77. Witness #3, the LVN who has participated in seven of the last nine
20
21 executions, believes that in each instance, he selected the syringe from the cart - including

22 during the Stanley Williams and Clarence Allen executions - and passed it to another LVN

23
for insertion into the stopcock, then the empty syringe was returned to him and he made the
24
selection of the next syringe from the cart. Witness #3 has practiced this with the team
25

26 "over, and over, and over."

27

77a. Witness #1 believes that after a syringe has been emptied, the same MTA

28

removes the syringe, places it back on the cart and retrieves the next syringe.

23

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 24 of 37

78. Witness #4, the other LVN who has been scheduled to participate in five
2
executions and participated in the Beardslee, Stanley Williams, and Allen executions,
3
4 believes that in the Williams and Allen executions, he selected the syringes off the cart for

5 insertion into the stopcock, and then he returned the empty syringes to the cart before

6
selecting the next syringe.
7
79. Infiltration is when the IV catheter delivers fluid into the tissue surrounding
8

9 the vein. Witness #4 believes the arm will swell up, but not before 10 or 15 minutes.

10

80. Once an RN or LVN places the catheter, they leave the chamber and the

11
chamber door is closed. The left IV - which will need to be used in the event the right IV

fails - is not monitored by the execution team for infiltration during an execution.

81. Witness # 1 claimed that one LVN or RN is positioned in a spot that they are

able to see into the chamber area to the right arm where the primary IV is set.

81 a. During the seven years on the execution team, and all of the executions

18 Witness #7 participated in, Witness #7, a RN, never saw a RN "during an execution

19
stationed at the window looking into the chamber" because they "[c]ouldn't get close."

20

21

81 b. Witness #7 only saw diplomats, Wardens Caldron or Woodford, and visitors

22 from Oregon stationed at the window of the chamber during an execution. Witness #7
23
never saw anyone from Texas stationed at the window of the chamber during an execution
24
because she believes that "they know how to do it."
25

26

81 c. Witness #6 is a RN who was on the execution team from 1996 through the

27 execution of Clarence Allen in 2006.
28
81 d. Witness #6 cannot see into the execution chamber during executions when

24

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 25 of 37

she stands in the back of the room, nor does she look into the chamber when handing

2
syringes to the executioner.
3

4

81 e. After Witness #6 sets an IV in an execution, she "stand[s] back in the corner

5 over there" by the door to the mixing room. She does this "[b]ecause it's packed with

6
people, I have no room. I'm thin, so I lean a against the wall. It's a tiny room and packed
7
with people, so I just get away from everybody. I stand by the comer." "I want to be by
8
9 myself. Don't touch anybody."

10

81 f. Witness #6 caIUlot see the inmate at that point "because everybody is higher.

11
Everything is higher than me." "People are higher, taller than me." "They wider than me;

they taller than me, so." "I'm right by the cart." 82. Witness #3, the LVN who has set catheters in seven of the last nine

executions, caIUlot see the inmate above the waist from where he stands in the anteroom

during an execution and caIUlot see the inmates' arms.

18

83. Witness #4 handled the syringes for both the executions of Stanley Williams

19
and Clarence Allen. Witness #4 neither practiced nor was trained by CDCR on how to
20
make a visual inspection of the IV lines during the executions.
21

22

84. * Witness #4 was trained as an L

23 examine catheters to see whether infiltration was occurring. Catheter inspections were part
24
of his regular routine. These IVs would be the same as used during the execution. In every
25
26 instance, Witness #4 was taught to get as close as you can get to the patient; bedside; no

27 farther than arms length; touching their arm if necessary. In all instances, Witness #4
28
would get much closer than in the case of an execution. Witness #4 can get no closer than

25

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 26 of 37

eight feet from the inmate's catheter during the execution, and is in a separate room with

2
"subdued lighting" looking through a window.
3

4

85. During Stanley Williams's execution, both an RN and Witness #3, a LVN,

5 inspected a catheter setting while inside the chamber and concluded that it was set properly,

6
when in fact it was not. Standing outside the execution chamber, Witness #4 could not tell
7
whether the catheter was set properly - the only way he could tell whether or not it was
8
9 successful was by the way the RN reacted to it. It was not based in any part on his

10 observation of the IV or the catheter itself. Witness #4 was not sure whether it was set
1 1
properly.

86. * Witness #3 was traine~ to monitor the flow of an IV by having

the IV bag and drip chamber above the person that you're starting an IV on, and then stand

right next to it - within a foot. The IV drip bag and the drip chamber during an execution

are located above the execution chamber, approximately nine to 10 feet off the ground,

18 accessible only in the anteroom to the execution chamber. The catheter, the inmate, and IV

19
tubing are located inside the execution chamber. The length of IV tubing is approximately
20
11 feet for each line inside the chamber, from the point at which the line goes through a
21

22 hole in the chamber wall to the catheter placed at the inmate's elbow.

23

87.* Witness #5, the former execution team leader, never received any training in

24

infiltration. Witness #5 was the person who trained the next team leader, Witness # 1, on
25

26 how to administer lethal drugs. The only other person to train Witness # 1 in this regard was

27 the
28

26

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 27 of 37

This is the same RN who improperly
2
set the catheter in Stanley Williams, failed to recognize it was not set properly, and then
3
4 failed to advise Witness #5 of this failure until after the execution.

5

87a. During an execution, pursuant to Operational Procedure 770, three drugs are

6
suppose to be administered to the inmate: Potassium Chloride; Pancuronium Bromide; and
7
Sodium Pentathol. After participating in ten executions and acting as the team leader in
8
9 eight, "Pentathol" is the only drug used during an execution that Witness #5 "can think of.

10

"

11
87b. Witness #5 "can't recall" whether there is "more than one syringe of

Pentothal" that is used in an execution. If there are three drugs that are used in an

execution, the team leader similarly does not recall "how many syringes of Drug No.2"

there are, or "how many syringes of Drug No.3 are on the cart." Witness #5 does not "have

an answer" for how long it takes "to inject a single syringe during an execution."

18

87c. Witness #5 only "knows where the Pentothal [is located] based on the medical

19
staff's ability to load it in the proper syringe and secure it to the top of the cart." He thinks
20
that "the name ofthe chemical is written on top of the shadow of the syringes." When the
21

22 execution team leader looks down on the cart and sees the syringes, "[t]o the best of [his]

23 recollection, all the chemicals are clear, are a clear substance." Witness #4, a LVN who
24
mixes the drugs, thinks Pentothal is "sort of a tan" color, a "[y]ellowish, brownish tan ..."
25
26 and pancuronium bromide is "kind of a milky-ish, grayish color."

27

28

27

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 28 of 37

87d. Pursuant to the execution training attendance logs, Witness #5 was present for

2
only nine training sessions since the Thomas Thompson execution, and did not appear at
3
4 any training sessions after February 1,2000.

5

87e. Witness #5 cannot testify "with any certainty that at every single execution we

6
had two medical doctors" present. There "may have been one or two that we only had one
7
doctor."
8

9

87f. Witness #5 claims that defendants had a doctor that attended five executions

10 and he was aware of San Quentin's cut-down procedure. Witness #5 has "no idea" of the
11
doctor's name and claims he's now dead. Witness #5 does not know of any doctors who

attended executions at San Quentin who are familiar with the cut-down procedure since the

other doctor died.

87g. Witness #5 never discussed the cut-down procedure with any other doctors

other than the doctor who attended five executions, whose name he can't recall, and who

18 has died. Witness #5 never assigned any other team member to discuss the cut-down

19
procedure with any doctor.

20

21

87h. Witness #5 testified that "the amounts of drugs used for an execution

22 "changed somewhere within the last two years."

23

87i. Witness #5 testified that the amount of Pentothal used during the last two

24

executions "changed during the last two executions."
25

26

87j. Witness #5 claims that he does not recall the amount of Pentothal that was

27 contained in a vial that was used in the Allen execution.
28

28

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 29 of 37

87k. Witness #5 testified that he "could not give [] an accurate answer" as to "how
2
much Pentothal was administered to Allen in his execution."
3
871. Witness #5 testified that he "could not give [] a definite answer" how much
4

5 Pentothal was administered to Stanley Williams during his execution. Witness #5 does not

6
"recall" what "the operational procedure state[s] in that regard, if anything."
7
87m. Witness #5 testified that he doesn't "have any recollection" as "to the
8

9 amounts" of how much of Drug 2 was administered to Clarence Allen during his execution.

10

87n. Witness #5 testified that he has "no recollection" as to how much of Drug 3

11
was administered to Clarence Allen during his execution.

870. Witness #5, "as team leader," was overseeing the preparation of the drugs

used in the Allen execution.

87p. Witness #5 testified that he does not know what diluent is.

87q. During the Allen execution, Witness #5 believes there was a minimum of five

18 syringes on top of the cart at the time the execution commenced, and he can't give an

19
estimate of the maximum number of syringes that may have been on the cart.
20
87r. No one on the execution team advised Witness #5 that they had been trained
21

22 in mixing Pentothal at the time they came onto the execution team.

23
87s. Witness #5 testified that he never asked any of the medical staff whether they
24
had been trained in mixing Pentothal at the time that they came onto the team.
25

26

87t. Witness #5 testified that he does not know whether the package insert for

27 Pentothal contains "instructions on how to mix a 5 gram dose."
28

29

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 30 of 37

87u. Witness #5 testified that he does not know "the volume of the solution that is

2
contained in a Pentothal syringe during an execution."
3

4

87v. Witness #5 testified that he cannot recall that he ever knew "what the

5 concentration of Pentothal was in a syringe."

6
87w. Witness #5 claims that "the team routinely prepare a backup dose of sodium
7
pentothal. "
8

9

87x. Witness #5 has never received any training with respect to syringe back

10 pressure during the administration of lethal chemicals.
11
87y. Witness #5 does not know the drip rate for the IV bag; he has never known it;

and he does not know "if that drip rate is set forth in the operational procedure" and does

not know whether he ever knew this information.

87z. Witness #5 testified that there is no policy, written or unwritten, that

disciplinary action taken against an execution team member be brought to the attention of

18 the team leader.
19
87aa. With respect to the LVNs on the execution team, Witness #5 testified: "I
20
21 personally do not have the knowledge of ... the quality of their work ..."

22

87bb. Witness #5 testified that Warden Omoski selected Witness #1 to be the next

23 execution team leader, and Omoski never consulted with Witness #5 on the mater.
24
88. * Witness #5 and Witness #1 are friends. Since Witness
25

26 communicates with Witness # I bye-mail and telephone. They discuss what is going on at

27 San

Witness

28

# 1 told Witness #5 that he had his deposition taken in this case, and they discussed his

30

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 31 of 37

deposition before Witness #5 appeared for his deposition. Witness # 1 and Witness #5
2
discuss family issues. Witness # 1 recently has called Witness #5 from the airport to discuss
3
4 a very personal family crises which Witness #5 is unable to share. Witness #5
5 communicated about the scheduled execution of Michael Morales bye-mail with Witness
6
#1 on three occasions. Witness #5 does not have access to those e-mails.
7
89. * Witness #5 obtained copies of the depositions of Witness #3 and Witness #4
8
9 before he appeared for his deposition. When he obtained these deposition transcripts, they
10 were both in the possession of Witness #3.
11
90. Witness #1 never has had training on how to feel for a clogged IV when

pushing on a syringe nor about instances where IVs can become clogged after they've

started dripping.

91. The execution team does not practice removing bubbles in an IV line during

training. There is no procedure that goes into effect should someone note a bubble in the

18 IV line during an execution.

19
92. No member of the execution team monitors the inmate's anesthetic depth
20
21 during an execution.

22

93. * Anesthesiologist #2 ("A2") was requested by Darc Keller, Assistant

23
Secretary, Office of Health Care Policy for defendant CDCR, to participate in the scheduled
24
execution of Michael Morales pursuant to the February 14, 2006 order of the Hon. Jeremy
25

26 Fogel.

27

28

31

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 32 of 37

94. * A2 was advised by Keller that they needed a "backup" anesthesiologist to be
2
present for the execution. A2 "asked, 'What would that entail?, ", and Keller advised, "That
3
4 would entail nothing."

5

95.* A2 inquired, "What do you mean by 'nothing'?," and Keller advised that he

6
"would simply be there to observe. You would have no responsibilities."
7
96.* A2 "wasn't to go through training" because he "had no responsibilities."
8

9

97. * A2 agreed to be present as a backup after confirming his understanding that

10 he would not be in the chamber, that he would have no responsibilities other than to be
11
present.

98. * A2 never had any understanding that he was ever to give any professional

OpInIOn.
99. * A2 had no understanding that "if there was a problem with the primary

anesthesiologist, [his] role would escalate to something else."

18

100.* On the Saturday before the scheduled execution of Michael Morales, A2

19
attended an execution rehearsal at San Quentin. A2 never was given a copy of execution
20
21 Protocol 770 to read; he didn't know there was such a thing. A2 was not given any

22 pharmaceuticals to review that were kept at San Quentin, any former execution logs, or
23
medical devices, and he brought no medical equipment to the prison.
24
101. * A2 did not provide any advice on how to prepare Pentothal, how to set a
25
26 catheter, how to operate the IV system, how to use the stopcocks, how they could do an

27 execution better or the amount of Pentothal that should be used.
28

32

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 33 of 37

102.* A2 never has induced general anesthesia from a remote location, nor seen

2
anyone do it.
3

4

103.* A2 provided no advice regarding the methods of using the syringes or

5 comment on the location of the IV bags.

6
104.* At the rehearsal, A2 was in the anteroom of the execution chamber, and was
7
told to stand in the comer, and he did. As you walk into the anteroom, circle all the way
8

9 around to the end of the circle, and A2's location was in the far right-hand comer. A2

10 could not see into the chamber from where he was standing. He stayed there for an hour,
11
and never relocated himself.

105.* A2 does not recall what transpired during the rehearsal because he wasn't

paying that close attention. A2's observations of the rehearsal were limited because he

chose not to pay much attention.

106.* It was A2's assessment, based upon his conversations with Dare Keller of

18 CDCR, that CDCR was requesting his presence merely as a "warm body." A2 had no plans

19
to do anything but stand there. The only instruction A2 had was to stand there, given by the
20
21 warden. That's the only order he ever received.

22

107.* At the rehearsal on February 18, 2006, A2 was handed a headset, and was told

23
to tell Dr. Singler that he was signaling the patient was unconscious. That was the first time
24
A2 learned that he was going to be asked to perfonn this role. This was not consistent with
25

26 A2's role as he understood it, and he refused to perfonn the role.

27

28

33

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 34 of 37

108.* Thereafter, the warden approved A2's request to be allowed, during the
2
execution, to stand in the small room off the anteroom where the lethal drugs are mixed -
3
4 an area where it would be impossible for A2 to see into the execution chamber.

5

109.* When A2 left San Quentin on February 18,2006, it was his understanding

6
that, in attending the execution of Michael Morales scheduled for February 21,2006, he
7
would have to do nothing other than show up at the prison and stand in that little room.
8

9

110.* Darc Keller, Assistant Secretary, Office of Health Care Policy for defendant

10 CDCR, used CDCR funds to pay A2 his normal anesthesiology fee for these services.
11
Ill. * On February 20,2006, A2 arrived with Dr. Singler at San Quentin at 8:00

p.m., and within the first one minute, before he sat down, Bruce Slavin from CDCR said,

"we have a problem." Slavin proceeded to show A2 the first document A2 ever saw in

writing of a court order describing the expectation of Dr. Singler and A2.

112.* After reading two pages of the February 19,2006 order from the Ninth

18 Circuit in this case, A2 immediately stated: "I can't participate -- 1 can't proceed." Dr.

19
Singler concurred.
20

21

113.* A2 absolutely never gave anyone any reason to believe after 8: 15 p.m. on

22 Monday night, that he was going to be present during the execution.

23
114.* A2 left San Quentin around midnight or 1:00 a.m. CDCR did not advise
24
Michael Morales that it was not proceeding with the scheduled 12:01 a.m. execution until
25

26 after 2:36 a.m. Neither CDCR nor the Attorney General ever advised Michael Morales's

27 counsel that CDCR was not proceeding with the scheduled 12:01 a.m. execution until after
28
2:45 a.m., when counsel was advised by Lt. Yemell Crittendon ofCDCR.

34

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 35 of 37

115.* In response to the Court's February 14,2006 order, a meeting lasting
2
approximately an hour to an hour and a half took place in Sacramento for CDCR to review
3
4 its lethal-injection protocol.

5

116.* The meeting was called by the Governor's legal affairs director, Andrea

6
Hoch, and was attended by Robert Singler, M.D., Dane Gillette, Andrea Hoch, Steven
7
Ornoski, Bruce Slavin, Dan Maguire, Tami Bogert, Peter Szkrenyi, Dave Runnels, and
8
9 Darc Keller.

10

117.* All present had read a copy of this Court's February 14,2006 order, and

11
appeared to be familiar with this Court's respectful suggestion to CDCR that it review its

lethal-injection protocol.

ll7a. Warden Ornoski read Judge Fogel's orders and saw "that he had some

concerns" and was "steering us in the direction to modify our process," but the Warden

does not "think the Court actually gets to set our policy."

18

117b. Warden Ornoski recalls that at this meeting, Andrea Hoch, the Governor's

19
counsel, was "quite frankly, she was the -- the most prolific speaker as far as questions, she
20
21 wanted to know just about everything ..."

22

l17c. At the meeting, Warden Ornoski recalls that Mr. Gillette provided an opinion

23
to the attendees of the meeting that the claims raised by Michael Morales "were pretty
24
meritless. "
25

26

117d. Based upon the discussion with Andrea Hoch, the Governor's Legal Affairs

27 Secretary, Dr. Singler, the opinions of Dane Gillette and Bruce Slavin, and based upon his
28
observation of the Texas model, Warden Ornoski would reduce the amount of sodium

35

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 36 of 37

Pentothal used during an execution to one or one and a half grams, "and then starting the

2
rest of the concoctions."
3

4

117e. Warden Ornoski personally witnessed the State of Texas perform a lethal

5 injection execution, "and from [his] personal observation it was fairly quick. Significantly

6
quicker than California's."
7
118. * At the conclusion of the meeting, no one was assigned any tasks or
8

9 responsibilities to take any further action in this regard. Warden Ornoski knows of no other

10 actions taken by CDCR with respect to the Court's suggestion. Warden Ornoski left that
11
meeting with the belief that the issue would be resolved at the hearing by this Court and

that CDCR would be told by the Court what its new procedure was going to be.

118a. At the time of the scheduled execution of Michael Morales, Thomas Rosko,

M.D. was the chief psychiatrist at San Quentin and provided psychiatric care to inmates and

supervised the psychologists and mental health treatment personnel at the institution.

18

118b. Dr. Rosko was medically responsible to care for the mental health of Michael

19
Morales, but made Warden Ornoski aware that he "was positively inclined" to make a
20
21 medical determination about whether Mr. Morales was unconscious or not during his

22 scheduled execution to allow the execution of Michael Morales to take place on February

23
21,2006.
24
lI8c. Dr. Rosko testified that to adequately assess an inmate's anesthetic depth, he
25

26 would need to "do that being in there with the patient. You couldn't do that from another

27 room outside because it's a clinical evaluation. So I guess it's fair to say, as this was being
28

36

Case 5:06-cv-00219-JF Document 277 Filed 11/27/2006 Page 37 of 37

discussed, it kind of included the idea that, if I were to do it, I would have to actually be in

2
there next to the inmate."
3

4

118d. Dr. St. Clair agrees with Dr. Rosko on this assessment.

5

118e. Dr. Rosko would not use Thiopental to maintain unconsciousness during

6
surgery because "thiopental is generally not strong enough to do surgery and also because it

7
has a relatively short duration time of action."
8

9

119. * Warden Omoski requested that Dr. Thomas Rosko, the San Quentin Chief

10 Psychiatrist and a former anesthesiologist, assist in revising Operational Procedure 770.
11
120. * Dr. Rosko's task was to devise the procedures to employ for the continuous

infusion of sodium thiopental. At that time, Dr. Rosko believed that the initial bolus dose

would be 5000 milligrams of sodium thiopental.

120a. Dr. Rosko testified that it is good and standard medical practice to be in the

same room as a patient.

18

120b. Dr. Rosko testified that one checks for consciousness for changes in vital

19
signs both clinically by the use of one's senses and also via monitoring devices through the
20
21 use of a machine, a cardiogram, a blood pressure cuff, or an oximeter.

22

120c. Clinical observations include movement, breathing, skin color, whether eyes

23
are open or closed, and pupil size.
24
120d. Thiopental is used as an induction agent to induce unconsciousness and other
25

26 drugs are typically used to maintain unconsciousness.

27

28

37

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 1 of 36

David A. Senior (# 108579)
2 McBreen & Senior 1880 Century Park East, Suite 1450
3 Los Angeles, California 90067
4 Telephone: (310) 552-5300 Fax: (310) 552-1205
5 dsenior@mcbreensenior.colll

6
John R. Gre1e (# 167080) 7 Law Offices of John R. Grele
703 Market Street, Suite 550 8 San Francisco, California 94103 9 Telephone: (415) 348-9300
Fax: (415) 348-0364 10 jgrele@earthlink.net

11
Richard P. Steinken (admitted pro hac vice) 12 Jenner & Block LLP
13 One IBM Plaza
Chicago, Illinois 60611-7603 14 Telephone: (312) 923-2938
15 Fax: (312) 840-7338 rsteinken@jenner.colll
16

17 Attorneys for Plaintiff MICHAEL ANGELO MORALES
18

19

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

20

SAN JOSE DIVISION

21
MICHAEL ANGELO MORALES,

) CASE NO. C 06 0219 (JF) (RS)

22

)

C 06-926 UF) (RS)

Plaintiff,
23

) ) AMENDED JOINT PRE-HEARING

24

vs.

) CONFERENCE STATEMENT

) 25 JEANNE WOODFORD, Secretary of the ) REDACTED PURSUANT TO COURT

26 California Department of Corrections; )

ORDER - PART II

EDDIE YLST, Warden, San Quentin State) 27 Prison, San Quentin, CA; and DOES 1-50,) HEARING DATE: Sept. 26, 2006

28

) TIME:

9:00 a.Ill.

Defendants.

) COURTROOM: 3

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

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 2 of 36

l20e. In order to determine an appropriate clinical dose of thiopental, one must
2
consider the circumstances including the person's age, medical condition, weight, and other
3
4 drugs they are on.

5

l20f. If someone presents themselves with an elevated heart rate, say from anxiety,

6
Dr. Rosko testified that he has administered premeditation before administering thiopental.
7
120g. Witness #1 described the execution process to Dr. Rosko in a general way;
8

9 who would be there and what they would do. They also discussed the role of the person

10 monitoring in response to the court's order.
11
120h. Dr. Rosko met with the Warden, Witness #1, and Dr. St. Clair and walked

over to the chamber. The discussion was along the way. There was no discussion about

Dr. Rosko having to order any measures if he observed that Mr. Morales was in distress

during the execution procedure.

121. No state other than California uses a bolus dose of sodium thiopental that is

18 less than 2 grams.

19
122. Texas uses 3 grams of sodium thiopental during an execution.
20

21

123. * Dr. Rosko performed 15 minutes of research on the Internet to determine the

22 concentration of sodium thiopental to be in the infusion, and the drip rate.

23
124.* During Dr. Rosko's Internet search, he did not have access to a Medline
24
account that would allow him to review entire articles in certain journals.
25

26

125. Inmates Allen, Anderson, Massie, and Siripongs received a second dose of

27 potassium chloride during their executions.
28

38

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 3 of 36

125a. The doctor's log which lists, among other things, the number of doses of
2
potassium chloride given to the inmate, is missing for the Thompson execution, and
3
4 defendants cannot explain why.

5

126. Warden Calderon has described the execution teammates' responsibilities as

6
"awesome" and very stressful. He says that the teammates become very apprehensive
7
during an execution. Witness # 1 states that it is a very intense process; it is the most
8

9 stressful thing that a person in the Department of Corrections is asked to do. Witness #4, a

10 LVN, states that he is as tense as he ever is. It is a surrealistic experience. It does not seem
11
real when it's happening. It seems dreamlike. Witness #3 states that it is stressful because

there is no other place in the world that an LVN is asked to start an IV for that purpose.

Warden Steven Ornoski was practically beside himself during the Stanley Williams

execution. Wardens Brown and Ornoski have refrained from viewing any part of the

condemned inmate save his feet during the last three California executions.

18

127. The identity of the execution team leader is known to personnel at San

19
Quentin from all aspects of the institution: maintenance, medical, and custody. For
20
21 Witnesses #1 and #5, their existence on the execution team and as execution team leader

22 was not a secret at the institution. It becomes a known fact.

23
128. Operational Procedure 770 prohibits team members from asking anything that
24
would require an oral response during an execution.
25

26

129. Witness #1 invited Witness #9 to join the execution team. At the time,

27 Witness #9 knew that Witness # 1 and Witness #5 were on the execution team because
28
"[t]hings get around." Warden Jill Brown then interviewed Witness #9 for five minutes.

39

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 4 of 36

Witness #9 does not remember Brown asking him any questions regarding his mental,

2
psychological, employment, drug, alcohol, criminal, or disciplinary history. Brown then
3
4 confirmed his appointment on the team.

5

130. Witness #9 joined the execution team before the execution of Donald

6
Beardslee "to succeed Witness No.1" as the team leader. His "selection was to be
7
co-leader or next in line" in the event Witness #1 left the execution team.
8

9

131. For the Beardslee, Stanley Williams, and Allen executions, Witness #9 was

10 the recorder and was stationed at a desk outside the anteroom of the death chamber
11
approximately four feet from the death watch cell between midnight and 2:00 a.m., and he

"couldn't see what was going on" during the executions.

132. Witness #1 taught Witness #9 what information needs to be recorded - "you

write down everything the inmate does." Upon completion of his recorder responsibilities

after an execution, Witness #9 would give all of his recorded information to Denise Dull on

18 the evening of the execution.
19
133. Witness #9 writes down everything he sees based upon his own personal
20
observations, except "the time of each push to the time of the pronouncement of death ..."
21

22 He obtained that information from either Witness #1 or Maurice Lyons for the Beardslee

23
execution, and from Witness #20, a maintenance supervisor, for the Stanley Williams and
24
Clarence Allen executions.
25

26

134. Witness #9 gives Witness #20 a list of the times he wants recorded during the

27 execution, and Witness #20 records the times on a piece of paper while watching the
28
execution from the anteroom, based upon the times on the clock. Witness #9 then records

40

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 5 of 36

these times in the log book and destroys the written list provided by Witness #20. Witness

2
#20 also has other jobs during the execution.
3

4

135. Witness #9 has no recollection of ever revising the Stanley Williams

5 execution log entries after the execution. All of the entries on the log, Exhibit 14, between

6
0019 hours and 0035 hours were provided to him by Witness #20.
7
136. During execution team training sessions, Witness #9 would "practice the roles
8

9 that are perfonned by execution team members that take the inmate from the deathwatch

10 cell into the chamber." He practiced no other team member roles.
11
137. Witness #9 testified that "because the team leader administers the lethal

drugs," he received training as to how to administer lethal drugs. Witness # 1 and Witness

#5 are the only people that provided such training to Witness #9. Witness #1 described it as

"limited training."

137a. Witness #5 testified that there was only one time during practice that Witness

18 #9 worked with the syringes. On that occasion, Witness#9 was not doing so with "the view
19
to become the team leader at some point." Witness #5 observed that Witness #9 was
20
21 working with the syringes "probably [for] personal experience."

22

137b. Witness #5 never provided training to Witness #9 "on how to administer

23
lethal drugs."
24
138. Witness #9 recalls that "[t]here isn't really much training into it" and it is
25

26 "more a self-taught event." He was taught not to push the syringe too hard because he

27 might blow the inmates vein "or the IV tubing." Witness #9 has received no "training with
28
respect to back pressure in administering lethal chemicals." He was given no advice

41

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 6 of 36

whether the push could be too slow, but was told that at least some minimal pressure on the
2
syringe is required.
3
139. When Witness #9 practiced pushing a full set of the five lethal injection
4
5 syringes before the Beardslee execution, the entire process took about seven to ten minutes
6
to empty all of the syringes.
7
140. Witness #1 and Witness #5 never provided Witness #9 any "instruction or
8
9 training as to whether there's any difference in the sensation or the feeling of the push [of
10 the syringe] when that open IV line is actually connected to a catheter" (Le., 18 gauge) or
11
"when that open IV line is connected to a catheter that's inserted into a human."

141. On only one occasion has Witness #9 observed the execution team mix the

lethal chemicals. This occasion was before the execution of Clarence Allen. He watched

this from the antechamber of the execution chamber through a window into the mixing

room. He is "not really sure" how it is done.

18

142. This observation session was only to show Witness #9 the location where the

19
chemicals were mixed. Witness #9 has no educational background in pharmacology, and
20
21 never has seen drugs mixed on any other occasion.

22

143. The drugs were mixed between 6:00 p.m. and 8:00 p.m. on the night of the

23
Allen execution. Witness #9 "can't be sure" where the syringes were stored after they were
24
filled with the lethal drugs. The syringes being used were "the big syringe that we use for
25

26 the push."

27

144. Witness #9 believes one drug used during an execution is sodium Pentothal,

28
but he does not recall the other two. He is unsure whether sodium Pentothal is administered

42

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 7 of 36

before or after the other two drugs. He does not know how much sodium Pentothal is

2
contained in the syringe.
3

4

145. Witness #9 believes Witness #1 showed him Exhibit 67, and that it is kept

5 "somewhere in the mixing room" in plastic covering.

6
146. Witness #9 believes "there has to be instructions for mixing" the drugs, but he
7
doesn't know where the instructions would be kept.
8

9

147. In the practice sessions for Michael Morales's execution, Witness #9 believes

10

11

0

<!)
vI'-

12

~(Oo

(t:Q)00

0_:"::,l"O0l(L"{))

Z w

e..n...

.~ c::

N
It)

13

0U/1Jw~:~: ~0 14 -,,(1l~

z~t.)~

Wc..uiQi
w ~~ c:

15

m _ 1t::::lOQl.)c0:

c: c: a.

UQ)«Q)
::i!t.)",w

16

0 c o°- l1 -

co

17

the execution team practiced with one syringe emulating sodium Pentothal, and one backup syringe emulating sodium Pentothal. The syringes were filled with water, not sodium Pentothal. It is the same set up that was used in every practice session that Witness #9 has participated in since joining the execution team.
148. There have been no execution team training sessions since before the scheduled execution of Michael Morales. Witness #9 has neither added nor deleted any

18 personnel from the execution team.
19
149. Witness #9 is not familiar with how anesthesia works, and has had no formal
20
21 medical training. Witness #9 believes that sodium Pentothal "take[s] the nervous system

22 out." He does not know how many grams of sodium Pentothal are used in an execution in

23
California.
24
150. Witness #9 does not know why potassium chloride is used in the protocol.
25

26

151. Witness #9 would not know how to make a determination whether a person is

27 regaining consciousness after being administered sodium Pentothal. He does not know
28
what infiltration is. Witness #9 has received no formal medical training.

43

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 8 of 36

152. Witness #9 claims he never missed an execution team training session while
2
he was a member of the execution team. During those practice sessions, the team would
3
4 "run through two drills", and it would take "approximately an hour for the two drills."

5

153. No one has told Witness #9 "what the doctor's responsibilities are supposed

6
to be during an execution"; it's never discussed during practice.
7
154. Witness #9 has "no idea" who the doctor is that would be present if a
8

9 California execution was scheduled for tomorrow.

10

155. Witness #9 "couldn't say where the doctor is suppose to be located" in the

11
antechamber during an execution.

156. The entire execution team remains at the execution chamber area after an

execution. Witness #9 has observed that the team takes the inmate out of the chamber, "do

postmortem on him," and he testified that they videotape the events. Witness #9 prepares

the "evidence sheet" for the "incident package" at that time. Photographs of the inmate also

18 are taken by Witness #1, #5, or #33. Witness #1 and Witness #5 are trained in "post-
19
mortem", while Witness #9 is not.
20
157. Defendants have never produced to plaintiff for inspection the videotapes and
21

22 advise that Witness #9's testimony is inaccurate as to the existence of same, or the evidence

23
sheets, incident packages, or postmortem reports from any execution.
24
158. Witness #9 never has read Operational Procedure 770.
25

26

159. If Witness #1 did not appear for the scheduled execution of Michael Morales

27 on February 21,2006, Witness #9 would have acted as the team leader.
28

44

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 9 of 36

160. Witness #9 currently works overtime in
2
as the shift Lieutenant. Witness #9 was assigned to work in
3
4 prison for at least four years.

of the

5

161. On the night of the scheduled execution of Michael Morales, Mr. Morales

6 was housed in the death cell four feet from where Witness #9 was posted. Mr. Morales
7
greeted Witness #9 by name, and asked him how he was doing. Witness #9 wore no name
8

9 tag.

10

162. For the Beardslee, Williams, and Allen execution team practice sessions,

11
Witness #9 recalls that team leader Witness #5 "was present about half the time."

163. Witness #9 has only seen CDCR doctors attend training sessions one time for

each execution, and on the eve on an execution.

164. Witness #9 never has seen anyone adjust the setting of the mechanism on the

IV line that is located under the IV bag in any practice sessions other than the session

18 "during Mr. Morales, with the doctors there."
19
165. Witness #9 has "no idea" how the execution protocol has changed, but he has
20
heard rumors that it has. He never has discussed the execution process with Warden Ayers.
21
22 No one has discussed with Witness #9 changing the execution procedure to use a sodium

23
Pentothal IV drip.
24
166. There are no Lieutenants other than Witness #9 on the execution team. There
25
26 are no Captains, Associate Wardens, or Chief Deputy Wardens on the execution team.

27

167. Witness #9 has never reviewed the personnel or supervisory files for any

28
execution team members.

45

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 10 of 36

168. Defendants have not produced the supervisory files to plaintiff for inspection

2
and review of any execution team member.
3

4

169. Witness #9 plans to retire from CDCR "very soon."

5

170. Witness #7 is a RN and participated in seven California lethal injection

6
executions between 1996 and 2003. She is not a licensed nurse anesthetist. There never
7
8 has been a licensed nurse anesthetist on the execution team. To become a licensed nurse

9 anesthetist, a RN must undertake additional training and testing to become certified.

10

11

0on v .....

12

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w ~.C:~

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06 UJ::: 0 14

Z-1':J;;:;

III

~

Wo..ulQj

WC0::I:l

~j1 c: _::l .0,>'>0:

15

:UEO~:;":,

~ .,

16

0 0 1-

ccoo-'
~

17

171. During Witness #7's tenure as an execution team member, she worked with

two other RNs on the execution team, and two LVNs.

172. While Witness #7 was on the execution team, there never was more than one

other RN on the team. One RN performed one or two executions with Witness #7 in or

around 1996, then she left the execution

She was

replaced on the execution team by Witness #6, a RN who remained on the execution team

18 through the execution of Clarence Allen in 2006.
19
173. While Witness #7 was on the execution team, there never was more than one
20
21 LVN on the team.

22

174. Witness #3 telephoned Witness #7 on the eve of her deposition to discuss her

23
upcoming deposition. Witness #3 learned of Witness #7's scheduled deposition from
24
Witness #7's son knows that his
25

26 mother was on the execution team, and knew it when she joined the execution team in

27
1996. Witness #7's son knows that Witness #3 is on the execution team. Witness # 7 ' .
28
. He has worked

46

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 11 of 36

in East Block where plaintiff is housed

2
and he currently works there.
3
175. Witness #7 never trained an execution team member on how to administer
4

5 lethal drugs.

6

176. In all of the training sessions that Witness #7 attended during the seven years

7
on the execution team, Witness #7 only saw one RN, i.e., Witness #6, provide training to an
8

9 execution team member on how to administer lethal drugs. This occurred on two

10 occasions.
11
177. For each instance, the training session lasted for less than one minute. Each

training session was provided to a different execution team leader, and the second session

occurred years after the first. 178. Witness #7 never observed a RN other than Witness #6 provide training to an

execution team member as to how to administer lethal drugs.

18

179. Witness #7 never observed a LVN provide training to an execution team

19
member as to how to administer lethal drugs.
20
180. The only training that Witness #7 saw Witness #6 give was how fast to push
21

22 the plunger. The training was "not to push it that fast, or not to go too slow."

23

181. Witness #7 never practiced mixing sodium Pentothal.

24

182. In all of the practice sessions for all of the executions that Witness #7
25

26 participated in, she never saw anyone on the execution team practice mixing sodium

27 Pentothal.
28

47

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 12 of 36

183. In all of the practice sessions for all of the executions that Witness #7

2
participated in, she never practiced setting an IV on anyone.
3

4

184. When Witness #7 was trained to set catheters in 1958, she practiced setting

5 them on other people.
6
185. In all of the executions Witness #7 participated in, her only responsibilities
7
were to mix the drugs, set a catheter, and select the syringes from the cart and hand them to
8
9 the person administering the lethal chemicals. Witness #7 selected syringes from the cart

10 during the seven executions she participated in about half the time. If Witness #7 was not
11
selecting syringes from the cart, she was doing nothing during that portion of the execution

procedure.

186. Witness #7 could not see into the execution chamber while the lethal

chemicals were being administered during any execution she participated in.

187. In every execution that Witness #7 participated in with Witness #6, after the

18 syringes were handed to the person who was to administer the lethal chemicals, Witness #6

19
was operating the stopcock to tum off the saline IV flow coming from the IV bags.
20

21

188. The anteroom of the execution chamber was so crowded with people that

22 Witness #7 would "use [her] elbows a little to get your room," and when handing syringes
23
to the executioner she would "have to kind of reach around people."
24
189. During all of the executions that Witness #7 participated in, she could not see
25
26 the executioner put the syringes "in the stopcock or plunge the chemicals" because "of the

27 crowds in the room."
28

48

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 13 of 36

190. Witness #7 never saw a RN or LVN either hang an IV bag or connect the IV

2
bag to IV tubing during an execution.
3

4

191. In all of the training sessions that Witness #7 attended during the seven years

5 on the execution team, and all of the executions Witness #7 participated in, Witness #7 does

6
not know how the IV line is turned on, or who turns it on.
7
192. There is a switch in the IV tubing line below the IV bag that can regulate the
8

9 flow of saline from the IV bag. In all of the training sessions that Witness #7 attended

10 during the seven years on the execution team, and all of the executions Witness #7
11
participated in, Witness #7 never saw a team member set the regulator. Witness #7 has

never seen a RN or a LVN be assigned the task of setting the regulator for the IV saline drip

line, or practice doing so.

193. In all of the training sessions that Witness #7 attended during the seven years

on the execution team, and all of the executions Witness #7 participated in, Witness #7 has

18 never heard any discussions or seen any training as to how the drip setting on the IV line
19
should be set.
20
194. Witness #7 never has received training on how to mix sodium Pentothal either
21
22 before or after joining the execution team. Witness #7 never mixed sodium Pentothal for
23
an execution.
24
195. Witness #7 testified that Witness #6 always mixed the sodium Pentothal for
25
26 all the executions that she participated in. Witness #6 "would just take over." "She liked to
27 do it, and she always said she didn't need any help."
28

49

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 14 of 36

196. One inmate received two syringes of potassium chloride because after "a

2
reasonable time" "he didn't die", and the team "waited and waited."

3

4

197. In this instance, Warden Woodford directed a second dose to be given to the

5 inmate by "just nodding her head" to Witness #7. There never was a previously established

6
"line of communication established between [Witness #7] and Warden Woodford" for this
7
purpose.
8

9

198. Witness #7 knew that when Warden Woodford "nodded her head to [Witness

10 #7], that she wanted [Witness #7] to hand another syringe of potassium chloride" to the
11
executioner "[b]ecause [Witness#7] had it in [her] hand ready."

199. Witness # 1 claims he does not know who gave the order to administer the

second dose of potassium when one was given, but he was present in the anteroom for the

Clarence Allen execution that required second doses of potassium chloride.

200. Witness #3 thought that the team leader ordered the second dose of potassium

18 during the Allen execution.

19
201. Witness #5 claims he never ordered the administration of a second dose of
20
21 potassium.

22

202. Witness #7 doesn't know why they have a team leader, but believes it's

23
important because "somebody has to take charge."
24
203. Witness #6 participated in at least seven executions up through the Clarence
25

26 Allen execution when she retired.

27

204. When Witness #6 was asked, "And how did you go about training to be on

28
the execution team?," Witness #6 testified, "Training? We don't have training really."

50

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 15 of 36

205. Witness #6 testified that execution team members would practice an

2
hour or two per day for three days before an execution.
3

4

206. Witness #6's recalls the execution chamber antechamber during an execution

5 as "a tiny room and packed with people ...."

6
207. Witness #6 testified that she mixed the thiopental into solution for every
7
execution for which she was on the execution team, up through and including the Allen
8

9 execution.

10

208. Witness #6 doesn't remember the amount (milligrams) of thiopental that was

11
contained in the thiopental kit or kits that she used to prepare the syringes of thiopental.

She never mixed more than one bottle of thiopental for any execution.

209. Witness #6 recalls that "[mlost of the time," or "always," the thiopental came

packaged in a single large bottle. "Sometimes the concentration is different too.

Sometimes the big vial. Sometimes more vial is different. So -- but like I say, so we -- it

18 depend."
19
210. Witness #6 has not received or given any training on how to mix thiopental.
20
She learned to mix thiopental "at the chamber." "Nobody taught me." Instead, she used the
21

22 package insert and the fonnula (Ex. 67) as guides.

23
211. In order to mix the thiopental with the diluent, "[s]ometimes you have to --
24
have to use the syringe; sometimes it comes [in bottles] that you can hook together and
25

26 shape (sic - shake), so it depends the phannaceutical, yeah."

27

212. After Witness #6 draws up the syringe or syringes, there would be some

28
solution left in the thiopental bottle.

51

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 16 of 36

213. Witness #6 does not recall ever mixing four syringes of thiopental that

2
contained 1.25 grams each.
3

4

214. Witness #6 mixed the sodium thiopental solution according to the formula

5 kept in the drug cart. The formula is from the state. When Witness #6 mixes sodium

6
pentothal, "the most important is the milligram of it. So it's not the cc that counts." "[F]or
7
example 50 milligrams you can even make it in 20 CCs or 50 CCs, it depend how you mix
8

9 them."

10

215. When shown the method for mixing sodium thiopental recorded in

11
Operational Procedure 770 and asked if this was the formula she followed, Witness #6

responded, "No. Mine is much higher concentration than this."

216. Witness #6 testified that the execution team keeps one backup bottle of

thiopental in the refrigerator, unmixed.

217. Witness #6 would take the diluent that's provided by the manufacturer, mix it

18 up in the vial, and draw out the 25 cc's with the needle. "Whatever the package come with,

19
we put everything in that. Ifwe need 25 cc's, we draw out 25 cc's. Or whatever milligram
20
21 required, that's what we do."

22

218. Witness #6 mixes the thiopental to be clear, not yellow or brown.

23
219. Witness #6 has set a catheter in every execution she has participated in.
24
Either Witness #7 or Witness #3 also set catheters with Witness #6 on these occasions.
25

26

220. Witness #6 has handed the syringes to the person administering the lethal

27 chemicals on two or three occasions. She never watches the inmate while doing this.
28

52

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 17 of 36

221. Witness #6 has observed that the person administering the lethal chemicals
2
faces the plate of stopcocks while pushing the syringes. The person handing the syringes to
3
4 the person administering the lethal chemicals watches that person and the syringes so they

5 know when to remove the syringe from the stopcock and install the next syringe.

6
222. Witness #6 has no training in anesthesiology or the pharmacology of
7
thiopental. She doesn't know the pH of thiopental, the highest recommended concentration
8
9 of thiopental, or how many milligrams of thiopental come in a vial.

10

223. Witness #6 has not done any research on thiopental because "[o]ther

11
medication, yes daily I have to use I need to know so I can teach my patients, but this I

don't need to know. I don't ever use it so I don't need to know it."

224. Witness #6 does not how many grams of thiopental are used during an

execution. The formula is written on a piece of paper by the State that is kept in cart in the

execution chamber.

18

225. When the execution team practices, the syringes are not drawn "according to

19
the volume that you are going to inject" during an execution. Witness #6 testified that
20
21 "[w]e just draw the syringes and pretending." "Just whatever volume we pretend to play

22 with and we do." If the formula says 25 cc's, they might decide for a practice session to do

23
50 cc's.
24
226. Witness #6 knows of no procedure in place if the execution team cannot set
25

26 an IV catheter.

27

227. Witness #6 doesn't remember the number of syringes that are prepared for an

28
execution because "we don't do it every day. Once in a while."

53

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 18 of 36

228. Witness #6 remembers that she set the right IV for the Tookie Williams
2
execution: "Mr. Williams I remember ... Williams I have a problem so it's in my head."
3
229. After Witness #6 had trouble starting the IV during the Williams execution,
4

5 the execution team was "very supportive again. They say quote unquote shit does happen,

6
so."
7
230. When asked what happens ifpancuronium is injected into a conscious person,
8
9 Witness #6 testified, "I don't study. I just do the job. I don't want to know about it."

10

231. Witness #6 testified that the LVN that hands the syringes to the person

11
pushing the syringes of the lethal chemicals then just stands there. There is no training or

practice for this LVN to do anything else. "[W]e just stand there. It's our job to start the

IV, mix the solution, make sure they have what they need. And after that, we are nobody;

we behind.... [E]xcept the MTA helping to get him what exactly he need to push."

231 a. Witness #6 can only see the back of the person pushing the syringes of the

18 lethal chemicals. People stand between her and the person pushing the syringes.
19
231 b. According to Witness #6, the RN who attended and participated in eight
20
executions, the person administering the drugs is not standing with his shoulder to the
21

22 chamber because it would not be the proper position to push drugs. The person is actually

23
facing the panel holding the stopcock mechanism, which allows that person to administer
24
the drugs.
25

26

231 c. According to Witness #6, the RN who attended and participated in eight

27 executions, the LVN that hands the syringe to the person administering lethal chemicals,
28
"stands right here next to him" looking "straightforward at the lure lock" i.e., the stopcock

54

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 19 of 36

panel. The LVN is watching the lure lock to enable him to know when the syringe is

2
empty, so he can remove it and place a new syringe in the lure lock. "So it just makes sure
3
continuously done. When he sees almost finished or if I was there, it's almost finished J
4

5 prepare to give the new one."

6

232. Witness #6 regularly worked the 6:00 a.m. to 2:00 p.m. shift at San Quentin,

7

either in
8

9

233. The team leader and the warden decide when training should occur for an

10 execution. Witness #6 testified that if she had a question about what should or shouldn't be
11
done, if somebody had difficulty with a member of the team, or if somebody had a question

about performance of another team leader, she would consult the team leader.

Witness #6 recalls the wardens being present once for training for each execution. They are

not a "regular presence in the training." 234. Witness #6 provided care for condemned inmates• . She is not aware

18 of any rule prohibiting her from doing so while she is a member of the execution team.

19
235. Witness #7 testified that the syringes of different drugs had different amounts
20
of solution in them: "Sodium pentothal was 25 cc's, and it was followed by the 20 cc's of
21

22 saline to flush it through. The Pavulon was 50 ee's, and there were two syringes of that that

23 were given, plus the 20 ee's of saline, and then the last drug given was the potassium
24
chloride, which was 50 cc's containing thiopental had 25 cc's in it."
25

26

236. When asked if she had read Operational Procedure 770, Witness #7 said "I

27 don't know what you're talking about."
28
237. No member of the execution team has training in anesthesiology.

55

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 20 of 36

238. Witness #3 believes it is not his responsibility, and has not been trained to
2
check the other team member's IV placement to make sure that the catheter has been
3
4 successfully inserted.

5

239. Witnesses #6, #1, and #3 do not know what effect pancuronium would have i

6
injected into a conscious person.
7
240. Witness #4 thinks that potassium causes death before it causes pain.
8

9

241. No former team leaders have had medical training.

10

242. The saline IV drip chambers are set at a rate equivalent to TKO ("to keep

11
open") during the execution.

243. No changes were made to Operational Procedure 770 as a result of

consultations with Dr. Dershwitz.

244. Drs. St. Clair and Calvo do not have training in anesthesiology.

245. A procedure for notifying the team leader and Warden if one or both of the

18 IVs was not set properly should have been in place for the Allen execution, but wasn't.

19
245a. Witness #5 testified that up until the execution of Stanley "Tookie" Williams,
20
there was no obligation for an execution team member to report a failed IV to anyone in the
21

22 execution team.

23
245b. A reporting procedure was created after the Stanley Williams execution, but it
24
is not in writing.
25

26

245c. The reporting procedure was not part of the operational procedure at the time

27 Witness #5 retired at San Quentin.
28

56

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 21 of 36

245d. The reporting procedure was not part of the operational procedure at the time
2
of the subsequent execution of Clarence Allen.
3
246. Exhibit 67 is the "formula" that Witnesses #6 and #7 used to guide their
4

5 preparation of the chemicals for each execution in which they participated. Exhibit 67 is a

6
typewritten reproduction of a handwritten document that Witness #7 found in the execution
7
chamber. Witness #7 does not know who prepared the original document.
8

9

247. Witness #3 testified that he recalls setting the left arm catheter for the

10 execution of Thomas Thompson, and the right arm catheter in the last three California
11
executions. He testified that "it's possible" that he set left arm catheters in other

executions. Witness #3 did not participate in the executions ofM. Babbitt or J. Siripongs.

248. Former San Quentin Warden Daniel Vasquez testified that he adopted the

three-drug cocktail for lethal injection executions in California "because Texas used it."

249. Warden Vasquez did not "disagree with any of the provisions of the Texas

18 protocol."
19
250. He did not "feel it was necessary to modify ... any of those provisions to
20
21 make the procedure work better than it did in Texas."

22

251. Warden Vasquez's recollection is that he adopted the Pentothal "in the same

23
dosage that Texas used it."
24
252. Warden Vasquez testified that his "recollection as to the amount of sodium
25
26 Pentothal that was being used in Texas" "was 5 grams."

27

253. When shown a document that listed the second step in an execution as

28
"inject[ing] into main line 2 gm 'push'" (Ex. 107 at 5), Vasquez testified, "I don't know

57

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 22 of 36

how that got in there. You know what? I - all I knew was 5 gram - use of 5 grams." He
2
further stated, "The only discussion I recall was 5 grams."
3
254. Exhibit 121 was obtained "from Texas in the process of devising 770." The
4

5 exhibit, labeled "Contents of Syringes," provides for the preparation of only one syringe of

6
Pentothal solution, containing 2.0 grams of sodium Pentothal (Ex. 112.). The Pentothal
7
was to be prepared as "four 500 mgm vials dissolved in the least amount of diluent possible
8

9 to attain complete, clear suspension."

10

255. Exhibit 107 is "the initial draft of the procedure" for California. The

11
procedure provides for the preparation of only one syringe of Pentothal solution, containing

2.0 grams of sodium Pentothal (Ex. 107, p. 2). The Pentothal was to be prepared as "four

500 mgm vials dissolved in the least amount of diluent possible to attain complete, clear

suspension."

256. Exhibit 110 is labeled Resource Supplement G-4. Warden Vasquez testified

18 that Resource Supplement G-4 "was the supplement to the lethal injection procedure that
19
was going to describe the drugs that were being used." This supplement provides for the
20
21 preparation of only one syringe of Pentothal solution, containing 2.0 grams of sodium
22 Pentothal (Ex. 110). The Pentothal was to be prepared as "four 500 mgm vials dissolved in
23
the least amount of diluent possible to attain complete, clear solution." Id.
24
257. Exhibit 111 is another copy of the same document. It includes, however, a
25
26 handwritten alteration of the amount of sodium Pentothal from 2.0 grams to 5.0 grams. Ex.
27 111. Warden Vasquez testified that he did not recall having ever seen the document before,
28
and that he had "no idea" whose handwriting changed the amount.

58

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 23 of 36

258. Exhibit 109 is another version of the same Resource Supplement G-4. It
2
provides for the preparation of one syringe of Pentothal, containing 5.0 grams of sodium
3
4 Pentothal.

5

259. Warden Vasquez testified that his intention regarding the information he

6
received in Texas was to "[b]ring it back to California and consult with the Attorney
7
General's Office in California for consideration of changing the method of execution.
8
9 There was no "discussion about what the medically appropriate doses are for [the lethal]

10 chemicals" when Vasquez returned to California. Warden Vasquez does not recall
11
"consult[ing] with any doctors independently about [the] procedure." While Warden

Vasquez believes "there were some medical staff' involved in the drafting process for the

original O.P. 770, he does not recall their positions, race, gender, or other physical

attributes.

260. Warden Vasquez testified that "three, four feet, something like that" oflV

18 line were utilized in the Texas lethal injection procedure.
19
261. Warden Vasquez testified that the Texas lethal injection team "use[d] medical
20
21 staff to do the push." It was his "understanding of the process as how it should be
22 employed."
23
262. Warden Vasquez's notes reflect that Texas' lethal injection procedure utilized
24
a "0.9 % sodium chloride 50 mil packet - drip for K.V.O (keep the vein open) [at] approx.
25
26 15 drips per minute." Ex. 103 at 6. Vasquez testified that "[t]hat would have been the
27 intent" "of the procedure that [he] employed in California as well."
28

59

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 24 of 36

263. Warden Vasquez testified that "[m]aking a execution seem humane and
2
dignified is up to the people that carry it out. You can't legislate it or write it down. You
3
4 have to practice it."

5

264. Warden Vasquez testified that he believed that the lethal drugs should be

6 "mix[ed] with as little saline solution as possible ... as little to make suspension possible
7
for each drug." Ex. 103 at 5.
8

9

265. Warden Vasquez testified in this litigation that he did not "recommend any

10 changes to the Texas protocol before [he] adopted it as California's lethal injection
11
protocol," "specific changes that [he] thought needed to be made from the Texas protocol"

other than to accommodate "the physical plant differences between Huntsville Prison and

San Quentin."

265a. Vasquez previously testified that he opposed the use of lethal inj ection

inCalifornia after visiting Texas. Vasquez Depo., 10/12/93, at 28. "[He] felt that [lethal

18 injection] would create problems for the staff as ... [he] was informed in Texas that it
19
caused problems for staff there that had to carry out," and that "some of the staff [in Texas]
20
21 went out on emotional stress because of the touching and everything that they had to do
22 with the condemned inmate." ld.
23
265b. Vasquez previously testified regarding Texas' protocol that, "In one case they
24
took 45 minutes to find a usable vein on a condemned inmate that was going to be put to
25
26 death. And finally, even with the inmate's help, they found a vein, and it was in his
27 scrotum and there was only one vein they could use, and they used that one vein to induce
28

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Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 25 of 36

the poison or overdose medicine. And I remember that stuck out in my mind." Vasquez

2
Depo., lO/12/93, at 26.

3

4

265c. Warden Vasquez's opposition to the use oflethal injection in California was

5 only withdrawn after "[t]he development of some training that [he] developed with the help

6
of a staff psychologist that we used and employed on staff and other witnesses." Id. at 29.
7
He testified that "it's a pre-stress type of training approach as opposed to post-stress. It
8

9 trains people about pre-stress." Id.

10

265d. The psychologist was removed from the execution team by Warden Ornoski.

11
265e. When he approved lethal injection as a method of execution for California,

Warden Vasquez believed that, "unconsciousness occurs in a matter of seconds. That's my

experience, personal experience, personal observation and personal experience." Vasquez

Depo., 10/12/93, at 31.

266. Witness #1 testified that the person administering the drugs needs to have

18 knowledge about how that's taking place because the person administering the drugs has a
19
very important role in the execution, and ultimately they're responsible if something doesn't
20
21 go right, so it behooves them to understand the entire process on how it goes so that they're

22 aware of the proper procedures.

23
267. The person administering the drugs is suppose to use a very slow and steady
24
pressure.
25

26

268. Witness #1 states that the main way of training is by judging the speed for the

27 push of the drugs. That is the way they do it "almost exclusively."
28

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Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 26 of 36

269. Witness #1 states that the new training method that is going to be employed is
2
to measure the rate of the push against the saline drip and if the drip slows down, then the
3
4 push is too hard, and it will be adjusted.

5

270. Witness #1 testified that the only document used that provides directions on

6
mixing the Pentothal is on the box that drug comes in, depicted in Exhibit 2.
7
271. Witness #1, the team leader for the Morales execution and who assisted in
8
9 drafting Operational Procedure 770, March 6, 2006, believes that Pentothal is the drug used

10 most often by an anesthesiologists for putting a person to sleep during surgical procedures.
11
272. None of the persons who have administered the lethal chemicals in California

executions, or Witness #5, Witness #1 or Witness #9, are familiar with or trained or

educated in anesthetic depth.

273. In all the executions, no one has checked to see if the inmate is unconscious.

274. A few days prior to the Court's March 30, 2006 tour of the execution

18 chamber, Witness # 1 added the upper plate with the IV lines running through it. He came

19
up with the design in consultation with a maintenance person at San Quentin.

20

21

275. Witness #1 has seen instances in an execution setting where an IV has started

22 but the drip does not flow. It is not uncommon for IVs not to work the first time in

23
executions and in personal life settings.
24
276. Witness #1 believes that under the new protocol, if an IV stops running after
25

26 pancuronium bromide, then they will continue with the last drug in the other arm.

27

278. There is no contingency procedure in place under the new Operational

28
Procedure 770 if the thiopental drip stops before they administer pancuronium bromide.

62

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 27 of 36

279. Under the new Operational Procedure 770, the execution team cannot use the
2
left arm IV line as a backup drug delivery mechanism because it will be used for a
3
4 thiopental drip.

5

283. Dr. Dershwitz was consulted by CDCR in revising the execution protocol.

6
284. Defendants have not produced any documents regarding the substance of their
7
consultations with Dr. Dershwitz, or disclosed the substance of that consultation.
8

9

285. Witness #1 testified that he was given instruction by Warden Ornoski to come

10 up with a draft protocol using 2 grams of Pentothal and a continuous drip of Pentothal.
11
286. Witness #1 testified that Denise Dull then informed him that the initial dose

of Pentothal was to be reduced from 2 grams to 1.5 grams.

287. Witness #1 testified that Warden Ornoski did not portray the idea to come up

with a continuous drip of thiopental as his own idea, but that he had received the idea from

others.

18

288. Witness #1 testified he drafted Operational Procedure 770, March 6,2006,

19
after receiving direction from Ornoski to have 2 grams of an initial dose of Pentothal, a
20
continuous drip of Pentothal, and a particular dose of pancuronium bromide and potassium
21

22 chloride; consultation with Dr. Rosko; instruction from Ms. Dull to reduce the initial dose

23
to 1.5 grams; and, with Ms. Dull assisting in drafting sections that did not pertain to the
24
actual execution process.
25

26

289. Witness #1 was comfortable with the old protocol, and believes the new one

27 "will help ease the mind of the judge and anything that he may be concerned about. At
28
least that was our goal."

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Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 28 of 36

290. Witness # 1 has been on the execution team since 1997, or before the Thomas
2
Thompson execution. He was the recorder for that execution and through the Stephen
3
Anderson execution. He was present in the anteroom of the execution chamber only for the
4
5 Beardslee, Williams, and Allen executions. For the three executions where he was present
6
in the anteroom, Witness # 1 says he was in the back, by the three telephones.
7
291. From examining the doctor's logs for the Siripongs execution, Witness #1
8
9 testified that four syringes of Pentothal were used during that execution because it took four
10 minutes to inject the Pentothal.
11
292. Witness #1 testified that up through the Thompson execution in July, 1998,

two syringes of Pentothal were used during an execution. Thereafter, Witness #1 states that

four syringes of Pentothal were required because the Pentothal packaging changed from a

higher concentration to a lower concentration of Pentothal, thereby requiring more syringes

to retain the same Pentothal concentration.

18

293. Witness #7 testified that Exhibit 67 contains the protocol for preparing the

19
syringes for an execution and this protocol was used the entire time she was on the
20
21 execution team, from the Keith Williams execution in May 1996 through the Stephen

22 Anderson execution in January 2002. Exhibit 67 states that one syringe of Pentothal was to

23
be prepared for each execution.
24
294. Witness #1 testified that there has always been a backup syringe of Pentothal
25

26 made for an execution. The reason for a backup syringe is in case one drops and breaks.

27

295. Exhibit 67 states: "Do not mix" the backup syringe of Pentothal.

28

64

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 29 of 36

296. Operational Procedure 770 states that there is to be one unopened backup of
2
thiopental.
3
297. Witness #6, who has mixed the Pentothal in eight California executions,
4
5 testified that the one backup vial of Pentothal is in the "refrigerator that we don't use, that's
6
the backup" and "we don't mix."
7
298. The manufacturer's inserts concerning thiopental are not contained in the
8
9 individual boxes retrieved from the pharmacy. The only manufacturer instructions given to
10 team members are those on the outside of the individual boxes, contained in Exhibit 2.
11
Witness #I testified that he has never reviewed the packaging inserts for any of the lethal

injection chemicals. The pancuronium bromide and potassium chloride do not come in

their boxes from the pharmacy, but come in individual vials in a bag.

299. Witness #1, who was the recorder from the Thompson execution through the

Anderson execution, claims he obtained the times of administration of drugs for the

18 handwritten logs from the doctor's logs provided after the execution, or the Operations

19
Center records.
20

21

300. Defendants have failed to produce any Operations Center records for any

22 execution.

23
30 I. Witness # 1 testified there is an observer MTA or RN at the window in
24
addition to the one passing syringes, when that position is filled.
25

26

302. When asked to describe where Witness #4 was positioned during the previous

27 executions he attended, Witness # I testified that he was at the window observing the
28
inmate's right arm.

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Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 30 of 36

303. Neither Dr. St. Clair nor Dr. Calvo have observed a LVN or RN at the
2
window observing an inmate.
3
304. Neither of the nurses recall any medical personnel assigned to view the inmate
4

5 during an execution. When the nurses were stationed at the window area, they were facing

6
the person administering the chemicals and handing him the syringes. They did not and
7
could not observe the inmate.
8

9

305. When asked to describe his position during an execution, Witness #4

10 identified a location on the photograph marked as Exhibit 5 as behind the round cylinder
11
that contains a red valve on top of it, and to the left of it.

307. Witness #4 never asked the unidentified big man that was standing in front of

the window "to get out of [his] way."

308. Witness #4 doesn't know who the big man is. He testified that "[t]hey're

officials from Sacramento, I guess. I don't really know what their function is, and they're

18 there. They wear suits. They come in. They stand there. They leave."
19
309. With respect to the development of new Operational Procedure 770, no
20
21 execution team rehearsal of the new protocol was performed.

22

310. A meeting took place with Witness # 1, Witness #3 (a LVN), and a

23
maintenance person. It was not a training session, but a test to see if they could set up
24
certain devices for the new protocol. This meeting occurred after O.P. 770 was revised.
25

26

311. During this meeting, the individuals did not set up the syringes and administer

27 the drugs while the IV drip was running. They mixed the IV drip bag and ensured that the
28

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Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 31 of 36

new small IV bag with the thiopental could be hung on the IV rack and that the mechanics

2
of the IV connection route had been established.
3

4

312. In the event that an execution team member was required to gain access to the

5 inmate after an execution is commenced, it would take the team at least 5 seconds to open

6
the execution chamber door, and additional time for an execution team member to get to
7
and enter the chamber after the door is opened in order to reach the gurney, depending upon
8

9 where they were located in the anteroom at the time, and the number of people in their line

10 of access.
11
313. Under Operational Procedure 770, there is no procedure in place if there is a

problem in both IV lines. The execution team has not discussed what to do if one line fails

under new Operational Procedure 770, March 6, 2006.

314. There is no procedure in place if the medical people observe something

wrong with the IV drip because Witness #1 testified that "those are the what-ifs that can go

18 a thousand long." Witness # I believes there is a policy that if an observation of a

19
malfunction occurs, the team leader and warden should be notified and "there would be a
20
21 discussion at that point."

22

315. Witness # I believes a good IV is when the catheter is in place and the drip is

23
running. Witness #1 believes there is an execution protocol policy that the determination 0
24
a good IV should be made before the chamber door is shut.
25

26

316. Denise Dull is the Legal Affairs Coordinator for San Quentin, and has been

27 since before the first California lethal injection execution. Dull was presented by
28
defendants for a deposition in response to plaintiffs Rule 30(b)(6) deposition notice.

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Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 32 of 36
317. Dull testified that defendants did not search for ..e-mail communications
2
between CDCR (including Witness # 1) and any current or former members of the lethal
3
injection team (including Witness #5)" in response to plaintiffs discovery requests, outside
4
5 of certain efforts to retrieve e-mail communications between Witness #1 and Denise Dull.
6
318. Dull testified that there is no current execution team leader.
7
319. After an execution, Dull claims that "[t]he doctor's log is given to the
8
9 recorder who's a team member." The recorder, who prepares a separate handwritten log, 10 "is supposed to put down the times that the doctor has recorded when the different
11
injections take place and certainly when the flat line is called." Dull claims that a day or
two after the execution, the recorder gives both logs to Dull.
320. To put together a list of current and former lethal injection execution team
members, Dull testified that she "went from memory and then also asked a few of the
present team members, showed them the list that I came up with and asked, 'Can you think
18 of anybody else?' and they were able to."
19
321. Denise Dull, who has attended all lethal injection executions in California as
20
21 well as "probably a couple dozen" practice sessions, testified that she does not" believe 22 there's anyone at the night of an execution who, at some point, says, 'This inmate is
23
unconscious. '"
24
322. Dull testified that there are no documents that pertain to any deviation from
25
26 Operational Procedure 770.
27 28
68

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 33 of 36

323. Denise Dull, who has attended all lethal injection executions in California as

2
well as "probably a couple dozen" practice sessions, testified that she does not "know if
3
there's anyone" who determines when to deviate from Operational Procedure 770.
4

5

324. Dull testified that "there are a lot of individuals who are not team members

6
present" in the anteroom during executions. "[M]any of them [are] from CDCR from
7
Sacramento."
8

9

325. In response to plaintiff's discovery requests, Dull testified that CDCR did not

10 contact anyone in Sacramento nor any health-care managers. Their initial search for
11
documents was confined to Denise Dull's office and the warden's safe. Dull testified that

CDCR did not make any inquiries of the state archives, where files related to executed

inmates are kept. She further testified that CDCR did not review any section of their

database of lawsuits that have been previously filed by inmates.

326. Dull testified that "Exhibit 106, is a description of the various substances used

18 in the syringes by the Department of Corrections in Texas at that time [the time of Warden

19
Vasquez's visit] to conduct lethal injections."

20

21

327. For institutional protocols, Dull testified that "[c]hange usually isn't on the

22 spot." "Change, for the most part, is brought about due to litigation."

23

328. When O.P. 770 "was originally being drafted," Dull testified that CDCR "just

24

used the same [drug] amounts that Texas used."
25

26

329. Dull testified that CDCR did not request documents from Warden Ornoski

27 related to his 2005 visit to Texas' execution chamber that were subject to plaintiff's
28
discovery request.

69

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 34 of 36

330. Dull testified that CDCR did not request any documents from any San

2
Quentin warden (present or former) in response to plaintiffs requests.

3

4

331. Dull testified that CDCR did not make any efforts to obtain employment

5 records related to execution team members; background checks conducted on team

6
members; records pertaining to the mixing of lethal drugs or preparation of syringes or
7
catheters; records concerning the pharmacy and/or complaints against it; records concerning
8

9 searches for usable veins; or memoranda by team leaders.

10

332. Dull testified that CDCR did not make any search for documents related to a

11
change in the number of syringes used for execution; documents pertaining to problems

during executions; or documents related to unnecessary deaths at San Quentin.

333. Dull testified that CDCR made no search for communications by CDCR

pertaining to orders by the Court.

334. Dull testified that CDCR made no search for documents pertaining to CDCR

18 meetings with government officials; documents pertaining to CDCR communications with

19
Dr. Singler; or documents generated by Dr. Rosko.
20
335. Dull testified that Exhibit 115 "is a document that Texas used just as an
21

22 inventory checklist that -- [CDCR] got it directly from the Texas protocol."

23
336. Dull testified that CDCR always has an execution team leader. "Except for
24
today."
25

26

337. Dull testified that a psychologist and a LVN were involved in the drafting of

27 the original Operational Procedure 770.
28

70

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 35 of 36

338. Denise Dull testified that she did not change Exhibit 111 from 2 grams of

2
Pentothal to 5 grams.
3

4

339. Dull was told only one line was functioning for the Stanley Williams

5 execution.

6
340. Warden Ornoski testified that he believes a "successful execution" is simply
7
one where "the inmate ends up dead at the end of the process." When further queried
8

9 whether he considered a "successful execution" to mean anything other than the fact that

10 the inmate ends up dead at the end of the process, Warden Ornoski testified: "I'm thinking
11
not."

(2) Disputed Factual Issues (All Facts are Disputed by Defendant, Unless Marked

"Disputed by Plaintiff') Defendants' objections are primarily to the form of the statements

rather than the contents unless otherwise noted.

18 II
19
II
20
21 II

22

1. The team leader administers the fatal dosages of drugs to the inmate during

23
the execution. Defendants have never revealed the identity of the team member
24
re.sponsible for delivering the drugs.
25

26

27
DATED: September 28, 2006
28

MCBREEN & SENIOR

71

Case 5:06-cv-00219-JF Document 278 Filed 11/27/2006 Page 36 of 36

2 3 4
5 DATED: September 28,2006
6 7 8 9
10 11

By: /s/ David A. Senior DAVID A. SENIOR Attorneys for Plaintiff MICHAEL ANGELO MORALES
OFFICE OF THE ATTORNEY GENERAL
By: /s/ Dane R. Gillette DANE R. GILLETTE Attorneys for Defendants

18 19 20 21
22 23
24 25 26 27
28
72

 
 Case 5:06-cv-00219-JF Document 280 Filed 11/28/2006 Page 1 of 274

1
David A. Senior (# 108579) 2 McBreen & Senior 3 1880 Century Park East, Suite 1450
Los Angeles, California 90067 4 Telephone: (310) 552-5300
Fax: (310) 552-1205
5
dsenior@mcbreensenior.com
6
John R. Grele (# 167080)
7
Law Offices of John R. Grele 8 703 Market Street, Suite 550
San Francisco, California 94103 9 Telephone: (415) 348-9300 10 Fax: (415) 348-0364
jgrele@earthlink.net
11
12 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP
13 One IBM Plaza 14 Chicago, Illinois 60611-7603
Telephone: (312) 923-2938 15 Fax: (312) 840-7338 16 rsteinken@jenner.com

17 Attorneys for Plaintiff MICHAEL ANGELO MORALES

18

IN THE UNITED STATES DISTRICT COURT

19

FOR THE NORTHERN DISTRICT OF CALIFORNIA

20

SAN JOSE DIVISION

21 MICHAEL ANGELO MORALES,

) CASE NO. C 06 0219 (JF) (RS)

22

)

C 06-926 (JF) (RS)

Plaintiff,

)

23

) PLAINTIFF’S BRIEF SUBMITTED

24

vs.

) AFTER CONCLUSION OF

) EVIDENTIARY HEARING

25 JAMES TILTON, Acting Secretary of the )

26 California Department of Corrections; ) ROBERT L. AYERS, Acting Warden of )

REDACTED VERSION

27 San Quentin State Prison; and DOES 1-50, )

28

)

Defendants.

)

)

Case 5:06-cv-00219-JF Document 280 Filed 11/28/2006 Page 2 of 274

MCBREEN & SENIOR
1880 Century Park East, Suite 1450 Los Angeles, California 90067 Telephone: (310) 552-5300

1

TABLE OF CONTENTS

2
Page
3
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4

5 I. METHODS OF EXECUTION WHICH CREATE AN

UNNECESSARY RISK OF EXCESSIVE PAIN ARE BARRED

6

BY THE EIGHTH AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

7
II. RESPONSES TO THE COURT’S QUESTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8

9 Question 1: In light of the evidence in the record, what steps can and should Defendants take to improve their actual implementation of the three-drug
10 protocol described in OP 770? In answering this question, please address, 11 without limitation: (a) the qualifications, recruitment, screening, and training
of the execution team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12

13 A. California Uses No Reasonable Methods or Standards for Execution Team Recruitment and Screening. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
14

15 B. The Substantial Deficiencies of Former Execution Team Leader Witness #5 and His Execution Team. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
16

17 C. Future Execution Team Leader Witness #9 is Neither Trained nor Qualified to be an Execution Team Member or Leader . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
18

19 D. The Execution Team “Medical Staff” is Unlicensed, Untrained, Unprofessional,
and Incompetent to Participate in Lethal Injection Executions. . . . . . . . . . . . . . . . . 35
20

21

1. CDCR’s Criminal Use of LVNs During Executions . . . . . . . . . . . . . . . . . . . . 36

22

a. LVNs Are Not Permitted to Administer Medications by

23

Hypodermic Injection or Start Intravenous Lines During

an Execution Because the Statutory Conditions Have

24

Not Been Satisfied. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

25
i. “When directed by a physician.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
26

27

ii. “Intravenous Fluids.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

28

iii. “Performed in an Organized Health Care System.” . . . . . . . . . . . . 41

b. California Law Specifically Prohibits LVNs from Setting Catheters and Starting Intravenous Lines. . . . . . . . . . . . . . . . . . . . . . . . . 42
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MCBREEN & SENIOR
1880 Century Park East, Suite 1450 Los Angeles, California 90067 Telephone: (310) 552-5300

1

c. LVNs Should Not Be Allowed to Perform Additional

2

Criminal Acts During Plaintiff’s Execution. . . . . . . . . . . . . . . . . . . . . . . 45

3

2. CDCR’s Catheter-Setting Practices During an Execution Cause

4

Unnecessary Risk of Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

5

3. CDCR Has Failed to Develop and Implement Backup Plans

6

Relating to IV Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

7
a. Failure to Plan for Difficulties Achieving Peripheral Access . . . . . . . . . 55
8

9

b. Failure to Provide for Backup IV Access . . . . . . . . . . . . . . . . . . . . . . . . . 58

10

4. CDCR Uses a Procedure to Select the Lethal Chemicals for Use that

11

Subjects the Inmate to Unnecessary Risk of Extreme Pain and Torture. . . . 61

12

5. Mixing Pentothal for Executions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

13
6. Mixing Pentothal at Future Executions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
14

15

7. IV Bag Drip Settings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

16

8. The IV Lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

17
9. The Gas Chamber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
18

19 E. The Lethal Injection Execution Team Has Had a Long History of Substantial Supervisory and Management Neglect. . . . . . . . . . . . . . . . . . . . . . . . . . 78
20

21

1. Drug Diversion Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

22

2. Witness #1’s False Testimony to This Court. . . . . . . . . . . . . . . . . . . . . . . . . . 91

23
F. The Poor Training, Selection, and Screening of Execution Team

24

Management is Clearly Reflected in the Lack of Quality of the

25

Execution Team. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

26

1. CDCR Management Fails to Comply With its Own Rules and

27

Legal Duties of Care to the Inmates Thereby Exposing Inmates

to Unnecessary Risks of Torture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

28

2. A Lack of Accountability for Execution Team Members is Not Required

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MCBREEN & SENIOR
1880 Century Park East, Suite 1450 Los Angeles, California 90067 Telephone: (310) 552-5300

1

and Results in Mismanagement, Lack of Supervision, and No Accountability

Thereby Exposing Inmates to Unnecessary Risks of Torture. . . . . . . . . . . . 104
2

3

3. CDCR Management Conducts Executions as a Spectator Sport for

CDCR Brass. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
4

5 G. The State Has Been Grossly Negligent in Supervising Executions. . . . . . . . . . . . . 109

6 H. Necessary Improvements in the Training, Qualifications, and Screening

7

of Execution Team Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

8

1. The Need to Monitor Anesthetic Depth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

9
2. Necessary Qualifications for Execution Team Members . . . . . . . . . . . . . . . 121
10

11

a. Injecting the Drugs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

12

b. Preparing and Mixing the Thiopental. . . . . . . . . . . . . . . . . . . . . . . . . . . 123

13
c. Performing a Central Line Placement. . . . . . . . . . . . . . . . . . . . . . . . . . . 125
14

15

3. Necessary Training for Execution Team Members . . . . . . . . . . . . . . . . . . . 128

16

4. Necessary Screening for Execution Team Members . . . . . . . . . . . . . . . . . . 137

17
5. Recruiting Execution Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
18

19

6. The Need for Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

20 Question 1(b): the physical aspects of the execution chamber and apparatus, 21 including the available space, lighting, sight lines, length and positioning of IV
tubing, and monitoring equipment; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
22
23 A. The CDCR Should Perform Lethal Injection Executions in a Facility Designed for Lethal Injection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
24
25 B. CDCR Should Include Necessary Improvements in its New Execution Facility . . 152

26

1. Remote Administration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

27
2. The Setup of the Necessary Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
28

Question 1(c): record-keeping, including the preparation, content and reliability of execution logs and records indicating the disposition of drugs used in training
-iii-

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MCBREEN & SENIOR
1880 Century Park East, Suite 1450 Los Angeles, California 90067 Telephone: (310) 552-5300

1 and in executions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

2
A. The State’s Incompetent Record-Keeping Procedures Created O.P. 770 and the

3

Unnecessary Risk of Extreme Pain or Torture. . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

4 B. The State Has Been Grossly Negligent in Keeping Records of its Conduct to

5

Ensure Past and Future Compliance with the Eighth Amendment. . . . . . . . . . . . . 163

6 C. CDCR Execution Team Rehearsals are Undocumented, Abbreviated, and

7

Grossly Dissimilar to Actual Execution Procedures. . . . . . . . . . . . . . . . . . . . . . . . 165

8 D. CDCR’s Numerous Discovery Abuses in This Case Have Interfered

9

With Plaintiff’s Opportunity to Evaluate and Present the Best Evidence

in this Case, and Now to Respond to the Court’s Inquiries as to the State’s

10

Record-Keeping Practices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

11
1. CDCR Communications Re Procedures Proposed by the Court. . . . . . . . . 168
12

13

2. Employment and Supervisory Files of CDCR Employees Require

Accuracy and Regular Review by Management . . . . . . . . . . . . . . . . . . . . . 169
14

15

3. Warden Ornoski’s 2005 Visit to Texas’s Death Row . . . . . . . . . . . . . . . . . 171

16

4. Documents Pertaining to Changes to O.P. 770. . . . . . . . . . . . . . . . . . . . . . 172

17
5. Documents Regarding Problems with Prior Executions. . . . . . . . . . . . . . . 173
18

19

6. Documents Generated by Dr. Thomas Rosko. . . . . . . . . . . . . . . . . . . . . . . . 173

20

7. Copies of Team Leader Memos. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

21

E. CDCR’s Unlawful Behavior and Disregard for This Court’s Orders

22

Abrogates the State’s Interest in Proceeding With its Judgment. . . . . . . . . . . . . . . 175

23
F. While Defendants Have Largely Concealed Their Record-Keeping Procedures,

24

It is Clear That Their Practices Regarding Execution Logs Are Unnecessarily

25

Complex and Inconsistent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

26 G. While Pharmacy Logs Accurately Record the Dispensation of Lethal Drugs to

27

Execution Team Members, Defendants Keeps No Records Reflecting The

Disposition of the

28

Drugs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

H. Necessary Steps Defendants Can and Should Take to Improve Their Actual Implementation of Their Record-Keeping, Including the Preparation, Content and
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MCBREEN & SENIOR
1880 Century Park East, Suite 1450 Los Angeles, California 90067 Telephone: (310) 552-5300

1

Reliability of Execution Logs and Records Indicating the Disposition of Drugs

Used in Training and in Executions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
2

3

1. Record-Keeping Regarding the Assembly of the Execution Team . . . . . . . . 184

4

2. Record-Keeping Regarding the Training of the Execution Team . . . . . . . . 185

5

3. Record-Keeping Regarding Drug Custody . . . . . . . . . . . . . . . . . . . . . . . . . 185
6

7

4. Record-Keeping Regarding the Actual Execution . . . . . . . . . . . . . . . . . . . . 186

8

5. Post-Mortem Record-Keeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

9
Question 1: The court is particularly interested in the parties’ views as to whether 10 the experience of other jurisdictions that use a three-drug protocol might be useful 11 with respect to these matters.

12 A. CDCR’s Execution Practices are Substandard to the People’s Republic of

13

China. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

14 Question 2: Assuming the continued use of pancuronium bromide
15 and potassium chloride in executions, what are the advantages and disadvantages of using a longer-acting barbiturate, such as pentobarbital,
16 with or without the use of a narcotic, to induce unconsciousness? What
17 modifications to OP 770 would be necessary? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

18 A. Expert Ethical Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

19

B. The Substitution of Pentobarbital or Another Longer-Acting Barbiturate for

20

Thiopental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

21
C. The Administration of Pentobarbital Within the Three-Drug Protocol . . . . . . . . . 198
22

23 D. Other Necessary Modifications of Procedure 770 . . . . . . . . . . . . . . . . . . . . . . . . . 199

24 E. The Use of a Narcotic in Conjunction with Pentobarbital . . . . . . . . . . . . . . . . . . . 202
25
F. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
26
27 Question 3: Again assuming the continued use of pancuronium bromide and potassium chloride in executions, what steps, in addition to those discussed in
28 response to the first question above, can and should Defendants take to monitor inmates’ levels of unconsciousness prior to and following injection of these drugs? For example, would the reliability of the protocol be improved by the use of a BIS monitor or an EEG? Is the involvement of medical professionals necessary, and if

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Case 5:06-cv-00219-JF Document 280 Filed 11/28/2006 Page 7 of 274

MCBREEN & SENIOR
1880 Century Park East, Suite 1450 Los Angeles, California 90067 Telephone: (310) 552-5300

1 so, what type(s) of medical professionals should be involved in what ways? In the context of this question, what would be the advantages and disadvantages of
2
eliminating pancuronium bromide from the protocol? . . . . . . . . . . . . . . . . . . . . . . 205
3
A. CDCR Must Be Required to Provide for Effective Assessment of
4
Anesthetic Depth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
5
1. Who Can Monitor Anesthetic Depth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
6

7

2. Necessary Components of Anesthesia Monitoring in an Execution . . . . . . . 212

8

3. Screening of the Anesthesia Professional . . . . . . . . . . . . . . . . . . . . . . . . . . 214

9

B. The Use of Monitoring Equipment Would Not Eliminate the Need for Trained

10

and Experienced Professionals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

11
C. The Elimination of Pancuronium Bromide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
12

13 D. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

14 Question 4: What would be the advantages and disadvantages of an execution 15 protocol that achieves its purpose by using one or more sedatives, such as sodium
thiopental or pentobarbital with or without a narcotic, and eliminates the other 16 two drugs that currently are used? Should a single dose, multiple doses, a 17 continuous infusion, or some combination of these be used? What
modifications to OP 770 would be necessary? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
18
19 A. Expert Ethical Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234

20 B. The Process of Developing a Protocol that Uses Only a Single Drug . . . . . . . . . . 235
21
C. A Single-Drug Protocol Could Minimize the Risk of Conscious Suffering . . . . . . 236
22
23 D. A Single-Drug Protocol Would Still Involve Risk to the Inmate . . . . . . . . . . . . . . 241

24 E. Implementing a Single-Drug Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

25

F. Certain Elements of the One-Drug Protocol Should Not be Considered

26

Disadvantages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248

27

28 G. Specifics of a Single-Sedative Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252

1. The Relative Advantages of Using Pentobarbital or Thiopental . . . . . . . . . 252

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MCBREEN & SENIOR
1880 Century Park East, Suite 1450 Los Angeles, California 90067 Telephone: (310) 552-5300

Case 5:06-cv-00219-JF Document 280 Filed 11/28/2006 Page 8 of 274

1

2. The Dose of Barbiturate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

2

3. The Use of a Narcotic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

3

H. The use of Thiopental in O.P. 770 increases the risk of an Unnecessarily Painful

4

Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255

5

I. Alternative Drug Combinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
6

7 Question 5: What additional evidence, if any, remains to be submitted in connection with the evidentiary hearing? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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MCBREEN & SENIOR
1880 Century Park East, Suite 1450 Los Angeles, California 90067 Telephone: (310) 552-5300

1

TABLE OF AUTHORITIES

2
FEDERAL CONSTITUTION AND CASES
3
Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . 2, 222
4

5 Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994) (en banc) . . . . . . . . . . . . . . . . . 10, 11, 12

6 Cooey v. Taft, 430 F. Supp. 2d 702 (S.D. Ohio 2006) . . . . . . . . . . . . . . . . . . . . . . 175, 177
7
Cooper v. Rimmer, 358 F.3d 655 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
8
9 Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 11, 117, 230

10 Estelle v. Gamble, 429 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11
Evans v. Saar, 412 F. Supp. 2d 519 (D. Md. 2006) . . . . . . . . . . . . . . . . 127, 128, 139, 152
12
13 Fierro v. Gomez, 865 F. Supp. 1387 (N.D. Cal. 1994), aff’d, 77 F.3d 301 (1996), vacated as moot sub nom., 519 U.S. 918 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14
15 Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996), vacated as moot sub nom., 519 U.S. 918 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12
16
17 Furman v. Georgia, 408 U.S. 238 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18 Gomez v. United States Dist. Court, 503 U.S. 653 (1992) . . . . . . . . . . . . . . . . . . 175, 177
19
Gregg v. Georgia, 428 U.S. 153 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 103
20
21 Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

22 In re Kemmler, 136 U.S. 436 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
23
Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
24
25 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) . . . . . . . . . . . . . . . . . . . 9, 10

26 Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . 101, 103
27
Midwest Guar. Bank v. Guaranty Bank, 270 F. Supp. 2d 900 (E.D. Mich. 2003) . . . . 177
28
Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006) . . . . . . . . . . . . . 45, 112, 177

Nelson v. Campbell, 541 U.S. 637 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175, 177 -viii-

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Case 5:06-cv-00219-JF Document 280 Filed 11/28/2006 Page 10 of 274

1 Pappan Enters. v. Hardee’s Food Sys., Inc., 143 F.3d 800 (3d Cir. 1998) . . . . . . . . . . 176

2 Plata v. Schwarzenegger, 2005 U.S. Dist. LEXIS 8878 (N.D. Cal. 3 May 10, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 38, 84, 176, 211

4 Robinson v. California, 370 U.S. 660 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5
Rupe v. Wood, 863 F. Supp. 1307 (W.D. Wash. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6

7 Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949

(W.D. Mo. June 26, 2006) . . . . . . . . . . . . . . . . . . . . . 12, 22-23, 67-69, 117, 123-25, 129,

8

138, 151, 209, 212, 214, 216, 232

9
U.S. Const. amend. VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . in passim
10

11 Wilkerson v. Utah, 99 U.S. 130 (1879) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

12

13

CALIFORNIA CASES

14 Gubser v. Dep’t of Employment, 271 Cal. App. 2d 240, 76 Cal. Rptr. 577 (1969) . . . . . 85
15
Ishimatsu v. Regents of Univ. of Cal., 266 Cal. App. 2d 854, 72 Cal. Rptr. 16 756 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
17
Magit v. Bd. of Med. Exam’rs, 366 P.2d 816 (Cal. 1961) . . . . . . . . . . . . . . . . . . . . . 42, 43
18
19 Thorburn v. Dep’t of Corrections, 66 Cal. App. 4th 1284, 78 Cal. Rptr. 2d 584 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
20

21
DOCKETED CASES
22
23 Patton v. Evans, No. 06-591 (W.D. Okla) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

24

25

26

27

28

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MCBREEN & SENIOR
1880 Century Park East, Suite 1450 Los Angeles, California 90067 Telephone: (310) 552-5300

1
PLAINTIFF’S CONTENTIONS OF FACT AND LAW

2

3

In response to the Court’s Request for Briefing dated October 3, 2006,

4 plaintiff Michael Morales hereby submits the following Contentions of Fact and Law:

5

6

7

INTRODUCTION

8

Thirty years ago, an Oklahoma State Assembly member attempted to find a

9
cost-effective alternative to fixing that State’s broken electric chair. The legislator settled
10
on lethal injection, a method used to euthanize animals. The legislator sought the
11

12 assistance of Oklahoma’s medical examiner, who had no experience in any such matters,

13 but agreed to help and provided the following execution method, which the legislator
14
faithfully copied down on a legal pad: “An intravenous saline drip shall be started in the
15

16 prisoner’s arm, into which shall be introduced a lethal injection consisting of an

17 ultra-short-acting barbiturate in combination with a chemical paralytic.” Oklahoma’s
18
legislature formally adopted this method of execution a year later, using almost exactly
19
20 the language scribbled onto the assemblyman’s notepad.1

21

22

1

The narrative of Oklahoma’s development of execution by lethal injection has

23 largely been adapted from Human Rights Watch’s thorough April 2006 report on capital

24 punishment entitled, “So Long as They Die: Lethal Injections in the United States,”
available at http://www.hrw.org/reports/2006/us0406/index.htm. Plaintiff submits that, in 25 light of the Ninth Circuit’s repeated reference to the number of jurisdictions using lethal

26 injection as a method of execution (see, e.g., Beardslee v. Woodford, 395 F.3d 1064, 1073 n.8 (9th Cir. 2005)), the manner in which this method was first created and the manner in
27 which each jurisdiction subsequently adopted and adapted that method are critically

28 relevant to the Court’s inquiry herein – it was repeatedly demonstrated at the evidentiary

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1
Oklahoma’s medical examiner had done no research before proposing this
2
3 two-drug lethal injection execution method. He subsequently developed a full execution

4 protocol for the Oklahoma Department of Corrections in which he included a third lethal

5
drug, potassium chloride, and specified the use of sodium thiopental and pancuronium
6
bromide as the other two drugs – again without having done any research. This particular
7

8 three-drug selection was subsequently adopted by every state which approved lethal

9 injection as a method of execution, as well as by the federal government, and has been
10
used throughout the country.
11

12

It has become apparent through recent lethal injection challenges that,

13 despite their superficial similarity, actual lethal injection execution procedures in each
14
jurisdiction differ significantly. The development of much of this evidence is in its
15
16 infancy, hindered by protective orders which prohibit plaintiffs from sharing information

17 with each other and with the various courts hearing these challenges. We now know that
18
states vary from each other in the amount of sedative they give an inmate, and some may
19
20 vary the amount given in each execution. Further, the order in which the lethal drugs

21 have been administered is not universally consistent – plaintiff understands that North
22

23
24 hearing that defendants understand neither the content nor the intent of their own execution method, and can provide no evidence of its proper functioning in light of their use of
25 pancuronium bromide. Accordingly, the question of whether anyone ever made an effort to 26 ensure that lethal injection be a humane and constitutional method of execution is crucial to
an evaluation of whether other jurisdictions’ use of a three-drug protocol is at all probative 27 of the constitutionality of defendants’ method. Further discovery is necessary regarding 28 these matters.

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1
Carolina has experimented with different drug orders, and that Oklahoma has used a
2
3 simultaneous-injection two-catheter system for executions. It also appears the

4 concentration of the drugs given may vary widely between states.

5
The mechanics of the lethal injection process also differs among various
6
jurisdictions. California uses roughly 12 feet of IV line from the point of administration
7

8 to the inmate’s arm (and about 17 to 20 feet from IV bag to inmate), while Texas uses 3

9 or 4 feet. Some jurisdictions use medical personnel to push the lethal drugs; others do
10
not. Some have rooms that allow ready access to the inmates (Maryland, North Carolina
11
12 and Virginia); others do not (Texas and California). Many states built a new lethal

13 injection execution facility rather than use an old gas chamber, as California does.
14
These are only some of the great variations in the protocols, and an
15
16 exacting inquiry in this regard – with evidence produced by defendants as to each State’s

17 method – would go a long way towards establishing an adequate context for inquiry into
18
the constitutionality of a lethal injection method which defendants repeatedly insinuate is
19
20 proper because it is just like all the others.

21

The veterinary profession and state regulators of the veterinary profession

22
have recognized both that standards of decency and care towards animal euthanasia have
23

24 evolved over time (see Humane Society Manual, at xiii to xvi; Concannon Decl. ¶ 5), and

25 that evolving standards may be implemented and informed by advances in medical and
26
scientific knowledge. Unlike the veterinarians, who in the past 20-odd years have
27
28 continually re-evaluated their procedures using modern medical, scientific and ethical

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1
knowledge, jurisdictions employing lethal injection have not undertaken any such critical
2
3 inquiry. Those that have changed their protocols have only done so grudgingly, and in

4 response to litigation. Throughout, the guiding principle for states facing legal challenges

5
has been to “tweak” their protocols so that they can argue they pass muster for the next
6
execution – as defendants have done here. This “circle-the-wagons” strategy misses an
7

8 opportunity for states to fundamentally re-assess whether the right drugs are being used,

9 the right mechanics are being employed, and the right persons involved.
10
California’s experience with lethal injection is unique in some respects,
11
12 mainly because of certain medical records available to the Court (which have been kept

13 less and less fastidiously over time, as courts have increasingly inquired into the State’s
14
process), and because of the opportunity the State had – but squandered – to thoroughly
15
16 review its procedures.

17

After the Court’s conditional denial of plaintiff’s injunction request, issued

18
on February 14, 2006, defendants engaged in a week-long deception of this Court and the
19

20 Ninth Circuit Court of Appeals, as well as of the medical professionals they enlisted for

21 plaintiff’s execution. Thankfully, for Mr. Morales’ sake, that deception failed. Evidence
22
developed in this case reflects that, had plaintiff’s execution proceeded, he would have
23
24 been injected with a quarter gram of sedative or less (or none – no sedative was obtained

25 from the San Quentin State Prison pharmacy for plaintiff’s scheduled execution). It
26
remains unclear even at this stage whether anyone would have been prepared or able to
27

28

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1
administer more anesthetic to plaintiff if necessary, in whatever form, and whether Dr.
2
3 Singler planned to continue monitoring plaintiff throughout his execution.

4

In response to the events leading up to their decision not to execute plaintiff

5
on February 21, 2006, defendants did not engage in the searching analysis of their
6
procedures that the Court entreated them to undertake. Rather, they met for an hour to an
7

8 hour and a half with an anesthesiologist, in a meeting where he felt constrained by

9 defendants’ unwillingness to accept alternative procedures. Disturbingly, that review was
10
orchestrated by lawyers – one of whom is counsel here – with limited knowledge of the
11
12 execution process, who directed revisions that, although perhaps well-intended, were

13 fundamentally flawed. Even in the face of defendants’ intransigence, their expert did
14
offer alternative execution procedures consistent with this Court’s orders, which were
15
16 rejected by defendants for “cosmetic” reasons (the proposed exclusion of Pavulon), and

17 for legal reasons (using only pentobarbital and/or including a narcotic).
18
After this farcical meeting, defendants subsequently failed to take the
19
20 necessary and obvious step of consulting a pharmacologist with expertise in sodium

21 thiopental who had reviewed execution logs, statements of execution personnel, and
22
photographs of the execution apparatus – as Dr. Ebling did and Dr. Ekins did not. With
23
24 minimal effort, defendants could have been alerted to the fact that a fundamental flaw in

25 their protocol lay not merely in the amounts of the sedative they used, but in the type of
26
sedative used and the way it was being administered. Ironically, such a conclusion would
27

28

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1
have been arrived at even by former defense expert Dr. Dershwitz, given his testimony
2
3 about Pentothal in other cases which was adduced at the hearing.

4

Finally, defendants would have been better served by expert assistance

5
which did not rely solely upon clinical experience (given that the lethal drugs are not
6
administered in these doses in a clinical setting), had examined the relevant logs and heart
7

8 records prior to arriving at their conclusions, and had consulted with others in the field.

9 Perhaps, this would have resulted in the defendants not so unquestionably embracing an
10
explanation of the records that is at odds with those records themselves, and a notion that
11
12 highly concentrated potassium doesn’t cause pain, which has been rejected by every

13 expert to address the question.
14
The result has been the worst of all worlds. Not only are all the difficulties
15
16 of the previous protocol assumed within the present one – such as lack of adequate

17 facilities; the utilization of personnel with no understanding of the process; the selection
18
of inappropriate lethal drugs; an inability to devise or adhere to a standard rate of drug
19
20 administration; and a lack of adequate monitoring. The revisions adopted a mere two

21 days after a brief and unproductive meeting without any further expert consultation place
22
California in a category far outside the experience of other states, and dangerously so.
23
24 California apparently utilizes the lowest bolus dose of Pentothal in the nation, and relies

25 upon a drip mechanism that even the defendants’ own expert declined to endorse when he
26
was made aware of the mechanics involved. These revisions add a layer of complexity
27
28 that, given the personnel involved, cannot be overcome by the execution team. The

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1
revisions further remove the team’s ability to use a back-up IV line if there is a failure in
2
3 the primary line, a flaw defendants’ own expert identified.

4

Operational Procedure 770, dated March 30, 2006, (“O.P. 770”) has

5
increased the unnecessary risk of pain in California executions. Defendants need to have
6
their execution process properly vetted – medically, scientifically and ethically. A few
7

8 days of court hearings, constrained by the peculiarities of the adversarial process and

9 myriad other factors, are no substitute.
10
I
11

12

METHODS OF EXECUTION WHICH CREATE AN

UNNECESSARY RISK OF EXCESSIVE PAIN

13

ARE BARRED BY THE EIGHTH AMENDMENT

14

The Eighth Amendment prohibits the “unnecessary and wanton infliction of
15

16 pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976) (citing Furman v. Georgia, 408 U.S.

17 238, 392 (1972)). This Court has long held that the Eighth Amendment protects prisoners
18
from the “gratuitous infliction of suffering.” Gregg, 428 U.S. at 183 (citing Wilkerson v.
19
20 Utah, 99 U.S. 130, 135-36 (1879) and In re Kemmler, 136 U.S. 436, 447 (1890)). In the

21 capital punishment context, where the measure of pain inflicted in executing a
22
condemned prisoner results from an unusual circumstance that involves “something more
23
24 than the mere extinguishment of life,” the Eighth Amendment’s prohibition against cruel

25 and unusual punishment is obviously implicated. See Furman, 408 U.S. at 265 (quoting
26
Kemmler, 136 U.S. at 447).
27

28

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1
The Eighth Amendment’s prohibition of cruel and unusual punishments
2
3 forbids the “infliction of unnecessary pain in the execution of the death sentence.”
4 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947); see also Gregg, 428
5
U.S. at 173. It is the infliction of unnecessary or “wanton” pain, and the risk of
6
“lingering death,” in carrying out a death sentence that lies at the heart of the
7
8 constitutional prohibition in capital cases. See Resweber, 329 U.S. at 463; In re
9 Kemmler, 136 U.S. at 447.
10
What constitutes “unnecessary” pain is an inherently fact-bound inquiry
11
12 necessarily informed by standards of decency as they evolve “in light of contemporary
13 human knowledge.” Robinson v. California, 370 U.S. 660, 666 (1962), see also Estelle v.
14
Gamble, 429 U.S. 97, 102 (1976). Methods of execution or confinement once viewed as
15
16 acceptable therefore can, over time, come to offend Eighth Amendment standards as
17 scientific knowledge and society’s norms evolve. See, e.g., Fierro v. Gomez, 77 F.3d
18
301, 303 n.1 (9th Cir. 1996) (noting, in challenge to constitutionality of execution by
19
20 lethal gas, that California Supreme Court had last considered such a challenge in 1953,
21 and that the court’s consideration had been limited by then-existing scientific
22
knowledge), vacated as moot sub nom., 519 U.S. 918 (1996) (moot in light of Cal. Penal
23
24 Code § 3604 revision). As then-Judge Blackmun explained, “the emphasis [of the Eighth
25 Amendment] is on man’s basic dignity, on civilized precepts, and on flexibility and
26
improvement in standards of decency as society progresses and matures.” Jackson v.
27
28 Bishop, 404 F.2d 571, 579 (8th Cir. 1968).
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Some forms of execution – such as burning at the stake or breaking on the
2
3 wheel – necessarily inflict torture in all cases. Although such methods obviously violate

4 the Eighth Amendment, they do not define the outer boundary of the Amendment’s

5
scope. Execution methods can violate the Eighth Amendment even though they are held
6
out as humane alternatives, if they subject the condemned person to the foreseeable
7

8 likelihood of unnecessary pain or suffering. An isolated “unforeseeable accident . . .

9 [does not] add an element of cruelty” to an execution. Resweber, 329 U.S. at 464
10
(emphasis added).2 But a foreseeable (or substantial) likelihood of unnecessary pain or
11

12 suffering does violate the Constitution – even if suffering is not certain, or even likely, to

13 occur in every instance. See Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994) (en
14
banc) (risk associated with challenged method of execution must be more than slight).
15

16

The Ninth Circuit determines whether a particular method of execution

17 comports with evolving Eighth Amendment standards by examining the “objective
18
evidence of the pain involved in the challenged method.” Campbell, 18 F.3d at 682.
19
20 Such evidence can include the execution records of inmates executed using the same

21 method; expert testimony regarding the effect of the method on both humans and animals;
22

23
2
24
In Resweber, the Supreme Court held that a fluke accident that resulted in the 25 malfunction of the electric chair was not a constitutional violation. Casting the necessary 26 fifth vote, Justice Frankfurter explained: “The fact that I reach this conclusion does not
mean that a hypothetical situation, which assumes a series of abortive attempts at 27 electrocution . . . would not raise different questions.” 329 U.S. at 471 (Frankfurter, J., 28 concurring).

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1
and scientific studies and other evidence analyzing the effects on humans and animals.
2
3 See Fierro v. Gomez, 77 F.3d 301, 307 (9th Cir. 1996) (listing the types of evidence

4 considered by the district court in analyzing the effects of exposure to cyanide gas);

5
Campbell, 18 F.3d at 683-87 (discussing expert testimony, scientific literature, and
6
experiments on death by hanging considered by the district court). Moreover, the Ninth
7

8 Circuit has established that evidence of an inmate’s voluntary and involuntary movement,

9 expression, and apparent consciousness during his execution, as observed by witnesses to
10
the execution, can be probative of whether the inmate is suffering unnecessary pain. See
11
12 Fierro, 77 F.3d at 307-08 (relying on eyewitness accounts of executions by lethal gas);

13 Campbell, 18 F.3d at 685 (relying on physician’s observations during an execution by
14
hanging to conclude that the inmate had quickly lost consciousness and had not suffered).
15

16

Because it is impossible to determine with certainty before the fact whether

17 a particular inmate will suffer unnecessary pain during his execution, a crucial component
18
of the inquiry is whether the inmate is “subject to an unnecessary risk of unconstitutional
19
20 pain or suffering.” Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004) (emphasis

21 added); see also J.D. Mortenson, Earning the Right to be Retributive: Execution Methods,
22
Culpability Theory, and the Cruel and Unusual Punishment Clause, 88 Iowa L. Rev.
23
24 1099, 1118-20 (2003) (“For any individual challenging a death sentence, evidence of

25 botched executions can only be put in terms of probability.”).
26
Unnecessary risk of pain, if sufficiently substantial, can in itself render a
27
28 method of execution unconstitutional. See Fierro v. Gomez, 865 F. Supp. 1387, 1411

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1
(N.D. Cal. 1994), aff’d, 77 F.3d 301 (1996), vacated as moot sub nom., 519 U.S. 918
2
3 (1996) (“Campbell also made clear that the method of execution must be considered in
4 terms of the risk of pain.”); Campbell, 18 F.3d at 687. Thus, in upholding Washington’s
5
use of judicial hanging, the Ninth Circuit acknowledged the possibility of “bungled”
6
executions that could result in asphyxiation or decapitation, but held that the risk was
7
8 “slight” because Washington’s detailed execution protocol “minimized [the risk] as much
9 as possible.” Campbell, 18 F.3d at 684-85, 687 & n.17. In contrast, where a method of
10
execution inherently involves a risk of excruciating pain but the protocol fails to
11
12 reasonably minimize that risk, the execution procedure involves unnecessary risk and is
13 therefore unconstitutional. See Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949, at *22
14
(W.D. Mo. June 26, 2006) (after listing problems in Missouri’s execution procedure, the
15
16 Court concluded that “[a]ll of these concerns lead the Court to conclude that Missouri’s
17 lethal injection procedure subjects condemned inmates to an unnecessary risk that they
18
will be subject to unconstitutional pain and suffering when the lethal injection drugs are
19
20 administered.”); see also Fierro, 77 F.3d at 308 (finding execution by lethal gas
21 unconstitutional because it involves a “substantial risk” of several minutes of “intense
22
physical pain”); Rupe v. Wood, 863 F. Supp. 1307, 1313-15 (W.D. Wash. 1994) (holding
23
24 that a “significant” risk (less than 24% probability) of decapitation rendered judicial
25 hanging unconstitutional as applied to an obese inmate).
26
/ /
27
28 / /
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1
II

2

3

RESPONSES TO THE COURT’S QUESTIONS

4

The Court has issued a series of questions related to matters discussed in

5
the record. These questions are remedial in nature. In response to the Court's inquiries,
6
7 plaintiff submits substantial additional materials, including opinions from experts and

8 further support for his contentions in this matter.

9
There are certain constraints upon plaintiff, however. The first is that some
10
questions intrude upon the experts’ ethical limitations – accordingly, plaintiff is limited in
11

12 the arguments he can make by the factual support that the experts are able to provide.

13 Additionally, plaintiff cannot be put in the position of designing for the State its
14
execution procedure. For many problems inherent in the current protocol, such as the
15
16 consideration of different drugs like pentobarbital, and the use of single drug protocols

17 and professional monitoring, a solution appears easily obtainable, and may very well be.
18
The viability of alternatives demonstrates how unnecessarily risky the current execution
19
20 method is. The adversarial process, however, is not the best way for specific changes to

21 be weighed and a new procedure developed.
22
Defendants need to go back and seriously consider alternatives to their
23
24 current system. CDCR has the obligation in the first instance of considering and

25 designing the proper procedures. Neither plaintiff nor the Court should be forced to do
26
their work for them. CDCR incompetence and intransigence is a system-wide problem,
27

28

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1
with San Quentin perhaps being the flagship and its medical units the nadir of this
2
3 dysfunction. Another court of this district took ten years to patiently prod and cajole

4 CDCR in the hopes that it would comply with the Eighth Amendment's requirements

5
regarding medical care. In the end, CDCR conceded it was incapable of change without
6
federal court intervention. The lethal injection process is another perfect example of
7

8 problems presented to the courts of this district in the past, both in the performance of the

9 institution, and in CDCR's petulant refusal to consider and effectuate an honest, thorough
10
review. Ultimately, federal court intervention and monitoring will also be required here
11
12 to secure plaintiff's constitutional rights.

13

Defendants have all along adopted the strategy of offering the Court a

14
defective execution procedure with the hopes the Court will "tweak" it enough for them
15

16 to obtain judicial imprimatur. Certain concepts repeatedly arose in the depositions of

17 CDCR staff – the judge will fix it; the court will tell us what we have to do. CDCR
18
deliberately did not subject O.P. 770 to warden and director review until faced with the
19
20 possibility of defending its processes at a hearing without a written execution protocol. It

21 deliberately chose not to officially designate a team leader - leaving the position vacant
22
for the first time in history – because CDCR hoped to avoid scrutiny. Only the day
23
24 before the hearing was CDCR forced to produce the designated team leader in training

25 for deposition. As myriad facts revealed at the resulting deposition of Witness #9
26
demonstrate, defendants had good reason to fear his examination. And CDCR knows it is
27
28 unlawfully using LVNs to insert catheters, yet defendants refuse to make any changes

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1
until this Court orders them to do so. Plaintiff has steadfastly noted the unfairness of this,
2
3 and has repeatedly requested that CDCR be forced to institute a lawful procedure with a

4 properly formed execution team prior to any review. At present, defendants are wholly

5
unprepared and unable to effectuate any execution, and plaintiff has been placed in the
6
preposterous position of needing to seek an order from this Court that provides, at least in
7

8 part, that a state agency must follow the law.

9

Only two conclusions can be drawn from the record: (1) defendants believe

10

that no changes are required to improve their actual implementation of the three-drug
11

12 protocol described in O.P. 770; or (2) defendants are unable or unwilling to make the

13 necessary changes to improve their implementation of the three-drug protocol. In fact,
14
the implementation of defendants' three-drug protocol is unconstitutional, and is starving
15
16 for needed improvement. The State’s burden to make the necessary improvements so as

17 to act in conformity with the U.S. Constitution will require first, that it purge its
18
dysfunctional esprit de corps and embrace its legal obligations. Only then can the State
19
20 employ the necessary effort, commitment, review, revisions, and personnel to re-draft its

21 execution protocol to comport with the requirements of the Eighth Amendment.
22
As will be demonstrated below, “[t]he problem of a highly dysfunctional,
23
24 largely decrepit, overly bureaucratic, and politically driven prison system, which these

25 defendants have inherited from past administrations, is too far gone to be corrected by
26
conventional methods.” Plata v. Schwarzenegger, 2005 U.S. Dist. LEXIS 8878, *2 (N.D.
27
28 Cal. 2005). CDCR must set its priorities in accordance with the dictates of the U.S.

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1
Constitution - rather than continue to focus on some undefined form of “efficiency,”
2
3 CDCR must prioritize minimizing the risk of subjecting inmates under its care to 4 excessive pain or torture. With this revised goal, CDCR should then carefully consider
5
all aspects of the execution process with a view to eliminating to the extent practicable
6
undue risk and then, in conjunction with medical and scientific experts, craft a new
7
8 execution procedure. Veterinarians have, as a profession, engaged in such a process, and 9 have accordingly developed methods of euthanasia that reflect and incorporate the latest
10
scientific knowledge. No less should be required of CDCR.
11
12 / /
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1
1. In light of the evidence in the record, what steps can and should Defendants take 2 to improve their actual implementation of the three-drug protocol described in O.P. 3 770. In answering this question, please address, without limitation:
(a) the qualifications, recruitment, screening, and training of the execution 4 team;
5
Former San Quentin Warden Daniel Vasquez designed the lethal injection
6
7 protocol and presided over two California executions by lethal gas. He testified that
8 “[m]aking a execution seem humane and dignified is up to the people that carry it out.
9
You can’t legislate it or write it down.” UF 263 (emphasis added). His wisdom is
10
abundantly clear. CDCR does not have qualified, trained, or properly screened people –
11
12 from its management down to its execution team – to carry it out. Today, they could not
13 execute Mr. Morales regardless of the amount or type of chemical, or even their delivery
14
mechanism. CDCR achieved this state of affairs only because for many years its
15
16 execution behavior has gone unmonitored, from the Governor’s office down to San
17 Quentin’s Warden. CDCR also believed that such would be the case with respect to this
18
Court’s orders. Unencumbered by any accountability for its behavior – and the evidence
19
20 is that there is none – CDCR has failed to recruit, screen, and train the necessary
21 management and execution team members to carry out the “humane and dignified”
22
execution to which Warden Vasquez referred.
23
24
25
26
27
28
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1
A. California Uses No Reasonable Methods or Standards for Execution Team

2

3

Recruitment and Screening.

4

Typically there are up to 14 members on the execution team. UF 3. While

5
the Warden of San Quentin “is the chief executive officer . . . and is responsible for the . .
6
7 . treatment . . . and discipline of all inmates under his or her charge” (15 C.C.R. § 3380

8 (a)), there are no rules or regulations that “require [the Warden] to evaluate the bona fides

9
of the execution team members.” UF 10a. Warden Ornoski, who presided over the
10
Stanley Williams and Clarence Allen executions, and the scheduled execution of Michael
11

12 Morales (UF 11), did not “review any of their qualifications, or their experience, or their

13 training.” Id. Other than observing a rehearsal and ensuring that they had practice time,
14
Ornoski did nothing to satisfy himself “that the members of the execution team were
15
16 properly trained or qualified to be on that team.” UF 10a. Warden Ornoski left it to

17 Witness #5, the execution team leader, to select the execution team. UF 11.
18
Witness #5 participated in the last 10 California lethal injection executions,
19
20 and was the team leader for the last eight. UF 10. Witness #5 would have the teammates

21 select replacement members to the team as needed by unanimous vote of the team, and
22
thereafter Witness #5 would solicit the new members to join the team. UF 4. A similar
23
24 selection process is used by college fraternities and sororities, or by country clubs.

25 Selection comes only from within, and the quality of the entity takes the form and
26
resembles of the quality of the invitation committee. Witness #5 lacks the knowledge,
27

28

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1
training, management skills, and competence necessary to be an execution team member,
2
3 let alone team leader. Inasmuch as CDCR has failed to implement an adequate

4 recruitment and screening process, its execution team now closely resembles the

5
substantial deficiencies of Witness #5.
6
Clearly, participating in executions is an extremely sensitive task that
7

8 involves being entrusted with responsibility for the inmate’s safety and the state’s

9 interest in carrying out its sentence with dignity and in compliance with constitutional
10
constraints. Experience in other states as well as in California has demonstrated that
11
12 allowing the wrong people to participate in executions can adversely affect the safety of

13 the execution procedure. Heath Decl. ¶¶ 5-7. California, however, has not made an
14
attempt to think through the dangers of the execution procedure and the responsibilities of
15
16 the team, and then design a screening process that ensures that only people who are fit to

17 handle these responsibilities are placed on the team. RT 579 (“They need to completely

18
change their recruiting or selection staffing procedures.”).
19

20

B. The Substantial Deficiencies of Former Execution Team Leader Witness

21

#5 and His Execution Team.

22
It is crucial that the team leader, and indeed all members of the team,
23

24 understand all aspects of the procedure so that they can prevent drug administration and

25 preparation problems, and can react quickly and effectively should any problems arise.
26
RT 569-70. Witness #1, the team leader appointed in February of 2006, but who was
27

28

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1
promoted and quit sometime in June 2006, testified that the team leader is ultimately
2
3 “responsible if something doesn’t go right, so it behooves them to understand the entire

4 process on how it goes so that they’re aware of the proper procedures. UF 266. Witness

5
#7, a Registered Nurse (“RN”), who participated in seven California lethal injection
6
executions between 1996 and 2003 (UF 170), believes it’s important to have a team
7

8 leader because “somebody has to take charge.” UF 202.

9

Witness #5 neither understood the execution process and procedures, as

10

discussed below, nor is he able to understand the responsibilities of the other team
11

12 members or evaluate their performance. In many ways, the execution team reflects his

13 lack of understanding and inattention to the process.
14
While Witness #5 was given carte blanche by Warden Ornoski to select
15
16 team members, he never reviewed the personnel files of any team members before

17 extending invitations to them to join the team. UF 12. Upon admission to the execution
18
team, there is no policy, written or unwritten, that any disciplinary action taken against an
19
20 execution team member be reported to the team leader (UF 87z), and Witness #5 never

21 periodically reviewed team members’ personnel files after they joined the team. UF 12.
22
He has no idea whether team members perform their related institutional functions
23
24 competently. For instance, catheters are regularly set in the inmates’ arms by LVNs

25 during executions, UF 49, but Witness #5 testified: “I personally do not have the
26
knowledge of . . . the quality of their work . . . .” UF 87aa. Both Witness #3 and
27

28

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1
Witness #4 were appointed by Witness #5, and remain on the team today. In fact, they
2
3 are the only medical personnel assigned to the team.

4

Nor have the team leaders and team members trained adequately in the

5
procedures. The execution training attendance logs state that Witness #5 was present for
6
only nine training sessions since the Thomas Thompson execution in July, 1998, and did
7

8 not appear at any training sessions after February 1, 2000. UF 87d. Witness #9, the

9 future team leader, claims he never missed an execution team training session while on
10
the execution team. UF 152. During those practice sessions, the team would “run
11
12 through two drills”, and it would take “approximately an hour for the two drills.” UF

13 152. Witness #9 estimates that Witness #5 attended practice “about half of the time.” UF
14
162.
15

16

Witness #6 is a RN who participated in eight California lethal injection

17 executions between 1998 and 2006. UF 30a. She testified that “[w]e don’t have training,
18
really.” “We get together a few days before and just practice.” “We just get to the
19
20 chamber and we back there. Then we go home.” “An hour or two” (UF 30c) per day for

21 three days before an execution. UF 205. “If the warden want to come and see us, then –

22
then we have to stay and wait. Otherwise, we practice and we go.” UF 30b.
23

24

As Dr. Heath testified, the utility of rehearsals is limited not only by the

25 time spent on them, but also by the degree to which the rehearsals simulate the actual
26
procedure. RT 571. The team does not practice inserting the catheters, pushing drugs
27
28 through a catheter, or mixing the thiopental. UF 181-83; 26; RT 571-74. Nor do they

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practice reacting to foreseeable contingencies; as Witness #1 put it, they decided that
2
3 there were too many “what-ifs” for the team to “figure them all out.” RT 573-74. Thus,
4 the rehearsals fail to prepare the team for many of the most important aspects of the
5
procedure, such as preparing the anesthetic and reacting to a clogged IV line.
6
Witness #5 did not require his execution team to be familiar with O.P. 770.
7
8 Witness #3, a LVN who has set catheters in seven of the last nine executions (UF 82), has
9 never read Procedure 770. UF 53. When asked if she had read Operational Procedure
10
770, Witness #7, a RN, said “I don’t know what you’re talking about.” UF 236. Witness
11
12 #9 has never read O.P. 770. UF 158. Witness #4, a LVN, may have read 10 or 12 pages
13 of Procedure 770, but only once and only after he participated in Donald Beardslee’s
14
execution. UF 53. Witness #5 also did not require the doctors who attended the
15
16 executions to be familiar with O.P. 770. Dr. Calvo, who was present for the executions
17 of Keith Williams, Babbitt, Siripongs, Anderson, Rich, Massey, and Stanley Williams,
18
and perhaps others, has never read O.P. 770. UF 53. Yet the written protocol is the
19
20 inmate’s only assurance that the execution procedure will be performed consistently and
21 reliably. RT 561. Without familiarity with the protocol, the execution team members
22
were not even aware when they were deviating from the protocol, and this led to
23
24 dangerous conduct such as the team’s decision – whether instigated by Dr. Singler or not
25 – to administer less than one gram of thiopental to Mr. Morales. RT 1105-09. Thus,
26
familiarity with the written protocol, and the understanding that the protocol should not
27
28 be deviated from, is a crucial safety measure. See Taylor v. Crawford, 2006 U.S. Dist.
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1
LEXIS 42949, at *19 (June 26, 2006) (“numerous problems” in Missouri’s execution
2
3 procedure include the fact that team members had informally “changed and modified the

4 protocol on several occasions in the past”).

5
Witness #5 never was advised that any execution team member had been
6
trained in mixing Pentothal at the time they came onto the execution team (UF 87r), and
7

8 he never made inquiry to the medical staff about such training. UF 87s. Only a few

9 months ago, Witness #5 oversaw the preparation of the drugs used in the Allen execution.
10
UF 87o. He does not know whether the package insert for Pentothal contains
11
12 “instructions on how to mix a 5 gram dose” (UF 87t), or for that matter, what diluent is.

13 UF 87p.
14
15

During the last eight California executions, Witness #5 required no practice

16 sessions, and there were none, for team members to mix Pentothal. UF 33. The first time

17 Witness #4, a LVN, mixed Pentothal was on the evening of a scheduled execution. UF
18
34. Witness #4 had never received any training for doing that. UF 34. Witness #7 never
19
20 practiced mixing sodium Pentothal. UF 181. In fact, in all of the practice sessions for all

21 of the executions that Witness #7 participated in, she never saw anyone on the execution
22
team practice mixing sodium Pentothal. UF 182. Neither did Witness #6, who actually
23
24 mixed the Pentothal in the previous executions she attended.

25

CDCR has failed to comprehend both the importance of properly preparing

26
the thiopental, and the difficulty of doing so. See Taylor, 2006 U.S. Dist. LEXIS 42949,
27

28 at *21 (“As the Court has learned, the process of mixing the three different drugs and

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knowing the correct amount of the drugs to dissolve in the correct amount of solution
2
3 involves precise measurements and the ability to use, decipher, and not confuse

4 numbers.”). The team’s failure to train in mixing thiopental and develop a reliable,

5
consistent procedure for preparing a five-gram dose led to Witness #6 preparing less than
6
the full dose, and continuing uncertainty about how much less she prepared. RT 504-08
7

8 (Witness #6’s degree of “confusion” is “appalling,” and “we have no idea what they did .

9 . . we can’t tell if they gave enough”). Thus, the unjustified erratic nature of the team’s
10
preparation of the thiopental has created a serious risk of inadequate anesthesia.
11

12

Witness #9, the future execution team leader, testified that the team leader

13 administers the lethal drugs during an execution. UF 137. Witness #1, the co-team
14
leader, testified that the person administering the drugs needs to have knowledge about
15
16 how that’s taking place because the person administering the drugs has a very important

17 role in the execution. UF 266. Witness #5 had little or no understanding what he was
18
doing in administering the lethal chemicals. Moreover, he has minimal or no education
19
20 or training in this regard. Without an understanding of the drugs and their effect, the

21 team leaders have no idea whether they are injecting the right chemicals, or whether they
22
have been handed the pancuronium before the thiopental. They cannot detect problems
23
24 or correct them. RT 758; 569-70.

25

Witness #7, a RN, never trained Witness #5 or any other execution team

26
member on how to administer lethal drugs. UF 175. In all of the training sessions that
27

28 Witness #7 attended during the seven years on the execution team, Witness #7 only saw

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one RN, i.e., Witness #6, provide training to an execution team member on how to
2
3 administer lethal drugs. UF 176. This occurred on two occasions. UF 176. For each

4 instance, the training session lasted for less than one minute. UF 177. Each training

5
session was provided to a different execution team leader, and the second session
6
occurred years after the first. UF 177. Witness #7 never observed a RN other than
7

8 Witness #6, or any LVNs, provide training to an execution team member as to how to

9 administer lethal drugs. UF 178, 179. The only training that Witness #7 saw Witness #6
10
give was how fast to push the plunger. UF 180. The training was “not to push it that fast,
11
12 or not to go too slow.” UF 180.

13

This minimal training, however, does not come close to providing the

14
clinical experience necessary to safely inject the drugs. First, in all of these sessions, the
15

16 team neglected to place a catheter on the end of the IV tubing, so that the team leaders

17 never learned the feel of injecting through an actual IV line connected to a catheter. For
18
this reason, Dr. Singler suggested altering the training so that the team leader could get a
19
20 better feel for the injection. RT 1093-94; 752 (Heath stated that “they are making a big

21 mistake here.”). Second, an important source of feedback about the patency of the IV is
22
the back pressure on the syringe during the injection, but without ever having injected
23
24 into a person’s vein – except in executions – the team leader could have no feel for

25 detecting infiltration, kinks, leakages, and blockages. RT 572-73. For these reasons, Dr.
26
Ekins felt that it would be safer to have a medically trained, clinically experienced,
27
28 person inject the drugs. RT 898 (medically trained personnel “are trained….[t]hey are

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used to what it feels like to push an IV through a small tube”). Warden Vasquez thought
2
3 this was how the procedure would be done when he drafted the original OP 770. UF 261.

4 Indeed, as Dr. Heath put it, the minimal training received by the team leaders actually

5
exacerbates the risk of a team leader injecting the drugs incorrectly and not detecting it:
6
“In some sense it’s worse than no instruction or rehearsal at all because it’s conveying a
7

8 misunderstanding or misapprehension of what something should feel like.” RT 573.

9

When Witness #5 looks down on the cart and sees the syringes, “[t]o the

10

best of [his] recollection, all the chemicals are clear, are a clear substance.” UF 87c. But
11

12 Witness #4 mixes Pentothal to be “sort of a tan” color, a “[y]ellowish, brownish tan.”

13 But as Dr. Ekins stated, if a thiopental solution looked “brownish,” he would double-
14
check that it was mixed properly. RT 891. Witness #6 mixes the thiopental to be clear,
15
16 not yellow or brown. UF 218. The packaging material for each 500mg vial of Pentothal

17 provides: “Use reconstituted solution only if it is clear, free from precipitate and is not
18
discolored.” UF 34a. Again, these variations reflect the team members’ lack of
19
20 understanding of the drugs. They are unable to detect improperly mixed thiopental or

21 defective batches of the drugs.
22
After participating in ten executions and acting as the team leader in eight,
23
24 “Pentothal” is the only drug used during an execution that Witness #5 “can think of . . .”

25 UF 87a. Witness #5 “can’t recall” whether there is “more than one syringe of Pentothal”
26
that is used in an execution. UF 87b. If there are three drugs that are used in an
27

28

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1
execution, Witness #5 similarly does not recall “how many syringes of Drug No. 2” there
2
3 are, or “how many syringes of Drug No. 3 are on the cart.” UF 87b.

4

Witness #5 testified that the amounts of drugs used for an execution

5
“changed somewhere within the last two years” (UF 87h), and that the amount of
6
Pentothal used “changed during the last two executions.” UF 87i. Witness #1 testified
7

8 there were changes in the amounts of drugs sometime in 2004, but claimed he could not

9 recall what they were. RT 155-56, Mar. 30, 2006. This would have included the amount
10
for Mr. Morales. Of course, had he not destroyed the instruction sheet during this
11
12 litigation, we would know what those amounts were.3 The team leader had a similar

13 memory gap. UF 87j. He cannot “give [] an accurate answer” as to “how much Pentothal
14
was administered to Allen in his execution”, or Drug 2, or Drug 3. UF 87k, 87m, 87n.
15
16 Similarly, Witness #5 cannot “give [] a definite answer” how much Pentothal was

17 administered to Stanley Williams during his execution. UF 87l. He does not “recall”

18
what “the operational procedure state[s] in that regard, if anything.” UF 87l.
19

20

Similarly, many of the other team members, including the nurses

21 responsible for mixing the thiopental, did not know what doses of the drugs were
22
specified in the protocol. UF 208, 217; RT 504. And almost all of the team members
23
24 deposed had a different answer when asked how many syringes of thiopental are used in

25 3

26

Plaintiff requests the Court draw an adverse inference from this spoilation of, or

refusal to disclose this critical piece of evidence. The inference is that the protocol used for

27 the past three executions was unconstitutional; that the execution team does not follow O.P.

28 770; and, that Witness #1 lacks credibility.

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1
the procedure. RT 496-500. Without knowing what the dose of thiopental is supposed to
2
3 be, it goes without saying that the team is unable reasonably to ensure that the proper

4 dose is reliably prepared and administered in each execution. RT 500 (“[T]he most

5
important thing is getting the right amount of thiopental in and checking that you have the
6
effect that you’re looking for, and they are all over the map on this.”).
7

8

Witness #5 testified that he does not know “the volume of the solution that

9 is contained in a Pentothal syringe during an execution”, and he cannot recall that he ever
10
knew “what the concentration of Pentothal was in a syringe.” UF 87u, 87v. Witness #5
11
12 only “knows where the Pentothal [is located] based on the medical staff’s ability to load it

13 in the proper syringe and secure it to the top of the cart.” UF 87c. However, during an
14
execution, Witness #7 would “have to kind of reach around people” (UF 188) when
15
16 handing a syringe to Witness #5. Witness #5 thinks that “the name of the chemical is

17 written on top of the shadow of the syringes.” UF 87c.
18
The inadequate labeling of the syringes, combined with the team’s
19
20 “astonishing” lack of knowledge regarding the drugs used, RT 562, creates the perfect

21 scenario for catastrophic error. Only one team member, working the dark and crowded
22
room, need pick up the wrong syringe, or load the syringes onto the cart in the wrong
23
24 order. That type of error could result in excruciating suffering for the inmate. The team

25 leader, and the other team members, will be unable to detect such an error because they
26
have no idea what the drugs are or that they are very dangerous drugs. Id. (“It’s appalling
27
28 that [Witness #9 is] giving two drugs that have the potential to cause extreme suffering

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1
and he doesn’t know it.”); 758-59 (“If you don’t know what you’re handling, you don’t
2
3 know what can go wrong . . . and you won’t be able to correct them. It’s like a child with

4 a gun.”).

5
Witness #5 does not “have an answer” for how long it takes “to inject a
6
single syringe during an execution.” UF 87b. During the Allen execution, Witness #5
7

8 believes there was a minimum of five syringes on top of the cart at the time the execution

9 commenced, but he can’t give an estimate of the maximum number of syringes that may
10
have been on the cart. UF 87q. In addition, Witness #5 does not know the drip rate for
11
12 the IV bag; he has never known it; he does not know “if that drip rate is set forth in the

13 operational procedure”; and he does not know whether he ever knew this information.
14
UF 87y. This is perhaps unsurprising, given the team’s lack of understanding of the
15
16 chemicals. But it is deeply troubling, because the rate of administration is as important as

17 the dose in determining the peak concentration of thiopental. Thus, rate of administration

18
has a large effect on how the thiopental takes effect. RT 351.
19

20

Witness #5 claimed that CDCR’s execution procedure included the

21 possibility of a cut-down procedure if a catheter cannot be placed in an inmate. It is
22
unclear whether Witness #5 was talking about a cut-down, which is a dangerous and
23
24 painful surgical procedure, or a central line placement, which is less invasive but still

25 needs to be performed by a doctor. Heath Decl. of Feb. 6, 2006, ¶¶ 30-31. Witness #5
26
claims that defendants formerly employed a doctor who attended five executions and was
27
28 aware of San Quentin’s cut-down procedure. UF 87f. Witness #5 has “no idea” of the

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1
doctor’s name and claims he’s now dead. Id. Witness #5 does not know of any doctors
2
3 who attended executions at San Quentin who are familiar with the cut-down procedure

4 since the other doctor died. UF 87f. Witness #5 never discussed the cut-down procedure

5
with any doctors other than the doctor who attended five executions, whose name he
6
can’t recall, and who has died. UF 87g. Witness #5 never assigned any other team
7

8 member to discuss the cut-down procedure with any doctor. UF 87g. Notwithstanding

9 Witness #5’s reference to a mythical “cut-down” procedure, CDCR has no procedure if
10
there is a problem in both IV lines during an execution. UF 313. As discussed infra,
11
12 CDCR’s failure to institute two types of backup plans – one for the inability to insert a

13 peripheral line, and one for placing a backup IV line should one or both lines fail during
14
an execution – is dangerous and irresponsible. Witness #5’s uncertainty about the cut-
15
16 down procedure simply underscores the need for a well-understood backup plan.

17

None of the persons who have administered the lethal chemicals in

18
California executions, or Witness #5, Witness #1 or Witness #9, are familiar with or
19

20 trained or educated in anesthetic depth. UF 272. The need to assess anesthetic depth

21 when using potassium and pancuronium is discussed below.
22
Witness #5 was the most senior-ranking individual on the execution team.
23
24 The other execution team members were his ranking subordinates, and were required to

25 follow his orders.
26
It is clear that Witness #5, the California execution team leader, was
27
28 untrained, unskilled, unprofessional, and unqualified to be on the execution team, let

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1
alone manage the team. Moreover, his lack of attendance at practice sessions,
2
3 unfamiliarity with the execution process, and lack of supervision over the qualifications

4 of team members reflects that he was wholly unmonitored or managed by CDCR.

5
C. Future Execution Team Leader Witness #9 is Neither Trained nor

6

7

Qualified to be an Execution Team Member or Leader.

8

Witness #9 joined the execution team before the execution of Donald

9
Beardslee “to succeed Witness No. 1” as the team leader. UF 130. His “selection was to
10
be co-leader or next in line” in the event Witness #1 left the execution team. UF 130.
11

12 Warden Ornoski’s predecessor, Warden Jill Brown, interviewed Witness #9 for five

13 minutes before confirming his appointment to the team. UF 129. Brown did not ask him
14
any questions regarding his mental, psychological, employment, drug, alcohol, criminal,
15
16 or disciplinary history. UF 129.

17

For the Beardslee, Stanley Williams, and Allen executions, Witness #9 was

18
the “recorder” and was stationed at a desk outside the anteroom of the death chamber
19

20 approximately four feet from the death watch cell between midnight and 2:00 a.m., and

21 he “couldn’t see what was going on” during the executions. UF 131. Accordingly,
22
Witness #9 has never witnessed a lethal injection execution while being a member of the
23
24 execution team.4

25

26

4

27

This is another dysfunctional aspect of the procedure – the future team leader is

28 assigned to be the recorder in another room.

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1
During execution team training sessions, Witness #9 has only practiced “the
2
3 roles that are performed by execution team members that take the inmate from the

4 deathwatch cell into the chamber.” UF 136. He has practiced no other team member

5
roles. UF 136. Witness #9, like nearly every other team member, never has read O.P.
6
770. UF 158.
7

8

Witness #9 testified that “because the team leader administers the lethal

9 drugs,” he received training as to how to administer lethal drugs. UF 137. Witness #1
10
and Witness #5 – two individuals with no medical knowledge or training – are the only
11
12 people that provided such training to Witness #9. UF 137. Witness #1 described it as

13 “limited training.” UF 137. Witness #5 testified that there was only one time during
14
practice that Witness #9 worked with the syringes. UF 137a. On that occasion, Witness
15
16 #9 was not doing so with “the view to become the team leader at some point.” UF 137a.

17 Witness #5 observed that Witness #9 was working with the syringes “probably [for]
18
personal experience.” UF 137a (emphasis added). Witness #5 never provided training to
19
20 Witness #9 “on how to administer lethal drugs.” UF 137b.

21

Witness #9 recalls that “[t]here isn’t really much training into it,” and that it

22
is “more a self-taught event.” UF 138. He was taught not to push the syringe too hard
23

24 because he might blow the inmate’s vein “or the IV tubing.” UF 138. (emphasis added).

25 Witness #9 has received no “training with respect to back pressure in administering lethal
26
chemicals.” UF 138. He was given no advice whether the push could be too slow, but
27
28 was told that at least some minimal pressure on the syringe is required. UF 138. His

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1
training was done by pushing water through an open-ended IV line, which emptied into a
2
3 bucket. See UF 30. Neither Witness #1 nor Witness #5 ever provided Witness #9 with

4 any “instruction or training as to whether there’s any difference in the sensation or the

5
feeling of the push [of the syringe] when that open IV line is actually connected to a
6
catheter” (i.e., 18 gauge) or “when that open IV line is connected to a catheter that’s
7

8 inserted into a human.” UF 140. He does not know what infiltration is. UF 151.

9 Witness #9 has received no formal medical training. UF 151. Witness #9’s training and
10
level of understanding are completely insufficient to ensure that Witness #9 is able to
11
12 inject the drugs properly and detect any problems.

13

On only one occasion has Witness #9 observed the execution team mix the

14
lethal chemicals. UF 141. This occasion was before the execution of Clarence Allen.
15

16 UF 141. He watched this from the antechamber of the gas chamber through a window

17 into the mixing room. UF 141. He is “not really sure” how it is done. UF 141. This
18
observation session was only to show Witness #9 the location where the chemicals were
19
20 mixed. UF 142. Witness #9 has no educational background in pharmacology, and never

21 has seen drugs mixed on any other occasion. UF 142.
22
Witness #9 believes one drug used during an execution is sodium Pentothal,
23
24 but he does not recall the other two. UF 144. He is unsure whether sodium Pentothal is

25 administered before or after the other two drugs. UF 144. He does not know how much
26
sodium Pentothal is contained in a syringe. UF 144.
27

28

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1
Witness #9 is not familiar with how anesthesia works.. UF 149. He
2
3 believes that sodium Pentothal “take[s] the nervous system out.” UF 149. He does not

4 know how many grams of sodium Pentothal are used in an execution in California. UF

5
149. Witness #9 does not know why potassium chloride is used in the protocol. UF 150.
6
Witness #9 would not know how to make a determination whether a person
7

8 is regaining consciousness after being administered sodium Pentothal. UF 151. No one

9 has told Witness #9 “what the doctor’s responsibilities are supposed to be during an
10
execution”; it’s never discussed during practice. UF 153. Witness #9 has “no idea” who
11
12 the doctor is that would be present if a California execution was scheduled for tomorrow.

13 UF 154. Witness #9 “couldn’t say where the doctor is suppose to be located” in the
14
antechamber during an execution. UF 155.
15

16

Witness #9 never has seen anyone adjust the setting of the mechanism on

17 the IV line that is located under the IV bag in any practice sessions other than the session
18
“during Mr. Morales, with the doctors there.” UF 164. Witness #9 has “no idea” how the
19
20 execution protocol has changed, but he has heard rumors that it has. UF 165. He never

21 has discussed the execution process with Warden Ayers. UF 165. No one has discussed
22
with Witness #9 changing the execution procedure to use a sodium Pentothal IV drip. UF
23
24 165. This is despite the fact that the team leader is the one who must set the Pentothal

25 drip, and must do so at a precise rate. RT 42, Mar. 30, 2006.
26
If Witness #1 did not appear for the scheduled execution of Michael
27
28 Morales on February 21, 2006, Witness #9 would have acted as the team leader. UF 159.

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1 Contrary to Witness #1’s testimony on March 30th, there have been no execution team
2
3 training sessions since before the scheduled execution of Michael Morales. UF 148.

4 Witness #9 has neither added nor deleted any personnel from the execution team. UF

5
148. He has never reviewed the personnel or supervisory files for any execution team
6
members. UF 167.
7

8

There currently are no Lieutenants other than Witness #9 on the execution

9 team, and there are no Captains, Associate Wardens, or Chief Deputy Wardens on the
10
execution team. UF 166. As execution team leader, Witness #9 – just as Witness #5 – is
11

12 unqualified, unsupervised, untrained, and unskilled to be an execution team member, let

13 alone the team leader.
14
D. The Execution Team “Medical Staff” is Unlicensed, Untrained,
15

16

Unprofessional, and Incompetent to Participate in Lethal Injection

17

Executions.

18
There are no doctors on the execution team. UF 5. Collectively, Drs. St.
19

20 Clair and Calvo have attended at least eight of the ten California lethal injection

21 executions. Exs. 10-15; UF 53. They do not have training in anesthesiology. UF 244.
22
Witness #9 only has seen CDCR doctors attend training sessions one time for each
23
24 execution, on the eve on the executions. UF 163.

25

No member of the execution team has training in anesthesiology. UF 237.

26
There never has been a licensed nurse anesthetist on the execution team. UF 170. To
27

28

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1
become a licensed nurse anesthetist, a RN must undertake additional training and testing
2
3 to become certified. UF 170.

4

In all the executions, no one – including any medical staff – has ever

5
checked to see if the inmate is unconscious. UF 273. No one is assigned that task
6
currently.
7

8

Currently, there are no RNs on the execution team, and there are no

9 requirements that an RN be on the team. UF 6. Inmates used to be evaluated by RNs
10
prior to an execution to determine if they have useable veins. UF 74. They never have
11
12 been evaluated to determine if they have any condition or characteristic that may alter the

13 effect of any of the drugs administered during the lethal injection process. UF 74.
14
No former execution team leaders have had any medical training. UF 241.
15

16

1. CDCR’s Criminal Use of LVNs During Executions

17

Witness #1 used the term “MTA” when testifying on March 30, 2006 as a

18
synonym for either a RN or a LVN. RT in passim, Mar. 30, 2006. His testimony is
19

20 misleading in this regard. To be sure, a MTA is not a RN at San Quentin. UF 51a. The

21 Court previously has ruled that it “can take judicial notice that a MTA is a licensed
22
professional.” RT 31, Mar. 30, 2006. It is uncertain what the Court meant by “licensed”
23
24 or “professional.” MTAs at San Quentin are LVNs. UF 51a. San Quentin has had a

25 LVN training program where inmates are trained to be LVNs. UF 51a. Plaintiff submits
26
that a San Quentin inmate trained as a LVN is not a “professional.”
27

28

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LVNs are indigenous to California and Texas. There are very minimal
2
3 educational or training requirements for someone to be licensed as a LVN. For example,

4 Witness #3 is a LVN. He has had no post-high school formal education. He never has

5
taken any course work or training to become a RN. UF 55*. He was trained to set
6
catheters ---------------------------------------------------------- over 14 years ago. UF 55*.
7

8 ------------ instructional training regarding setting catheters took place all within a minute.

9 UF 55*. As a LVN at CDCR for the past 11 years, Witness #3 has received no medical
10
training from CDCR. UF 55*. Fourteen years ago, Witness #3 practiced setting catheters
11
12 ------------------------------------------. UF 60*. After demonstrating only three successful

13 venal punctures or IV starts, Witness #3 became certified by CMF to start IVs as a LVN.
14
UF 60*. Witness #3 has no estimate regarding how long his CMF IV training or IV
15
16 course lasted, and he does not know upon whom he set the catheters. UF 60*.

17

Witness #4 also is a LVN. He fails to possess even a basic understanding

18
of the drugs used in the lethal injection protocol, or the substantial risks of torture
19

20 associated with the improper delivery of same. For example, he thinks that potassium

21 chloride would cause death before it would cause pain. UF 240. Yet, he is the one
22
assigned to watch the inmate at an execution, while Witness #3 is at the other end of the
23
24 syringe cart. UF 82. As noted elsewhere, he has no training in inspecting catheter sites

25 and does not believe infiltration is observable until after 10-15 minutes, which, under the
26
State’s theory, is when executions will terminate. One wonders what exactly he thinks
27
28 he’s looking for other than the catheter falling onto the floor.

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Perhaps this lack of knowledge, and lack of concern about it, stems from
2
3 the fact that LVNs do not set catheters at San Quentin’s Treatment and Triage Area

4 (“TTA”); that is the responsibility of a registered nurse or physician. UF 56*. It is very

5
infrequent that an IV line is placed in an inmate in the medical units at San Quentin other
6
than in the TTA. UF 57*. Witness #3 is a LVN on the execution team ----------------------
7

8 ---------------. UF 58*. Witness #4 is a LVN on the execution team --------------------------

9 -----------. UF 59*. A RN is assigned to work each shift in the TTA, and two RNs are
10
assigned to work on two of the three shifts. UF 59a. Doctors are there as well.
11

12 Occasionally, an IV is set at the Outpatient Housing Unit, but only by a RN. UF 59b.

13

While it is true that a San Quentin LVN has a license, it is a matter of

14
substantial dispute that they are “professionals,” and particularly as to Witness #3 and
15

16 Witness #4, who are on the execution team. As to those LVNs, they are licensed prison

17 guards (UF 51a), and, as is set forth in detail below, they are violating the law.5
18
Due to the minimal licensing qualifications, education, or training required
19
20 to become a LVN, LVNs are very constrained – by law – in the types of tasks they are

21 “licensed” to perform. The MTA Pocket Reference, Instructor’s Guide, Scope of Practice
22
for MTAs published by CDCR provides: “Licensed Vocational Nurses (LVNs) are NOT
23
24 independent practitioners. It is not within the scope of LVN practice to function

25

5
26

This state of affairs brings home the Plata testimony, already provided to the Court,

27 that CDCR will use anyone “with a license, a pulse and a pair of shoes” regardless of the

28 tasks they are being asked to undertake and their abilities to effectuate them.

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1
independently. The LVN must practice under the direction of a licensed physician or
2
3 Registered Nurse (RN) at all times. Such direction may be provided verbally,
4 telephonically, or by written order.” UF 51b. This latter provision conflicts with
5
California law, as explained below.
6
a. LVNs Are Not Permitted to Administer Medications by Hypodermic
7
8 Injection or Start Intravenous Lines During an Execution Because the Statutory
9 Conditions Have Not Been Satisfied.
10
Defendants’ unlawful use of LVNs in executions is an independent
11
12 violation of both the Eighth and Fourteenth Amendments. Permissible practices by
13 LVNs are set forth in California Business & Professions Code section 2860.5. A LVN
14
“when directed by a physician and surgeon may [¶] (a) Administer medications by
15
16 hypodermic injection. . . . (c) Start and superimpose intravenous fluids if all of the
17 following additional conditions exist: [¶] (1) The nurse has satisfactorily completed a
18
prescribed course of instruction approved by the board or has demonstrated competence
19
20 to the satisfaction of the board. [¶] (2) The procedure is performed in an organized
21 health care system . . . ‘Organized health care system,’ as used in this section, includes
22
facilities licensed pursuant to Section 1250 of the Health and Safety Code, clinics, home
23
24 health agencies, physician’s offices, and public or community health services.” Cal. Bus.
25 & Prof. Code § 2860.5 (emphasis added).
26
Thus, California law narrowly limits the conditions under which LVNs may
27
28 administer medications or start and superimpose intravenous fluids. For the reasons
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1
discussed below, CDCR’s current use of LVNs in the execution procedure does not fall
2
3 within the “permissible practices” set forth in California Business & Professions Code

4 section 2860.5.

5
i. “When directed by a physician.”
6
The phrase “when directed by a physician” is not defined in section 2860.5.
7

8 However, it presumably requires the physical presence of a physician. Cf. California

9 Bus. & Prof. Code § 2860.7 (c) (an LVN, “acting under the direction of a physician” may
10
perform immunization techniques under certain conditions.” . . . “Nothing in this section
11
12 shall be construed to require physical presence of a directing or supervising physician . . .

13 .”) – if the legislature had intended that a LVN administer medications by hypodermic
14
needle or start intravenous fluids outside the physical presence of a physician, it could
15
16 have specifically so provided in section 2860.5, as it did in section 2860.7, with regard to

17 immunizations by LVNs. Since LVNs “do not act under the direction of a physician
18
during an execution” (UF 54), they may not administer such medications or start and
19
20 superimpose intravenous fluids. Cal. Bus. & Prof. Code § 2860.5(c).

21

ii. “Intravenous Fluids.”

22
“Intravenous fluids” means “fluid solutions of electrolytes, nutrients,
23

24 vitamins, blood and blood products.” 16 C.C.R. § 2547(a). “Saline solution” is defined

25 as “[a] solution of salt (sodium chloride) in distilled water. The term usually refers to
26
normal salt solution or physiological salt solution in which the concentration of the salt is
27
28 adjusted to approximate the density of body fluids, 0.85%.” 4 J.E. Schmidt, M.D.,

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1
Attorneys’ Dictionary of Medicine and Word Finder, S-14 (1995). “Sodium chloride” is
2
3 in turn defined as “[t]able salt. It is an important constituent of foods and of the human

4 body. It is used to make biological or medicine solutions isotonic (of same

5
concentration) with bodily fluids. See saline solution.” Id. at S-134.
6
“Certain substances have a tendency to form ions when dissolved in water.
7

8 A solution composed of salt and water is an electrolyte.” 2 J.E. Schmidt, M.D.,

9 Attorneys’ Dictionary of Medicine and Word Finder, E-44 (1995). Accordingly, the
10
“normal saline” called for in O.P. 770 is an electrolyte, and is therefore an “intravenous
11
12 fluid” within the meaning of California Business & Professions Code section 2860.5(c).

13

iii. “Performed in an Organized Health Care System.”

14
California Health & Safety Code section 1250 defines “health facility” to
15

16 mean “any facility, place, or building that is organized, maintained, and operated for the

17 diagnosis, care, prevention, and treatment of human illness, physical or mental, including
18
convalescence and rehabilitation . . . for one or more persons, to which the persons are
19
20 admitted for a 24-hour stay or longer, and includes the following types: [¶] (j)(1)

21 ‘Correctional treatment center’ means a health facility operated by the Department of
22
Corrections . . . that . . . provides inpatient health services to that portion of the inmate
23
24 population who do not require a general acute care level of basic services.” Health &

25 Safety Code § 1250.
26
It is clear that, within the meaning of California Business & Professions
27
28 Code section 2860.5(c)(2), the execution procedure is NOT “performed in an organized

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1
health care system”: the execution procedure takes place in the gas chamber (UF 54),
2
3 which is not a “health facility,” and the procedure is not operated “for the diagnosis, care,

4 prevention, and treatment of human illness.”

5
Accordingly, California Business & Professions Code section 2860.5 does
6
not authorize a LVN to start intravenous fluids during the execution procedure because
7

8 such procedure is not “performed in an organized health care system.” Cal. Bus. & Prof.

9 Code § 2860.5(c)(2).
10
b. California Law Specifically Prohibits LVNs from Setting Catheters
11

12 and Starting Intravenous Lines.

13

California statutes governing the activities of LVNs “confer[] no authority

14
to practice medicine or surgery.” Cal. Bus. & Prof. Code § 2860.
15

16

California Business & Professions Code section 2052 provides for a fine

17 and/or imprisonment for the practice of medicine without a valid certificate. In the
18
absence of a statutory exception, “one who is not licensed to practice medicine or surgery
19
20 cannot legally perform acts which are medical or surgical in character, and supervision

21 does not relieve an unauthorized person from penal liability for the violation of statutes
22
which, like section 2141 [similar to current section 2052] of the code, prohibit the
23
24 unlicensed practice of medicine.” Magit v. Bd. of Med. Exam’rs, 366 P.2d 816, 820 (Cal.

25 1961).
26
A physician’s and surgeon’s certificate “authorizes the holder to use drugs
27
28 or devices in or upon human beings and to sever or penetrate the tissues of human beings

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1
and to use any and all other methods in the treatment of diseases, injuries, deformities,
2
3 and other physical and mental conditions.” Cal. Bus. & Prof. Code § 2051 (emphasis

4 added). Those who administer anesthetics, for example, “penetrate the tissues of human

5
beings’ within the meaning of [section 2051].” Magit v. Bd. of Med. Exam’rs, 57 Cal. 2d
6
at 81.
7

8

The Attorney General has opined that “[t]here seems little doubt that a

9 penetration of the tissues of a human being in the treatment of disease or injury, or for test
10
or analysis purposes constitutes the practice of medicine.” 1967 Cal. AG LEXIS 36, at
11
12 *3, 50 Op. Atty Gen. Cal. 125 (Dec. 5, 1967) (in opinion predating the enactment of

13 section 2860.5, AG concludes that LVN may not draw blood by means of venipuncture).
14
See also 1983 Cal. AG LEXIS 14, 66 Op. Atty Gen. Cal. 427 (Nov. 23, 1983) (“[t]he
15
16 injection of contrast/opaque materials and/or their introduction by drip-bottle infusion

17 into the human constitutes the practice of medicine under California law. (Bus. & Prof.
18
Code, § 2051, [])” Id. at *6-7); 1973 Cal. AG LEXIS 18, 56 Op. Atty Gen. Cal. 64 (Feb.
19
20 15, 1973) (“all of these treatments or tests [vaccinations, skin tests, inoculations,

21 immunizations, or injections] require the penetration of the tissues of the human body. . .
22
. [T]he penetration or severance of the tissues of the human body are acts which only
23
24 certified physicians and surgeons may lawfully perform.” Id. at *4). See also Cal. Bus.

25 & Prof. Code § 2725.3(a)(4) (inserting catheters is an “invasive procedure”).
26
To reiterate, a LVN is not authorized under California law to start an IV
27
28 during the execution procedure because: (1) the LVN is not “directed by a physician” to

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1
do so (Cal. Bus. & Prof. Code § 2860.5(c)); and (2) the procedure is not “performed in an
2
3 organized health care system.” Cal. Bus. & Prof. Code § 2860.5(c)(2); Health & Safety 4 Code §1250(j)(1). Indeed, California law specifically prohibits LVNs from setting a
5
catheter, and starting an IV during the execution procedure, because doing so
6
“penetrate[s] the tissues of human beings.” Cal. Bus. & Prof. Code § 2051. In the
7
8 absence of specific statutory authorization, only physicians and surgeons are permitted to 9 “penetrate the tissues of human beings.” Id. If Witness #3 and Witness #4 were in fact
10
licensed professionals, they would understand their legal licensing limitations. Either
11
12 they do not, or they don’t care. In either case, they are not “professionals.” 13 / /
14
/ /
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1
c. LVNs Should Not Be Allowed to Perform Additional Criminal Acts
2
3 During Plaintiff’s Execution.

4

Despite the foregoing statutory prohibitions, catheters have regularly been

5
set in the inmates’ arms by LVNs during executions. UF 49. Witness #3 has set
6
catheters in seven of nine executions since he has been on the execution team. UF 49.
7

8 He has set the catheter in the inmate’s right arm in, among others, the executions of

9 Donald Beardslee, Stanley Williams, and Clarence Allen. UF 49, 247. Witness #4
10
previously set a catheter in Donald Beardslee for his execution. UF 50. CDCR, Witness
11

12 #3, and Witness #4 are all guilty of criminal behavior during executions under section

13 2052 of the California Business & Professions Code.
14
Witness #3 and Witness #4 were assigned to set the catheters in Michael
15
16 Morales during his scheduled February 21, 2006 execution. UF 51. There were no

17 medically licensed individuals on the execution team for the scheduled execution of
18
Michael Morales other than Witness #3 and Witness #4. UF 52. The doctors present at
19
20 executions do not have any supervisory responsibilities during the execution. UF 54.

21 The LVNs do not act under the direction of a physician during an execution. UF 54.
22
The Court has made several orders requiring actions during executions by
23
24 “qualified individuals” [Morales v. Hickman, 415 F. Supp. 2d 1037, 1047-48 (N.D. Cal.

25 2006)], or a “trained . . . medical professional licensed by the State of California.” Order,
26
Feb. 21, 2006, at 3. CDCR is incapable of comprehending such orders, as is evidenced
27
28 by its prior unlawful conduct during executions, and its unlawful actions in this case. No

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1
order may issue allowing LVNs to set catheters or start or superimpose intravenous fluids
2
3 during the execution procedure, because any such order would call for criminal conduct.

4

2. CDCR’s Catheter-Setting Practices During an Execution Cause Unnecessary

5
Risk of Torture
6
Because there is a well-documented history of IV access difficulties, and
7

8 CDCR has failed to take any corrective measure, and has actually retreated to less

9 qualified personnel, there is a substantial risk of an aberrant execution. This risk is all the
10
more pronounced now that CDCR has adopted a procedure that requires extremely
11

12 precise timing and assurances that all the sedative is reaching the inmate.

13

One of the ways this difficulty arises is the following scenario: multiple

14
pokes to the vein cause it to be highly susceptible to infiltration, meaning a portion of the
15

16 fluid begins to leak. As Dr. Singler admitted, a percentage could be lost. RT 1203-04. If

17 that were only 20%, or perhaps even less, then the fraction lost from the thiopental would
18
be much more disruptive to the process than the fractions of the pancuronium or the
19
20 potassium. In other words, a 20% reduction will have a greater effect on sedation than it

21 will on paralysis or pain. It may also be difficult to discern as the drugs and IVs keep
22
flowing. This is undoubtedly why Dr. Singler conceded it to be a “significant problem
23
24 that needs to be addressed.” RT 1204. Dr. Singler was perhaps unaware of the extent to

25 which the record shows how much of a problem it has been.
26
When training for an execution, neither the RNs nor LVNs practice setting
27
28 the catheter in the simulated inmate’s arm (UF 61), as a LVN does when becoming

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1
trained and certified to set a catheter. 16 C.C.R. § 2547.3(a). The RNs and LVNs merely
2
3 tape the catheter to the outside of the simulated inmate’s arm. UF 61. In all of the

4 practice sessions for all of the executions that Witness #7, a RN, participated in, she

5
never practiced setting an IV on anyone. UF 183.
6
In this regard, qualification for an individual to place an IV during an
7

8 execution in no way resembles the process of LVNs qualifying to receive from the State a

9 license to place IVs. As evidenced by the events that are required by State’s licensing
10
practices (16 C.C.R. § 2547.3(a) requires at least three venipunctures on live subjects),
11
12 there can be little or no harm to actually setting catheters in the simulated inmate during

13 practice. Similarly, the team does not follow the practices used when Witness #7, a RN,
14
was trained to set catheters; she also practiced setting them on other people. UF 184.
15

16

During an execution, however, the execution team has LVNs set catheters

17 who are prohibited by law from doing so while unsupervised by a physician, who do not
18
set catheters during their regular work at San Quentin in the TTA (UF 56*), who do not
19
20 practice setting them before an execution, who only set catheters infrequently during an

21 execution (eight executions in the last nine years), and who do so under what Witness #3
22
describes as the most stressful circumstances he has ever experienced while setting a
23
24 catheter. UF 126. The cramped quarters of the gas chamber render placing the IVs even

25 more difficult, because the team members do not have adequate room to move around in
26
order to get the best angle on a vein. RT 636 (“Putting in an IV, sometimes you’re using
27
28 your whole body . . . [to] be able to hold things in just a certain position. You need to

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1
have room for your whole body to line up with the arm.”). Notably, Dr. Singler described
2
3 the conditions for IV placement as “marginal,” stating that he believed placing IVs was

4 more difficult in the gas chamber setting. RT 637. When he first saw the space, he

5
expressed those concerns, only to be told that they “don’t always get it right the first
6
time.” RT 1198. Witness #1 noted that missing the vein was “not uncommon” in
7
8 executions. UF 275.6

9

During the Massie execution, there was difficulty with one of the IV lines.

10

UF 63. Witness #4 blew the vein in Donald Beardslee’s left arm while setting the
11

12 catheter. UF 50. Witness #3 blew the vein while setting a catheter in the execution of

13 Stephen Anderson. RT 242-44, Sept. 26, 2006. See also UF 49, 247. Moreover, the
14
execution logs raise numerous anomalies regarding whether or how well the catheter sites
15
16 were working, in light of the widely varying times that each execution lasted. Ex. 7-15.

17 One inmate received two syringes of potassium chloride because after “a reasonable
18
time” “he didn’t die,” and the team “waited and waited.” UF 196. Inmates Allen,
19
20 Anderson, Massie, and Siripongs also received a second dose of potassium chloride

21 during their executions. UF 125.
22
Procedure 770 requires that two catheters be properly set in the inmate and
23
24 operating before an execution begins. UF 62. The State executed Stanley Williams

25

26 6

It should be noted that the logs do not contain all the notations concerning missing

27 veins, only when there appears to be substantial difficulty that extends the time

28 significantly, and, even then, not all the time.

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1
while knowing in advance of administration of the lethal chemicals that the left catheter
2
3 was not set properly and the left IV was not working. Moreover, neither the execution

4 team RN or LVN, Witness #6 and #3 respectively, could ascertain upon an arms’ length

5
inspection in the gas chamber that the catheter was set improperly, or that the IV line was
6
not running. UF 85. Neither could the other LVN, Witness #4, who was watching from
7

8 the anteroom of the chamber. UF 85.

9

During this execution, Witness #6, a RN, was responsible to set the left arm

10

catheter. UF 50a. The vein blew when she started the IV. UF 50a. She attempted again
11

12 to start the IV and the vein blew again. UF 50a. Witness #6 was frustrated and became

13 upset; she was visibly upset to other execution team members. UF 50b. Unbeknownst to
14
Witness #6 and Witness #3, Witness #6 then failed to properly set the catheter a third
15
16 time. UF 50c. Witness #6 then taped the catheter to Williams’s arm, and began to exit

17 the chamber. UF 50c.
18
The saline IV drips are supposed to be set so that the LVNs can tell from
19
20 looking at the IV drip whether they have successfully placed the catheters. UF 39.

21 Witness #4, the team member supposedly currently assigned to view the inmate, neither
22
practiced nor was trained by CDCR on how to make a visual inspection of the IV lines
23
24 during the executions. UF 83.7

25

7
26

During deposition testimony, the witness admitted he was standing to the left of the

27 gas canister because some of the CDCR “dignataries” occupied the window. At that

28 position, it would be very difficult to see anything of importance on the inmate. Ex. 5.

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Witness #3 believes it is not his responsibility, and has not been trained to
2
3 check the other team member’s IV placement to make sure that the catheter has been
4 successfully inserted. UF 238. Nevertheless, both Witness #6 and Witness #3 inspected
5
the catheter setting while inside the chamber and concluded that it was set properly, when
6
in fact it was not. UF 85. While Witness #3 and Witness #6 were exiting the chamber, it
7
8 was said that “it wasn’t flowing, the drip wasn’t flowing.” UF 50d. The RN couldn’t
9 believe that it wasn’t running again. UF 50d. After Witness #6 exited the chamber –
10
while the chamber door still was open – it was said a second time that “the left wasn’t
11
12 running.” UF 50d. These comments were made within earshot of inmate Williams, who
13 was strapped to the gurney only a few feet away. Witness #6 was either untrained or
14
doesn’t know of a procedure in place if the execution team cannot set an IV catheter. UF
15
16 226. All execution team members were prohibited by O.P. 770 from asking the team
17 leader or Warden what to do. UF 128.
18
Warden Ornoski was standing in the center of the anteroom, looking at the
19
20 door. UF 50e. The team leader was present at the chamber door. UF 50e. Witness #1,
21 the co-team leader, was present in the anteroom a few feet away. UF 290. Witness #4, a
22
LVN present in the anteroom, was not sure whether it was set properly. UF 85. He was
23
24 under the impression that the team leader, Witness #5, was responsible to monitor the IV
25 drip as a result of all the training he went through for Williams, as well as other
26
executions. UF 50f.
27
28
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Warden Ornoski, standing only a few feet from the chamber door (UF 50e)
2
3 and in the immediate presence of whomever made the two comments that the left IV was

4 not working, then said, “Proceed” with the execution, even “after the comments were

5
made that the left IV had failed.” UF 50g. The execution proceeded without the IV line
6
in the left arm properly set or operating. UF 50g. The Williams execution lasted for 28
7

8 more minutes before he was pronounced dead. Ex. 14.

9

Despite Witness #6’s colossal failures and incompetence during the

10

Williams execution, the execution team was “very supportive again. They say quote
11

12 unquote shit does happen, so.” UF 229.

13

It is extremely problematic that the person injecting the drugs did not know

14
that the left IV was not working, because had a problem occurred with the right IV during
15

16 injection – a not unlikely occurrence, given the difficulty with the left IV – the team

17 leader might have switched over to the left IV without telling anyone. This could have
18
resulted in injecting some of the thiopental and the other drugs through an infiltrated left
19
20 IV, after unsuccessfully injecting some of the thiopental through the right IV. Thus, the

21 numerous failures during the Williams execution set up a situation in which Mr. Williams
22
would have been inadequately anesthetized. RT 525-26. Dr. Singler recognized this
23
24 danger, as he stated that had one of the IVs not been patent, “that might have posed a real

25 roadblock for me to continue as planned. If there was an ineffectual second line prior to
26
when the door was closed, I probably would have turned right around and walked back
27
28 out that door and said, ‘Guys, we have a problem.’” RT 526.

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Witness #1 believes a good IV is when the catheter is in place and the drip
2
3 is running. UF 315. Witness #1 believes there is an execution protocol policy that the

4 determination of a good IV should be made before the chamber door is shut. UF 315.

5
Notwithstanding, up until the execution of Stanley Williams, there was no obligation for
6
an execution team member to report a failed IV to anyone on the execution team (UF
7

8 245a), despite Witness #1’s awareness of the propensity for IV setting failures (UF 275),

9 and his mistaken belief of what should take place. UF 315. Although Witness #5 claims
10
that a reporting procedure was created after the Stanley Williams execution, UF 245b, the
11
12 CDCR’s subsequent actions with respect to the protocol belie that statement.

13

CDCR concedes that Stanley Williams was an execution procedural and

14
performance debacle: “Williams was a lesson well learned, one that will never occur
15

16 again, because the awareness of that has led to an assurance that . . . there is not a

17 problem in any future cases where we’re using both the arms.” RT 197, Sept. 26, 2006.
18
In fact, it was not a lesson that CDCR learned at all, and it has happened again. It is a
19
20 stipulated fact that a “procedure for notifying the team leader and Warden if one or both

21 of the IVs was not set properly should have been in place for the Allen execution, but
22
wasn’t.” UF 245. The reporting procedure similarly was not part of the operational
23
24 procedure at the time of the subsequent execution of Clarence Allen. UF 245d. It is also

25 not part of the current O.P. 770. In fact, the March 6 version of the protocol, like the
26
earlier versions, expressly forbids team members from verbally communicating with each
27
28 other during an execution. OP 770 (March 6, 2006), Ex. 17, pp. 30-31; RT 811. CDCR

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simply refuses to learn from its mistakes, inadequacies, and inferior training, practice,
2
3 management, protocols, and procedures, and it refuses to take any available remedial

4 measures.

5
During the Stanley Williams execution, the interplay between the Warden,
6
the team leader, the co-team leader, a RN, and two LVNs was completely dysfunctional:
7

8

(1) the CDCR RN was unable to properly set a catheter;

9

(2) the CDCR RN was unable to conduct a proper examination to determine

10

whether a catheter was set properly;
11

12

(3) the CDCR LVN was unable to conduct a proper examination, in the immediate

13 physical presence of the inmate, to determine whether the catheter was set properly;
14
(4) the CDCR RN was unable to determine whether the IV line was running (UF
15
16 39);

17

(5) the CDCR LVN was unable to determine whether the IV line was running (UF

18
39);
19

20

(6) CDCR had no procedure as to what action to take when the team was advised

21 of the IV problem;
22
(7) CDCR improperly managed and screened an incompetent RN (Witness #6) on
23
24 the execution team who thereafter was allowed to participate in the same capacity during

25 the Allen execution the following month (UF 172); and
26
(8) CDCR improperly managed and screened two incompetent LVNs (Witness #3
27
28 and #4) on the execution team, who were allowed to participate in the same capacity

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1
during the Allen execution the following month, and in the scheduled execution of
2
3 plaintiff (UF 172);

4

(9) neither the Warden, the team leader, and/or the co-team leader followed the

5
written execution protocol O.P. 770 (UF 62);
6
(10) neither Witness #3, who has never read O.P. 770, nor Witness #4, who claims
7

8 to have read only 10 or 12 pages of O.P. 770, followed the written execution protocol

9 O.P. 770 (UF 62);
10
(11) neither the Warden, the team leader, and/or the co-team leader followed an
11
12 unwritten IV monitoring execution procedure that was purportedly practiced “over, and

13 over, and over,” after the problem was announced twice (UF 50f); and
14
(12) CDCR does not have any post-execution team meetings to identify problems
15
16 or implement necessary improvements to its procedures.

17 / /
18

19

20

21

22

23

24

25

26

27

28

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1
3. CDCR Has Failed to Develop and Implement Backup Plans Relating to IV

2

3

Access.

4

The difficulties in the Williams execution highlight a longstanding

5
deficiency in OP 770: its failure to provide backup plans for difficulties in obtaining and
6
maintaining IV access. These problems are highly foreseeable, as they have occurred in
7

8 California and in other states across the country. Heath Decl. ¶ 12. Achieving reliable IV

9 access is a crucial step in the execution procedure, and the IV phase has the potential to
10
cause an inhumane execution in two ways. First, the process of obtaining IV access can
11

12 in itself be inhumane, as when an untrained person attempts to perform a cut-down, Heath

13 Decl. of Feb. 6, 2006, ¶ 31 (cut-down involves surgical incision and cauterization, and
14
requires anesthesia), or a central line placement is botched, RT 646-47. Second,
15
16 unreliable IV access (such as infiltrated IVs) can result in inadequate anesthetization and

17 botched executions. Heath Decl. ¶ 12. The CDCR’s failure to anticipate either of these
18
foreseeable, indeed inevitable, problems, and prepare for them in itself creates an
19
20 unnecessary risk of inhumane executions.

21

a. Failure to Plan for Difficulties Achieving Peripheral Access. Instances of

22
extreme difficulty, or complete failure, to achieve peripheral IV access for executions
23

24 abound across the country. In California, the known occurrence of IV problems in four

25 executions out of eleven is evidence of the difficulty of achieving peripheral IV access.
26
The fact that RNs no longer accomplish this is very troubling. Indeed, the prison
27
28 population may be a particularly difficult population in which to insert peripheral IVs,

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1
given the high incidence of intravenous drug use. RT 644-45. It is inevitable that at
2
3 some point, the execution team will be confronted with an inmate in whom it is
4 impossible to place a reliable peripheral IV. If the team is forced to make do with a bad
5
peripheral IV in that situation, the execution may well be rendered inhumane when the
6
chemicals are injected through an infiltrated or leaking IV catheter. It is therefore crucial
7
8 that the execution team have in place a plan for achieving central venous access if
9 peripheral access is impossible.
10
The medically accepted means of achieving IV access in someone for
11
12 whom peripheral access is impossible is to place the catheter in a central vein, such as the
13 femoral, subclavian, and jugular veins. These veins are larger than peripheral veins, but
14
they are also deeper beneath the skin, and accessing them is a more complex procedure
15
16 that necessarily involves potentially agonizing and life-threatening complications. In
17 other words, while central venous access may be necessary for some inmates in order to
18
minimize the risk of an inhumane execution that arises from the unreliability of
19
20 peripheral access, placing a central line is in itself a complicated procedure that involves
21 a risk of excruciating pain. RT 646 (Heath and Singler agree that life-threatening
22
complications are possible when inserting a central catheter). The only way to minimize
23
24 this risk is to plan for the need to do such a procedure, and to ensure that adequately
25 trained personnel are on hand to perform the procedure properly if necessary. RT 648-
26
49.
27
28
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1
CDCR has no such procedure. The current version of O.P. 770 contains no
2
3 backup plan if peripheral access is impossible. Ex. 17. Witness #5 mentioned a cut-

4 down procedure, but it is unclear whether CDCR would be prepared to perform a cut-

5
down currently, given that the protocol does not mention it. The cut-down, moreover, is
6
a surgical procedure that only certain physicians --those with surgical experience --
7

8 would know how to perform, and neither Dr. Calvo nor Dr. St. Clair has that experience.

9 Both doctors, moreover, testified that their only role in executions is to observe and
10
pronounce death. UF 5, 54; RT 569. More importantly, the cut-down procedure is highly
11
12 invasive and is no longer a medically accepted means of obtaining venous access. The

13 percutaneous technique of placing a central line is the standard, relatively safe means of
14
obtaining venous access, not the cut-down. Heath Decl. of Feb. 6, 2006, ¶ 31
15

16

Unlike the cut-down, a properly performed central line placement is not in

17 itself inhumane. Attempting to perform a central line placement without a procedure,
18
properly trained personnel, and the equipment necessary to treat common complications,
19
20 however, would create a serious risk of subjecting the inmate to pain and suffering. Only

21 physicians or highly trained personnel under the supervision of a physician are capable of
22
performing a central line placement. RT 645. All central line placements involve the risk
23
24 of serious complications, some of which are life-threatening and agonizing. The photos

25 from Missouri executions demonstrate a common painful complication, a hematoma. Ex.
26
72. Other life-threatening complications include a pneumothorax (which would cause
27
28 death by suffocation) and catastrophic bleeding from a pierced artery. RT 645-48. If the

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1
execution team were to attempt a central line placement on the fly, without adequately
2
3 trained personnel, the inevitable result would be disastrous complications for the inmate.

4

CDCR’s failure to plan for central access also places greater pressure on the

5
IV personnel, who may feel that the execution rides on their being able to place
6
peripheral IVs. RT 649-50. This may explain the execution team’s failure to
7

8 communicate about the inability to place the IV in the Williams execution, and their

9 willingness to go forward with the execution anyway. In sum, without a procedure for
10
obtaining central line access when it is necessary, the CDCR is placing inmates at
11
12 needless risk of painful IV placement and botched executions.

13

b. Failure to Provide for Backup IV Access. There is no contingency procedure in

14
place under the new Operational Procedure 770 if the thiopental drip stops before the
15

16 execution team administers pancuronium bromide. UF 278. The execution team has not

17 discussed what to do if one line fails under new Operational Procedure 770. UF 313.
18
There is no procedure in place if the medical people observe something wrong with the
19
20 IV drip because Witness #1 testified that “those are the what-ifs that can go a thousand

21 long.” UF 314. Witness #1 believes there is a policy that if an observation of a
22
malfunction occurs, the team leader and warden should be notified and “there would be a
23
24 discussion at that point.” UF 314.

25

Both Dr. Singler and Dr. Heath agree that the current version of O.P. 770 is

26
deficient because it fails to provide a backup plan for the failure of one or both of the IVs
27

28 during the execution procedure. This is particularly dangerous now that the execution

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team proposes to use both the right and left IVs to deliver thiopental during the
2
3 procedure. RT 1164 (Singler: “What we now have is use of both IVs, but we don't have a

4 backup plan in the event of failure of either of those IVs, at least described in the

5
protocol.”), 525, 604 (Heath describes the danger of switching IVs during the execution).
6
If the execution team discovers that the primary IV has infiltrated during
7

8 the thiopental injection, and so they switch to the other IV and continue injecting without

9 using a backup dose of thiopental, then they will not have delivered the full 1.5-gram
10
bolus dose of thiopental. In this situation, the inmate may not have received sufficient
11
12 thiopental to anesthetize him. RT 525.

13

In addition, if either IV is not patent, the inmate will not receive a portion

14
of the intended dose of thiopental. Obviously, the continuous drip, assuming it has any
15

16 effect whatsoever, is meaningless if it never reaches the inmate, and then the inmate will

17 have only received 1.5 grams, the lowest dose of any state, at a prolonged rate, which
18
even Dr. Singler notes will significantly reduce its effect. RT 1163. In any of these
19
20 situations, the lack of a backup plan creates a significant risk of inadequate

21 anesthetization.
22
The execution team does not understand these dangers. Under the new
23
24 Operational Procedure 770, the execution team cannot use the left arm IV line as a

25 backup drug delivery mechanism because it will be used for a thiopental drip. UF 279.
26
Nonetheless, Witness #1 believes that under the new protocol, if an IV stops running after
27
28 pancuronium bromide, the team will continue to administer potassium chloride in the

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1
other arm. UF 276. This is impossible and reflects Witness #1’s complete lack of any
2
3 meaningful understanding of the process or the risks associated with the protocol.

4

Therefore, CDCR needs to develop and institute a set of backup procedures

5
to be used if one or both of the IVs fails during the execution procedure. These
6
procedures would have to anticipate the differing consequences of IV failures at each
7

8 stage of the procedure: The dangers to the inmate are different if the IV failure is detected

9 in the middle of the delivery of the bolus dose, as opposed to an IV failure of the left IV
10
when the drip is started. Implicit in the need for a backup plan is that the execution team
11
12 must be prepared to deliver an additional dose of anesthetic if the IV failure occurs in a

13 way that indicates that the full dose of thiopental has not been delivered. RT 641-42.
14
The team should also have a plan for a situation in which both IVs fail, as is foreseeable
15
16 given the proportion of the prison population with poor veins. The protocol’s current

17 lack of such procedures creates an unnecessary risk to the inmate. This also highlights
18
the need for anesthetic monitoring if the CDCR continues to use pancuronium and
19
20 potassium. As Dr. Singler pointed out, his being present in the chamber to monitor the

21 execution reduced the risk created by the lack of these backup procedures, because he
22
would have been able to detect these problems. RT 1165.
23
24 / /

25 / /
26

27

28

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1
4. CDCR Uses a Procedure to Select the Lethal Chemicals for Use that Subjects

2

3

the Inmate to Unnecessary Risk of Extreme Pain and Torture.

4

When the Warden orders the execution to commence, the execution team is

5
required to first administer Pentothal to the inmate. UF 75. In order to avoid having the
6
inmate experience excruciating pain during the execution process, it is critical that the
7

8 Pentothal syringe is selected first and administered to the inmate. The future team leader,

9 Witness #9, does not know which chemical is supposed to be administered first. UF 144.
10
Witness #4, an execution team member who has selected the syringes for administration
11
12 to Stanley Williams and Clarence Allen (UF 83), does not believe that an un-anesthetized

13 inmate would experience pain if injected with potassium chloride first. UF 240.
14
In order to knowingly administer Pentothal to the inmate, an execution team
15
16 member must select a syringe from the top of a cart where syringes containing Pentothal,

17 pancuronium bromide, sodium chloride, and saline are placed. UF 75. The syringes are
18
put “on a cart in designated areas. It’s marked on a -- on the card underneath where the
19
20 syringes go.” RT 26, Mar. 30, 2006 (emphasis added). Accordingly, the written

21 designation of the contents in the syringe is blocked from view by the syringe seated on
22
top of it. The former team leader, Witness #5 could not identify where Pentothal was
23
24 located on the cart. UF 87c. The selection of a syringe from the cart then occurs by a

25 team member in the dark. Witness #4 believes that the Pentothal would be “sort of a tan”
26
color, a “[y]ellowish, brownish tan,” while Witness #5 believes it is clear. UF 87c. Add
27
28 to this confusion the crowding in the chamber and the need to “reach around people,” UF

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188, to hand the syringes to the team leader, and it is clear that the team operates in an
2
3 environment that makes mistakes in selecting and handing off the syringes highly likely,

4 and guarantees that those mistakes will not be detected. RT 587 (“It's the opposite of the

5
way things should be. They should have a clear working space so that they can
6
accomplish this task properly.”).
7

8

There is substantial confusion among the execution team as to who is

9 selecting the syringes in the dark. Witness #3, the LVN who has participated in seven of
10
the last nine executions, believes that in each instance, he selected the syringe from the
11
12 cart – including during the most recent executions of Stanley Williams and Clarence

13 Allen – and passed it to another LVN, Witness #4, for insertion into the stopcock, then
14
the empty syringe was returned to him and he made the selection of the next syringe from
15
16 the cart. UF 77. Witness #3 has practiced this with the team “over, and over, and over.”

17 UF 77.
18
Witness #1, the co-team leader during these executions, thinks Witness #3
19
20 is wrong. So does Witness #4. Witness #1 believes that after a syringe has been emptied,

21 the same MTA removes the syringe, places it back on the cart and retrieves the next
22
syringe. UF 77a. Witness #4, a LVN who also participated in the Stanley Williams and
23
24 Allen executions, believes that in those executions, he selected the syringes off the cart

25 for insertion into the stopcock, and then he returned the empty syringes to the cart before
26
selecting the next syringe. UF 78.
27

28

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The execution “medical staff” – now consisting of two LVNs – neither
2
3 know nor understand their roles in selecting the lethal chemicals for use during an

4 execution. The future is no brighter under the anticipated leadership of Witness #9 who,

5
despite having participated in three executions under the impression that he would
6
become team leader, is not familiar with the lethal drugs used nor the order in which they
7

8 are to be administered.

9

5. Mixing Pentothal for Executions.

10

There is much confusion among the execution team as to how much
11

12 Pentothal is administered to an inmate during an execution, and how it is done, if at all.

13 Witness #5 testified that the amount of Pentothal used “changed during the last two
14
executions.” UF 87i. This change is neither reflected in O.P. 770, nor in the execution
15
16 logs.

17

Starting with the Siripongs execution and for every execution thereafter,

18
Witness #1 claims the procedure changed to using four syringes of sodium thiopental,
19

20 each containing 1.25 grams of sodium thiopental. UF 28. He testified that he “believe[s]

21 there were four syringes of the sodium Pentothal.” RT 82, Mar. 30, 2006. Witness #6,
22
who mixed the Pentothal in every execution after the Siripongs execution, does not recall
23
24 ever mixing four syringes of thiopental that contained 1.25 grams each. UF 213. During

25 the last California execution of Clarence Allen, Witness #9 recalls that the syringes being
26
used were “the big syringe that we use for the push.” UF 143. Accordingly, there is no
27
28 certainty as to the amount of Pentothal delivered, or how it was delivered to the inmate.

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This undermines defendants’ claim that the execution team practiced over, and over, and
2
3 over, and that the team understood their roles or the procedures. Moreover, it reflects a
4 complete absence of leadership on the team as to these critical elements of the execution
5
protocol. RT 499-500.
6
Although Witness #1 has no training in mixing drugs, he was responsible to
7
8 ensure that the drugs are mixed correctly (UF 33) – a supervisory impossibility. The
9 manufacturer’s inserts concerning Pentothal are not contained in the individual boxes
10
retrieved from the pharmacy. UF 298. The only manufacturer instructions given to team
11
12 members are those on the outside of the individual boxes, reproduced in Exhibit 2. UF
13 298; 270. Witness #1 testified that he has never reviewed the packaging inserts for any of
14
the lethal injection chemicals. UF 298. Perhaps noting Witness #1’s leadership
15
16 deficiencies regarding the mixing of the drugs, this Court inquired whether “there’s a
17 licensed person involved in mixing the drugs” for an execution, and Witness #1
18
responded, “Yes.” RT 144, Mar. 30, 2006 (emphasis added). The Court was entitled to a
19
20 more complete and accurate answer to its inquiry, which plaintiff has been able to
21 develop through discovery as follows:
22
For each execution, the lethal drugs have been mixed by the RNs and
23
24 LVNs. UF 32. During the last eight California executions, there were no practice
25 sessions where people practiced mixing Pentothal. UF 33.
26
As it pertains to Pentothal, Witness #7 testified that Witness #6, a RN,
27
28 always mixed the sodium Pentothal for all the executions that Witness #7 participated in
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up until 2003. UF 195. Witness #6 “would just take over.” “She liked to do it, and she
2
3 always said she didn’t need any help.” UF 195. Witness #6 also testified that she mixed
4 the thiopental into solution for every execution for which she was on the execution team
5
between 1998 and 2006, up through and including the Allen execution. UF 207.
6
By contrast, Witness #4, a LVN, claims that he also mixed the Pentothal.
7
8 UF 34. Witness #1 testified that the “MTAs” mix the drugs, and it “could be three”
9 people mixing the drugs at one time. RT 144, Mar. 30, 2006.
10
What Witness #1 failed to advise the Court with respect to its “licensed
11
12 person” inquiry is that Witness #4 never has received any training in mixing Pentothal
13 (UF 34), never had mixed Pentothal before the evening of a scheduled execution (UF 34),
14
and is not licensed to mix Pentothal. Similarly, Witness #1 failed to advise the Court that
15
16 although Witness #7 is a licensed RN, she never has received training on how to mix
17 sodium thiopental, either before or after joining the execution team. UF 194.
18
Witness #1 also neglected to advise the Court that although Witness #6 is a
19
20 licensed RN, she also has not received any training on how to mix thiopental. UF 210.
21 She learned to mix thiopental “at the chamber.” “Nobody taught me.” UF 210. She used
22
the package insert and the formula kept in the drug cart (Ex. 67) as guides. UF 210, 214.
23
24 The formula is from the state. UF 214. When Witness #6 was shown the method for
25 mixing sodium thiopental recorded in O.P. 770 and asked if this was the formula she
26
followed, Witness #6 responded, “No. Mine is much higher concentration than this.” UF
27
28
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215. In this regard, Witness #1’s unequivocal response to the Court’s licensing inquiry
2
3 was a bit slippery at best.

4

Witness #6 doesn’t remember the amount (milligrams) of thiopental that

5
was contained in the thiopental kit or kits that she used to prepare the syringes of
6
thiopental. UF 208. She never mixed more than one bottle of thiopental for any
7

8 execution. UF 208. Witness #6 recalls that “[m]ost of the time,” or “always,” the

9 thiopental came packaged in a single large bottle. UF 209. Her depiction was consistent
10
with the 5 gram bottle shown to Dr. Ekins.
11

12

Witness #1 testified that Pentothal came in a 500 mg vial. RT 150, Mar.

13 30, 2006. For the past three California executions, Pentothal came in 500 mg vials. See,
14
e.g., UF 25n, 25o, 26b, 26c, 26d, 26h.8 After Witness #6 draws up the syringe or
15
16 syringes, there would be some solution left in the thiopental bottle. UF 212. In this

17 regard, it seems that the execution team, supervised by co-team leader Witness #1, mixed
18
one 500 mg bottle, or a half a gram of Pentothal for each execution. Some of this half
19
20 gram was left in the thiopental bottle during the mixing process. UF 212. Between

21 January, 1996 and January 18, 2006, five grams of thiopental were required to be used in
22
an execution under the protocol. UF 27.
23

24

8

25

Defendants were unable to produce any records beyond three years. They refused

26 to alter their computer search to seek records prior to that time. Plaintiff then subpoenaed both the supplier and the manufacturer, who have both failed to produce their records.

27 Because this discovery matter was one of those that arose on the eve of the hearing, and the

28 Court denied a continuance, time did not permit full litigation of this issue.

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One likely scenario is that Witness #6, faced with an instruction sheet that
2
3 did not match the manufacturer’s concentration (Exhibits 67 & 69), put the 200 or 250 cc

4 diluent in with the 5 grams, but drew up only that required by the protocol, 20 cc. This

5
would result in the administration of only 500 mg or 750 mg of thiopenthal, which the
6
logs indicate was very drawn out for some executions, reducing its effect. This is
7

8 consistent with the testimony that there was always some remaining in the bottle. The

9 alternative, an extremely high concentration, would have been painful and likely
10
noticeable, and would create its own difficulties.
11

12

Witness #6, Witness #7, the State’s mixing formula (Ex. 67), and O.P. 770

13 state that a back-up syringe of Pentothal was not mixed for an execution. UF 293, 295,
14
296, 297; Ex. 67. Witness #6 testified that the execution team keeps one back-up bottle
15
16 of thiopental unmixed. UF 216. This “backup” is meaningless, because by the time the

17 team realizes that they might need the backup dose, it will take them a substantial amount

18
of time to mix it and administer it. RT 642 (“if you need it, you need it quickly.”).
19

20

The inability to reconstruct from team members’ accounts how much

21 thiopental was administered in each execution is deeply troubling. This is the most
22
important part of the procedure, and the unjustified erratic nature of the team’s
23
24 preparation of the thiopental creates a serious risk of inadequate anesthesia. RT 510.

25 Indeed, very similar irregularities in the mixing process used in Missouri led the district
26
court in Taylor v. Crawford to find that the procedure was unconstitutional because of the
27
28 risk of inadequate anesthesia. There, the surgeon who prepared the thiopental admitted

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that he had mixed less than the 5-gram dose specified in the protocol, preparing perhaps
2
3 as little as 2 grams for some executions (as here, it was impossible for the Department of

4 Corrections, the plaintiff, or the court to reconstruct precisely how much thiopental was

5
given). Even though, unlike in California, there appeared to be no possibility that the
6
surgeon had actually ever prepared an inadequate dose of thiopental (as 2 grams is still a
7

8 large overdose), the Court found that the irregularities, combined with the lack of

9 monitoring that is also problematic in California, created an unnecessary risk of pain.
10
Taylor, Order of June 26, 2006, at 12.
11

12

Here, there is evidence that Witness #6’s confusion may well have led her

13 to administer only a small fraction of the intended dose of thiopental to inmates. There is
14
simply no way to know for sure, because all of these inmates also received pancuronium,
15
16 and therefore would not have been able to express their suffering. RT 508 (“So we have

17 no idea what they did, and since they were paralyzed, we can't tell if they gave enough.”).
18
This is the very definition of unnecessary and significant risk of excruciating pain.
19
20 / /

21 / /
22

23

24

25

26

27

28

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6. Mixing Pentothal at Future Executions.

2

3

The risk of inadequate anesthesia caused by the team’s inability to mix the

4 thiopental competently and consistently will continue in future executions. First, there is

5
no evidence that, now that Witness #6 has retired, her successors are any better prepared
6
to mix the thiopental than she was. Witness #6 was an RN, while Witnesses #3 and #4,
7

8 who now presumably will have responsibility for the mixing process, are LVNs with

9 minimal medical training. Although one might think that mixing the thiopental is a
10
relatively simple mechanical task, discovery in this case and in Missouri has
11

12 demonstrated that the mixing process is quite difficult for medical professionals who do

13 not perform the task routinely in their practices. As the Taylor Court aptly noted: As the
14
Court has learned, the process of mixing the three different drugs and knowing the correct
15
16 amount of the drugs to dissolve in the correct amount of solution involves precise

17 measurements and the ability to use, decipher, and not confuse numbers. See Taylor,
18
Order of June 26, 2006 at 12. CDCR, unlike the Taylor Court, has not learned that
19
20 lesson, as they have not provided that an adequately trained person, such as a pharmacist,

21 should prepare the thiopental, or that the team should practice mixing the thiopental. RT
22
897 (Dr. Ekins stated that the team should be supervised in the mixing process by an
23
24 adequately trained professional who can ensure that the thiopental is mixed properly).

25

Instead of ensuring that the mixing process is regularized and supervised by

26
adequately trained personnel, CDCR has instead allowed the team to develop yet another
27

28 medically and clinically uninformed method of mixing the thiopental drip. Witness #1

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testified that, for the new O.P. 770, he intended to follow the “instructions or guides” that
2
3 are “set in 770” in terms of mixing the drugs. RT 25, Mar. 30, 2006. However, without

4 any training on mixing drugs, Witness #1 apparently has unwittingly devised yet a third

5
way to mix the Pentothal under the new protocol – i.e., not the manufacturer’s directions,
6
and not the deviation from the manufacturer’s directions that are set forth in new O.P.
7

8 770. He draws 20 mL of saline from a 250 mL bag, and squirts it into a 500 mg vial of

9 Pentothal and mixes it. RT 147-50, Mar. 30, 2006. He then takes the mixed 500 mg
10
Pentothal and saline into the syringe and squirts it back into a 250 mL bag of saline,
11
12 making the 250 mL bag, a bag of 250 mL of saline plus 500 mg of Pentothal. Id. Then,

13 Witness #1 draws a syringe from this bag containing a mixture of Pentothal and saline,
14
and uses that draw to mix the next vial of 500mg of Pentothal in the syringe and
15
16 Pentothal vial. Id. Witness #1 then draws the mixture out into a syringe and squirts it

17 back into the 250 mL bag of now saline and Pentothal. Id. Witness #1 repeats this
18
process eight more times, each time mixing a new vial of 500 mg of Pentothal with an
19
20 increased concentration of saline/Pentothal. Id.

21

There are other puzzling aspects of the future mixing procedure. The

22
packaging material for each 500mg vial of Pentothal states that each 500mg of thiopental
23

24 sodium is to be dissolved in 20 mL of sterile water. UF 35. Yet the new O.P. 770, March

25 6, 2006, provides that 5 Gm of Sodium Pentothal will be mixed thoroughly with the 250
26
mL bag of Sodium Chloride (saline). UF 36. Under the new O.P. 770, March 6, 2006,
27
28 each one gram of Pentothal is to be dissolved in 50 mL of a solution of sodium chloride

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of unknown concentration, rather than in 40 mL of sterile water (UF 36a), as instructed
2
3 by the manufacturer. It is unclear why these changes were made or whether the team will

4 be able to implement them in a safe manner.

5
Witness #9, the new team leader, has no training in mixing drugs either.
6
UF 141. Witness #4 is clueless as to how the drug should appear, and if it was as he
7

8 states for the past executions, evidence that neither he nor witness #3, his comixer, knows

9 what they are doing, that is a substantial problem, according to Dr. Ekins. There is no
10
telling how the drugs will be mixed in the future. Simply put, as Dr. Ekins noted, the
11
12 absence of a qualified person such as a pharmacist to mix or supervise the mixing, has

13 created an unnecessary risk of a painful execution.
14
7. IV Bag Drip Settings.
15

16

IV drip bag settings are very important under the new, complicated

17 protocol. The slow drip rate was one of the first things noted by Dr. Singler and he
18
advised it be changed to an open flow, which he called “passive flow rate.” He first
19
20 testified that was the highest rate the vein allows. This would permit the team to gauge

21 how fast to push. Instead, though, the speed has not been changed in O.P. 770, and
22
remains at the “slow” rate, or “KVO” it has always been. As Dr. Ebling and Dr. Singler
23
24 noted, the slower application of thiopental, the less peak effect it has. Because the setting

25 has been done improperly, and is, under the new protocol, maintained at that rate, the
26
procedure creates an unnecessary risk of substantial pain. Just as important, though, is
27
28 the fact that yet again, the lack of training and experience of team members has led to a

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situation where they do not understand either the direction given to them or how to
2
3 effectuate it.

4

In fact, this is complicated by the addition of check valves on the IV lines.

5
As the testimony indicates, this will substantially slow the rate of flow. That action also
6
demonstrates that those valves were not present until March 30, 2006 because Dr. Singler
7

8 would have certainly noted that when he ordered the rate to be as fast as the vein would

9 allow. Further neither the old OP 770, nor the one drafted on March 3, 2006 contain
10
those valves in their extremely exhaustive equipment list. It appears they are the only
11
12 items not contained in there, and if they were so important, they would have been.9

13

There are also great difficulties in setting up the procedure and who is

14
doing it. Witness #7, one of only two RNs on the execution team over the past 10 years,
15

16 never saw a RN or LVN either hang a IV bag or connect the IV bag to IV tubing during

17 an execution. UF 190. In all of the training sessions that Witness #7 attended during the
18
seven years on the execution team, and all of the executions Witness #7 participated in,
19
20 Witness #7 does not know how the IV line is turned on, or who turns it on. UF 191.

21

There is a switch in the IV tubing line below the IV bag that can regulate

22
the flow of saline from the IV bag. UF 192. In all of the training sessions that Witness
23

24 #7 attended during the seven years on the execution team, and all of the executions

25 9

26

Both the slow rate in the new protocol and the check valve impediment are likely the

reasons that when questioned about this, Dr. Singler reversed himself and testified he

27 ordered it to be a slow rate, which makes no sense because that’s what it was before, and

28 that’s what creates a danger in the administration of a low bolus dose of thiopenthal.

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Witness #7 participated in, Witness #7 never saw a team member set the regulator. UF
2
3 192. Witness #7 has never seen a RN or a LVN be assigned the task of setting the

4 regulator for the IV saline drip line, or practice doing so. UF 192.10

5
In all of the training sessions that Witness #7 attended during the seven
6
years on the execution team, and all of the executions Witness #7 participated in, Witness
7

8 #7 has never heard any discussions or seen any training as to how the drip setting on the

9 IV line should be set. UF 193. Witness #5 does not know the drip rate for the IV bag; he
10
has never known it; and he does not know “if that drip rate is set forth in the operational
11

12 procedure” or whether he ever knew this information. UF 87y. In fact, not one of the

13 witnesses said they were responsible for setting the drip on the IV bags. UF 50f.
14
Under new protocol, Witness #1 testified that the “person who is designated
15
16 to administer the drugs is the person who sets the Thiopental drip. As for the drip-setting

17 practices under the new O.P. 770, Witness #9 will be the future executioner. See UF 137.
18
He never has seen anyone adjust the setting of the mechanism on the IV line that is
19
20 located under the IV bag in any practice sessions other than the session “during Mr.

21 Morales, with the doctors there.” UF 164. Moreover, no one has discussed with Witness
22
#9 changing the execution procedure to use a sodium Pentothal IV drip. UF 165.
23

24

25 10

26

This is another area where Witness #1 misread Dr. Singler’s instructions. He may

believe that the stopcock mechanism is the one that adjusts flow, when it is really this clave

27 mechanism. RT 48-49, Mar. 30, 2006. Witness #9, the team leader in training, has no clue

28 about anything related to drip rates.

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Accordingly, he is totally uninformed and unqualified to perform the tasks that Witness
2
3 #1 suggests will be his responsibility under new O.P. 770.

4

As for the IV monitoring practices under the new O.P. 770, Witness #3, a

5
LVN, was trained--------------- to monitor the flow of an IV by having the IV bag and drip
6
chamber above the person that you’re starting an IV on, and then stand right next to it –
7

8 within a foot. UF 86*. The IV drip bag and the drip chamber during an execution are

9 located above the execution chamber, approximately nine to 10 feet off the ground,
10
accessible only in the anteroom to the execution chamber. UF 86*. The catheter, the
11
12 inmate, and IV tubing are located inside the execution chamber. UF 86*. The length of

13 IV tubing is approximately 11 feet for each line inside the chamber, from the point at
14
which the line goes through a hole in the chamber wall to the catheter placed at the
15
16 inmate’s elbow. UF 86*. (OP 770 indicates this distance is 12 feet). Dr. Ekins noted

17 this was not a standard method. Further, although Witness #1 believes Witness #4 is
18
monitoring the drip, this appears to be news to Witness #4 (UF 50f), who is, even
19
20 according to Witness #1, also handing the syringes, monitoring the push, and monitoring

21 the inmate, all in the dark.

22
8. The IV Lines.
23

24

It is 12 feet from the stopcock to the inmate, and between 17.5 and 20 feet

25 from the bags to the inmate. This appears to be much longer than elsewhere. A
26
substantial issue is the length of line here. This increases the risk because it is clear that it
27
28 alters the timing of drug delivery, particularly thiopental. In fact, Dr. Singler’s

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understanding was that delivery was relatively fast as it is clinically, as was Dr. Ekins.
2
3 That, however, is not the case.

4

The reason this is important is not simply that the longer the line, the

5
increasing risk of difficulties and the increased inability to monitor them, which is
6
impossible given the set up at San Quentin. Those are significant problems, no doubt.
7

8 But, thiopental is very sensitive to the rate of administration. Here, the line complicates

9 matters because it causes the push, even if done promptly (which the logs appear to
10
indicate is not occurring), to not actually deliver the drugs. It is the push behind it that
11

12 does this, drawing out the process and extending what is already a now-standard length

13 that increases time of administration. At best, the push rate has been one minute. At
14
worst, it’s been nine.11 But, half of each syringe lays in the line, waiting for the next
15
16 administration. Each time, this extenuates administration, depending upon how extended

17 the push is. It is, even if done quickly, a prescription for disaster.
18
This problem is not even on CDCR’s radar because they have never
19
20 consulted with an appropriate expert, and the one they presented at the hearing, Dr.

21 Ekins, was unfamiliar with the length of line. When advised of it, he noted it to be a

22
problem. RT 908 (“I hardly imagine you would do it that way”).
23

24

Another problem is the twisted and extremely complicated set up that has

25 gotten even worse now that another drip has been added. RT 909-10; Exs. 23, 28

26
11

27

The administration is supposedly one syringe after another, without gaps, although

28 that is difficult to believe.

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(“Well, it’s hard for me to really know for sure what’s depicted here.”) If Dr. Ekins
2
3 cannot understand this, how can we expect the team to? It is simply unfair to require

4 them to engage in this endeavor unassisted by experienced, trained professionals. And, it

5
is unconstitutional not to monitor Mr. Morales’ for unconsciousness in these
6
circumstances.
7

8

9. The Gas Chamber.

9

As Dr. Heath testified at trial, CDCR’s gas chamber obstructs the execution

10

team’s ability to perform its functions. The chamber itself is manifestly not designed for
11

12 lethal injection, as the gurney barely fits into the chamber, and takes up so much of the

13 floor space that it is difficult to move around inside. See Exs. 21-27. These cramped
14
quarters create a risk of unsuccessful IV access by making it more difficult for the team
15
16 members to position themselves to insert the IVs. Dr. Heath described placing the IVs in

17 the chamber as “not good working conditions,” and Dr. Singler termed it “marginal
18
conditions.” RT 635-36. As Dr. Heath noted, “Putting in an IV, sometimes you're using
19
20 your whole body. It sounds strange, but every part of your body is positioned to get your

21 head lined up, your eyes lined up with your hands and be able to hold things in just a
22
certain position.” Id. The team members placing IVs do not have the luxury of moving
23
24 around in order to get the right angle on an IV, and this renders successful IV placement

25 much more difficult. Indeed, the cramped quarters may explain the relatively high
26
incidence of IV problems in California executions (4 out of 11).
27

28

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In addition, it would be virtually impossible to place a central line -- an
2
3 inevitable eventuality – in the gas chamber, because central line insertion is more

4 difficult, and requires more freedom of movement. In addition, because of the life-

5
threatening complications that attend central line placement, the person placing the
6
catheter would need certain equipment at hand, ready for immediate use. This would be
7

8 impossible in the cramped confines of the gas chamber. RT 648; 636-37 (“I wouldn't try

9 to place a central line in that chamber. If I'm putting in a line in a subclavian vein, for
10
example, I want to be standing at the head of the bed and I'd need more room than there
11
12 really was there. That would be very constrained circumstances.”).

13

CDCR’s use of a gas chamber for lethal injection creates other problems as

14
well. Fundamentally, the execution team should not be attempting to induce anesthesia
15

16 from a remote location, as anesthesiologists would never do so except in extreme

17 circumstances because it hinders their ability to assess anesthetic depth and ensure proper
18
drug delivery. RT 631-32. The gas chamber worsens the dangers caused by remote
19
20 administration. Its angular shape of the chamber renders the lines of sight from the

21 anteroom very poor, and the gurney has been ill-placed, so that the team cannot see the
22
left IV site at all. RT 633 (“They can't properly see the prisoner's left arm or hand, and
23
24 that's where the IV tubing -- one of the IVs usually leads to. . . The further away you want

25 to be, the mirror or the window is not a completely clear window. So that further has the
26
effect of dimming the view. You can see, but you can't see well enough to properly
27
28 assess IV integrity and delivery.”). The door of the gas chamber has no window, further

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reducing the view. RT 637 (Dr. Heath testified that the gas chamber hinders observation
2
3 of the inmate). And, unlike the normal windows in Missouri’s lethal injection chamber,

4 see Exs. 5-9 to Heath Decl., the windows in the gas chamber are very small. By sealing

5
the door, the execution team cuts off its ability to hear expressions of distress from inside
6
the chamber, and makes it unlikely that they would be able to reach the inmate inside the
7

8 chamber should something go wrong. RT 634.

9

E. The Lethal Injection Execution Team Has Had a Long History of

10

Substantial Supervisory and Management Neglect.
11

12

Jeanne Woodford was Warden Brown’s predecessor. Woodford began her

13 CDC career in June 1978 as a Correctional Officer in San Quentin. In 1987, she became
14
the Legal Affairs Coordinator at San Quentin. By 1998, she had become Chief Deputy
15
16 Warden at San Quentin and was responsible for the day-to-day operations of San

17 Quentin. UF 8. Woodford became Warden at San Quentin in 1999, and presided over
18
four lethal injection executions as Warden. UF 8. In February 2004, Woodford became
19
20 the Director of CDC. Secretary Jeanne Woodford’s home page, available at

21 http://www.cya.ca.gov/AboutCDCR/archives/woodford.html (updated July 13, 2006).
22
She then became the Undersecretary of the CDCR when the department was renamed in
23
24 2005, and Secretary in 2006. Id.

25

As Warden, Woodford claimed that she personally assured herself that each

26
member of the execution team had the high degree of professionalism necessary to be on
27

28

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the team. UF 8. Woodford also claimed that she personally assured herself that each
2
3 member of the execution team had a high degree of stability. Id. Most of the people that

4 Woodford screened while Warden have remained on the team through the last execution,

5
and continued to be under her purview as CDCR Secretary. See Cal. Pen. Code § 5054
6
(“[T]he supervision, management and control” of San Quentin State Prison is vested in
7

8 the Secretary of the Department of Corrections and Rehabilitation.”)

9

Witness #5 was Woodford’s execution team leader, both as Warden and

10

CDCR Secretary. UF 10. Prior to being appointed to the execution team, and then as
11

12 team leader, Witness #5 had been fired by CDCR for bringing illegal narcotics into San

13 Quentin State Prison. UF 9*. After a lengthy appeal of the prior Warden’s decision to
14
fire him, he was reinstated with a five-month suspension without pay. UF 9*. Woodford
15
16 knew this as part of Witness #5’s CDCR record, yet she concluded he was a

17 “professional” licensed peace officer and execution team timber. There is no evidence
18
that Woodford, or anyone at the CDCR, considered the fact that Witness #5 would be
19
20 given responsibility for, and access to, controlled substances as a member of the

21 execution team. But see RT 784 (Heath: “I think if somebody had a history of use of or
22
bringing illegal drugs into a professional workplace and they had -- that was an actual
23
24 documented thing that they were disciplined for or where it had been processed by the

25 law for, arrested or charged or whatever -- I don't really know that area -- that would be
26
something that would make people very concerned about giving them access to controlled
27
28 substances, absolutely.”).

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In 1998, Witness #1 was arrested and convicted for driving a vehicle while
2
3 intoxicated in Sacramento County. UF 14*. His blood alcohol level was 0.12 – 50
4 percent over the legal limit. UF 14*. This conviction was reported to CDCR, and
5
thereafter became part of Witness #1’s disciplinary record at CDCR. UF 14*. Woodford
6
knew this as part of Witness #1’s CDCR record, yet she concluded he was a
7
8 “professional” and “highly stable” licensed peace officer. She took no action to remove
9 Witness #1 from the execution team. Witness #13, another licensed peace officer on the
10
execution team, was convicted of drunk driving charges – charges which were reported to
11
12 CDCR and the execution team leader. UF 20*. Woodford knew this as part of Witness
13 #13’s CDCR record, yet she concluded he was a “professional” and “highly stable”
14
licensed peace officer. She did not remove him from the team, and thereafter endorsed
15
16 his participation in the executions of Beardslee, Stanley Williams, Allen, and the
17 scheduled execution of Michael Morales. UF 20*. Again, there is no evidence that
18
anybody within CDCR considered the fact that executions are extremely stressful, or
19
20 asked Witness #1 whether he thought he would be able to participate even in light of his
21 mental health issues. Witness #1’s PTSD, and his vulnerability to stress, could have an
22
adverse effect on his performance during executions, rendering his participation unfair to
23
24 him and dangerous to the inmate. RT 786 (“I just think that given that you want
25 personnel who are able to handle stress, somebody who goes into a post-traumatic stress
26
disorder state can be quite dysfunctional despite their best attempts to function. And if
27
28 you have other people to choose from, it seems like that would be a better choice.”).
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The behavior of Witnesses #1, #5, and #13 illustrates the perversity of
2
3 CDCR’s concept of “professionalism” as it pertains to prison guards who are drafted to

4 be execution team leaders and members. Woodford and CDCR were grossly negligent in

5
their initial candidate screening procedures, and thereafter with their supervision and
6
management of team members.
7

8

Woodford’s predecessor, Warden Calderon, invited Witness #1 to join the

9 execution team in 1997. UF 15*. Warden Calderon presided over four lethal injection
10
executions. UF 7. At one time, Calderon claimed he personally selected all the
11
12 teammates that conducted executions when he was Warden. UF 7. Witness #1

13 participated in eight executions thereafter (UF 15*) – one while Woodford was Chief
14
Deputy Warden; four while she was Warden; and three while she was a Director or a
15
16 Secretary at CDCR.

17

When approved by Calderon and Woodford as execution team timber,

18
Witness #1 recently had been diagnosed and was being treated for psychiatric disorders,
19

20 including clinical depression and Post-Traumatic Stress Disorder as a result of years of

21 working in the prison system. UF 13*. Witness #1 already had been found to be
22
mentally disabled and could not attend work at CDCR for several months (id.), a fact
23
24 which unquestionably was known to CDCR. Witness #1 was treated for these psychiatric

25 disorders from 1995 to 1998 (id.), a three period that straddled the time before and after
26
he was invited to join the team.
27

28

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Witness #1 then became Woodford’s co-team leader of the execution team
2
3 (UF 16*), and became the team leader for the scheduled Morales execution while

4 Woodford was Secretary of CDCR. UF 19*. While Woodford claims it is important to

5
have an execution team leader in charge who is able to give clear and concise direction as
6
to what the team ought to be doing (UF 18), Witness #1 again was diagnosed to be
7

8 clinically depressed in January 2006, and was prescribed 300 mg of daily anti-depressant

9 medication. UF 16*. The team leader gives all directions to the execution team during
10
an execution; all team members are under his direction. UF 18. Among other things,
11
12 Witness #1 was responsible to observe the mixing of the thiopental sodium for the

13 execution of Clarence Allen in January 2006. UF 16*. While clinically depressed and
14
medicated, Witness #1 participated in Allen’s execution in a position to take over as team
15
16 leader (UF 16*) for the scheduled February 2006 execution of Michael Morales. UF 19*.

17 Warden Ornoski was not supervising Witness #1 participation, instead leaving it to
18
Witness #1’s close friend Witness #5. UF 88*. Accordingly, this all transpired under the
19
20 supervision of – where the buck stops – CDCR Secretary Woodford.

21

On February 20-21, 2006, Witness #1 still was receiving treatment for

22
clinical depression, and was taking his daily dose of 300 mg of prescribed anti-depressant
23

24 medication as he led the Morales execution team for 24 hours. UF 19*. Had Witness #1

25 again become disabled during this period from traumatic stress, depression, medication,
26
alcohol abuse, or any other emergency, Woodford’s execution team would have been led
27
28 by Witness #9 – a person inadequately trained or qualified to perform the tasks at hand.

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MCBREEN & SENIOR
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1
Neither Woodford nor CDCR ever required execution team members to
2
3 undergo psychological testing. UF 17. While Witness #1’s mental health maladies

4 cannot be deemed to be his fault, they certainly do not – under any reasonable standard –

5
reflect the requisite “high degree of stability” that CDCR states is necessary to be a
6
member of the execution team. Moreover, the very catalyst of Witness #1’s traumatic
7

8 stress – the prison environment – is at its highest level during an execution. Witness #1

9 states that participating in an execution “is the most stressful thing that a person in the
10
Department of Corrections is asked to do.” UF 126. Witness #1 is not alone in this
11
12 assessment. Witness #4, a LVN, states that he is as tense as he ever is during an

13 execution. Id. It is a surrealistic experience. Id. It does not seem real when it’s
14
happening. Id. It seems dreamlike. UF 126. Witness #3 states that it is stressful
15
16 because there is no other place in the world that an LVN is asked to start an IV for that

17 purpose. Id. Warden Steven Ornoski was “practically beside himself” during the Stanley

18
Williams execution. Id.
19

20

Jeanne Woodford has known of Witness #1’s mental health illnesses for

21 over a decade. She also has been aware of Witness #1’s mental health job disabilities
22
which caused him to be unable to work for months at a time. Woodford was advised of
23
24 Witness #1’s criminal conviction for alcohol abuse. CDCR and Woodford are aware that

25 Witness #1 handles controlled substances at the San Quentin pharmacy, substances with
26
potential for abuse that the manufacturer warns are habit forming. Moreover, for over a
27
28 decade, Woodford and CDCR have been aware – or should have been aware – that

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1
Witness #1’s mental health illnesses have required him to take substantial amounts of
2
3 prescribed anti-depressant medication, including throughout this year. Not only has
4 CDCR allowed Witness #1 to act alone in positions of substantial authority, they have
5
allowed him to do so while completely unsupervised. After years of observation in the
6
Plata litigation, this District Court has referred to CDCR as “highly dysfunctional” and
7
8 “overly bureaucratic.” Plata v. Schwarzenegger, 2005 U.S. Dist. LEXIS 8878, *2 (N.D.
9 Cal. 2005). This observation is not understated, and is very applicable here.
10
There are many other screening issues that the CDCR did not even attempt
11
12 to address in its interviews with potential execution team members. The need to ensure
13 that stable, competent, fit employees are placed on the execution team is analogous to the
14
need to screen health care professionals. The execution team has total control over the
15
16 inmate’s welfare, access to controlled addictive substances, and operates in an extremely
17 stressful environment. Thus, team members need to be not only stable and professional,
18
but they must also have the right attitude: They must understand the gravity and risks of
19
20 the procedure and be willing to apply themselves in order to perform the procedure
21 properly. No team member was asked whether they would be willing to learn about
22
thiopental, how they would treat their responsibilities, or whether they would be capable
23
24 of engaging with the procedure despite the difficulty of participating. Thus, it is not
25 surprising that people like Witness #6, who replied, “I don’t study. I just do the job. I
26
don’t want to know about it,” when asked if she knew that pancuronium could cause
27
28 conscious paralysis, ended up on the team. UF 230; RT 479 (“She’s being negligent.”).
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1
Nor is it surprising that other team members had attitudes that allowed them to say “shit
2
3 happens,” after observing Witness #6 struggle for 15 minutes and fail to set the Williams

4 IV. UF 229. Individual team members’ unconcern or squeamishness about the execution

5
procedure created a culture of disregard, in which mistakes went unremedied and risks to
6
the inmate multiplied.
7

8

“To successfully . . . discharge the responsibilities of the department, each

9 institution . . . requires a skilled and dedicated staff of employees . . . .” 15 C.C.R. §
10
3430. CDCR fails to have a skilled staff of employees on the execution team.
11
12 Woodford’s leadership, management, and supervision in this regard was, at a minimum,

13 grossly negligent. See Gubser v. Dep’t of Employment, 271 Cal. App. 2d 240, 76 Cal.
14
Rptr. 577 (1969) (under Cal. Gov’t Code § 19572, “[r]espondent, as supervisor, was
15
16 under a duty to evaluate the performance of his subordinates . . . .” Id. at 245).

17 Woodford’s supervisory incompetence certainly is cause for job discipline or termination.
18
See Cal. Gov’t Code § 19572(b)-(d) (incompetency, inefficiency, and inexcusable neglect
19
20 of duty are cause for discipline of a state employee); Ishimatsu v. Regents of Univ. of

21 Cal., 266 Cal. App. 2d 854, 865, 72 Cal. Rptr. 756 (1968) (proper termination due to

22
supervisory deficiencies).
23

24

CDCR’s failure to screen execution team members directly creates a risk

25 that executions will not be performed humanely. As with any complex and sensitive
26
procedure, there will be some people who are not fit to be entrusted with performing the
27
28 execution procedure. Individuals’ predisposition towards drug abuse, criminal conduct,

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1
or general insensitivity can affect their performance on the execution team. Where a
2
3 single error could lead to a disastrous execution, it is particularly important that only 4 appropriate personnel are chosen for the team. A sensible screening system would
5
consider, as discussed below, the dangers of the procedure and the types of issues that
6
could render someone unfit to avoid these dangers, and then select team members
7
8 accordingly. 9 //
10
/ /
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1
1. Drug Diversion Issues.

2

3

Witness #1 was the team leader for the scheduled execution of Michael

4 Morales on February 21, 2006. The execution team has to get the drugs from San

5
Quentin pharmacy to conduct an execution. UF 26m. The execution team leader calls
6
the pharmacy to make sure the proper inventory of necessary drugs is there at least two
7

8 weeks prior to the execution. UF 26n. The execution team leader has “to physically go

9 to the pharmacy” to get the drugs in order to conduct an execution. UF 26o. Witness #1
10
always made arrangements to obtain thiopental sodium from pharmacist Rosa Nugyen at
11
12 the San Quentin pharmacy. UF 25f. A pharmacist practicing in California is a person

13 that holds a license issued by the State of California to dispense drugs which are
14
classified by the federal government as controlled substances. UF 25g
15

16

In the past year, Witness #1, CDCR’s execution co-team and team leader,

17 went to the San Quentin pharmacy on two occasions and checked out 40 500mg vials (20
18
grams) of thiopental sodium for “practice.” UF 25n, 25o. The execution team does not
19
20 use Pentothal for practice; it uses regular saline or water in the syringes during training or

21 practice sessions. UF 26. The execution team also does not practice mixing Pentothal.
22
UF 26. The packaging material for each 500mg vial of Pentothal includes the following
23
24 warning in two separate locations: “Warning: may be habit forming” (Exhibit 2). UF

25 26a.
26
Thiopental sodium is classified by the federal government as a controlled
27
28 substance. UF 25h. In the United States it is illegal to obtain Pentothal other than

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1
through a licensed pharmacist. UF 25h. The San Quentin pharmacy is required by
2
3 federal law to keep a perpetual inventory log regarding its inventory of Pentothal. UF
4 25i. Whenever Pentothal is either dispensed or received, it is the policy and practice at
5
the San Quentin pharmacy to record that in the inventory logs on the same day that the
6
inventory transfer occurs. UF 25i. The San Quentin pharmacy controls Pentothal in a
7
8 locked cabinet, and it does periodic inventory inspections and counts which are required
9 by federal law. UF 25j. The San Quentin pharmacy is required to perform these
10
inventory counts for Pentothal on an annual basis. UF 25j. The San Quentin pharmacy
11
12 recorded dispensing Pentothal to Witness #1 for “practice” on two occasions in the past
13 year. UF 25n, 25o.
14
Only five grams of Pentothal were required for each execution. UF 26e.
15
16 The execution team never broke a vial of thiopental during preparation for an execution.
17 UF 26e. While 5 grams of Pentothal were required for an execution, between January 4,
18
2005 and January 18, 2006, 12.5 grams of Pentothal were released to Witness #1 on three
19
20 different occasions by the prison pharmacy for each scheduled execution (as 25 500mg
21 vials). UF 26f. Between January 4, 2005 and January 18, 2006, no Pentothal was
22
returned to the pharmacy by Witness #1, Witness #5, any other execution team member,
23
24 or by anyone. This is confirmed by the Controlled Substance Inventory Log maintained
25 by the San Quentin pharmacy pursuant to federal law and by San Quentin policy. UF
26
27
28
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1
26g. Accordingly, Witness #1 took control of 37.5 grams of Pentothal, while only 15
2
3 grams were necessary.12

4

David Silacci is employed by Drug Consultants, Inc. to work at San

5
Quentin as the director of its pharmacy. UF 26q. Drug Consultants, Inc. was retained by
6
the State of California to bring the practice of pharmacy at San Quentin up to an
7

8 acceptable community standard of practice. UF 26q. Mr. Silacci is responsible to report

9 to, among others, the receiver appointed to manage the standards of medical care
10
provided at San Quentin. UF 26q. Mr. Silacci is the Pharmacist in Charge (“P.I.C.”) of
11

12 the San Quentin pharmacy. UF 25k. He is a licensed pharmacist by the State of

13 California, and has a doctorate degree in pharmacy. UF 25k.
14
As part of Mr. Silacci’s job as P.I.C. at San Quentin, he testified that he is
15
16 “obviously concerned about drug diversion issues,” and “it’s my job to minimize or

17 eliminate drug diversion at any time.” UF 25k. If thiopental sodium is lost or stolen at
18
the San Quentin pharmacy, Mr. Silacci as P.I.C. is required to report the incident to the
19
20 federal Drug Enforcement Agency, which in turn will conduct an investigation. UF 25l.

21 Mr. Silacci also is required to report the incident to the Warden and the Chief Medical
22
Officer at San Quentin for the prison to conduct its own internal investigation. UF 25l.
23
24 As P.I.C., Mr. Silacci currently reviews the Pentothal logs every month. UF 25m.

25

12

26

If Witness #1 required an extra Pentothal vial (500 mg) to be used as an unmixed

backup during each execution (Ex. 67), he still only would have required 16.5 grams total –

27 not 37.5 grams – and he still would have returned to the pharmacy the unused additional

28 1.5 backup grams, but he didn’t.

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1
Mr. Silacci understands that the reason why Witness #1 requests Pentothal
2
3 from the pharmacy is that it is used in San Quentin’s execution protocol. UF 26l. CDCR
4 does not have any policy at San Quentin that allows Mr. Silacci to review the number of
5
Witness #1’s requests for Pentothal, or the reasons for each request. UF 26l. Mr. Silacci
6
has seen Witness #1 “with a bag, a brown bag, or something like this, taking something
7
8 out of the pharmacy.” UF 26k. Mr. Silacci further testified that he has never seen
9 Witness #1 returning any Pentothal to the pharmacy. UF 26k.
10
The CDCR has provided no explanation for what happened to the missing
11
12 thiopental. Drug diversion is a serious concern in hospitals, because many anesthetics are
13 addictive and pleasurable. RT 511-12. Drug diversion is one of the leading contributors
14
to intraoperative awareness, because anesthesiologists may check out a quantity to be
15
16 used for anesthesia, and then divert part of that quantity away from the patient. RT 512.
17 The CDCR should have a similar concern in the execution context: Team members have
18
access to addictive, controlled substances, and sole custody over those substances before
19
20 an execution. It would be relatively easy for someone to divert some of the thiopental
21 without it being detected. The prevailing confusion about the total dose of thiopental, the
22
number of syringes, and how to mix the solution render detection of drug diversion even
23
24 less likely. As in a hospital setting, the diversion of some of the anesthetic could result in
25 inadequate anesthesia during executions. RT 521 (“We can't know for sure. We have --
26
given that they got pancuronium, we are now just left to wonder what happened.”).
27
28
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1
2. Witness #1’s False Testimony to This Court.

2

3

As noted throughout, much of the stipulated fact testimony directly

4 contradicts Witness #1’s testimony on March 30, 2006. He was obviously covering for

5
CDCR “dignitaries” when describing who was positioned where. Perhaps this had
6
something to do with his pending promotion, or the CDCR culture observed by more than
7

8 one court. His testimony about the responsibility to set the drip rate was disingenuous, as

9 it is not done by him, or the medical people, leaving only one person – the engineer.
10
And, he was obviously trying to present to the Court the notion that there is
11

12 monitoring of an inmate, when there is none. Witness #1 testified before this Court that

13 one LVN or RN is “positioned in a spot that they are able to see into the chamber area to
14
the right arm where the primary IV lead is.” RT 38-39, Mar. 30, 2006; UF 81, 301-02.
15
16 This Court probed: “And you know this because of the multiple times you’ve done this

17 and all of the training you’ve been involved with?” RT 39, Mar. 30, 2006. Witness #1

18
assured the Court: “That is part of the training. That’s their job to do.” Id.
19

20

Thereafter, Witness #1 persisted: “the other MTA that is not handling the

21 syringes is watching that along with the site of the catheter where it enters the arm to
22
ensure that everything is going well.” RT 49, Mar. 30, 2006 (emphasis added). And the
23
24 Court just as persistently continued to probe:

25

THE COURT: . . . This procedure you’re describing is the

26
new procedure; correct?
27

28

THE WITNESS: Yes.

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1
THE COURT: All right. Were MTAs involved in the old

2

3

protocol?

4

THE WITNESS: Yes.

5
THE COURT: And were they involved in the same way in
6
this particular respect?
7

8

THE WITNESS: Yes.

9

THE COURT: All right. So in terms of oversight for the

10

monitoring of this aspect of the execution by MTAs, there is
11

12

no difference between the old protocol and the new one?

13

THE WITNESS: That is correct.

14
***
15

16

THE COURT: So, in other words, if they see that the saline

17

drip in the right arm, not the one in the left arm, but the one in

18
the right arm is slowing down or if they see that there’s some
19

20

type of bulge at the catheter site, they can say you need to

21

change the rate at which you’re injecting the drugs?

22
THE WITNESS: Exactly. If that happens.
23

24

THE COURT: If that happens.

25

THE WITNESS: Which because of the training should not

26
happen.
27

28

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1
THE COURT: All right. And, again, this particular piece of

2

3

the process is unchanged from the old protocol to the new?

4

THE WITNESS: That’s correct.

5
RT 50-52, Mar. 30, 2006.
6
The Court’s examination was persistent and complete. It left no basis for
7

8 misunderstanding or confusion by Witness #1. Witness #1 was equally as persistent and

9 unequivocal in his responses to each of the Court’s inquiries. This substantial quantum of
10
sworn testimony from Witness #1 in response to the Court’s inquiries was false –
11
12 completely false. It has been thoroughly impeached by every execution team RN and

13 LVN over the past seven or eight years, and the two doctors that were present during at
14
least eight lethal injection executions. Moreover, Witness #1’s fanciful testimony is
15
16 unsupported by any other evidence.

17

During seven years on the execution team (1996-2003), Witness #7, a RN,

18
never saw a RN “during an execution stationed at the window looking into the chamber”
19

20 because they “[c]ouldn’t get close.” UF 81a. Witness #7 only saw diplomats, Wardens

21 Caldron or Woodford, and visitors from Oregon stationed at the window of the chamber
22
during an execution. UF 87b. Witness #7 could not see into the execution chamber
23
24 while the lethal chemicals were being administered during any execution she participated

25 in. UF 186.
26
Witness #6, a RN who was on the execution team from 1996 through the
27
28 execution of Clarence Allen in 2006 (UF 81c), could not see into the gas chamber during

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1
executions because she stood in the back of the room, or when handing syringes to the
2
3 executioner, she did not look into the chamber. UF 81d. After Witness #6 set an IV in an

4 execution, she “stand[s] back in the corner over there” by the door to the mixing room.

5
UF 81e. She does this “[b]ecause it’s packed with people, I have no room. Id. I’m thin,
6
so I lean a against the wall. Id. It’s a tiny room and packed with people, so I just get
7

8 away from everybody. Id. I stand by the corner.” Id. “I want to be by myself. Id.

9 Don’t touch anybody.” Id. Witness #6 cannot see the inmate at that point “because
10
everybody is higher. UF 81f. Everything is higher than me.” Id. “People are higher,
11
12 taller than me.” Id. “They wider than me; they taller than me, so.” Id. “I’m right by the

13 cart.” Id.
14
15

While Witness #6 has handed the syringes to the person administering the

16 lethal chemicals on two or three occasions, she never watched the inmate while doing

17 this. UF 220. The RN or LVN who hands the syringes to the person administering the
18
lethal chemicals watches that person and the syringes so they know when to remove the
19
20 syringe from the stopcock and install the next syringe. UF 221, 231c. They do not watch

21 the inmate. UF 220.
22
Witness #3, the LVN who has set catheters in seven of the last nine
23
24 executions, cannot see the inmate above the waist from where he stands in the anteroom

25 during an execution and cannot see the inmates’ arms. UF 82.
26
Witness #4, a LVN, handled the syringes for both the executions of Stanley
27
28 Williams and Clarence Allen. UF 83. When asked to describe his position during an

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1
execution, Witness #4, identified a location on the photograph marked as Exhibit 5 as
2
3 behind the round cylinder that contains a red valve on top of it, and to the left of it. UF

4 305. From this position, Witness #4 could not see through the window, let alone observe

5 the inmate’s right arm.13
6
Neither Dr. St. Clair nor Dr. Calvo have ever observed a LVN or RN at the
7

8 window observing an inmate. UF 303. Neither of the nurses recall any medical

9 personnel assigned to view the inmate during an execution. UF 304.
10
Witnesses #3, #4, #6, or #7 never conducted any examination of the right
11

12 IV catheter site during an execution. This is a stipulated fact, and it is confirmed by their

13 testimony and the observations of Drs. Calvo and St. Clair. Witness #1’s complete,
14
repetitive, and steadfast testimony on this topic is false. It now is clear that the stench of
15
16 his misrepresentations permeated the March 30, 2006 visit at San Quentin. At that time,

17
13

18

Witness #4 neither practiced nor was trained by CDCR on how to make a visual

19 inspection of the IV lines during the executions. UF 83. When examining a catheter site, Witness #4 was trained ---------------------------------------------- to get as close as you can

20 get to the patient; bedside; no farther than arm’s length; touching their arm if necessary.

UF 84*. In all instances, Witness #4 would be required to get much closer to the catheter
21
site than he was able to during an execution. UF 84*. Neither Witness #4 nor any other

22 execution team LVN or RN, could get any closer than eight feet from the inmate’s catheter

during the execution, and they would be in a separate room with “subdued lighting”
23
looking through a window. UF 84*.

24

In any event, infiltration is when the IV catheter delivers fluid into the tissue

surrounding the vein. UF 79. The arm will swell up, but not before 10 or 15 minutes. UF 25 79. Accordingly, if Witness #5 blew the vein during his delivery of the Pentothal, e.g., to

26 Williams or Allen, infiltration would not have been observable until after Witness #5

already had delivered the pancuronium bromide and potassium chloride to Williams (Ex. 27 14), and pancuronium bromide and possibly potassium chloride to Allen. Ex. 15.

28

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1
plaintiff’s counsel unwittingly sat by, incapable of confronting and cross-examining
2
3 Witness #1 because they had neither toured the gas chamber facility, nor had they

4 conducted any discovery. Had the March 30, 2006 hearing not been so juxtaposed from

5
the normal course of litigation, Witness #1 would not have had the upper hand while
6
dispensing his lies.
7

8

This should not be dismissed as confusion on a single topic. Witness #1’s

9 testimony is replete with lies, and lies perpetrated not only in response to questions by
10
plaintiff’s counsel, but to the Court’s inquiries as well. Witness #1 testified that “the
11
12 MTAs that are responsible for assisting on placing the syringes monitors the person who’s

13 designated to push those drugs and monitors the speed and -- that they are pushing the
14
syringes. The training is established over a long period of time with those -- with the
15
16 monitoring of the MTAs.” RT 48, Mar. 30, 2006 (emphasis added).

17

THE COURT: All right. And what they do, in fact, is they --

18
as you testified to earlier, they set the catheters, and then they
19

20

subsequently observe the member of the execution team

21

who’s actually injecting the drugs carry out the injection --

22
THE WITNESS: That’s correct.
23

24

THE COURT: -- to make sure that it’s being done at the

25

proper pressure?

26
THE WITNESS: That’s correct.
27

28

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THE COURT: And the concern is that if it’s done too

2

3

quickly, it would basically cause a hydraulic ripple effect, if I

4

could it put that way, either at the site of the catheter itself or

5
with the saline drip from the IV line. Do I understand you
6
correctly?
7

8

THE WITNESS: That’s correct, Your Honor. And in

9

addition to that, I’ll just say that that’s just as a safety

10

measure, as a backup. The person who’s responsible for
11

12

administering the drugs is trained at how -- how those drugs

13

are to be administered and they are simply there monitoring in

14
case something were to go wrong.
15

16

THE COURT: “They” being the MTAs?

17

THE WITNESS: Correct.

18
RT 50-51, Mar. 30, 2006.
19

20

It is a stipulated fact that the LVN that hands the syringes to the person

21 pushing the syringes of the lethal chemicals “then just stands there.” UF 231. “There is
22
no training or practice for this LVN to do anything else.” UF 231. “We just stand there.”
23
24 UF 231. Witness #1’s “CDCR speak” needs some translation. A MTA is a LVN, not a

25 RN. Therefore, Witness #1 is claiming that the syringe pressure monitoring is done by a
26
LVN. As discussed above, by law, by education, and by training, LVNs “are NOT
27
28 independent practitioners” (UF 51b); they don’t “monitor,” they get monitored, even

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1
under CDCR guidelines. UF 51b. A LVN monitoring Witness #5’s actions – as a “safety
2
3 measure” or as a “back up” – would certainly be CDCR’s lowest possible supervisory

4 common denominator. There is no foundation or evidence that a CDCR LVN has any

5
training, or a license, to administer drugs via a large syringe into a 20-foot IV line that
6
connects to a 18-gauge catheter that is set in a human, let alone that a LVN has the
7

8 personal experience necessary to be qualified to act as a safety measure to monitor the

9 syringe pressure exerted by Witness #5.
10
Witness #1 further embellished his fabrications: On March 30 he suggested
11
12 that the LVNs act “just as a safety measure, as a backup” because “the person who’s

13 responsible for administering the drugs is trained at how -- how those drugs are to be
14
administered . . . .” RT 51, Mar. 30, 2006. More specious lies. A more accurate record
15
16 has since been developed, despite Witness #5’s Southeast Asian retreat with Witness #6

17 last spring. Witness #5 received less than one minute of training from one RN over the
18
past ten years, if any. UF 176, 177. No LVNs have ever provided such training to
19
20 Witness #5. UF 179. Witness #5 rarely attends execution team training sessions (UF

21 87d, 152), and he can’t answer how long it takes “to inject a single syringe during an
22
execution.” UF 87b. If Witness #5 is trained in anything, it is in having no knowledge.
23
24 As set forth above, his training is complete in this regard only.

25

The record is now more complete with regard to Witness #1. He suffers

26
from mental illness. He has a criminal record. He takes controlled substances –
27

28

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1
barbiturates – from the pharmacy for unauthorized use. And he provides make-believe
2
3 testimony in response to the persistent questioning of a federal judge. 4 //
5
/ /
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1
F. The Poor Training, Selection, and Screening of Execution Team

2

3

Management is Clearly Reflected in the Lack of Quality of the Execution

4

Team.

5
The State’s attitude, from the Governor’s office on down, has been best
6
7 stated under oath by Warden Steven Ornoski, who conducted the last two California

8 executions: a “successful execution” is simply one where “the inmate ends up dead at the

9
end of the process.” UF 340. When further queried whether he considered a “successful
10
execution” to mean anything other than the fact that the inmate ends up dead at the end of
11

12 the process, Warden Ornoski testified: “I’m thinking not.” UF 340.

13

1. CDCR Management Fails to Comply With its Own Rules and Legal Duties of

14

Care to the Inmates Thereby Exposing Inmates to Unnecessary Risks of
15

16

Torture.

17

Injecting potassium chloride into a conscious inmate would be

18
“unconscionable” (RT 1168, Dr. Singler), “excruciating” (RT 392, Dr. Ebling), and “very
19

20 painful” (RT 966, Dr. Ekins), “causing an intense excruciating burning sensation” (RT

21 453, Dr. Heath). The suffocation caused by the administration of pancuronium bromide
22
to an unanesthetized inmate would similarly be “terrifying” (RT 1030, Dr. Singler) and
23
24 “excruciating” (RT 553, Dr. Heath). Should a guard administer first pancuronium

25 bromide then potassium chloride to an inmate, no one would know. (“You can’t breathe.
26
You can’t move. You can’t grimace. You can’t blink. You are paralyzed. That doesn’t
27

28

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1
mean that you are not experiencing sensations and you’re not registering those
2
3 sensations.” RT 366, Dr. Ebling.)

4

“[T]he prison setting offers a tremendous potential for abuse. Custody

5
personnel are in constant contact, day after day, with a difficult, frustrating, and
6
sometimes openly and actively hostile inmate population. They also have powerful
7

8 weapons and enormous manpower at their disposal, and exercise nearly total control over

9 the inmates under their supervision.” Madrid v. Gomez, 889 F. Supp. 1146, 1160 (N.D.
10
Cal. 1995). “‘[P]rison officials have a duty to take reasonable steps to protect inmates
11
12 from physical abuse’ from prison guards.” Id. at 1248 (quoting Hoptowit v. Ray, 682

13 F.2d 1237, 1250 (9th Cir. 1982)). In this regard, “the use of force must be carefully
14
regulated and controlled in order to prevent abuses against inmates, as well as to ensure
15
16 the overall safety and security of the prison.” Madrid, 889 F. Supp. at 1181.

17

It is a CDCR rule that you cannot be working in the condemned area of the

18
prison and be on the execution team. There are no exceptions to the rule. UF 20a. This
19

20 bright line rule comports with the duties of care owed by CDCR to the inmate. However,

21 this CDCR rule, with no exceptions, is observed only in the breach.
22
Witness #5 has regularly worked in the condemned inmate areas of the
23
24 prison since 1978, including in the -----------------------------------------------------------------

25 --------------------------------. UF 21*. Witness #5 worked “substantial” hours in all of
26
these areas, ---------------------------------------------------------------------------------------------
27
28 ------------------------------------------------------------------------------------------------------------

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-------------------------------------------------------------. Id. From about 1982 to 1987,
2
3 Witness #5 worked -------------------------------------------------------------. UF 22*. In that

4 period of time, every condemned inmate that arrived at San Quentin State Prison-----------

5
-----------------------------------------------------------------------. Id. Over the past several
6
years, Witness #5 -------------------------------------------------------------------------------------
7

8 where plaintiff is housed. UF 23*. --------------------------------- working on each watch.

9 Id.
10
11

Witness #5 was the team leader for the last eight California executions. UF

12 10. “The team leader administers the lethal drugs.” UF 137. During the time that he was

13 team leader, Witness #5 was disabled from work – requiring a number of medical
14
appointments for a couple of years – as a result of injuries sustained in a physical
15
16 altercation with an inmate. UF 24*.

17

The future execution team leader, Witness #9, currently works overtime in

18
the condemned areas of San Quentin as the shift lieutenant. UF 160. Witness #9 was
19

20 assigned to work in the condemned area of the prison for at least four years. Id. Witness

21 #9 and Michael Morales have known each other for over 20 years. On the night of the
22
scheduled execution of Mr. Morales, he was housed in the death cell four feet from where
23
24 Witness #9 was posted. UF 161. Mr. Morales greeted Witness #9 by name, and asked

25 him how he was doing. Id. Witness #9 wore no name tag. Id.
26
Warden Woodford, in many ways the architect of defendants’ current
27
28 dysfunctional execution system, was willing to assign to the execution team a prison

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1
guard who was personally known by an inmate who was being executed. UF 20b.
2
3 Imposition of a duty on CDCR supervisors to protect inmates from guards’ use of force is

4 not dependent on the supervisors’ subjectively believing that harm will actually befall an

5
inmate. Madrid, 889 F. Supp. at 1247. Indeed, supervisors may be held liable for
6
ignoring a substantial risk of harm on the basis of the simple fact that such risk is
7

8 obvious. Id.

9

“[T]he risk that force will be misused is considerably enhanced when prison

10

administrators fail to implement adequate systems to regulate and monitor its use.” Id. at
11

12 1161. The daily interaction between California condemned inmates and a man with the

13 unsupervised and unchecked power to subject them to “terrifying,” “excruciating” pain –
14
a man who had been previously been injured by inmates at least once – is not an anomaly
15
16 in defendants’ execution system. The RNs and LVNs on the execution team work in the

17 condemned prisoner area of San Quentin. UF 25. Additionally, condemned inmates
18
come for treatment to other areas where the execution team RNs and LVNs are stationed.
19
20 Id.

21

“[T]he penalty of death is different in kind from any other punishment

22
imposed under our system of criminal justice.” Gregg v. Georgia, 428 U.S. 153, 188
23

24 (1976). There is no equivalent in our penological system to the situation in which a

25 prison guard stands over a completely helpless inmate, who may have been involved in
26
prior disputes or altercations, with the power to cause him “excruciating,” “terrifying”
27
28 pain at the push of a thumb – with no oversight and no repercussions. The fact that

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CDCR has failed to observe or enforce its “no exceptions” rule to separate the
2
3 condemned inmates from the members of the execution team to ensure that such a

4 nightmare scenario never occurs unquestionably exposes plaintiff to an undue risk of

5
extreme pain.
6
2. A Lack of Accountability for Execution Team Members is Not Required and
7

8

Results in Mismanagement, Lack of Supervision, and No Accountability

9

Thereby Exposing Inmates to Unnecessary Risks of Torture.

10

CDCR’s confidentiality policy for its employees prohibiting the disclosure
11

12 of the identities of execution team members outside the institution is unlawful. See Cal.

13 Lab. Code § 1102.5(a) (“An employer may not make, adopt, or enforce any rule,
14
regulation, or policy preventing an employee from disclosing information to a
15
16 government or law enforcement agency, where the employee has reasonable cause to

17 believe that the information discloses a violation of state or federal statute, or a violation
18
or noncompliance with a state or federal rule or regulation.”); Cal. Gov’t Code § 6128(b)
19
20 (establishing toll-free public telephone number for reporting of alleged wrongdoing by

21 employees of, inter alia, the Department of Corrections). It has also created a situation
22
where they are not accountable. They are an insular group, self-selected, that is not
23
24 regularly supervised.

25

The anonymity rules for execution team members result in a lack of

26
accountability for the execution team members, and an inability to supervise and manage
27

28 their performance. For example, the team claims to be off post for execution team

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practice, when really they are not practicing at all. When Witness #6 was asked, “And
2
3 how did you go about training to be on the execution team?,” Witness #6 testified,

4 “Training? We don’t have training really.” UF 204. The execution team practices for an

5
hour or two – “it depends” – during the three days before an execution. UF 30b. “If the
6
warden want to come and see us, then – then we have to stay and wait. UF 30b.
7

8 Otherwise, we practice and we go.” UF 30b. “We just get to the chamber and we back

9 there. UF 30c. Then we go home.” UF 30c. “An hour or two.” UF 30c.
10
The execution team is a self-supervised club. Witness #6 recalls the
11
12 wardens being present once for training for each execution. They are not a “regular

13 presence in the training.” UF 233. The pharmacy has no control over execution team
14
requests for controlled substances, despite federal laws to the contrary. UF 26l. The lack
15
16 of supervision over the club renders it a perk for all CDCR employees who are invited to

17 join. They can come and go as they please, receive full pay or even overtime, and hide
18
their truancy and performance deficiencies under the purported need for execution team
19
20 anonymity.

21

For these reasons, the execution team can only be managed, supervised, and

22
held accountable to perform their execution team functions if their actions are transparent
23

24 and subject to the scrutiny of the light of day.

25 / /
26

27

28

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C. CDCR Management Conducts Executions as a Spectator Sport for CDCR

2

3

Brass.

4

Jeanne Woodford was the Secretary of CDCR during the scheduled

5
execution of Michael Morales on February 21, 2006. UF 8. Both as Warden and
6
Secretary, Woodford used executions at San Quentin as viewing entertainment for CDCR
7

8 management. The anteroom to the gas chamber would “comfortably accommodate” 16

9 or 17 people, “but certainly not any more than that.” Hon. J. Fogel, RT 185, Mar. 30,
10
2006. Nonetheless, Secretary Woodford authorized between twenty-nine and thirty-three
11

12 people to be present in the anteroom for the scheduled Morales execution. UF 46a.

13

During executions, Woodford typically had “so many people . . . in the

14
room that [Dr. Calvo] didn’t even know who they were and [why] they were there.” UF
15

16 43. Witness #4, a LVN, described Woodford’s entourage as “officials from Sacramento,

17 I guess. I don’t really know what their function is, and they’re there. They wear suits.
18
They come in. They stand there. They leave.” UF 308. Woodford authorized a “rather
19
20 large” CDCR official to stand in front of the antechamber window to the gas chamber

21 during Stanley Williams’s execution. UF 45. The large man did not take any part or role
22
in the execution of Mr. Williams. UF 45. Woodford similarly authorized “some big
23
24 fellow from Sacramento” to stand in the doctor’s way during the execution of Clarence

25 Allen. UF 44.
26
Woodford’s execution voyeur proclivities at San Quentin have been long
27
28 standing. As Chief Deputy Warden for Warden Calderon in 1998, she joined Warden

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Calderon in having “a packed house” during the lethal injection of Thomas Thompson.
2
3 UF 46. Woodford’s cronies regularly stood in the way of doctors at the execution (UF

4 43b, 44), bumped them and blocked the precious little amount of light that exists in the

5
room (UF 44), and stood in the way of the LVNs who were conducting the execution.
6
UF 45. Denise Dull, the Litigation Affairs Coordinator at San Quentin, has attended all
7

8 lethal injection executions in California and she testified that “there are a lot of

9 individuals who are not team members present” in the anteroom during executions.
10
“[M]any of them [are] from CDCR from Sacramento.” UF 323, 324. Due to Woodford’s
11
12 crowds in the anteroom, Warden Ornoski testified that he would “shuffle from side to

13 side a foot or two, but . . . it’s fairly crowded back there. There’s not much room . . . to
14
maneuver.” UF 43. During Clarence Allen’s execution, it was even more crowded, and
15
16 Ornoski could not move from his spot much, if at all. UF 43.

17

Witness #1 tried to cover for his CDCR superiors – i.e. “the warden’s

18
bosses or departmental-type people” (RT 122, Mar. 30, 2006) – and deliberately misled
19

20 the Court when he was asked how many people were in the antechamber during an

21 execution. Under cover of terms such as “speculation,” “varies,” “never counted,” and a
22
“guess,” he made every effort to obfuscate the scenario. See RT 119-23, Mar. 30, 2006.
23
24 At one point Witness #1 said only 15 people were in the antechamber. Id. at 121. But as

25 Witness #1 continued to be pressed on his lies, he capitulated to “a few more,” or a “little
26
bit more crowded.” RT 122, Mar. 30, 2006. In fact, it is a lot more crowded and Witness
27
28 #1 knew this very well. He lied about it because he knows that the CDCR crowds

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1
interfere with the execution team, and clearly depict the festivities for what they are – a
2
3 CDCR spectator sport.

4

Woodford supervised and managed subsequent San Quentin Wardens Jill

5
Brown and Steven Ornoski. Cal. Penal Code § 5054 (“the supervision, management and
6
control” of San Quentin State Prison, “and the responsibility for the . . . treatment . . .
7

8 [and] discipline . . . of persons confined therein are vested in the Secretary of the

9 Department of Corrections and Rehabilitation.”). The Warden “is the chief executive
10
officer . . . and is responsible for the . . . treatment . . . of all inmates under his or her
11
12 charge.” 15 C.C.R.§ 3380 (a). Brown was the Warden for the execution of Donald

13 Beardslee. She didn’t watch it. UF 126. Ornoski presided over the executions of Stanley
14
Williams and Clarence Ray Allen. UF 11. He didn’t watch them. UF 126.
15

16

Woodford cultivated a CDCR party atmosphere at the executions. It was

17 the CDCR place to see and be seen. Witness #6, an execution team RN, describes the gas
18
chamber antechamber during an execution as “a tiny room and packed with people . . . .”
19
20 UF 206. During the seven executions that Witness #7, a RN, participated in, she could

21 not see the executioner put the syringes “in the stopcock or plunge the chemicals”
22
because “of the crowds in the room.” UF 189. In fact, the anteroom of the gas chamber
23
24 was so crowded with people that Witness #7 would “use [her] elbows a little to get your

25 room.” UF 188. While Dr. Calvo was tasked to observe the inmate during an execution,
26

27

28

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he testified that “two or three people” would stand in between him and the window to the
2
3 chamber. UF 43b.14

4

Woodford’s gross mismanagement and misguided execution leadership was

5
the CDCR example set for her subordinates. The message was clear – it neither mattered
6
what your role was or what your responsibilities were, it was all secondary to the CDCR
7

8 festivities. It is particularly troubling that even though the execution team apparently did

9 not like having to work amongst the crowds, nobody felt that they could raise this matter
10
with personnel who would have the authority to change the situation. That is reflective of
11

12 the culture of disregard maintained by CDCR. RT 756-57. Woodford neither required

13 her Wardens to watch an execution (UF 126), nor to examine the qualifications of
14
execution team members. UF 10a. As long as the inmate ended up dead, the mission was
15
16 accomplished in a manner Woodford and CDCR deemed skilled, competent,

17 professional, patient, and stable. See UF 8, 340.
18
G. The State Has Been Grossly Negligent in Supervising Executions.
19

20

21

22

14

While Witness #1 testified that the doctor is usually right at the window to the right

23 side, viewing the inmate during an execution (UF 43a), his testimony is wrong. While

24 Witness #1’s testimony is frequently incorrect, embellished, without foundation,
misleading, and in certain instances false, the facts are these: Witness #1 only was in the 25 antechamber during three executions. During those instances, he stood in the back of the

26 anteroom by the telephones. UF 290. It is certain that in light of the multitudes of people in the anteroom during an execution, there were too many people positioned between
27 Witness #1 and the doctor that Witness #1 could neither see the positioning of the doctor

28 nor their viewing opportunities.

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The circumstances of CDCR’s conduct in its review of O.P. 770 is evidence
2
3 that they are deliberately increasing the risk of a painful execution. By ignoring their

4 obligations to this Court and their own expert for misperceived legal and political

5
reasons, they have created an extremely risky protocol that relies on a very low dose and
6
a failed drip mechanism.
7

8

On February 28, 2006, the Governor’s Legal Affairs Director, Andrea

9 Hoch, called a meeting to review California’s lethal injection protocol in response to this
10
Court’s order of two weeks earlier. UF 115*. The meeting was attended by defendants’
11
12 expert witness, Robert Singler, M.D., Dane Gillette, Andrea Hoch, Steven Ornoski, Bruce

13 Slavin, Dan Maguire, Tami Bogert, Peter Szkrenyi, Dave Runnels, and Darc Keller. UF
14
116*. All present had read a copy of this Court’s February 14, 2006 order, and appeared
15
16 to be familiar with this Court’s respectful suggestion to CDCR that it review its lethal-

17 injection protocol. UF 117*.
18
“The supreme executive power of this State is vested in the Governor. The
19
20 Governor shall see that the law is faithfully executed.” Cal. Const., Art. V § 1. “It is the

21 policy of this State to vest in the Governor the civil administration of the laws of the State
22
and for the purpose of aiding the Governor in the execution and administration of the
23
24 laws to divide the executive and administrative work into departments as provided by

25 law.” Cal. Gov’t Code § 11150. “The Governor shall supervise the official conduct of
26
all executive and ministerial officers.” Cal. Gov’t Code § 12010 (emphasis added). “The
27
28 Governor shall see that all offices are filled and their duties performed.” Cal. Gov’t Code

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§ 12011. “The Governor may not . . . delegate to his staff secretaries, statutory or non-
2
3 statutory administrators the discretionary functions of the office of Governor.” 40 Cal.

4 Op. Atty. Gen. 145, at *16 (1962).

5
In response to its legal duties and this Court’s suggestion that the State
6
conduct a “thorough review of the lethal execution protocol,” the Governor’s meeting
7

8 lasted an hour to an hour and a half. UF 115*. The Attorney General’s office attended

9 the meeting as the legal representative for CDCR. The Attorney General believes that the
10
meeting, and the State’s inactions resulting therefrom, are irrelevant to the issues here.
11

12 Id. At that meeting, the Attorney General and other counsel rejected medical suggestions

13 made by Dr. Singler for legal reasons, noting at one point that they did not want to make
14
any more changes to the protocol than necessary. Ex. 71; RT 600-05, 614. It is clear
15
16 from the notes of the meeting that CDCR did not believe that producing a humane

17 protocol was a priority. In fact, the notes indicate that, once they rejected Dr. Singler’s
18
suggestions to alter the 3-drug cocktail, and they settled on the drip, he was flailing about
19
20 to establish a sequencing of the three-drug protocol and incorporating the Pentothal drip.

21

As discussed elsewhere, the lowered dose was the result of a misconception

22
by Dr. Singler as to what was occurring in executions, one he adopted early on by,
23

24 apparently, only reading this Court’s February14, 2006 Order and not reviewing the

25 logs.15 His testimony seemed to indicate there were many more cases of second
26

27

15

28

Defendants defied the Court’s orders and have never produced the billing records.

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1
potassium injections than there have been. He has never reviewed the heart records,
2
3 perhaps at defendants’ counsel’s direction. With more time, and adequate review, as well
4 as adequate consultation, defendants would have realized they have only increased their
5
difficulties. Now, they are entrenched in their position.
6
After the Governor’s meeting, no other actions were taken by the
7
8 Governor’s office or CDCR with regard to the Court’s respectful suggestion that the
9 protocol be thoroughly reviewed. UF 118*. No one was assigned any tasks or
10
responsibilities to take any further action with respect to the Court’s suggestion. UF
11
12 118*. Warden Ornoski knows of no other actions taken by CDCR in this regard. Id.
13 Warden Ornoski left that meeting with the belief that the issue would be resolved at the
14
hearing by this Court, and that CDCR would be told by the Court what its new procedure
15
16 was going to be. Id. In this regard, the State was completely misguided regarding its
17 obligations and this Court’s express desires. “[U]nder the doctrines of comity and
18
separation of powers, the particulars of California’s lethal-injection protocol are and
19
20 should remain the province of the State’s executive branch.” Morales v. Hickman, 415 F.
21 Supp. 2d 1037, 1046 (N.D. Cal. 2006) (emphasis added).
22
After the meeting, Warden Ornoski did request that Dr. Thomas Rosko, the
23
24 San Quentin Chief Psychiatrist and a former anesthesiologist, assist in revising O.P. 770.
25 UF 119*. Dr. Rosko’s task was to devise the procedures to employ for the continuous
26
infusion of sodium thiopental. UF 120*. Dr. Rosko mistakenly believed that the initial
27
28 bolus dose would be 5000 milligrams of sodium thiopental. Id. Dr. Rosko performed 15
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minutes of research on the Internet to determine the concentration of sodium thiopental to
2
3 be in the infusion, and the drip rate. UF 123*. During Dr. Rosko’s Internet search, he

4 did not have access to a Medline account that would allow him to review entire articles in

5
certain journals. UF 124*.
6
Dr. Ebling testified that, under the new O.P. 770, the Pentothal in the drip
7

8 bag, assuming it was appropriately and quickly set (a great unlikelihood given the team

9 leaders involved), would take four minutes to run from its manifold to the end of the
10
catheter. RT 402, Sept. 26, 2006. He further opined that there would be “close to a six-
11
12 minute dead time” if three IV lines were used in the execution (as O.P. 770 seems to

13 indicate), in light of the need to clear pre-loaded saline solution from the IV line. Id.
14
Accordingly, it is Dr. Ebling’s opinion that, under O.P. 770, thiopental from the drip bag
15
16 would not reach an inmate until after pancuronium bromide and potassium chloride had

17 already been administered. RT 403. In this regard, the sole substantive changes made to
18
O.P. 770 by defendants as a result of the Court’s respectful suggestion were to decrease
19
20 the injection amount of the only drug included in the protocol which would preclude an

21 inmate from experiencing pain, and add to the protocol a drug infusion that would not

22
reach the inmate until after his/her death.
23

24

There is no evidence that any other actions were taken by CDCR to create

25 O.P. 770, March 6, 2006. In this regard, this protocol was created within only five days
26
after the Governor’s brief meeting on February 28, 2006. In fact, new O.P. 770 was
27
28 likely developed in only the matter of minutes expended by the misguided Dr. Rosko in

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that, as of March 3, 2006, the document already was being prepared; however, the
2
3 production was going “a little more slowly than [CDCR] had hoped because [it] want[ed]

4 to make sure that everything the Court included in a discovery order, that all of those

5
sessions (sic “sections”) are incorporated into the new version.” RT 5, Mar. 3, 2006.
6
The minimal modifications that were made by CDCR to O.P. 770 were “not
7

8 made from any concern about the effectiveness or constitutionality of the former

9 procedure.” UF 2. Defendants concluded that the minimal modifications to O.P. 770 will
10
allow a lethal injection execution to proceed more quickly and efficiently. UF 2. No
11
12 changes were made to O.P. 770 as a result of consultations with Dr. Dershwitz. UF 243.

13

The State’s new execution protocol is not the result of “conduct[ing] a

14
thorough review of the lethal-injection protocol, including, inter alia, the manner in
15

16 which the drugs are injected, the means used to determine when the person being

17 executed has lost consciousness, and the quality of contemporaneous records of
18
executions, such as execution logs and electrocardiograms.” Morales, 415 F. Supp. 2d at
19
20 1046. There has been no “proactive approach by Defendants” in an effort to “maintain[]

21 judicial and public confidence in the integrity and effectiveness of the protocol.” Id.
22
What defendants have done is spend less than two hours – all told – to
23
24 make one change to the Pentothal dose which was derived during a round table

25 discussion with a single medical doctor present – a doctor who only was present because
26
he wanted “an interesting way to see what goes on at the Governor’s level.” RT 993,
27
28 Sept. 28, 2006. Thereafter, CDCR asked Thomas Rosko, M.D., the chief psychiatrist at

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San Quentin who is charged with providing psychiatric care to inmates and supervising
2
3 all psychologists and mental health treatment personnel at the institution (UF 118a), to

4 calculate an execution IV delivery drip rate, but it failed to advise him of the proper bolus

5
dose.
6
7

To ensure that there is no uncertainty where Dr. Rosko’s medical interests

8 lie with respect to his patients at San Quentin and the supervision of his staff that assists

9 him there, Dr. Rosko is medically responsible to care for the mental health of Michael
10
Morales. Nevertheless, he made Warden Ornoski aware that he “was positively inclined”
11
12 to make a medical determination about whether Mr. Morales was unconscious or not

13 during his scheduled execution to allow the execution of Michael Morales to take place
14
on February 21, 2006. UF 118b.
15

16

In this regard, the State has abnegated its legal responsibilities to “supervise

17 the official conduct of all executive and ministerial officers” and ensure that “their duties
18
performed.” Cal. Gov’t Code § 12010-11. Moreover, the State refused to heed this
19
20 Court’s respectful suggestion to do so with respect to its execution process. The failure

21 to do so is, further evidence in support of Plaintiff’s claims.
22
/ /
23
24 / /

25

26

27

28

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H. Necessary Steps Defendants Can and Should Take to Improve Their

2

3

Training, Qualifications, and Screening of Execution Team Members in

4

Order to Implement O.P. 770.

5
As the above discussion demonstrates, CDCR’s execution procedure has
6
7 been designed, managed, and implemented by personnel without the necessary expertise,

8 at every level of CDCR. If the existing protocol is maintained in substantially its current

9
form, fundamental improvements in the training, qualifications, screening, and
10
recruitment of the personnel are necessary.
11

12

1. The Need to Monitor Anesthetic Depth.

13
The unconstitutional risk of excruciating pain that is inherent in the current
14
execution procedure cannot be minimized simply by increasing the training given to the
15

16 existing execution personnel. CDCR has chosen to use potassium chloride, which causes

17 excruciating pain when injected in lethal concentrations, see RT 448, as the means of
18
causing death during an execution. It has also chosen to use pancuronium, which if
19
20 injected into a conscious individual would subject him to the agony of suffocation and

21 conscious paralysis. Id. at 455-58. So long as these two drugs are employed in the
22
execution process, inmates must be successfully placed in a surgical plane of anesthesia
23
24 prior to the injection of pancuronium and potassium, and maintained in that state

25 throughout the execution process. RT 478-79. Failing to place an inmate in a surgical
26
plane of anesthesia would unquestionably violate the Eighth Amendment by subjecting
27

28

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1
the inmate to extreme suffering. In order to avoid the unnecessary risk of such suffering
2
3 that also violates the Eighth Amendment, see Cooper v. Rimmer, 379 F.3d 1029, 1033
4 (9th Cir. 2004), it is necessary that CDCR provide for effective monitoring of each
5
inmate’s anesthetic depth for the duration of the execution.
6
The district court in Taylor v. Crawford recently concluded, after a bench
7
8 trial on the merits, that effective assessment of anesthetic depth is imperative when
9 executions are performed by potassium. Having found that Missouri’s execution
10
procedure “subjects inmates to an unnecessary risk” of excruciating pain, the court
11
12 “conclude[d] that it is within its equitable powers to fashion a remedy.” Taylor, Order of
13 June 26, 2006, at 13. Accordingly, the court ordered the State to recruit a board-certified
14
anesthesiologist to design a new execution protocol, prepare and mix all of the drugs used
15
16 in executions, oversee the execution, closely observe the personnel injecting the drugs,
17 and, most importantly, assess the inmate’s anesthetic depth. Id. at 14-15.
18
At the hearing, both Dr. Heath and Dr. Concannon, who have extensive
19
20 training and experience in human and veterinary anesthesia, respectively, testified that
21 providing for effective assessment of anesthetic depth is the only way to reasonably
22
ensure that a protocol using pancuronium and potassium is executed humanely. RT 266
23
24 (Concannon), 478-79 (Heath). In addition, Dr. Ebling, a pharmacokineticist with
25 extensive knowledge of anesthetics and anesthesia, as well as exhaustive expertise in
26
thiopental, testified that in order to “prevent the occurrence of a painful execution,” an
27
28
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anesthesiologist would have to monitor the inmate’s anesthetic depth and be able to
2
3 interact with the execution team in the event of a mishap. RT 364-65.

4

Dr. Heath, Dr. Ebling, and Dr. Concannon are supported in their

5
conclusions by authorities within their respective fields. Thus, Dr. Orin Guidry, the
6
outgoing president of the American Society of Anesthesiologists, has publicly stated in a
7

8 letter to the Society: “If the courts demand that inmates be sufficiently anesthetized, then

9 I would have to agree with the court that the only way to assure that would be to have an
10
anesthesiologist prepare and administer the drugs, carefully observe the inmate and all
11
12 pertinent monitors, and finally to integrate all this information.” Ex. 62. In addition, the

13 American Veterinary Medical Association’s Panel on Euthanasia, tasked with giving
14
“veterinarians guidance in relieving pain and suffering of animals that are to be
15
16 euthanized,” has concluded that potassium may be used to cause death in an animal only

17 if the animal is placed in a surgical plane of unconsciousness and is monitored by
18
personnel who are “trained and knowledgeable in anesthetic techniques, and are
19
20 competent in assessing anesthetic depth appropriate for administration of potassium

21 chloride intravenously.” 2000 Report of the Panel on Euthanasia of the American
22
Veterinary Medical Association, Ex. 42, at pp. 672, 681. Thus, medical and veterinary
23
24 professionals who are experienced in providing anesthesia in the context of surgery, and

25 in the case of veterinarians, for euthanasia, agree that assessment of anesthetic depth is
26
necessary to ensure adequate anesthesia.
27

28

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Notably, CDCR’s own pharmacological expert, Dr. Brent Ekins, agreed
2
3 with Drs. Heath, Ebling, and Concannon, stating that “every time you use these drugs it

4 would be ideal to have someone there trained that knows how to measure the effect.” RT

5
900. In addition, Dr. Singler, who did not expressly state at the hearing whether he
6
believes that monitoring of anesthetic depth is necessary, conceded that he was uncertain
7

8 as to whether some inmates, Mr. Massie in particular, may have been awake during their

9 executions. RT 1183. Only monitoring of anesthetic depth will provide assurances, both
10
during executions and after the fact, that the procedure is performed humanely.
11

12

CDCR’s insistence that no anesthetic monitoring is necessary is not

13 supported by the evidence. CDCR’s confidence that inmates will always be adequately
14
anesthetized is premised on its assumption that the full dose of thiopental unfailingly will
15
16 be delivered to inmates – an assumption that plaintiff has demonstrated is completely

17 unfounded, see supra. Due to CDCR’s numerous institutional failures, the execution
18
procedure takes place in what Dr. Singler termed “suboptimal” conditions, RT 637. It is
19
20 highly likely that these conditions have led to inadequate anesthesia in some previous

21 executions, as even Dr. Singler admits that many inmates displayed continued respiratory
22
activity that is inconsistent with deep anesthetization. RT 1183; 732-33 (Heath). As long
23
24 as potassium and pancuronium are included in the protocol, errors or misconduct by the

25 execution team or failures in drug delivery can result in horrific consequences. Only
26
effective assessment of anesthetic depth, coupled with an ability to render the inmate
27

28

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unconscious if the monitoring reveals that he is conscious, can ensure that problems in
2
3 drug delivery and other failures do not lead to inadequate anesthetization.

4

In any event, even if the CDCR were correct that its procedures reasonably

5
ensure that the full dose of anesthetic is always delivered, its failure to provide for
6
effective assessment of anesthetic depth falls below the veterinary standard used for
7

8 euthanizing animals. As Dr. Concannon testified, he believes that monitoring of

9 anesthetic depth is necessary even in his hospital, where personnel are adequately trained
10
and the clinical setting is designed to ensure effective delivery of drugs. Even in such a
11
12 setting, Dr. Concannon testified, procedures can go wrong and drugs can fail to have their

13 expected effect. For this reason, the AVMA recommends that euthanasia by potassium
14
only be performed in conjunction with assessment of anesthetic depth, regardless of the
15
16 circumstances.

17

As is discussed in more detail in the answer to the Court’s Question 3,

18
below, the ability to effectively monitor anesthetic depth is not one that can be gained
19

20 from a few hours of coaching or by reading a book. Extensive training and clinical

21 experience in anesthesiology are necessary, and only medical professionals with this
22
specialized training are capable of assessing anesthetic depth. See Heath Decl. ¶ 38-46;
23
24 Heath Decl. of Feb. 14, 2006, ¶ 17; RT at 481-82. No current or former members of the

25 execution team have training in anesthesia. No warden of San Quentin has had training
26
in anesthesia. The infirmary at San Quentin is not equipped to administer general
27
28 anesthesia; thus, it does not employ personnel who are capable of inducing and

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monitoring anesthetic depth. It is therefore not possible to minimize the risk of inhumane
2
3 executions simply by increasing the training of the current or prospective execution team

4 members, without more. Rather, CDCR must retain an adequately trained individual to

5
monitor the inmate’s anesthetic depth, using medically accepted methods, for the duration
6
of the execution process.
7

8

2. Necessary Qualifications for Execution Team Members.

9

In addition to retaining an anesthesia professional to monitor anesthetic

10

depth in the manner described below, the qualifications of the execution team should be
11

12 improved. Certain of the tasks in the execution procedure require clinical experience and

13 training beyond that possessed by current execution team members, and appropriately
14
licensed personnel should be recruited to perform these tasks.
15

16

1. Injecting the Drugs. The chemicals should be injected by a medical

17 professional who is licensed under California law to inject medications intravenously and
18
who has clinical experience in doing so. Dr. Heath testified that the current arrangement,
19
20 in which the team leader (who has no medical training) injects the drugs, creates a

21 needless risk of improper drug delivery. RT 572-73. Dr. Ekins agreed, stating in his
22
deposition and confirming at the hearing that although “[s]omeone non-medically could
23
24 do it [inject the drugs],” it “would . . . certainly be ideal to at least have a nurse do that,”

25 because “[t]hey are trained. It's common. They are used to what it feels like to push an
26
IV through a small tube. They are familiar with it.” RT 898.
27

28

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Dr. Ekins is exactly right: Having a medically trained professional inject
2
3 the drugs would help the team detect problems and avoid mishaps.16 One important

4 means of detecting drug delivery problems is by gauging the feel of the back pressure on

5
the syringe. A person experienced in intravenous injections has the background
6
necessary to discern from changes in back pressure whether the IV has infiltrated or some
7

8 other problem has occurred. This ability to gauge back-pressure is gained through

9 repeated injections, both successful and unsuccessful, so that the person develops a sense
10
of what back pressure should feel like. Heath Decl. of Jan. 12, 2006, ¶ 20. This ability
11

12 therefore cannot be transmitted to a medically untrained individual who never injects

13 through IVs except during executions. Yet the evaluation of back pressure is particularly
14
important given the current setup, in which the inmate is in a different room, and team
15
16 members have an obstructed view at best, because the team cannot observe the catheter

17 sites closely.
18
In addition, a medically trained individual who routinely administers
19
20 intravenous medications will understand the need to maintain a constant, precise rate of

21 administration and the effect of that rate on the effects of the drugs. As important as the
22

23

24
16

25

It is important to note, however, that having a medically trained person inject the

26 drugs does not obviate the dangers of remote drug administration. Injection by a medically trained person would be an improvement over the current procedure, but that person would
27 remain hindered by the fact that they cannot see the catheter sites closely and cannot

28 physically observe and examine the inmate.

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dose of thiopental is the rate of administration, because that rate affects the peak
2
3 thiopental levels and the speed with which the thiopental causes unconsciousness.

4 Finally, the administration of the drugs should be closely overseen, if not actually

5
performed by, the anesthesia professional retained by the CDCR. This is necessary to
6
ensure that a constant rate of administration is maintained and the full amount of each
7

8 drug is administered. See Taylor v. Crawford, Order of June 26, 2006, at 14 (“If the

9 anesthesiologist does not actually administer the drugs, he or she shall directly observe
10
those individuals who do so.”).
11

12

2. Preparing and Mixing the Thiopental. As the evidence in this case

13 demonstrates, mixing the thiopental powder into solution is a very difficult task for
14
execution team members, one that they have consistently been unable to perform
15
16 correctly. Notably, discovery in the Taylor v. Crawford case revealed that John Doe I, a

17 surgeon, also had trouble mixing the thiopental; he was unable to get it to dissolve
18
completely in a 5-gram dose, and therefore he began using a lower dose. Id. at 8-9.
19
20 Clearly, therefore, while the process of mixing thiopental might be a straightforward task

21 for someone who is accustomed to it, such as a pharmacist or anesthesiologist, the mixing
22
process is not so easy that personnel without experience in mixing thiopental can perform
23
24 it reliably. Mixing the thiopental in the correct dosage and concentration is one of the

25 most crucial tasks in the execution process, and it should not be entrusted to individuals
26
who do not have the training and experience to accomplish it reliably and correctly.
27

28

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An anesthesia professional, such as an anesthesiologist or Certified
2
3 Registered Nurse Anesthetist, would have the requisite experience to mix the thiopental

4 properly. Thus, one way of ensuring that the mixing is competently carried out would be

5
to have the anesthesia professional who is retained to monitor anesthetic depth (as is
6
necessary to ensure humane executions so long as the three-drug protocol is maintained)
7

8 also mix the thiopental and prepare the syringes. See Taylor, Order of June 26, 2006, at

9 14 (“A board certified anesthesiologist shall be responsible for the mixing of all drugs
10
which are used in the lethal injection process.”).
11

12

Alternatively, a pharmacist should be responsible for mixing the thiopental.

13 As Dr. Ekins testified, pharmacists are experienced in mixing and preparing drugs. RT
14
845. Dr. Ekins also testified that one problem leading to unsuccessful drug delivery
15
16 would be errors in preparing the drugs, and that “[h]opefully, a pharmacist oversees them

17 to make sure it was done properly.” Id. at 897. Thus, both sides’ experts agree that
18
someone with adequate medical qualifications and ability should be responsible for
19
20 preparing and mixing the drugs.

21 / /
22
/ /
23

24

25

26

27

28

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3. Performing a Central Line Placement. In order to ensure that botched
2
3 attempts at peripheral IV access do not render executions inhumane, either by causing
4 excruciating pain in themselves or by impeding successful drug delivery, the CDCR must
5
institute a plan for achieving central venous access if necessary.
6
Central line placement is both more difficult and more dangerous than
7
8 inserting peripheral IVs, because central veins are deeper beneath the skin, often close to
9 arteries or major organs, and involve greater blood flow. RT 642-43. As both Dr. Heath
10
and Dr. Singler agree, all types of central lines involve potentially life-threatening
11
12 complications. RT 646. Therefore, the CDCR must ensure that a physician is available
13 to insert a central line should execution team members be unable to insert a peripheral IV.
14
The need to obtain central venous access for purposes of an execution is a
15
16 foreseeable inevitability. The prison population has a high incidence of individuals in
17 whom peripheral access is difficult to achieve, whether because of intravenous drug use
18
or other factors. RT 644. There are numerous recorded instances of difficulty achieving
19
20 peripheral venous access in executions across the country. In California, the execution
21 team had trouble inserting at least one catheter in multiple executions. In Missouri, John
22
Doe I was forced to place a subclavian central line on one inmate because even his
23
24 femoral veins – which are themselves central veins – were too damaged by drug use.
25 Taylor, Order of June 26, 2006, at 7.
26
There are also documented instances of executions going forward even
27
28 though peripheral access has not been successfully achieved, often with catastrophic
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consequences for the inmate. The Stanley Williams execution is one such example. In
2
3 Ohio, a compromised peripheral IV caused Joseph Clark to sit up and say, “It’s not

4 working,” after the execution team had begun to inject the drugs. See Evans transcript at

5
9. In Oklahoma, an infiltrated IV led to a botched execution, in which the inmate, Lloyd
6
LaFevers, was observed having convulsions. Postmortem toxicology obtained in a
7

8 reliable manner revealed that Mr. LaFevers’s thiopental levels were well below the level

9 necessary for adequate anesthesia. See Heath Affidavit ¶ 24, Patton v. Evans, No. 06-591
10
(W.D. Okla).
11

12

In addition, attempts by untrained or incompetent personnel to achieve

13 peripheral or central access can in themselves be inhumane. Most famously, the state of
14
Alabama proposed to do a cut-down, an invasive surgical procedure, on David Nelson,
15
16 using personnel with no medical training and only local anesthesia. In the Clark

17 execution in Ohio, after Mr. Clark indicated that the drugs were not working, the
18
execution team labored to establish peripheral access for over half an hour, during which
19
20 time the witnesses could hear “loud intense guttural moans and groans” coming from the

21 execution chamber. And in Missouri, John Doe I’s practice of performing femoral
22
catheterization on all inmates, without the equipment necessary to treat complications or
23
24 an understanding of the risks involved, led to painful botched catheterizations. RT 646-

25 47; Hrg. Ex.72.
26
In order to avoid the foreseeable danger of botched peripheral access or
27
28 untrained attempts at achieving central venous access, the CDCR must develop a plan for

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employing central catheterization when the execution team is unable to achieve reliable
2
3 peripheral access. As Dr. Heath testified, “Failing to plan is planning to fail, and you

4 need to have this mapped out. You need to have a plan B if you can't get IV access.” RT

5
648-49. Notably, Dr. Dershwitz agrees, and recently testified in the Evans v. Saar
6
litigation:
7

8

THE COURT: Now, you had mentioned the need to have a

9

plan B in case there were problems, and I believe you

10

testified, and you may even have said in the e-mail in some
11

12

other states they do have a plan B. Is that correct?

13

THE WITNESS: Yes.

14
THE COURT: And what is the plan B in these other states, if
15

16

you remember?

17

THE WITNESS: Well, it depends on the venue, but the

18
typical scenario is that they have a physician who is qualified
19

20

to put in a large -- not a large IV, a large IV into a large vessel

21

in the neck or the groin. And certainly not all physicians are

22
experienced and qualified do this.
23

24 Evans v. Saar, RT of Oct. 11, 2006, at 205, attached as Exhibit to Heath Decl.

25

Dr. Heath and Dr. Dershwitz also agree that central catheterization can only

26
be safely performed by a physician or a highly trained medical professional acting under
27

28 the supervision of a physician. RT 645 (Heath testimony that substantial medical training

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is necessary to place a central line). As Dr. Dershwitz put it, “just having a doctor is not
2
3 enough. The person should be experienced in doing this, and that should be, in my

4 opinion, available for the situation where an IV cannot be inserted into a peripheral vein

5
in the arm.” Evans v. Saar, RT of Oct. 11, 2006, at 205. The CDCR must therefore
6
recruit a physician who is willing and able to perform a central catheterization if it
7

8 becomes necessary. That person should be allowed to exercise their medical discretion as

9 to the equipment necessary to have on hand to treat complications arising from central
10
line placement in a medically accepted manner. RT 647-48.
11

12

3. Necessary Training for Execution Team Members.

13

In addition to retaining an anesthesia professional to monitor anesthetic

14
depth in the manner described below, and recruiting qualified personnel to perform the
15

16 specific functions listed above, the execution team members must be given a far greater

17 understanding of the execution procedure than they currently possess. CDCR has failed
18
to provide execution team members with even the most basic comprehension of the
19
20 procedure, from the names of the drugs to their pharmacologic effects to the fact that an

21 execution protocol exists. This state of affairs is incredibly dangerous to the prisoner, as
22
well as unfair to the team members themselves. It is crucial that team members be well-
23
24 versed in, among other things, the protocol itself, the reasons for its various provisions,

25 the drugs and their physiological effects, the potential problems that could arise, what to
26
do in case of unanticipated contingencies, and the priorities of an execution.
27

28

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This additional training is necessary even if CDCR is ordered to retain an
2
3 adequately trained medical professional to monitor anesthetic depth during executions,

4 for several reasons.

5
First, no one person, even an anesthesia professional, should be entrusted
6
with unchecked discretion over the execution procedure. To do so would be to create the
7

8 danger that misconduct or errors by that one person could go undetected in the course of

9 an execution -- and over the course of many executions -- while exposing inmates to
10
excruciating pain. This is precisely what happened in Missouri, where John Doe I, the
11
12 surgeon who designed the execution protocol, had sole control over the execution

13 procedure, such that no other member of the execution team could challenge his conduct.
14
Taylor, Order of June 26, 2006, at 11. John Doe I’s errors in mixing the thiopental were
15
16 allowed to continue over several executions before they were discovered in litigation.

17 Thus, execution team personnel should have the expertise necessary to understand all
18
aspects of the procedure, so that each member knows how each element -- mixing,
19
20 injecting, recording drug usage – should be performed.

21

Second, assuming that personnel other than the retained anesthesia

22
professional perform some of the functions in executions, they need to understand the
23

24 procedure so that they understand the consequences of their errors. For instance, as Dr.

25 Heath testified, even the person handing the syringes to the injector needs to understand
26
the nature of the drugs, because otherwise he might not realize the consequences of
27

28

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mistakenly handing the pancuronium syringe to the injector before the thiopental. RT at
2
3 758.

4

Third, in order to ensure that the anesthesia professional is able to

5
collaborate effectively with the execution team, the team members must understand the
6
procedure well enough to react effectively to problems detected by the anesthesia
7

8 professional. As the experience with Dr. Singler shows, moreover, team members must

9 also understand the consequences of deviating from the protocol and why deviations are
10
not appropriate. Witness #3’s apparent willingness to deviate from the protocol by giving
11
12 only 1 gram of thiopental, combined with the lack of a plan to give more thiopental if

13 necessary, and questions as to whether Dr. Singler was going to continue to monitor Mr.
14
Morales after the injection of the pancuronium, demonstrate the need for team members
15
16 to fully understand the procedure and the consequences of any decision regarding it.

17 Thus, continuing to use completely untrained personnel to perform executions will
18
maintain or exacerbate the existing risks in the procedure, and will hinder the ability of an
19
20 anesthesia professional to perform effectively.

21

Regardless of what other changes are made to the protocol, therefore, all

22
execution team members should be given careful training in all aspects of the procedure.
23

24 The training should be designed to ensure that every team member understands every

25 element of the procedure, without regard to that team member’s individual
26
responsibilities on the team, and has sufficient knowledge to detect problems when they
27
28 occur. Team members should understand the dangers of each step of the procedure, so

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that they can avoid them. Without limitation, this training would include the following
2
3 issues. Each of these is currently not understood by team members, and that has

4 contributed to the risk of harm that is currently inherent in the execution procedure.

5
•

Team members should be required to review the protocol carefully. They should

6

be sufficiently familiar with each provision of the protocol that they are aware when
7

8 another team member or the anesthesia professional proposes a course of action that

9 represents a deviation from the protocol. They must also understand the importance of
10
performing the procedure consistently and not deviating from the protocol. RT 561.
11
12 • Team members should be given instruction on the effect that each drug is expected

13 to have, including the dangers of each drug. For example, team members should know
14
that pancuronium causes conscious paralysis; that potassium causes excruciating pain;
15
16 and that thiopental, if injected outside the vein, can cause pain and tissue damage. They

17 should understand how thiopental works and that it should cause the inmate to become
18
deeply unconscious and stop breathing within a minute. Without knowing the dangers of
19
20 each drug and the effects of each drug, the team has no way of detecting and correcting

21 problems. RT 758.

22
•
23

Team members should be given instruction on the dangers of the procedure,

24 particularly, the consequences of inadequate anesthetization. RT 561-70.

25 • Team members should be given instruction in preparing drugs for administration,
26
including what concentration of each drug is used, how concentration can affect the
27
28 drug’s action, how many syringes of each drug are used, how to mix thiopental, how to

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calculate the concentration of thiopental, and what an inability to dissolve the thiopental
2
3 indicates. In other words, they should understand the pharmacology of each drug.

4 • Team members should understand how to inject drugs intravenously. They should

5
understand what infiltration is, how it could affect the execution procedure, how and
6
when it can be detected, what to look for. They should know about other drug delivery
7

8 problems and how to detect and correct them, such as leaks in the tubing and retrograde

9 injection. They should understand the rate of administration and how it can affect the
10
effect of the drug.
11
12 • The person injecting the drugs, if they are not a medical professional, should

13 receive extensive clinical training on how to read the tactile feedback of the syringe as
14
they are injecting the drugs. This is particularly necessary if the practice of remote
15
16 administration is continued. Plaintiff notes, however, that he believes that training a non-

17 medical person for this task is not sufficient; as discussed above, a medical professional
18
should be used to inject the drugs. Failing that, however, the injector must be taught how
19
20 to detect infiltration and other problems from the pressure on the syringe. This may

21 require clinical training. RT 572.

22
•
23

Team members should receive training in the foreseeable problems that can occur

24 during an execution, from difficulty achieving IV access to an inmate’s regaining

25 consciousness in the middle of the procedure. They should understand how each problem
26
can be corrected and how they, as a team, plan to react to each problem that could occur.
27
28 RT 573; 640.

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•

Rehearsals should be designed to mimic the actual execution procedure as closely

2

3 as possible in all respects, and to train execution personnel in how to react to problems

4 that could arise. RT 571-73.

5
•

Team members should be taught the importance of proper recordkeeping, and how

6

to keep records that comply with federal law.
7

8

It goes without saying that this training should be provided by individuals

9 who themselves have the necessary training and qualifications to provide useful
10
instruction. Additional training in the medical aspects of the procedure would be useless
11
12 if it were provided by someone with no medical understanding, such as Witness #1.

13 Training on medical issues should be provided by a person or persons who are medical
14
professionals and who have clinical experience with the issues in question.
15

16

Instituting these standards and providing effective training to execution

17 personnel would represent a vast improvement over the current state of ignorance and
18
misapprehension in which the team operates. Although bringing execution personnel up
19
20 to this level of training would require a drastic departure from CDCR’s current practices,

21 these training standards are reasonable ones that will help institute the minimum practices
22
necessary to minimize the risk of inhumane executions. Indeed, if CDCR were to ensure
23
24 that execution personnel have sufficient training to understand the procedure and its risks,

25 it would simply be bringing its execution training up to the bare minimum standard of
26
training that is required of technicians who perform veterinary euthanasia.
27

28

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Veterinary standards provide a helpful point of reference in improving the training
2
3 regimen for execution personnel, because veterinary professionals have devoted their
4 considerable expertise to developing humane methods of euthanasia, and they have given
5
careful consideration to the necessary training. Obviously, the optimal euthanasia
6
procedure is one that is performed by a veterinarian, who has the extensive training
7
8 necessary to ensure that any problem can be corrected without exposing the animal to
9 suffering. When economic realities dictate that euthanasia be performed by personnel
10
other than veterinarians, however, it is the standard of care, both in California and
11
12 nationwide, that euthanasia personnel be carefully trained in all aspects of the procedure,
13 from record-keeping to setting the IV to detecting and correcting problems.
14
Notably, veterinary euthanasia technicians use a euthanasia method -- a
15
16 single injection of pentobarbital -- that carries far less risk of suffering than that
17 employed by the CDCR. Yet they still must be carefully trained under state laws and
18
accepted veterinary standards, to ensure that animals are euthanized humanely. As Dr.
19
20 Concannon discusses, technicians must have “training on provision of humane care, drug
21 action, IV injection, vital sign monitoring, record keeping, safety concerns, emotional
22
stress, and any issues specific to the physical layout of the euthanasia room.” Concannon
23
24 Decl. ¶ 8. Similarly, California law requires that euthanasia technicians complete a
25 course, provided by a veterinarian or other certified qualified instructor, on, among other
26
things, “sodium pentobarbital injection methods and procedures”; “safety training and
27
28 stress management for personnel”; “hands-on training in . . . sodium pentobarbital
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injection procedures”; and “record keeping and regulation compliance for sodium
2
3 pentobarbital.” Cal. Code Regs. Tit. 16, § 2039. Many other states have established

4 minimum training standards to ensure humane euthanasia. See, e.g., Ohio Rev. Code

5
Ann. § 4729.532 (euthanasia personnel must be certified after completing course-work in
6
“the pharmacology, proper administration, and storage of euthanasia solutions”; and
7

8 “federal and state laws regulating the storage and accountability of euthanasia

9 solutions”); Tenn. Code Ann. § 44-17-303 (euthanasia personnel must complete a
10
certification course including “ animal anatomy”; “ the pharmacology, proper dosages,
11
12 administration techniques of euthanasia solution”; and “laws regulating the storage,

13 security and accountability of euthanasia solutions”); Ga. Code Ann., § 4-11-5.1(e)
14
(euthanasia must be performed by persons “properly trained in the proper and humane
15
16 use of a method of euthanasia,” under the supervision of a veterinarian); La. Rev. Stat.

17 Ann. § 3:2465 (euthanasia personnel must attend certified training programs); Nev. Rev.
18
Stat. Ann. § 638.005 (euthanasia personnel must pass a written and practical examination
19
20 and be licensed to perform euthanasia); S.C. Code Ann. § 47-3-420 (euthanasia personnel

21 must complete training taught by a veterinarian, and must complete continuing education

22
taught by a veterinarian).
23

24

The training standards observed in veterinary euthanasia are instructive in

25 the execution context for two reasons. First, the contrast between these standards and
26
CDCR’s current practices could not be more stark. The current training level of the
27
28 execution team is far below the level that veterinary professionals and state legislatures

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have determined are necessary to reasonably ensure that animal euthanasia is performed
2
3 humanely. Thus, it is not surprising that numerous irregularities in drug preparation, drug

4 custody, and other aspects of the execution procedure have afflicted past executions in

5
California, or that there is substantial evidence that some inmates were not adequately
6
anesthetized.
7

8

Second, adequately trained personnel are crucial to ensuring that executions

9 do not involve a significant, unnecessary risk of pain and suffering. The standards
10
observed in veterinary euthanasia are the product of expert consideration, and therefore
11
12 represent an informed consensus as to the minimum care necessary to ensure humane

13 treatment of animals. CDCR should be required, at a minimum, to ensure that its
14
execution personnel have the same degree of understanding of all aspects of the
15
16 procedure that veterinary euthanasia technicians are expected to have. Indeed, because

17 veterinary standards are designed with the understanding that the standard of care with
18
respect to animals is lower than the standard of care for humans, CDCR should be held to
19
20 a higher standard of training than are veterinary technicians.

21 / /
22
/ /
23

24

25

26

27

28

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4. Necessary Screening for Execution Team Members.

2

3

Screening execution team members to ensure that they are fit to assume the

4 responsibility of performing executions is a crucial component of ensuring that

5
executions are performed humanely. CDCR has to date been unable or unwilling to
6
engage in any meaningful screening of execution personnel. Screening should
7

8 encompass issues of competence as well as mental and moral fitness, and should be

9 conducted by someone with an understanding of the execution process and experience in
10
similar types of screening, such as screening of health care professionals.
11

12

The experiences of other states underscore the need for adequate screening

13 of execution team personnel. In Missouri, John Doe I’s misconduct during executions
14
was strikingly similar to conduct in his professional life that led him to lose privileges at
15
16 two hospitals. While entrusted with overseeing executions, John Doe I substantially

17 reduced the dose of thiopental (from 5 grams to as little as 2 grams) without informing
18
the Department of Corrections. When asked by the parties and the district court why he
19
20 had done so, John Doe I gave several different answers, at different times. In his

21 professional life, John Doe I had similar problems with both his medical conduct and
22
disclosure obligations: He was disciplined by the State and denied hospital privileges
23
24 after he failed to disclose his extensive and problematic malpractice history. Clearly, the

25 district court was disturbed by the State’s failure to screen John Doe I, as the court has
26
barred John Doe I from participating in the execution process in any way, and has
27
28 directed the State to ensure that the anesthesiologist retained to oversee executions and

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assess anesthetic depth does not have a similarly problematic licensing history. See
2
3 Taylor, Order of September 12, 2006, at 2.

4

In Maryland, execution team members also have troubling backgrounds.

5
The team leader was dismissed from the police department after refusing to cooperate
6
with an internal investigation, and has been accused of poisoning neighborhood dogs.
7

8 Another team member has committed repeated misconduct against inmates. Thus,

9 California and other states have been unable or unwilling to institute effective screening
10
of execution personnel.
11

12

In contrast, the veterinary profession has recognized that performing

13 euthanasia is a sensitive task that should be entrusted only to people fit for the
14
responsibility. Indeed, many states have legislated screening requirements for euthanasia
15
16 technicians. See, e.g., Nev. Rev. Stat. Ann. § 638.116 (applicants for the position of

17 euthanasia technician must prove that they are “of good moral character,” and must not
18
have been convicted of a felony); W.Va. Code § 30-10A (providing for automatic license
19
20 revocation if a technician is convicted of a felony or is guilty of cruelty to animals).

21 These requirements ensure that people who would be predisposed to commit errors or
22
misconduct during the euthanasia procedure will not be placed in a position where they
23
24 could harm animals being euthanized.

25

Any screening process that is instituted for execution personnel should

26
consider the responsibilities of execution team members as well as the types of
27

28 misconduct or risk factors to which team members may be vulnerable. In other words,

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execution team screening should be conducted in a manner similar to screening
2
3 conducted on health care professionals. Like doctors in a hospital, execution team

4 members have total control over the welfare of the inmate, and they must be entrusted to

5
exercise that control in good faith; they must be entrusted with handling, recording, and
6
keeping custody of addictive controlled substances; and they must be able to perform
7

8 well in an extremely high-stress environment. Thus, for instance, substance abuse

9 problems, commission of felonies, misconduct towards inmates, mental health problems
10
that might have an effect on performance during executions, commission of physical
11
12 abuse or animal cruelty, and, for medically licensed members of the team, licensure

13 problems or problematic malpractice histories are all factors that should be considered,
14
and that, depending on the circumstances, might be deemed problematic in potential
15
16 execution personnel.

17

In addition, all execution personnel, but especially medical execution

18
personnel, should be screened for competence. The fact that a person is a LVN, for
19

20 instance, does not automatically mean that he or she is skilled at placing IVs. Thus, each

21 team member should be evaluated in terms of their competence to perform the tasks that
22
they will be asked to perform in executions. For instance, as Dr. Dershwitz has stated in
23
24 Evans v. Saar, “there should be an individual decision made about whether or not this

25 person is qualified and experienced enough to do it [place IVs for an execution].”
26
The screening process should also be designed to filter out personnel who
27
28 may not have problematic backgrounds, but who are simply indifferent to the precautions

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necessary in an execution, or who appear unwilling to treat their responsibilities
2
3 seriously. As veterinarians have recognized, it may not be possible to train everyone to

4 have the right attitude towards their responsibility for causing death humanely. For

5
instance, Witness #6’s callous attitude towards executions -- she felt that she did not need
6
to know anything about thiopental or pancuronium, UF 223 -- would be unlikely to
7

8 change with additional training, because it reflects a more fundamental indifference to the

9 inmate and the procedure. The Humane Society has recognized this, stating in its General
10
Statement Regarding Euthanasia: “Euthanasia should be entrusted to the most
11
12 conscientious and qualified personnel only -- never to a person who is careless,

13 indifferent to animal suffering, or untrained in animal behavior or euthanasia techniques.”
14
See Concannon Decl. ¶ 10. The CDCR’s screening mechanism should take this insight
15
16 into account.

17

Because it is impossible to specify ex ante all of the characteristics or past

18
conduct that might be problematic in execution personnel, a qualified decision-maker
19

20 external to the team should exercise his or her judgment as to the fitness of each potential

21 team member in light of the responsibilities of the execution team. It is imperative that
22
the decision-maker understand all aspects of the execution procedure, its risks and
23
24 dangers, the psychological burden on execution personnel, and any other element of the

25 procedure that could create or affect risk factors for personnel’s errors or misconduct. In
26
other words, the warden of San Quentin should not be entrusted with this responsibility.
27
28 No warden to date has had any understanding of the medical aspects of the procedure, the

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dangers involved, or even a sense that humaneness must be a major priority in performing
2
3 executions. UF 10a; 11; 17; 20b; 340. Thus, for instance, Witness #5 may have been

4 allowed on the execution team, despite his problematic drug history, because Wardens

5
Calderon and Woodford were simply unaware that executions involved addictive
6
controlled substances. Screening performed by a warden without an understanding of the
7

8 procedure would be ineffective in minimizing the risks of errors and misconduct leading

9 to inhumane executions.
10
The veterinary profession has recognized that screening of euthanasia
11
12 personnel must be performed by people who understand euthanasia. For instance, in

13 Nevada, euthanasia technicians must, in applying for a license, provide proof of “good
14
moral character” and lack of criminal history to the Board of Veterinary Medical
15
16 Examiners, which is staffed by veterinarians. Nev. Rev. Stat. Ann. §§ 638.020, 638.116.

17 Veterinarians obviously have the experience and expertise necessary to evaluate the
18
fitness of candidates in light of the responsibilities and risks facing euthanasia
19
20 technicians. CDCR should be required to employ practices similar to veterinarians:

21 someone with a complete understanding of the procedure should perform the screening.

22
5. Recruiting Execution Personnel.
23

24

In order to implement the necessary screening of execution personnel and

25 ensure that individuals with adequate qualifications are recruited, CDCR needs to
26
institute a transparent recruitment system managed by an individual who understands the
27
28 execution procedure and the necessary training, qualifications, and screening.

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In the event that CDCR is ordered to recruit physicians, anesthesiologists,
2
3 or other health care professionals to oversee executions, CDCR should employ
4 techniques that are standard in the medical profession when a hospital wishes to recruit a
5
qualified individual. For instance, as Dr. Heath testified, Missouri’s attempt to find an
6
anesthesiologist to participate in executions by sending out 298 letters to local
7
8 anesthesiologists, without specifying the fee or providing any other relevant information,
9 was clearly not an adequate means of recruiting an anesthesiologist. RT 676-77. A
10
health care recruiter would understand how to find and recruit physicians and other
11
12 medical professionals, and what channels to explore. Id. at 677. In any event, recruiting
13 is necessarily a somewhat time-consuming process, particularly here, where the ethical
14
dimension may narrow the pool of willing professionals. CDCR therefore should not be
15
16 heard to complain that it is unable to recruit qualified individuals if it has not made a
17 good-faith, adequate effort, or has not allowed a reasonable amount of time to elapse.
18
Recruiting of non-medical execution personnel should also be performed in
19
20 a systematic, transparent manner. As noted above, the execution team should not be
21 given a role in narrowing the pool of candidates, as is currently the case, because
22
allowing such a role encourages a fraternity-like atmosphere. In addition, execution
23
24 personnel, as individual workers in CDCR’s various departments, are not as well placed
25 to evaluate potential candidates as are supervisory personnel who have experience with
26
recruiting and access to personnel files, references, and other sources of information.
27
28 Again, health care recruiters would have experience in the type of screening that is
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necessary for non-medical personnel, as these personnel must be entrusted with
2
3 responsibilities similar to those of health care professionals. As discussed above,

4 whoever is placed in charge of recruiting and screening should possess a thorough

5
understanding of the execution procedure and its risks.
6
6. The Need for Transparency.
7

8

For the past fourteen years, CDCR has undertaken all of the functions

9 described in this Part – training, recruiting, screening – in total secrecy. That secrecy has
10
permitted the execution system at San Quentin to operate in an unbelievably
11

12 dysfunctional manner, in part because CDCR has simply failed to create regular, reliable

13 procedures for handling each aspect of the task of constituting the execution team.
14
Instead, CDCR has created the execution team through an assortment of ad hoc,
15
16 improvised procedures, varying slightly from warden to warden, with no overarching

17 sense of the type of individuals who should be placed on the team, who should be kept
18
off, and the goals and priorities of an execution. Training has been virtually non-existent,
19
20 as team members have passed their own misconceptions on to newer members in an ad

21 hoc oral tradition. Clearly, by using these irregular, piecemeal processes, CDCR has
22
rendered itself unable to staff the execution team with individuals who are willing and
23
24 able to perform executions conscientiously, consistently, and humanely.

25

Given CDCR’s history of institutional failures with respect to executions,

26
the culture of concealment must change if CDCR is to effectively implement the systemic
27

28 changes that are necessary. While security and penological concerns may dictate that

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1
execution team members’ identities must remain secret (even though it appears that the
2
3 members of the current team are widely known at San Quentin), there is no reason that 4 the process by which team members are recruited, and the necessary training and
5
qualifications, should be concealed from the public. CDCR should be transparent about
6
the process by which it recruits execution personnel; the training it requires; how it trains
7
8 team members; the qualifications required; the duties of each team member; and any 9 other information that is of public interest. Only in this manner can inmates and the
10
public be assured that CDCR is responsibly constituting and training its execution team.
11
12 / / 13 / /
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1. In light of the evidence in the record, what steps can and should Defendants take 2 to improve their actual implementation of the three-drug protocol described in O.P. 3 770. In answering this question, please address, without limitation:
(b) the physical aspects of the execution chamber and the apparatus, 4 including the available space, lighting, sight lines, length and positioning of IV 5 tubing, and monitoring equipment;

6

7

A. The CDCR Should Perform Lethal Injection Executions in a Facility

8

Designed for Lethal Injection.

9
San Quentin’s execution facility exacerbates the risks to inmates by
10
hindering the ability of the execution team to perform its functions and rendering the
11

12 occurrence of a drug delivery problem inevitable over the course of executions.

13
Monitoring the inmate, inserting the IVs, observing the catheter site, injecting the drugs,
14
and the ability to react to problems in the chamber are all obstructed by CDCR’s use of
15

16 the gas chamber to perform lethal injection. See supra. Many, if not all, of these dangers

17 flow from the fact that CDCR continues to use a facility designed specifically and solely
18
for executions by lethal gas as the setting for its lethal injection procedure. CDCR should
19
20 be required to create a new facility for lethal injection executions, one that is designed to

21 minimize the risk of pain to the inmate and facilitate competent performance by the
22
execution team during a lethal injection procedure.
23

24

It is common sense that a facility should be designed to accommodate the

25 specific elements of the procedure that will be performed in that facility. The veterinary
26
profession has recognized this, and advocates using dedicated rooms for euthanasia that
27

28

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1
are designed with the needs of euthanasia personnel, the tasks performed during the
2
3 procedure, and the welfare of animals in mind. Thus, the Humane Society’s Euthanasia
4 Training Manual, attached as Exhibit 1 to the Concannon Declaration, states: “Some
5
shelters, especially those that previously used another euthanasia method, have
6
designated rooms for injection euthanasia that were not designed for this purpose. . . .
7
8 [I]nappropriate spaces have been transformed into euthanasia rooms without adequate
9 consideration for how the people who must use them and the animals to be euthanized
10
will affected by the space.” (Page 22.) The Manual goes on to describe specific
11
12 attributes that animal euthanasia facilities should be designed to have, with attention to
13 reducing stresses on animals and workers, minimizing the chances for errors during the
14
procedure, and allowing owners to witness the procedure. Id. at 21-22. Attention to
15
16 these types of details in designing a facility helps ensure that the procedure is performed
17 humanely. See Concannon Decl. ¶ 15 (“A well designed room for euthanasia will help
18
facilitate a humane procedure while poor lighting, inadequate access to the animal, or
19
20 lack of immediate access to supplies will increase the chances for an improperly
21 performed procedure.”).
22
The observations of the Humane Society Manual could not be more
23
24 germane to the facility problems plaguing CDCR’s lethal injection procedure. In a
25 number of ways, all of which are directly related to the safety of the lethal injection
26
procedure, the gas chamber is simply unsuitable for lethal injection executions. First,
27
28 while a gas chamber must be small, to allow a sufficient concentration of gas to
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accumulate, executions by lethal injection require a gurney and ample space to allow
2
3 personnel to place IVs. RT 637 (Dr. Heath testified that he agreed with Dr. Singler’s

4 observation that the cramped quarters and positioning of the gurney rendered placing the

5
IVs much more difficult than in a clinical setting).
6
Second, gas chambers must be designed to prevent gas from escaping the
7

8 chamber, so they must be sealed. Once the gas has been released, it is impossible for the

9 execution team to intervene in the execution by entering the chamber, so there is no need
10
to plan for immediate access by the execution team during an execution. Executions by
11
12 lethal injection, on the other hand, are rendered unsafe by the imposition of physical

13 barriers – such as a sealed door and iron walls – between the team and the inmate. RT
14
590. In addition, lethal injection executions are a process, and the execution team may
15
16 need to intervene before the actual execution (the injection of potassium) to give more

17 anesthetic, correct an IV problem, or take some other action designed to keep the
18
execution from being inhumane. The sealed gas chamber door and the cramped space in
19
20 the gas chamber impede the team’s ability to do so. RT 634.

21

Third, because of the one-step nature of the lethal gas procedure and the

22
impossibility of intervention, careful observation of the inmate is not a crucial safety
23

24 measure in executions by gas. In lethal injection, any number of drug delivery problems

25 could result in an inhumane execution, and the execution team must be able to closely
26
observe the inmate, the catheter sites, and the drug delivery equipment. RT 637-39. The
27
28 contorted setup of the gurney and tubing, as well as the inability to adequately observe

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the inmate, are problems created or exacerbated by the use of the gas chamber. RT 633-
2
3 34.

4

Fourth, gas chambers are designed to effectively deliver lethal gas into the

5
chamber, and the pipes, walls and floor of the chamber are shaped accordingly. That
6
design renders the delivery of intravenous drugs particularly awkward, as gas chambers
7

8 are not constructed with the need to hang IV bags, connect IV tubing, and inject drugs in

9 mind. RT 596. Thus, the extreme height of the IV bags, the 17-plus feet of IV tubing
10
using multiple connections are among the factors that are a result of the use of the gas
11
12 chamber and the execution team’s inability to solve the problems created by the gas

13 chamber. These contortions render drug delivery failures more likely, and their detection
14
less possible.
15

16

The problems in the lethal injection procedure that result from the design of

17 the gas chamber are not solvable without drastic changes to the facility. Most
18
fundamentally, the cramped space inside the gas chamber cannot be expanded; the gurney
19
20 will always take up most of the space in the chamber, rendering it difficult to place IVs

21 properly or monitor the inmate. This will be exacerbated with inmates of large girth,
22
such as Mr. Anderson and Mr. Williams were. The observation problems caused by the
23
24 chamber’s setup are also not easily remediable, unless at least one team member is placed

25 within the chamber to closely monitor the catheter sites and the inmate. Without
26
someone in the chamber, it is not possible to compensate for the fact that no one in the
27
28 anteroom can see the left IV, and no one can see the inmate’s head and face well, because

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the gurney and chamber are not built in a way that allows improving the lines of sight.
2
3 But even that person would be hindered by their inability to move around easily within

4 the chamber; it would be difficult, for instance, to quickly move from the inmate’s right

5
side to his left. And, of course, communication between people in the chamber and
6
outside of it is hindered by the design of the gas chamber.
7

8

Additional problems are inherent in the design. For instance, because of

9 the sealed chamber, it is impossible to determine if the inmate is moaning, groaning or
10
otherwise subtly registering discomfort at a point in time during which he should be
11

12 anesthetized. RT 115, Mar. 30, 2006. The windows were not properly designed so as to

13 allow observation of the inmate during the process while remaining invisible to the
14
witnesses, as CDCR insists upon.17 The team, therefore, turns off the lights in the
15
16 antechamber. RT 61, Mar. 30, 2006. When combined with the highly unusual labeling

17 of the syringes, the high placement of the drip bags, the crowded antechamber, the
18
twisting, convoluted line set up, and the more complex method CDCR now seeks to
19
20 employ, the darkened antechamber is a prescription for disaster.

21

What is necessary, therefore, is for CDCR to design a new execution

22
facility specifically for lethal injection executions. The facility should be designed to
23

24 take into account the need to move the gurney around, give personnel adequate space to

25 17

26

In actuality, the anonymity of the team is not so much an issue as that of the CDCR

officials from Sacramento who rank higher than the Warden and insist upon being at the

27 observation window in the antechamber.

28

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start IVs, place monitoring equipment around the inmate, and every other consideration
2
3 that affects whether team members can ensure that executions are humane. Heath Decl.

4 ¶ 24. CDCR is building a new death row, so there is no reason that construction should

5
not include a new execution facility as well. See D. Murphy, San Quentin Debate: Death
6
Row v. Bay Views, N.Y. Times (December 18, 2004).18 Indeed, the fact that CDCR is
7

8 building an entire new prison for death row inmates, but intends to keep using the gas

9 chamber for lethal injection, bespeaks its disregard towards the execution process.
10
The practices in other states demonstrate that requiring CDCR to build a
11

12 new facility for lethal injection would simply bring California up to the standards

13 observed by other states. California is one of the only states in the country that uses a gas
14
chamber to perform executions by lethal injection. As far as plaintiff can ascertain,
15
16 virtually every other state that currently allows inmates to choose execution by lethal gas,

17 or that at one time used gas, has built an additional execution chamber specifically for
18
lethal injection. And California’s gas chamber appears to be by far the least suitable
19
20 chamber for lethal injection. There is therefore no excuse for California’s failure to

21 modernize its lethal injection facility.
22
An examination of the lethal injection facilities constructed by other states
23
24 that also use gas demonstrates how CDCR would decrease some of the risks inherent in

25 18

26

Available at

http://www.nytimes.com/2004/12/18/national/18row.html?ei=5088&en=

27 b5b32ed6fbeffd5c&ex=1261112400&adxnnl=1&partner=rssnyt&adxnnlx=1163131190-

28 uOy3l0vYWiPs+4qz4bayyg (last visited Nov. 9, 2006).

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its procedure by employing a new facility. Missouri, which once used only lethal gas,
2
3 and now gives inmates a choice between gas and lethal injection, built a new facility

4 specifically for lethal injection. Dr. Heath viewed that facility during the Taylor v.

5
Crawford litigation, and photos of the facility admitted as evidence in the case are
6
attached as Exhibits 5 through 9 to his declaration. The Missouri facility features a
7

8 spacious execution chamber that is approximately four times as large as San Quentin’s

9 gas chamber, has sufficient space for personnel to place IVs, place central lines, treat
10
complications from central lines, and situate the monitors associated with assessment of
11

12 anesthetic depth. Heath Decl. ¶¶ 18-20. In other words, the execution chamber is large

13 enough to accommodate all of the tasks that foreseeably may need to be accomplished in
14
there. Missouri’s equivalent of the anteroom is also more spacious than San Quentin’s
15
16 anteroom, with numerous cabinets, ample counter space and a sink for preparing the

17 drugs, and a separate, locked drug room. The chamber is separated from the anteroom by
18
a normal door with a window.19 Id. ¶ 19. Each of these factors renders Missouri’s
19
20 facility superior to California’s, in that Missouri’s facility does not contain immutable

21 elements that pose an active obstacle to execution team members.
22
Similarly, Maryland currently uses lethal injection and gas as its methods of
23
24 execution, and it has created a lethal injection chamber abutting its gas chamber. Dr.

25 19

26

Missouri still uses remote drug administration, which renders its facility problematic

for independent reasons, including inadequate observation of the inmate and poor

27 placement of the gurney, but at least it does not have the additional problems associated

28 with using its gas chamber.

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Heath viewed this facility during the Evans v. Saar litigation, and he has attached
2
3 architectural diagrams of the chamber as Exhibit 10 to his declaration. As in Missouri,

4 the chamber itself is perhaps four times the size of the gas chamber at San Quentin, with

5
ample room to maneuver around the gurney. Heath Decl. ¶ 21.
6
Mississippi also has created a new facility for lethal injection, rather than
7

8 continuing to use its gas chamber, as has Arizona, which also maintains a separate gas

9 chamber. See id. ¶ 22. Thus, this is one of the aspects of the lethal injection process
10
where California’s procedure is well outside those employed by other, similarly situated
11
12 states.

13

B. CDCR Should Include Necessary Improvements in its New Execution

14
Facility.
15

16

When designing the new execution facility, CDCR should consult with

17 medical professionals who are able to opine on all aspects of the execution facility related
18
to the execution procedure itself, including the space necessary, the types of appliances
19
20 and equipment necessary, safety measures, and the needs of execution personnel to be

21 able to move freely about the space in performing their tasks. The redesign should be
22
geared to remedy all of the issues discussed above that contribute to the risk of inhumane
23
24 executions. This Part will address some of the ways in which existing problems with the

25 facility should be eliminated in the process of designing a new facility.
26

27

28

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1. Remote Administration. The fundamental flaw in the execution process,
2
3 from which many other dangers flow, is CDCR’s decision to have the execution team

4 inject the drugs from a different room. Placing walls, windows, and many feet of IV

5
tubing between the inmate and the team exacerbates the risks of unsuccessful drug
6
delivery and prevents the team from detecting problems in the drug delivery system,
7

8 observing the inmate and catheter sites, and detecting signs of consciousness.

9 Administering the drugs from the bedside (or close to the bedside) of the inmate will
10
allow CDCR to correct many of the other flaws in the drug delivery system and
11
12 monitoring system. Therefore, the new facility should allow at least one member of the

13 team to be situated in the same room as the inmate, allow those persons to freely access
14
either catheter site, and allow an appropriate medical professional to undertake a central
15
16 line insertion when necessary.

17

General anesthesia is never induced from a remote location, except in the

18
most extreme of exigent circumstances. Tr. 632. The reasons for not inducing anesthesia
19

20 from another room are a matter of common sense – an anesthesiologist cannot ascertain

21 whether the drugs are having their expected effect without being next to the patient. RT
22
631. In addition, the risks of unsuccessful drug delivery increase as the system becomes
23
24 more complicated, with more IV tubing, more flow resistance, and worse observation. A

25 medical or veterinary professional would expect to be able to ensure successful drug
26
delivery by simultaneously monitoring (1) the back pressure on the syringe as they inject
27
28 the drugs; (2) the IV drip, which can indicate if flow is impeded; (3) the catheter site,

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which on close inspection will reveal early signs of infiltration; (4) the entire length of the
2
3 tubing, which will reveal leaks, kinks, and blockages; and (5) the patient’s face, which
4 will reveal signs of the drug’s taking effect. Concannon Decl. ¶ 3; Concannon Tr. Aff.
5
¶ 29; RT 842 (Heath). Taking in and synthesizing all of this information at once is
6
7 possible only if the person injecting the drugs, and all of the associated equipment, is
8 situated by the bedside of the prisoner.
9
CDCR has never provided any explicit justification for its use of remote
10
administration, although presumably remote administration is either an unthinking
11
12 holdover from the practices used for lethal gas executions, or a means of maintaining the
13 anonymity of execution team members. RT 61-63, Mar. 30, 2006. Of course, remote
14
administration of the lethal chemicals is not necessary to protect the safety of team
15
16 members or witnesses, as is the case with gas. And the team’s legitimate interest in
17 anonymity can be protected without sacrificing the safety of the inmate. RT 543. Indeed,
18
CDCR’s current practices belie any argument that the drugs must be injected from
19
20 another room in order to protect anonymity: Currently, several execution team members
21 place IVs in full view of the witnesses; thus, Witnesses #3, 4, 6, and 7 have all been seen
22
by witnesses, yet they remain anonymous, and apparently have not been threatened in any
23
24 way because of their participation. In addition, Dr. Singler planned to monitor anesthetic
25 depth from within the gas chamber, and apparently found a way to protect his identity,
26
perhaps by wearing protective clothing.
27
28
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The use of an IV drip, if one is to be employed at all, is much better
2
3 accomplished when it is at the bedside, within arms’ reach of the person who turns it on
4 and makes certain it is operational. That is how it is done in every hospital and clinic.
5
It is the practice in several other states to allow execution team members
6
to perform various tasks in view of the witnesses, using protective clothing to protect
7
8 their anonymity. RT 583 (“There are some states where people who do enter the chamber
9 are gowned up like that and wear goggles so that no part of their skin or hair is visible,
10
and all the witnesses could assess is their stature.”). If CDCR were to adopt such a
11
12 practice, there would be no need for remote administration or any other contorted
13 procedure used to keep the witnesses from viewing the person injecting the drugs. Thus,
14
for instance, it would not be necessary to adopt a set-up like the curtain used in Virginia.
15
16 Although the protective order in effect in the Walker v. Johnson case prevents Plaintiff
17 from obtaining any more specifics about Virginia’s execution facility, Virginia’s curtain
18
setup may adversely affect the safety of the inmate if it obstructs the view of the person
19
20 injecting the drugs and other team members, or if the team members are not prepared to
21 come out from behind the curtain should a problem arise. RT 842.
22
CDCR may argue that discontinuing remote administration is too drastic a
23
24 change to impose upon execution personnel. Yet, until they attempt to make such an
25 effort, it cannot be said that it presents them with an insurmountable burden. It appears
26
they decided not to even make that effort on February 22, 2006, when the Court ordered
27
28 them do so. As with many elements of the procedure, the change Plaintiff advocates
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would simply bring the execution procedure into parity with prevailing standards of
2
3 veterinary euthanasia. As Dr. Concannon testified:

4

I am unaware of any veterinarian program that teaches

5
students to induce anesthesia or to completely monitor
6
anesthetized patients from a room other than the one
7

8

containing the patient. I have never seen a veterinarian or a

9

licensed veterinary technician monitor an anesthetized patient

10

from a distant room if not dictated by medical necessity and
11

12

without periodic, direct assessment of patient status. I would

13

not choose to inject a euthanasia agent from another room.

14
Concannon Tr. Aff. ¶ 12. As Dr. Concannon testified, remote administration prevents
15

16 personnel from properly assessing the patient and immediately correcting any errors or

17 problems, thereby needlessly imposing risk upon the patient. The interests that are
18
unique to the execution context, such as anonymity, can easily be accommodated while
19
20 satisfying at least the veterinary standard of care. Given the numerous unnecessary risks

21 imposed by CDCR’s insistence on remote administration, there is simply no justification

22
not to remedy it.
23

24

2. The Setup of the Necessary Equipment. In redesigning the execution

25 facility, CDCR should consult with medical professionals who can opine on the necessary
26
equipment and where it must be placed to function effectively and safely. Many, if not
27
28 all, of the dysfunctional elements of the current equipment setup stem from the fact that

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the setup is the result of ad hoc decisions made by individual team members who have no
2
3 medical training. As Dr. Heath noted, the flaws discussed above are “just very bizarre. It

4 tells me that they are sort of way out there and not getting the kind of guidance they need

5
from -- that they should be getting. They are doing some very strange things.” RT 596.
6
To remedy these flaws, therefore, someone with medical training in injecting intravenous
7

8 medications and working in a clinical facility, such as an operating room, should provide

9 input on how to position the equipment properly.
10
Assuming that a new facility is designed to allow the chemicals to be
11
12 injected from a position in close proximity to, and in the same room as, the inmate, then

13 medical professionals consulting with the team or retained to monitor anesthetic depth
14
will be able to set up the necessary equipment in an optimum manner. A medical
15
16 professional would be able to exercise his or her judgment as to the placement of IV poles

17 and bags, monitoring equipment, and other necessary equipment. In other words, the
18
functions of each piece of equipment should be considered, as well as the need for
19
20 execution personnel to be able to effectively monitor each piece of equipment.

21

For instance, Dr. Heath testified that in a clinical setting, IV bags are hung

22
at eye level so that the people setting the catheters or injecting drugs can easily monitor
23

24 the drip rate to ensure that the IV is patent and fluid is entering the vein. RT 592-93. In

25 addition, IV bags are located right next to the patient’s bedside, so that the person placing
26
the catheter has an immediate indicator of the success of the IV placement. RT 593. In
27
28 deciding where to place the IV bags in an execution context, therefore, CDCR and its

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consultants should take into account the information provided by the IV drip, the safety
2
3 benefits provided by that information, and the needs of execution personnel to monitor

4 the drip. This process should be undertaken with respect to every piece of equipment and

5
every aspect of the procedure, including the need for personnel to be situated so as to
6
closely observe the inmate, and any anesthetic monitoring equipment deemed necessary
7

8 by an anesthesia professional retained to monitor anesthetic depth.

9

By redesigning the facility in this manner, CDCR can reasonably minimize

10

the risk of a drug delivery problem. RT 633. Although these setup changes would
11

12 represent a drastic departure from CDCR’s existing, grossly negligent equipment setup,

13 that does not render these changes unreasonable or impossible. Once again, situating the
14
equipment with the safety of the inmate and the needs of the execution personnel in mind
15
16 would simply bring CDCR’s execution procedure up to the standard of veterinary

17 euthanasia. See Concannon Decl. ¶ 15; Humane Society Euthanasia Manual, Ex. 1 to
18
Concannon Decl., at 21-22.
19
20 / /

21 / /
22

23

24

25

26

27

28

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1
1. In light of the evidence in the record, what steps can and should Defendants take 2 to improve their actual implementation of the three-drug protocol described in O.P. 3 770. In answering this question, please address, without limitation:
(c) record-keeping, including the preparation, content and reliability of 4 execution logs and records indicating the disposition of drugs used in training and in 5 executions.

6

7

A. The State’s Incompetent Record-Keeping Procedures Created O.P. 770

8

and the Unnecessary Risk of Extreme Pain or Torture.

9
Former San Quentin Warden Daniel Vasquez testified that he adopted the
10
three-drug cocktail for lethal injection executions in California “because Texas used it.”
11

12 UF 248. Vasquez did not “disagree with any of the provisions of the Texas protocol.”

13
UF 249. He did not “feel it was necessary to modify . . . any of those provisions to make
14
the procedure work better than it did in Texas.” UF 250. Vasquez’s recollection is that
15

16 he adopted the Pentothal “in the same dosage that Texas used it.” UF 251. Vasquez

17 testified that his “recollection as to the amount of sodium Pentothal that was being used
18
in Texas” “was 5 grams.” UF 252. When shown a document that listed the second step
19
20 in an execution as “inject[ing] into main line 2 gm ‘push’” (Ex. 107 at 5), Vasquez

21 testified, “I don’t know how that got in there. You know what? I – all I knew was 5
22
gram – use of 5 grams.” He further stated, “The only discussion I recall was 5 grams.”
23
24 UF 253.

25

Vasquez testified that his intention regarding the information he received in

26
Texas was to “[b]ring it back to California and consult with the Attorney General’s Office
27

28

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1
in California for consideration of changing the method of execution. UF 259. There was
2
3 no “discussion about what the medically appropriate doses are for [the lethal] chemicals”
4 when Vasquez returned to California. Id. Warden Vasquez does not recall “consult[ing]
5
with any doctors independently about [the] procedure.” Id. While Warden Vasquez
6
believes “there were some medical staff” involved in the drafting process for the original
7
8 O.P. 770, he does not recall their positions nor their race, gender, or other physical
9 attributes. Id.
10
Vasquez did not “recommend any changes to the Texas protocol before [he]
11
12 adopted it as California’s lethal injection protocol,” other than to accommodate “the
13 physical plant differences between Huntsville Prison and San Quentin.” UF 265.
14
Exhibit 121 was obtained “from Texas in the process of devising 770.” UF
15
16 254. The exhibit, labeled “Contents of Syringes,” provides for the preparation of only
17 one syringe of Pentothal solution, containing 2.0 grams of sodium Pentothal (Ex. 112).
18
Id. The Pentothal was to be prepared as “four 500 mgm vials dissolved in the least
19
20 amount of diluent possible to attain complete, clear suspension.” Id. Exhibit 107 is “the
21 initial draft of the procedure” for California. UF 255. The procedure provides for the
22
preparation of only one syringe of Pentothal solution, containing 2.0 grams of sodium
23
24 Pentothal (Ex. 107, p. 2). Id. The Pentothal was to be prepared as “four 500 mgm vials
25 dissolved in the least amount of diluent possible to attain complete, clear suspension.” Id.
26
Exhibit 110 is labeled Resource Supplement G-4. UF 256. Warden
27
28 Vasquez testified that Resource Supplement G-4 “was the supplement to the lethal
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1
injection procedure that was going to describe the drugs that were being used.” Id. This
2
3 supplement provides for the preparation of only one syringe of Pentothal solution,

4 containing 2.0 grams of sodium thiopental (Ex. 110). Id. The Pentothal was to be

5
prepared as “four 500 mgm vials dissolved in the least amount of diluent possible to
6
attain complete, clear solution.” Id. Exhibit 111 is another copy of the same document.
7

8 UF 257. It includes, however, a handwritten alteration of the amount of Pentothal from

9 2.0 grams to 5.0 grams (Ex. 111). Id. Warden Vasquez testified that he did not recall
10
having ever seen the document before, and that he had “no idea” whose handwriting
11
12 changed the amount. Id.

13

Exhibit 109 is another version of the same Resource Supplement G-4. UF

14
258. It provides for the preparation of one syringe of Pentothal, containing 5.0 grams of
15

16 sodium thiopental. Id.

17

For ten years, California has been conducting lethal injection executions

18
using a dose level of Pentothal whose genesis cannot be explained other than that it was
19

20 derived from scrivener’s error. In this regard, the Pentothal dose was established without

21 medical consultation or research. While Warden Vasquez was the principal who
22
developed the protocol, there never was any supervision by the Secretary of CDCR to
23
24 ensure that the terms of Operational Procedure 770 – including the dose of Pentothal to

25 be used – were correct, or that they had some logical or medical basis. It appears that the
26
State of California simply was attempting to emulate the State of Texas in its use of the
27
28 quantum of lethal chemicals, and has failed to do so in every execution.

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1
California’s failure to emulate Texas is far more broad than simply the
2
3 widely varying dose of Pentothal used during the execution. Warden Vasquez testified

4 that “three, four feet, something like that” of IV line were utilized in the Texas lethal

5
injection procedure. UF 260. California uses approximately 20 feet of IV line. See UF
6
86*.20 Warden Vasquez testified that the Texas lethal injection team “use[d] medical
7

8 staff to do the push.” UF 261. It was his “understanding of the process as how it should

9 be employed.” Id. In contrast, California now uses untrained prison guards with no
10
medical education, medical training, or understanding of the process being employed.
11

12

Warden Vasquez’s notes reflect that Texas’ lethal injection procedure

13 utilized a “0.9 % sodium chloride 50 mil packet – drip for K.V.O (keep the vein open)
14
[at] approx. 15 drips per minute.” (Ex. 103 at 6). UF 262. Vasquez testified that “[t]hat
15
16 would have been the intent” “of the procedure that [he] employed in California as well.”

17 Id. California does not monitor the drip rate at all (UF 87y), and the person setting the
18
rate is a prison maintenance engineer.
19

20
20

21

In response to questioning by the Court, defendant’s counsel, and plaintiff’s counsel,

22 Witness #1 repeatedly testified that the length of the IV tubing used during an execution is
12 feet from the IV saline bag hung above the gas chamber to the catheter site at the 23 inmate’s arm. See, e.g., RT 33, 67-68, 99-100, 108, Mar. 30, 2006. He even claimed to

24 have measured it with a tape measure. Id. Nothing could be more imprecise. The parties
and the Court have stipulated that the length of the IV tubing just within the gas chamber is 25 eleven feet. UF 86*; RT 112-13, Mar. 30, 2006. Outside the gas chamber, the IV tubing

26 runs “from the actual bag [on top of the gas chamber] through this [plate on the side of the chamber] going down to approximately one or two feet from the floor up again and down
27 through here [i.e., the chamber wall] . . . .” RT 108, Mar. 30, 2006. Therefore, in total, the

28 length of the IV tubing used in a California execution is approximately 20 feet.

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1
The execution protocol used in Texas was adopted from one developed in
2
3 Oklahoma by a man who later explained to Human Rights Watch, “I never knew we

4 would have complete idiots injecting these drugs,” and apparently did not safeguard

5
against that possibility in his execution method. Human Rights Watch, So Long as They
6
Die: Lethal Injections in the United States, Chapter III “Lethal Injection Procedures,”
7

8 available at http://hrw.org/reports/2006/us0406/5.htm (Apr. 2006). California

9 subsequently attempted to adopt Texas’ method, but, because of a scrivener’s error, failed
10
to adhere to the original. Accordingly, the genesis of lethal injection in California
11
12 involved the error-filled adoption and error-filled implementation of an execution method

13 which was not designed to be resistant to errors.
14
B. The State Has Been Grossly Negligent in Keeping Records of its Conduct
15

16

to Ensure Past and Future Compliance with the Eighth Amendment.

17

Lethal injection by the State of California began on February 23, 1996,

18
when Warden Arthur Calderon’s execution team strapped William Bonin to a gurney
19

20 inside the gas chamber at San Quentin State Prison, set catheter IV lines in his arms, and

21 thereafter physically pumped an uncertain amount and/or type of lethal drugs into the IV
22
lines from numerous syringes. Calderon described the undertaking as “awesome.” UF
23
24 126.

25

Upon completing this lethal injection execution, Calderon’s staff did not

26
draw or retain blood samples from Bonin for analysis or have an autopsy performed.
27

28

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1
Calderon did not request the coroner or medical doctors to make an invasive or non-
2
3 invasive medical analysis of the setting of the catheters in Bonin, their performance

4 during the execution, or whether infiltration occurred as to either catheter site. Post-

5
mortem photographs of Bonin either were not taken or preserved by Calderon or CDCR.
6
No blood toxicology reports or tests were ordered to assess the quantities of thiopental,
7

8 pancuronium bromide, or potassium chloride in Bonin’s circulatory system.

9

Calderon never gathered his execution team to meet after the execution of

10

Bonin to discuss the process, including whether any problems arose, any unforseen
11

12 circumstances occurred, or whether any improvements in logistics, environment,

13 personnel, or the execution protocol should take place.
14
Since the execution of William Bonin over ten years ago, the State of
15
16 California has conducted ten more lethal injection executions. This has involved three

17 Governors, numerous CDCR Secretaries, four Wardens, at least six doctors, at least four
18
Registered Nurses, at least four Licensed Vocational Nurses, and perhaps 20 to 30 other
19
20 participants in the execution process. At no time has any Governor, Secretary of CDCR,

21 Attorney General, or Warden ever requested that an expert medical post-mortem analysis
22
be conducted with respect to an execution to ensure that it is being performed at the
23
24 highest level, let alone in compliance with the Eighth Amendment of the U.S.

25 Constitution. At no time after any lethal injection execution was a post-mortem record or
26

27

28

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1
assessment made that was more complete or comprehensive than that which the State
2
3 failed to conduct after Bonin’s execution.21

4

C. CDCR Execution Team Rehearsals are Undocumented, Abbreviated, and

5
Grossly Dissimilar to Actual Execution Procedures.

6

7

Witness #1 claims that the execution team’s “main mode of training would

8 be to do actual runs simulating execution.” RT 22, Mar. 30, 2006. He added that “the

9
training consist of actually practicing the process of pushing the syringes.” RT 52, Mar.
10
30, 2006. However, when the execution team practices, the syringes are not drawn
11

12 “according to the volume that you are going to inject” during an execution. UF 225.

13 Witness #6 testified that “[w]e just draw the syringes and pretending.” UF 225. “Just
14
whatever volume we pretend to play with and we do.” UF 225. If the formula says 25
15

16 cc’s, they might decide for a practice session to do 50 cc’s. UF 225.

17

Contrary to the misleading testimony of Witness #1, the execution team’s

18
rehearsal sessions do not resemble their actions during an execution. Witness #3 testified
19

20 that the team goes through the execution procedure in practice “over, and over, and

21 over,” at least seven or eight times in the course of two hours, because it is important that
22

23

21

24

Post-mortem photographs of K. Williams either were not taken or preserved by

CDCR. While post-mortem photographs were taken or retained by CDCR with respect to

25 the executions of Babbitt, Anderson, S. Williams, Siripongs, Thompson, Massie, Beardslee,

26 and Rich, the inmates’ arms at the catheter site either were not photographed or were intentionally obscured in the photographs. A blood smear or puncture site was

27 photographed of Clarence Allen’s left arm which appeared to also have tape or tubing at the

28 site.

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everybody is comfortable with their roles and what they are doing. UF 29. The
2
3 execution rehearsal sessions are supposed to consist of meetings and dry runs through the
4 procedure exactly as it is expected to proceed at an execution, except that the Pentothal is
5
not actually mixed into solution; the catheters are not inserted into anyone’s veins; water
6
is used in the syringes and IV bags; the IV lines empty the fluid into a bucket; the RN
7
8 typically takes the position of the Warden; and team members simulate the position of the
9 inmate. UF 30.
10
To execute an inmate, officers bring the inmate from a holding cell across
11
12 the hall from the gas chamber, through the anteroom of the gas chamber, and into the
13 chamber. UF 47a. While the team purportedly practices this “over, and over, and over”
14
to ensure that everybody is comfortable with their roles and what they are doing (UF 29),
15
16 Witness #1 believes that five peace officers walk the inmate into the chamber; Witness #4
17 thinks it’s four; and Witness #9 thinks it’s six. UF 47b.
18
Each practice session of an execution simulation would last for 15 to 17
19
20 minutes (i.e., seven or eight per two hours). UF 29. Witness #3 claims to know this
21 because he has been on the execution team since 1998, and has done this at practice
22
“over, and over, and over.” Id. When the execution team performs an execution,
23
24 however, it takes much longer to perform than the process they practice. In fact it takes
25 two to three times as long as whatever the team is practicing during its 15 to 17 minute
26
simulations. From the placement of restraints and EKG leads to the time Clarence Allen
27
28 was pronounced dead took 46 minutes – three times as along as a rehearsal simulation.
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Ex. 15. Stanley Williams’s execution took 45 minutes. Ex. 14. Stephen Anderson was
2
3 pronounced dead after 36 minutes – over twice as long as what the team rehearses. Ex.

4 12. The same 36 minutes was required for Massey’s execution. Ex.11. Siripongs took

5
44 minutes – again three times the length of a rehearsal dry run. Ex. 8. Beardslee took at
6
least 31 minutes (Ex. 13); Rich took 28 minutes (Ex. 10); Babbitt took 29 minutes (Ex.
7

8 9); and Thomas Thompson took 31 minutes. Ex. 7.

9

Based upon these contemporaneously recorded execution times, it is very

10

clear that execution team’s rehearsal simulations are very abbreviated, and could not
11

12 remotely resemble their conduct during an execution. CDCR generates no documents

13 during the training that refute this fact. UF 31. Moreover, CDCR generates no
14
documents to log or record the actual practices of the team during its training sessions.
15
16 / /

17 / /
18

19

20

21

22

23

24

25

26

27

28

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1
D. CDCR’s Numerous Discovery Abuses in This Case Have Interfered With

2

3

Plaintiff’s Opportunity to Evaluate and Present the Best Evidence in this

4

Case, and Now to Respond to the Court’s Inquiries as to the State’s Record-

5
Keeping Practices.

6

7

The Court is well-versed in CDCR’s repeated discovery abuses in this case,

8 at one point commenting that, “[t]he consideration of this Motion generates a distinct

9
sense of déja vu: in two prior Orders, issued on May 2 and June 9, 2006, the Court
10
addressed and resolved many of the issues.” Order at 2, Sept. 13, 2006 (footnotes
11

12 omitted). In theory it would seem reasonable to believe that at some point CDCR got the

13 message and provided full, complete, and accurate responses in compliance with
14
numerous Court orders. This is far from the case.
15

16

1. CDCR Communications Re Procedures Proposed by the Court.

17

Plaintiff’s Second Request for Production of Documents No. 3, demands:

18
“All documents and communications relating to CDCR’s considerations, assessment,
19

20 preparations for, planned implementation of and efforts to employ either or both of the

21 two alternative execution procedures proposed by the Court on February 14, 2006.”
22
Defendants responded: “Defendants object to this request as overbroad and unduly
23
24 burdensome. It is not reasonably calculated to lead to the discovery of admissible

25 evidence. Defendants further object that the requested information is protected by work
26
product, attorney-client, and deliberative process privileges.”
27

28

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1
Following plaintiff’s motion to compel, the Court ordered defendants to
2
3 “provide all documents pertaining to revisions of OP 770, including documents prepared

4 or generated in connection with the meeting with the Office of the Governor on February

5
28, 2006;” and “all communications regarding executions or lethal injection to or from
6
Drs. Rosko, Singler, and Ekins.” Mag. Seeborg’s Order at 7, Sept. 12, 2006.
7

8

Notwithstanding, CDCR made no search for communications by CDCR

9 pertaining to orders by the Court (UF 333), and made no search for documents pertaining
10
to meetings with government officials, or to communications with Dr. Singler. UF 334.
11

12

2. Employment and Supervisory Files of CDCR Employees Require Accuracy

13

and Regular Review by Management.

14
California law requires CDCR to maintain accurate records regarding its
15

16 employees. See Cal. Civ. Code §§ 1798.18 (“Each agency shall maintain all records, to

17 the maximum extent possible, with accuracy, relevance, timeliness, and completeness.
18
¶Such standard need not be met except when such records are used to make any
19
20 determination about the individual.”); Cal. Civ. Code § 1798.3. Indeed, CDCR’s

21 regulations provide that employee information considered “public,” which may be
22
released upon request, includes employee names, work locations, and job description,
23
24 duties, and responsibilities. Department Operations Manual (hereinafter “DOM,”

25 available at http://www.cya.ca.gov/BudgetRegs/DOM_TOC.html), § 33010.31.2. CDCR
26

27

28

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1
supervisors are required to “evaluate the performance of employees on a continuous
2
3 basis.” Id. at § 33010.30.3.

4

CDCR’s record-keeping regarding employees who perform lethal injection

5
executions fails to satisfy these statutes and CDCR regulations. For example, the Legal
6
Affairs Coordinator for San Quentin, Denise Dull, was forced to rely on memory to create
7

8 a list of current and former lethal injection team members. UF 320. If this is so, CDCR

9 is not maintaining “public” employee information as required by DOM § 33010.31.2.
10
According to CDCR’s discovery responses herein, there are no documents
11
12 reflecting the nomination and approval of execution team members, or personnel or

13 disciplinary review of team members; no written evaluations of team members with
14
respect to their work on the execution team; and no documents relating to the assessment
15
16 of members’ competence to participate in an execution. If these responses are accurate,

17 CDCR supervisors are failing to conduct performance evaluations as required by DOM §

18
33010.30.3.
19

20

CDCR employees have personnel and supervisory files. See UF 167. Each

21 execution team prospective member and team member therefore has a supervisory file.
22
UF 167. The Court has ordered CDCR to produce same for inspection because, “Plaintiff
23
24 is entitled to information regarding the training, experience, and competence of

25 execution-team members - including . . . employment . . . records . . . .” Mag. Seeborg’s
26
Order at 5, May 2, 2006. Defendants have not produced the supervisory files of any
27

28

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1
execution team member to plaintiff for inspection and review. UF 168. CDCR’s petulant
2
3 failure to do so violates the Court’s May 2 order.

4

While this Court has made inquiry, “[i]n light of the evidence in the record,

5
what steps can and should Defendants take to improve their actual . . . record-keeping”
6
(Order at 2, Oct. 3, 2006), it is impossible for plaintiff to respond, in part due to CDCR’s
7

8 continuing disregard of the Court’s orders. However, based on the qualifications of the

9 individuals acknowledged to be on the execution team, it is apparent that CDCR either
10
has failed to review the execution team member files during its selection and screening
11
12 processes, or it simply does not care about the content of the files and the makeup of the

13 team. A careful analysis of what plaintiff expects would be in the files – including
14
records of discipline, criminal conduct, work disabilities, and mental illness – would have
15
16 formed a predicate for CDCR management to reasonably disqualify numerous members

17 from participating on the execution team. Moreover, it would have formed the
18
reasonable basis for management distrust of a number of execution team members’
19
20 judgment, proficiency, professionalism, stability and their having qualifications necessary

21 to ascend to positions of leadership and management on the execution team.

22
3. Warden Ornoski’s 2005 Visit to Texas’s Death Row.
23

24

Warden Vasquez, Warden Calderon, Witness #5, and Warden Ornoski were

25 sent by CDCR to Texas on various occasions to personally witness the State of Texas
26
perform a lethal injection execution. Warden Ornoski stated that, “from [his] personal
27
28 observation it was fairly quick. Significantly quicker than California’s.” UF 117e.

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Plaintiff’s Third Request for Production of Documents No. 24, demands “All writings
2
3 generated from Warden Ornoski’s direction to visit, and visit to the State of Texas to

4 observe an execution, whether created by Warden Ornoski, Eric Messick, or any other

5
CDCR employee.” Defendants responded that: “There are no such written materials. . . .”
6
Denise Dull testified at her deposition, however, that “CDCR did not
7

8 request documents from Warden Ornoski related to his 2005 visit to Texas’ execution

9 chamber that were subject to plaintiff’s discovery request.” UF 329 (emphasis added);
10
see also UF 330 (CDCR did not request any documents from any San Quentin warden,
11
12 present or former, in response to plaintiff’s requests). CDCR’s discovery abuse has

13 impeded plaintiff’s ability to address the Court’s inquiries as to the best practices of other
14
jurisdictions – information which in part is uniquely possessed by the State.
15

16

4. Documents Pertaining to Changes to O.P. 770.

17

Plaintiff’s Second Request for Production of Documents No. 12, demands

18
“All documents and communications relating to CDCR’s decision, in previous
19

20 executions, to use four syringes to administer the 5-gram dose of sodium thiopental,

21 rather than the single syringe called for by Procedure No. 770.” Defendants objected:
22
“Inasmuch as the described procedure is no longer used defendants object to this request
23
24 as overbroad and unduly burdensome. It is not reasonably calculated to lead to the

25 discovery of admissible evidence.”
26
Following plaintiff’s motion to compel, the Court ordered that CDCR “shall
27
28 provide all documents pertaining to revisions of OP 770 . . . .” Mag. Seeborg’s Order at

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1
7, Sept. 12, 2006. Notwithstanding, Denise Dull testified that “CDCR did not make any
2
3 search for documents related to a change in the number of syringes used for execution.”

4 UF 332; see also UF 330 (CDCR did not request any documents from any San Quentin

5
warden, present or former, in response to plaintiff’s requests).
6
5. Documents Regarding Problems with Prior Executions.
7

8

Plaintiff’s Second Request for Production of Documents No. 14, demands:

9 “All documents and communications relating to consideration of, evaluations of or
10
investigations into problems or deviations from procedure No. 770 that occurred during
11

12 the course of conducting recent executions, including but not limited to the failure of

13 Stanley Williams’s left IV line and the need to administer a second dose of potassium to
14
Clarence Allen.” Defendants responded: “There are no such documents.”
15

16

It is now clear that defendants did not even look for such documents. UF

17 332 (CDCR did not make any search for documents pertaining to problems during
18
executions); see also UF 330 (CDCR did not request any documents from any San
19
20 Quentin warden, present or former, in response to plaintiff’s requests); UF 325 (no search

21 of state archives where files related to executed inmates are kept).

22
6. Documents Generated by Dr. Thomas Rosko.
23

24

Plaintiff’s Third Request for Production of Documents No. 39, demands:

25 “All documents, notes, or writings prepared by Dr. Rosko with respect to weighing in
26
with Warden Ornoski with Dr. Rosko’s opinions on the execution system used at San
27

28

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1
Quentin that is referred to in Warden Ornoski’s Deposition at 97-98.” Defendants
2
3 responded: “There are no such documents.”

4

However, it is now clear that defendants did not even look for such

5
documents. UF 334 (CDCR did not make any search for documents generated by Dr.
6
Rosko); see also UF 330 (CDCR did not request any documents from any San Quentin
7

8 warden, present or former, in response to plaintiff’s requests).

9

7. Copies of Team Leader Memos.

10

Plaintiff’s Third Request for Production of Documents No. 16, demands:
11

12 “All team leader memos to supervisors of execution team members referred to by Witness

13 #3, in his deposition at 93.” Defendants responded, “As there is no such document
14
referenced at the designated page Defendants are unable to respond.” In the meet and
15
16 confer related to plaintiff’s subsequent Motion to Compel, plaintiff provided the correct

17 page designation. The Court ordered defendants to produce responsive documents within
18
their control. Mag. Seeborg’s Order at 3, Sept. 12, 2006. Defendants have never
19
20 supplemented the response.

21 / /
22
/ /
23

24

25

26

27

28

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1
E. CDCR’s Unlawful Behavior and Disregard for This Court’s Orders

2

3

Abrogates the State’s “Strong Interest in Proceeding With its Judgment.”

4

In light of CDCR’s repeated refusal to observe and comply the orders of

5
this Federal Court, the State’s purported strong interest in proceeding with its death
6
7 judgment does not pass the straight-face test. The State has thumbed its nose at every

8 order issued by this Court during the days surrounding the scheduled execution of

9
Michael Morales, and in the litigation that has followed. It continues its contemptuous
10
behavior to date. Any further reference to the State’s interests noted in Gomez v. U.S.
11

12 Dist. Ct. N.D. Cal., 503 U.S. 653, 654 (1992) can be theoretical only because the State

13 has neither earned nor guarded any such interest.
14
The equitable principles which demand respect for the timely enforcement
15
16 of a State’s judgment (see Nelson v. Campbell, 541 U.S. 637, 650 (2004)) are completely

17 inapplicable here. “[T]he public interest only is served by enforcing constitutional rights
18
and by the prompt and accurate resolution of disputes concerning those constitutional
19
20 rights. By comparison, the public interest never has been and could never be served by

21 rushing to judgment at the expense of a condemned inmate’s constitutional rights.”
22
Cooey v. Taft, 430 F. Supp. 2d 702, 708 (S.D. Ohio 2006). This litigation could have
23
24 proceeded in a timely and ordered manner had CDCR not consistently obstructed

25 appropriate discovery, and consistently ignored – even to date – many of its obligations
26
imposed by this Court’s orders.
27

28

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1
The discovery problems are manifest, and are detailed in this Court and the
2
3 Magistrate Judge’s prior orders. In this regard, it should further be noted that Bruce
4 Slavin’s notes from the February 28, 2006 meeting of defendants at the Governor’s office
5
was produced to plaintiff after 5:00 p.m. on the Friday evening before the evidentiary
6
hearing commenced. Additionally, the deposition of David Silacci, the Pharmacist in
7
8 Charge at San Quentin, was taken on the afternoon of the day before the commencement
9 of the September 26, 2006 hearing.
10
Plaintiff’s difficulties in this action are not exceptional in the world of
11
12 litigation involving CDCR. Last year, the United States District Court for the Northern
13 District found in CDCR “a vacuum of leadership” (Plata v. Schwarzenegger, 2005 U.S.
14
Dist. LEXIS 8878, *2 (N.D. Cal 2005); found that CDCR is “a highly dysfunctional,
15
16 largely decrepit, overly bureaucratic, and politically driven prison system . . .” (id.);
17 found that compliance by CDCR with court orders regarding San Quentin State Prison
18
has been “non-existent” (id. at *11); and found that “at least a portion” of CDCR’s
19
20 inability to cure constitutional violations “has been an inability to penetrate and motivate
21 an intransigent and resistant bureaucracy that has long been in place.” Id. at *26 n.5.
22
Accordingly, any harm to be caused by a delay in the resolution of
23
24 plaintiff’s claims is harm self-inflicted by defendants. In a death sentence case, “[s]elf-
25 inflicted harm that could result from the issuance of [] injunctive relief should not
26
necessarily preclude an injunction. Cf. Pappan Enters. v. Hardee’s Food Sys., Inc., 143
27
28 F.3d 800, 806 (3d Cir. 1998) (holding in trademark infringement case that “a party’s
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1
self-inflicted harm by choosing to stop its own performance under the contract and thus
2
3 effectively terminating the agreement is outweighed by the immeasurable damage done to

4 the franchiser of the mark”); Midwest Guar. Bank v. Guaranty Bank, 270 F. Supp. 2d

5
900, 924 (E.D. Mich. 2003) (holding that a party “cannot place itself in harms way, and
6
then later claim that an injunction should not issue because of costs which it must incur in
7

8 order to remedy its own misconduct”).” Cooey v. Taft, 430 F. Supp. 2d 702, 708 (S.D.

9 Ohio 2006). CDCR has continued with an unbroken pattern of misrepresentation,
10
obstruction and malfeasance, which has significantly delayed resolution of this matter and
11
12 will continue to delay an informed, deliberate, and reasoned adjudication of plaintiff’s

13 claims.
14
15

It should further be noted that the instant case is not analogous to those

16 circumstances in which courts have repeatedly recognized States’ strong interest in

17 proceeding with their judgments of death. See Gomez v. United States Dist. Court, 503
18
U.S. 653, 654 (1992); Cooper v. Rimmer, 358 F.3d 655, 656 (9th Cir. 2004); Nelson v.
19
20 Campbell, 541 U.S. 637, 650 (2004). Those cases are limited to situations where an

21 inmate brings a last-minute challenge to his method of execution, as an “obvious attempt

22
at manipulation.” See Gomez, 503 U.S. at 654.
23

24

Here, the Court has recognized that, as “Plaintiff is not guilty of undue

25 delay in bringing his claim, there is no presumption against the grant of a stay due to
26
delay, much less the ‘strong equitable presumption’ identified by the Supreme Court in
27
28 Nelson, 541 U.S. at 650.” Morales v. Hickman, 415 F. Supp. 2d 1037, 1042 (N.D. Cal.

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1
2006). No Court has held that, once an inmate’s challenge to a method of execution has
2
3 been recognized as timely, there remains a cognizable difference between a State’s

4 interest in executing an inmate within 24 years of his incarceration, or 25, or even 50.

5
Accordingly, and for the foregoing reasons, equity demands that CDCR comply with this
6
Court’s discovery orders to ensure a careful, deliberate and reasoned evaluation of
7

8 plaintiff’s claims, taking as long as necessary to adequately secure his Eighth

9 Amendment rights.
10
This matter should be stayed until CDCR complies with this Court’s
11
12 existing discovery directives, and plaintiff can conduct an orderly review of the responses

13 and documentation, and thereafter respond to the questions posed by the Court in its
14
October 3, 2006 order.
15

16

F. While Defendants Have Largely Concealed Their Record-Keeping

17

Procedures, It Is Clear That Their Practices Regarding Execution Logs Are

18
Unnecessarily Complex and Inconsistent.
19

20

For each California execution, an execution log is prepared by a “recorder”

21 from defendants’ execution team. For the Beardslee, Stanley Williams, and Allen
22
executions, Witness #9 was the recorder and was stationed at a desk outside the anteroom
23
24 of the death chamber approximately four feet from the death watch cell between midnight

25 and 2:00 a.m., and he “couldn’t see what was going on” during the executions. UF 131.
26

27

28

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1
Witness #1 taught Witness #9 what information needs to be recorded – “you write down
2
3 everything the inmate does.” UF 132.

4

Witness #9 writes down everything he sees based upon his own personal

5
observations, except “the time of each push to the time of the pronouncement of death . . .
6
.” UF 133. He obtained that information from either Witness #1 or Maurice Lyons for
7

8 the Beardslee execution, and from Witness #20, a maintenance supervisor, for the Stanley

9 Williams and Clarence Allen executions. UF 133. Witness #9 gives Witness #20 a list of
10
the times he wants recorded during the execution, and Witness #20 records the times on a
11
12 piece of paper while watching the execution from the anteroom, based upon the times on

13 the clock. UF 134. Witness #9 then records these times in the log book and destroys the
14
written list provided by Witness #20. UF 134. Witness #20 also has other jobs during
15
16 the execution. UF 134.

17

The selected times noted in the logs by Witness #9 between the time the

18
inmate is escorted into the gas chamber until the pronouncement of death vary for the
19

20 Williams and Allen executions. Accordingly, Witness #9 either requested different times

21 from the maintenance person, or the maintenance person records whatever times he
22
wants. Compare Ex. 14 with Ex. 15. Witness #9 has no recollection of ever revising the
23
24 Stanley Williams execution log entries after the execution. UF 135. All of the entries on

25 the log, Exhibit 14, between 0019 hours and 0035 hours were provided to him by Witness
26
#20. UF 135.
27

28

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1
Witness #9 testified that upon completion of his recorder responsibilities
2
3 after an execution, he would give all of his recorded information to Denise Dull on the

4 evening of the execution. UF 132.

5
The doctor’s log which lists, among other things, the number of doses of
6
potassium chloride given to the inmate, is missing for the Thompson execution, and
7

8 defendants cannot explain why. UF 125a.

9

Dull testified that “[t]he doctor’s log is given to the recorder who’s a team

10

member.” UF 319. The recorder, who prepares a separate handwritten log, “is supposed
11

12 to put down the times that the doctor has recorded when the different injections take place

13 and certainly when the flat line is called.” UF 319. Dull claims that a day or two after
14
the execution, the recorder gives both logs to Dull. UF 319.
15

16

Witness #1 was the recorder from the Thompson execution through the

17 Anderson execution. UF 299. He claims that he obtained the times of administration of
18
drugs for the handwritten logs from the doctor’s logs provided after the execution, or the
19
20 Operations Center records. UF 299. Defendants have failed to produce any Operations

21 Center records for any execution. UF 300.
22
The entire execution team remains at the execution chamber area after an
23
24 execution. UF 156. Witness #9 has observed that the team takes the inmate out of the

25 chamber, “do postmortem on him,” and he testified that they videotape the events. UF
26
156. Witness #9 prepares the “evidence sheet” for the “incident package” at that time.
27
28 UF 156. Photographs of the inmate also are taken by Witness #1, #5, or #33. UF 156.

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1
Defendants have never produced to plaintiff for inspection the videotapes, and advise that
2
3 Witness #9’s testimony is inaccurate as to the existence of same, or the evidence sheets,
4 incident packages, or postmortem reports from any execution. UF 157.
5
In summary, CDCR has an execution log kept by one of the few people
6
who is not present in the anteroom during the execution, to make recordings of the times
7
8 and events that occur in the anteroom. This procedure is imbecilic and undermines
9 authenticity and accuracy of the logs. It is unclear when these logs are recorded: One
10
witness claims the completed log is delivered to the Litigation Coordinator on the
11
12 evening of the execution, thereby giving credibility to the notion that the record is
13 contemporaneous, or close to it; the other witness claims it is not produced to her until a
14
day or two after the events have occurred, giving rise to the possibility that the record is
15
16 not made contemporaneously and is made with outside consultation to improve the record
17 for CDCR. The log may include information taken from a doctor’s log or it may not.
18
Witness #1 testified that the information he used for the logs was obtained from the
19
20 Operations Center records – none of which has ever been provided to plaintiff. To the
21 extent that Witness #1 and other recorders relied on Operation Center records to produce
22
execution logs, those logs could not be contemporaneous or presumptively accurate.
23
24 Defendants’ representative has advised plaintiff that the execution team also produces
25 videotapes, evidence sheets, incident packages, and postmortem reports, none of which
26
have been given to plaintiff. In light of these extensive failures, misrepresentations and
27
28 conflicting accounts, it is impossible at this time for plaintiff to conduct the analysis
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1
necessary to full respond to the Court’s inquiry as to what steps defendants can and
2
3 should take to improve their record-keeping as it pertains to execution logs.

4

G. While Pharmacy Logs Accurately Record the Dispensation of Lethal

5
Drugs to Execution Team Members, Defendants Keeps No Records Reflecting

6

7

The Disposition of the Drugs.

8

At set forth above in full in Section 1(a)(5), Witness #1 repeatedly obtained

9
large amounts of sodium thiopental from San Quentin’s pharmacy by advising the
10
pharmacist that he needed it for execution team “practice.” Drugs are not used in the
11

12 execution team’s rehearsal sessions. UF 26, 30, 147. The syringes used are filled with

13 water. Id. The execution team does not practice mixing Pentothal. Id. Specifically,
14
Witness #4 never had mixed Pentothal before the evening of a scheduled execution (UF
15
16 34); Witness #7 never has received training on how to mix sodium thiopental, either

17 before or after joining the execution team (UF 194); and Witness #6 never received any
18
training on how to mix thiopental. UF 210. Witness #1 confirmed: “we use just regular
19
20 saline or water for training purposes and we fill them up appropriately” (RT 75, Mar. 30,

21 2006), as did every other member on the execution team.
22
San Quentin’s pharmacy logs are kept pursuant to federal statute, and are
23
24 reviewed by the Pharmacist in Charge every month. UF 25m. The pharmacy is required

25 by federal law to perform periodic inventory counts, and it does. UF 25j. Pentothal is
26
kept in a locked cabinet at the San Quentin pharmacy. Id. All of this is not managed by
27

28

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1
the incompetence of CDCR, but by an independent licensed pharmacist who is employed
2
3 by Drug Consultants, Inc., a company retained to eradicate some of the many health care

4 failures of CDCR at San Quentin. UF 26q. Drug Consultants, Inc. reports to the receiver

5
who has been appointed by this federal court to manage San Quentin’s health care. Id.
6
In this regard, the pharmacy logs are contemporaneously made pursuant to
7

8 federal law in order to accurately state the receipt or disposition of Pentothal and the

9 amount of same, as well as the reasons provided for dispensing same. UF 25i. The logs
10
are accurate; the reasons provided by Witness #1 to the pharmacy with respect for his use
11
12 of Pentothal are not. Witness #1 lied to the pharmacy in order to unlawfully take

13 possession of at least 20 grams of Pentothal in 2005.
14
Witness #1 also lied to the pharmacy in order to unlawfully take possession
15
16 of at least 37.5 grams of Pentothal for executions that occurred in 2005 and 2006, when

17 only 16.5 grams were required. It is a stipulated fact that the execution team never broke
18
a vial of thiopental during preparation for an execution. UF 26e. It also is a stipulated
19
20 fact that no Pentothal was returned to the pharmacy by Witness #1, Witness #5, any other

21 execution team member, or by anyone after the State’s 2005 and 2006 executions. UF
22
26g. The parties agree that the Controlled Substance Inventory Log also confirms this
23
24 fact. UF 26g.

25

The problem at San Quentin is that there is no policy that allows Mr.

26
Silacci, the P.I.C., to review the quantity of Witness #1’s requests for thiopental sodium,
27

28

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1
or the reasons for the request. UF 26l. It is this failure at San Quentin that provides
2
3 Witness #1 with his platform to obtain controlled substances for unauthorized use.

4

H. Necessary Steps Defendants Can and Should Defendants Take to Improve

5
Their Actual Implementation of Their Record-keeping, Including the

6

7

Preparation, Content and Reliability of Execution Logs and Records

8

Indicating the Disposition of Drugs Used in Training and in Executions.

9

10
1. Record-keeping Regarding the Assembly of the Execution Team.
11

12

As stated by Dr. Heath in his post-trial declaration, the failure to screen

13
execution personnel has been a consistent problem at CDCR, and this failure has had
14
direct consequences on the risk level of the execution process. CDCR must adopt a
15

16 formalized application process for potential team members, including both a written

17 application and formal letters of recommendation from current supervisors. A formalized
18
application process would help to identify and screen out inappropriate candidates and, in
19
20 general, help to contribute to a professionalization of the execution team. CDCR must

21 also gather and maintain written records concerning each individual execution team
22
applicant. A minimal record policy would include the applicant’s entire CDCR personnel
23
24 file, medical and psychiatric history, as well as disciplinary and, where appropriate,

25 criminal records.22

26
22

27

CDCR allows employees to destroy adverse personnel records after five years.

28 Plaintiff can present testimony from Witness #5, among others, that he periodically

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1
2. Record-keeping Regarding Training of Execution Team.

2

3

As the evidence elicited to date clearly reveals, the training undergone by

4 the execution team is insufficient, haphazard, and entirely undocumented. Thus far, the

5
“training” conducted by the execution team has consisted exclusively of rehearsing the
6
execution on a fellow-team member. In seeking to professionalize the execution
7

8 procedure, the drafting of a written training protocol is compulsory. An adequate training

9 process would include formal contingency training as well as medical supervision.
10
Moreover, written reports should be generated at the conclusion of each training session,
11

12 both to ensure that the training regimen is complied with and as a tool for the continued

13 professional development of the execution team. Finally, written performance
14
evaluations of each team member should regularly be generated and maintained so as to
15
16 ensure professionalization as well as continued oversight of the members of the execution

17 team.
18

19

20

3. Record-keeping Regarding Drug Custody.

21

As stated by Dr. Heath in his Post-Trial Declaration, “The execution teams’

22
contemporaneous recordkeeping should be sufficient to allow the team and the CDCR
23

24 and the public to discern, after the fact, whether the protocol was followed and the drugs

25 inspected and purged disciplinary records from his file. It was only through depositions
26 and court docket searches that some criminal records of team leaders and members were uncovered. Because executions are the most important task at San Quentin, this document
27 destruction policy and practice must be discontinued for lethal injection team members to
28 allow adequate screening and supervision.

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1
were properly prepared, and whether any unexpected events occurred during the
2
3 execution.” Further, “Precise and reliable recordkeeping is part of an environment and

4 culture of adherence, carefulness, and accuracy, and as such is conducive to correct and

5
reliable accomplishment of a complex procedure.”
6
To this end, detailed records should be maintained concerning the custody
7

8 and maintenance of all drugs used in the execution protocol. While pharmacy logs are

9 kept pursuant to federal law and reviewed by the Pharmacist in Charge every month, this
10
is clearly not sufficient to ensure professionalism of the execution team, and oversight
11
12 and uniformity of the execution protocol. A separate and more detailed log should be

13 maintained by the execution team for the drugs dispensed for executions. Minimally
14
necessary to ensure some form of professionalism are records of the person mixing the
15
16 drugs, the time and place of mixing, the precise amount mixed, and the disposition and/or

17 mixing of any backup doses. Some sort of supervision or oversight should be required to
18
confirm that the information being filled out is accurate and complete. An accountability
19
20 process should be instituted so that drug irregularities are identified and dealt with

21 promptly. This would include immediate notification to the warden, and likely other
22
supervisors, of any problem and subsequent prompt investigation producing a written
23
24 report.

25

4. Record-keeping Regarding the Actual Execution.

26
The State never has developed or maintained adequate record-keeping
27

28 procedures regarding the actual execution process. This, too, has contributed to a climate

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1
of unaccountability and unprofessionalism among the execution team, and significantly
2
3 enhanced the risk level implicated in the execution process. A significantly more
4 comprehensive execution log should be developed and maintained. This log should be
5
maintained by a witness who is not part of the execution team and who is, therefore, less
6
likely to manipulate the data – consciously or not – so as to create the impression of a
7
8 seamlessly carried-out execution. The execution log should list the names of the
9 execution team members and their precise roles for that execution, the names of all
10
witnesses, the names of all others present during the execution, as well as their reason for
11
12 being present. Locations where people are stationed should be noted. The execution log
13 should also detail the exact times that each drug began to be administered. (One way to
14
accomplish this is to use an EKG machine with a properly calibrated time stamp, and
15
16 mark the log at the precise time each syringe is started.) The settings for the EKG
17 machine should also be recorded. Furthermore, if any monitoring devices are used, all
18
data concerning the execution should be recorded and maintained. Moreover,
19
20 contemporaneous notes should be kept that detail the execution itself, highlighting any
21 problems or difficulties encountered by the execution team in carrying out the protocol,
22
so that review and correction can take place. Finally, the exact time of death as well as
23
24 the identity of the person making that determination should be recorded in the execution
25 log. Dr. Heath’s suggestion of videotaping the entire execution would certainly help
26
ensure that this complicated medical procedure is consistently and properly carried out.
27
28 Indeed, China has instituted just such a procedure for its lethal injection executions.
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1
5. Post-mortem Record-keeping.

2

3

Finally, detailed post-mortem record-keeping should be initiated and

4 maintained. After each execution a full autopsy should be conducted as a way to attempt

5
to confirm that the execution protocol worked as intended. Detailed records of all post-
6
mortem tests and analysis should be maintained again as a way to help foster a culture of
7

8 accountability and professionalism as well, as to help to ensure that the execution

9 protocol meets its goal of carrying out this procure in a uniform and – under the
10
circumstances – humane manner. This would include color photographic recording of the
11

12 condition of the inmate’s body, including catheter sites, the locations of restraints and

13 extremities. The appearance of the chamber area and the inmate’s clothing should also be
14
photographed to determine the presence of IV fluids or blood on either.
15
16 / /

17 / /
18

19

20

21

22

23

24

25

26

27

28

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1
1. In light of the evidence in the record, what steps can and should Defendants take 2 to improve their actual implementation of the three-drug protocol described in O.P. 3 770. In answering this question,
The court is particularly interested in the parties’ views as to whether the 4 experience of other jurisdictions that use a three-drug protocol might be useful with 5 respect to these matters.

6

7

A. CDCR’s Execution Practices are Substandard to the People’s Republic of

8

China.

9
In March 1996, i.e., approximately the same time that California conducted
10
its first lethal injection execution, the Chinese National People’s Congress reportedly
11
12 approved legislation authorizing the use of lethal injection for executions.23 China’s first

13
lethal injection executions were conducted on March 28, 1997, in Kunming city in
14
southwest China.24 “Kunming officials said more than 1,000 experiments were
15

16 conducted on animals in developing the injections and executioners were taught to locate

17 veins by practicing on rabbits.” Id. Before performing any lethal injections,
18

19

20

experiments and research [were] conducted under a pilot

21

scheme at the Kunming Court Hospital led by hospital

22

23

23

Amnesty International, Lethal Injection: the Medical Technology of Execution, at

http://web.amnesty.org/library/Index/engACT500011998#CHI (Jan. 30, 1998) (hereinafter,

24 “Amnesty Report”).

25

24

26

Associated Press, China to Adopt Lethal Injections Nationwide, available at

http://archives.cnn.com/2000/ASIANOW/east/08/31/china.injection.ap/ (Sept. 1, 2000).

27

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1
director Wang Jun. Wang Jun and his team concocted two

2

3

lethal preparations of drugs identified only as ‘number one’

4

and ‘number two’ and by 28 March these were ready for

5
testing. Wang Jun, working with court personnel, picked two
6
death row convicts and personally administered the
7

8

injections. The prisoner executed by mixture ‘number one’

9

was sitting, took 3 minutes and 45 seconds to die and his face

10

appeared to show expressions of pain, the newspaper said.
11

12

The second mixture killed the other prisoner, who was lying

13

down, in just 1 minute, according to the paper. He appeared

14
to experience no pain.
15

16 Amnesty Report.

17

By contrast, California – which, unlike China, must comply with the Eighth

18
Amendment – performed no experiments or testing in developing its injections. The
19

20 doses of drugs used in California were derived by scriveners error after Warden

21 Vasquez’s visit to the State of Texas. The California delivery system, facility, and
22
execution personnel are not the result of any careful planning or review. Unlike China,
23
24 California illegally uses untrained and unsupervised LVNs to locate veins during an

25

26

27
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1
execution. LVNs neither perform such practices while at work at CDCR, nor participate
2
3 in any education or practice before doing so at an execution.

4

China authorities concluded their research and adopted its particular lethal

5
injection concoction only “after test executions involving another 20 death row prisoners,
6
aged between 20 and 35, weighing from 50 kg (110 lbs) to 68 kg (150 lbs), well
7

8 nourished and with no record of cardiac disease.” Id. Neither similar knowledge nor

9 expertise underlies CDCR’s execution method, despite the fact that CDCR has traveled to
10
witness other practices employed elsewhere. Warden Ornoski personally witnessed the
11
12 State of Texas perform a lethal injection execution, “and from [his] personal observation

13 it was fairly quick. Significantly quicker than California’s.” UF 117e.
14
By contrast, Warden Vasquez opposed the use of lethal injection in
15
16 California after he visited Texas. UF 265a. Vasquez remembers in “one case they took

17 45 minutes to find a usable vein on a condemned inmate that was going to be put to
18
death. And finally, even with the inmate’s help, they found a vein, and it was in his
19
20 scrotum and there was only one vein they could use, and they used that one vein to

21 induce the poison or overdose medicine. And I remember that stuck out in my mind.”
22
UF 265b. Vasquez ultimately approved lethal injection as a method of execution for
23
24 California, but only with the understanding that unconsciousness would occur in a matter

25 of seconds. UF 265e.
26

27
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CDCR conducts its executions in an out-dated, cramped gas chamber with
2
3 an undersized and dark anteroom. Medical devices and equipment are strung between the

4 two rooms. It uses chemicals retrieved by criminals and mixed by untrained and

5
unsupervised prison staff, while ensuring that there is no meaningful oversight or review.
6
In China, many “inmates are now executed in purpose-built vans in an almost clinical
7
8 setting.”25 “The contents

9 of the drug cocktails used
10
for the lethal injections are
11

12 mixed in Beijing and

13 delivered to local
14
intermediate courts where
15
16 trials take place.” Id.

17 “Executions in death vans
18
are recorded on video and
19
20 audio that is played live to local law enforcement authorities — a measure intended to

21 ensure they are carried out legally.”26 Doctors are on board throughout the process.

22

25

23

Antoaneta Bezlova, China’s Mobile Death Fleet, Asia Times Online, at

http://www.atimes.com/atimes/China/HG21Ad01.html (July 21, 2006) (emphasis

24 added).

25

26

26

Calum MacLeod, China Makes Ultimate Punishment Mobile, USA Today,

available at http://www.usatoday.com/news/world/2006-06-14-death-van_x.htm (June 15,

27

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1
No such audits to ensure Constitutional conduct take place in California
2
3 where they are clearly more warranted than in China. In California, it is undisputed that

4 CDCR attempted to conduct Michael Morales’s execution without regard to the law and

5
this Court’s specific orders.
6
While China’s human rights record is the frequent subject of much
7

8 criticism, its care and diligence in ensuring humane lethal injection executions far

9 outstrips CDCR’s minimal, if not non-existent,27 efforts.
10
/ /
11

12 / /

13

14

15

16

17

18

19

20

21

22 2006).

23

27

24

See UF 2: After this Court indicated that plaintiff had raised “substantial questions”

whether CDCR’s implementation of California’s lethal injection execution law created “an

25 undue risk that Plaintiff will suffer excessive pain when he is executed,” CDCR made

26 certain changes to their procedure that they anticipated would allow executions “to proceed more quickly and efficiently.”

27

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1
2. Assuming the continued use of pancuronium bromide and potassium chloride in

2 executions, what are the advantages and disadvantages of using a longer-acting

3 barbiturate, such as pentobarbital, with or without the use of a narcotic, to induce unconsciousness? What modifications to O.P. 770 would be necessary?

4

5

Using pentobarbital in the three-drug protocol may be less risky than using

6 thiopental, simply because pentobarbital is not as unstable as thiopental. Regardless of

7
what drugs are used to induce unconsciousness, however, so long as the protocol includes
8
pancuronium and potassium, it is imperative that the protocol provide for effective
9

10 assessment of anesthetic depth. Pentobarbital – like any anesthetic or analgesic given

11 prior to the pancuronium and potassium – would be equally subject to drug delivery
12
failures, drug diversion, and failure to have its expected effect as is thiopental. See infra
13

14 (section discussing the need to monitor anesthetic depth when using potassium and

15 pancuronium). Only effective monitoring of anesthetic depth could reasonably minimize
16
the risk of pain and suffering created by the use of pancuronium and potassium.
17

18

This is particularly true given the evidence of the pharmacokinetics and

19 pharmacodynamics presented at the hearing. Plaintiff’s knowledge of pentobarbital is
20
somewhat more limited, as it was not the subject of the hearing. A short-acting
21
22 barbiturate, pentobarbital takes somewhat longer to act than thiopental, but lasts longer

23 (i.e., its half-life is longer). An analysis of the necessary dose, concentration and rate of
24
administration of pentobarbital would have to be performed to determine how it would be
25
26 affected by the limitations inherent in O.P. 770 and the persons being used to accomplish

27
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1
executions. Heath Decl. ¶ 35. In other words, while pentobarbital may have
2
3 characteristics that make it a safer drug than thiopental, substituting pentobarbital, while

4 maintaining all the pharmacokinetic and pharmacodynamic difficulties inherent in the

5
process, will not reasonably ensure humane executions.
6
A. Expert Ethical Limitations.
7

8

Dr. Heath and Dr. Ebling are constrained in their ability to comment on the

9 particulars of any hypothetical protocol by their personal ethics. Therefore, they are
10
unable to provide a detailed discussion of the relative advantages and disadvantages of
11

12 using pentobarbital, with or without a narcotic. Dr. Concannon’s expertise does not

13 extend beyond veterinary medicine, and he cannot comment on the potential effects of
14
these drugs on humans. Plaintiff’s counsel, therefore, cannot provide the Court with a
15
16 detailed discussion of the advantages and disadvantages of the hypothetical protocol

17 suggested by the Court, both because of Plaintiff’s inability to consult with his experts on

18
these questions, and because of counsel’s own ethical limitations.
19

20

These difficulties simply highlight the need for the CDCR to embark upon a

21 thorough process of seeking expert input into the optimal humane method of execution.
22
Clearly, there are experts who will not be prevented by their personal ethics from
23
24 participating. See RT 488-90. Dr. Singler was able to provide fairly wide-ranging advice

25 on the protocol, and may have provided even more had the Defendants not rejected all of
26

27
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1
his suggestions. RT 600. Other states’ protocols have been designed and implemented
2
3 by medical personnel, including Oklahoma’s original protocol. Heath Decl. ¶ 58. Thus,

4 it should be possible for the CDCR to retain experts to carefully consider the issues raised

5
by the Court’s questions.
6
B. The Substitution of Pentobarbital or Another Longer-Acting
7

8

Barbiturate for Thiopental.

9
Pentobarbital may be a less risky drug than thiopental for inducing
10
anesthesia in executions because it does not possess some of the characteristics that
11

12 render thiopental a particularly poor drug to use in executions. Thiopental’s concerning

13 characteristics include its effervescent nature, its varying half-lives and rapid re-
14
distribution into and accumulation in tissues other than the brain. RT 298, 323-24. Most
15
16 significantly, the AVMA has concluded that pentobarbital is the best barbiturate to use

17 (as the sole agent) in animal euthanasia, because it is “potent, long-acting, stable in
18
solution, and inexpensive.” AVMA Report, Ex. 42, at 680. The fact that the AVMA,
19
20 after thorough expert consideration, has come to this conclusion may indicate that

21 medical experts would come to the same conclusion with respect to using pentobarbital in

22
humans.
23

24

Specifically, pentobarbital is longer-acting then thiopental, which may

25 reduce the danger that the anesthesia could wear off in the middle of the execution. See
26

27
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RT 264, 298 (“[Thiopental] also has features that allow it to very rapidly wear off. It is
2
3 not used to maintain anesthesia per se.”); Concannon Trial Aff. ¶ 27 (“Thiopental has the

4 potential to wear off if any delays occur during the euthanasia procedure or if the

5
complete dosage is not properly administered.”). In addition, pentobarbital is stable in
6
solution, Heath Decl. ¶ 32, so CDCR may be able to purchase it in solution form, which
7

8 would eliminate the need for execution team members to mix the drug into solution

9 themselves.28
10
A disadvantage of pentobarbital might be its somewhat slower onset time.
11

12 RT 425. Pentobarbital would not be used to induce anesthesia in a clinical setting

13 precisely because it takes longer to take effect than other drugs. Id. As Dr. Heath noted
14
at trial, however, the use of a sufficient overdose of pentobarbital would be expected to
15
16 hasten its onset time. RT 816.

17

Using pentobarbital in the three-drug protocol would also raise some of the

18
same concerns as using thiopental. As a barbiturate (commercially available as
19

20 Nembutal), pentobarbital is a federally controlled Schedule II drug, see Concannon Decl.

21 ¶ 14, and is vulnerable to drug diversion. Heath Decl. ¶ 34. And, of course, the
22

23 28 It is important to note, however, that eliminating the need to mix the anesthetic will
24 not eliminate the danger that the execution team will be unable to properly prepare the drug for injection. The team members’ ignorance of how many syringes of thiopental were used
25 in executions, and the CDCR’s failure to provide adequate guidance as to the means of
26 preparing and administering the anesthetic are concerns that would apply even if pre-mixed pentobarbital solution is used.
27
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1
successful delivery of a dose of pentobarbital would be dependent on the execution
2
3 team’s drug delivery system, as well as team members’ ability to prepare the syringes and

4 use the correct dose. Heath Decl. ¶ 34. Thus, switching to pentobarbital cannot in itself

5
obviate the need to correct all of the problems discussed supra, and in plaintiff’s response
6
to the Court’s Question 1.
7

8

The Court has also inquired about other longer-acting barbiturates that

9 might be used instead of thiopental. There may be other such barbiturates that would
10
share pentobarbital’s advantages. See AVMA Report, Ex. 42, at 680 (concluding that
11
12 other barbiturates besides pentobarbital are acceptable). The fact that the AVMA has

13 decided that pentobarbital “best fits” its criteria, however, is significant, because that
14
conclusion is the result of thorough expert vetting.
15

16

C. The Administration of Pentobarbital Within the Three-Drug Protocol.

17

Substituting pentobarbital for thiopental, without more, cannot reasonably

18
ensure that executions will be performed humanely. As the AVMA recognizes and Drs.
19

20 Heath, Ebling, Concannon and Ekins agree, so long as potassium is used in the

21 procedure, the inmate’s anesthetic depth must be monitored by an adequately qualified
22
individual. See supra (discussion of the need to monitor anesthetic depth). That
23
24 necessity is not premised on the use of thiopental or any particular anesthetic; rather, it

25 flows from the use of potassium and pancuronium and the fact that the inmate must be
26

27
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1
placed in a surgical plane of anesthesia prior to the administration of those two drugs.
2
3 Heath Decl. ¶¶ 34, 37. Given the medical reality that anesthetic drugs can fail to have

4 their intended effect for a variety of reasons, ranging from drug delivery problems to

5
tolerance to barbiturates to drug diversion to completely unanticipated occurrences, see
6
Concannon Decl. ¶ 3; Heath Decl. ¶ 34, only anesthetic monitoring can ensure that these
7

8 problems, should they occur, do not result in inadequate anesthetization. The need to

9 monitor anesthetic depth when potassium and pancuronium are used is discussed in more
10
detail in the response to the Court’s specific questions about monitoring, below.
11

12

D. Other Necessary Modifications of Procedure 770.

13

In addition to the above, should the Court order the substitution of another

14
anesthetic for thiopental, there are other difficulties with O.P. 770 that need to be
15

16 addressed. All of the issues discussed in response to the Court’s Question 1 are equally

17 relevant to a protocol that uses pentobarbital instead of thiopental. Using pentobarbital
18
cannot obviate the need to discontinue remote administration, reduce the amount of IV
19
20 tubing, plan for backup IV access and observation of the catheter sites, train and vet team

21 members adequately, and implement adequate lighting and adequate labeling of the

22
syringes. The list of necessary changes goes on, and is discussed in more detail above.
23

24

One additional point is of particular concern: CDCR has obviously

25 designed the current protocol without regard to the pharmacokinetics and pharmacology
26

27
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1
of thiopental. Otherwise, it would not employ such a low bolus dose compared to that
2
3 employed by other states, or the meaningless drip mechanism that it intends to use to

4 attempt to administer a maintenance dose. Plaintiff has not had the opportunity to consult

5
with an expert in pentobarbital and pharmacokinetics in this regard, but logic would
6
indicate that because it is slower acting than thiopental, the difficulties presented by the
7

8 execution team’s inability to achieve a rapid and regular rate of administration of the

9 bolus dose and the problems associated with the drip mechanism in terms of achieving a
10
steady state at a sufficient level to maintain a surgical plane of anesthesia (burst
11
12 suppression) may apply with greater force. Heath Decl. ¶ 35. This issue cries out for

13 further study by CDCR, who should have employed the services of a qualified expert in
14
the area of pharmacokinetics and pharmacodynamics to begin with. Heath Decl. ¶¶ 35-36
15
16 (noting that experts in pentobarbital may be aware of additional concerns regarding the

17 use of pentobarbital in conjunction with pancuronium and potassium). And, the existence
18
of questions like these highlights the need for adequate monitoring, particularly if
19
20 pancuronium bromide and potassium chloride are to be used.

21

A reasoned process of developing a new three-drug protocol using

22
pentobarbital is particularly necessary given CDCR’s apparent unwilling to engage in
23

24 such a process when it was contemplating changing the dose of thiopental as a result of

25 Dr. Singler’s “shock theory.” Plaintiff seriously questions Dr. Singler’s shock theory for
26

27
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1
many reasons, which include (1) the evidence that seven of the 11 executions did not
2
3 require second doses of potassium chloride (and that nine of 66 did in Virginia, even at 2

4 grams, RT 1205-06); (2) that at least in one half of the executions respirations ceased in a

5
timely manner; (3) that many of the cases involving extended respirations did not require
6
additional doses of potassium chloride, but all the cases involving second doses of
7

8 potassium also involved extended respirations; (4) that Dr. Singler arrived at this theory

9 before reviewing the records and never reviewed the EKG records; and (5) that some of
10
the heart rate notations contradict his theory.
11

12

Therefore, plaintiff would expect that CDCR would use a large, sufficient

13 bolus dose of pentobarbital, and that that dose of pentobarbital should not be reduced in
14
order to accommodate the “shock theory” or another theory completely unsupported by
15
16 solid evidence. Nor should defendants use Dr. Singler’s off the cuff formula of

17 increasing the maximum dose Dr. Singler has used (750 mg) by 30 percent to arrive at 1
18
gram (RT 1187), which was changed by an unknown person for unknown reasons to
19
20 twice Dr. Singler’s maximum dose when revising O.P. 770. This is one of the great

21 dangers of relying on a single practitioner’s anecdotal and arbitrary methodology, when
22
that practitioner is, as he admitted, not conversant in the relevant field, and is unwilling to
23
24 agree that inmates should be placed in a surgical plane of anesthesia to protect them

25 against what he admits is “intense” and “unconscionable” pain, RT 1168. In addition, Dr.
26

27
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Singler was not accountable for his decisions in devising a protocol, and it is clear that
2
3 the CDCR should not be permitted to design a protocol without accountability.

4

E. The Use of a Narcotic in Conjunction with Pentobarbital.

5
Adding a narcotic to a hypothetical execution protocol using pentobarbital,
6
pancuronium bromide and potassium chloride would not in itself minimize the risk of
7
8 inhumane executions.29 First, like pentobarbital, a narcotic would be subject to delivery

9 problems, drug diversion, and other concerns. See RT 615 (discussion between the Court
10
and Dr. Heath regarding the addition of a narcotic to the protocol). Adding a narcotic
11

12 therefore cannot obviate the need to effectively monitor anesthetic depth. Heath Decl.

13 ¶ 34. Second, adding a fourth drug to the procedure would add a layer of complexity to
14
the procedure by requiring the team to prepare and administer an additional drug, and
15
16 could therefore render the procedure even less safe. For instance, because narcotics have

17
29
18
Plaintiff construes this aspect of the Court’s Question 2 to be directed at the addition 19 of a narcotic to the three-drug protocol, so that the narcotic would be administered prior to
20 the pancuronium and potassium during the execution procedure. At the hearing, the Court also inquired about using a narcotic to premedicate inmates prior to the execution
21 procedure. RT 347-48, 546. As Dr. Ebling testified, premedication with a narcotic may
22 have the helpful effect of reducing the range of effects that the anesthetic has on inmates, based on their varying levels of anxiety. RT 348, 546-47. But as with any drug used for
23 premedication, the CDCR would have to consider what drug is used, the proper dosage, and
24 whether that drug could have any interactions with the anesthetic that adversely affect the safety of the procedure. RT 686 (noting that the CDCR should have considered potential
25 interactions between Valium and thiopental). In addition, premedication cannot
26 compensate for the failure to deliver the intended dose of anesthetic during the execution procedure.
27
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no anesthetic properties, mistakenly giving the narcotic before the anesthetic could result
2
3 in the inmate’s having an adverse reaction to the overdose of narcotic, RT 609, or

4 remaining conscious for the administration of pancuronium, RT 614. As plaintiff

5
demonstrated at trial, even the existing procedure is too complicated for the team
6
members to perform effectively and consistently. Plaintiff is very concerned that adding
7

8 this additional layer will cause further difficulties.

9

There may also be new medical concerns raised by the addition of a

10

narcotic to the existing protocol. Significantly, the AVMA Report does not mention
11

12 narcotics or recommend that they be used in euthanasia, either alone or in conjunction

13 with other drugs. This omission suggests that veterinary experts may have concluded that
14
there are significant concerns surrounding the use of an overdose of a narcotic. Cf.
15
16 Concannon Trial Aff. ¶ 31 (“If asked to design a euthanasia protocol based on the AVMA

17 Report, I would not include a neuromuscular blocker because these drugs are not listed in

18
any protocols deemed acceptable or conditionally acceptable.”).
19

20

One advantage of adding a narcotic is that it would provide the inmates

21 with a pain-reducing agent, for the first time. That, however, could be accomplished with
22
adequate sedation in the first place: A barbiturate given in sufficient dose, resulting in
23
24 surgical anesthesia, will necessarily cause analgesia because the inmate will be unaware

25 of all noxious stimuli. RT 1091 (Singler). In the event of improper administration of the
26

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anesthetic, moreover, using a narcotic will not provide a safety net, because narcotics are
2
3 not anesthetics, and therefore do not reliably and quickly cause unconsciousness. RT

4 614. Thus, although an inmate given a narcotic but not an anesthetic might not feel the

5
pain of potassium, he might well be conscious of the paralysis and suffocation caused by
6
the pancuronium. A narcotic therefore cannot be used as a substitute for an anesthetic,
7

8 nor can it mitigate the dangers caused by the numerous problems with the CDCR’s

9 procedures. In sum, the small safety benefit gained by adding a narcotic to the procedure
10
may well be outweighed by the risks engendered by adding yet more complexity to the
11
12 procedure.

13

If the CDCR were to add a narcotic to the three-drug protocol, it would of

14
course have to address the question of the correct narcotic, the correct dose and the
15

16 correct administration. Some narcotics are themselves fatal, even at low doses. Others

17 require a much higher dose to be effective. What dose, combined with what dose of
18
pentobarbital would oblate the pain from a super-high concentration of potassium
19
20 chloride, and would alleviate the conscious suffering from pancuronium, would have to

21 be determined by expert consultation.
22
/ /
23

24

25

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F. Conclusion

2

3

Although substituting pentobarbital for thiopental in the three-drug protocol

4 may render the execution procedure less unsafe, so long as potassium and pancuronium

5
are used, the CDCR must provide for effective assessment of anesthetic depth. Adding a
6
narcotic to the protocol also does not obviate the need for anesthetic monitoring, and
7

8 indeed the added risks of adding a narcotic may outweigh the benefits of providing

9 analgesia.
10

11

12 3. Again assuming the continued use of pancuronium bromide and potassium chloride in executions, what steps, in addition to those discussed in response to the
13 first question above, can and should Defendants take to monitor inmates’ levels of 14 unconsciousness prior to and following injection of these drugs? For example,
would the reliability of the protocol be improved by the use of a BIS monitor or an 15 EEG? Is the involvement of medical professionals necessary, and if so, what type(s) 16 of medical professionals should be involved in what ways? In the context of this
question, what would be the advantages and disadvantages of eliminating 17 pancuronium bromide from the protocol?
18
Currently, no one monitors anesthetic depth. UF 92. Plaintiff discussed
19
20 above the need to provide for effective assessment of anesthetic depth so long as

21 potassium and pancuronium are used in the protocol. Only by providing for an
22
adequately trained individual to assess anesthetic depth can CDCR reasonably minimize
23
24 the risk that executions using pancuronium and potassium will be inhumane. RT 479-87.

25

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2
3 below.

The components of effective assessment of anesthetic depth are discussed

4

A. CDCR Must Be Required to Provide for Effective Assessment of

5
Anesthetic Depth.

6

7

Effective monitoring of anesthetic depth requires a clinical, bedside

8 evaluation by a medical professional with extensive training in anesthesia. Dr. Heath

9
described the task of assessing anesthetic depth in his testimony:
10
It’s an integration of multiple streams of information that’s performed
11

12 usually by one person or sometimes a couple of people if you have two anesthesiologists

13 working together. But usually it's one person who's at the bedside. It’s a bedside
14
procedure, as it were, and who is observing monitors and able to physically examine the
15
16 patient to integrate all of that information and make a determination about what the

17 anesthetic depth is.
18
It also involves observing the stimulus that’s being done. The surgical
19
20 stimulation varies in intensity through a procedure. Some parts hurt a lot more than

21 others. And so the anesthesiologist needs to be aware of what the surgeons are doing,
22
how much that would hurt and what the anticipated physiological response would be for a
23
24 given depth of anesthesia.

25

26

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And so we’re constantly reviewing those things to come up with our best
2
3 determination of what the depth is. RT 480; see also Heath Decl. ¶ 39. Dr. Rosko, an
4 anesthesiologist on staff at San Quentin, also stated that monitoring anesthetic depth is a
5
bedside procedure, noting that, “I can say that I felt that if I or anyone else was going to
6
monitor an individual’s condition with regard to state of consciousness, et cetera, you’d
7
8 actually have to do that being in there with the patient. You couldn’t do that from
9 another room outside because it’s a clinical evaluation.” RT 481; UF 118c; UF 120a (“it
10
is good and standard medical practice to be in the same room as a patient.”). CDCR’s
11
12 other physician, Dr. St. Clair, agreed. UF 118d. Dr. Singler felt the same way, as he
13 planned to situate himself at Mr. Morales’s bedside in order to monitor his anesthetic
14
depth, even though he brought several pieces of equipment with him. RT 894-95. Dr.
15
16 Rosko testified that “one checks for consciousness for changes in vital signs both
17 clinically by the use of one’s senses and also via monitoring devices through the use of a
18
machine, a cardiogram, a blood pressure cuff, or an oximeter,” UF 120b, and that
19
20 “clinical observations include movement, breathing, skin color, whether eyes are open or
21 closed, and pupil size. UF 120c. Dr. Concannon agreed, stating that he measures
22
anesthetic depth in veterinary patients relying on both his bedside physical examination,
23
24 as well as monitors such as an electrocardiogram and a blood pressure cuff. Concannon
25 Tr. Aff. ¶¶ 11, 13.
26
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In sum, monitoring anesthetic depth is a complex task that involves
2
3 contemporaneously observing physical signs of varying degrees of subtlety, as well as

4 analyzing information provided by monitors, such as EKG and blood pressure

5
information. The anesthesiologist must then synthesize this information into a continuous
6
evaluation of the patient’s anesthetic depth. See Heath Decl. ¶ 39; Concannon Trial Aff.
7

8 ¶ 11. For this reason, there is no monitor that in itself can substitute for the trained

9 judgment of an anesthesiologist. Concannon Trial Aff. ¶ 11. As Dr. Heath noted,
10
assessing anesthetic depth is “a mixture of art and science.” RT at 481.
11

12

Who Can Monitor Anesthetic Depth. The only individuals capable of

13 monitoring anesthetic depth in paralyzed individuals are those with extensive training in
14
anesthesiology, and clinical experience in assessing anesthetic depth. Heath Decl. ¶ 40.
15
16 To reliably assess anesthetic depth, an individual must have the scientific background

17 necessary to understand the drugs used and physiological responses to those drugs, RT
18
482, and must have received formal anesthesia training from individuals who are
19
20 themselves proficient in assessing anesthetic depth. Heath Decl. ¶ 40. In a hospital

21 setting, only individuals with these characteristics would be credentialed to induce and
22
monitor general anesthesia. Id. ¶ 44; RT 747. To allow anyone else to monitor an
23
24 inmate’s anesthetic depth in an execution would not be consistent with the minimum

25

26

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standard of care in California and elsewhere, and would not reliably ensure that inmates
2
3 are sufficiently anesthetized. RT 747.

4

A board-certified anesthesiologist would have the necessary training and

5
experience to monitor anesthetic depth. See Taylor v. Crawford, Order of June 26, 2006,
6
at 14 (requiring that a board-certified anesthesiologist assess anesthetic depth in
7

8 executions); Ex. 62 (Statement of Dr. Orin Guidry that anesthesiologists are necessary to

9 ensure proper anesthesia in executions); RT 747 (“The advantage of going to an
10
anesthesiologist is that someone who – that is somebody who is likely to have the
11
12 necessary background to do it [monitor anesthetic depth].”). Anesthesiologists

13 necessarily have the extensive training in anesthesiology that is required, and board
14
certification provides assurance that the individual has passed rigorous written and oral
15
16 exams in anesthesiology. Heath Decl. ¶ 44.

17

In addition, a Certified Registered Nurse Anesthetist (CRNA) would most

18
likely have the training and experience necessary to be proficient at assessing anesthetic
19

20 depth. RT 748. In “rare cases,” moreover, a physician who is not an anesthesiologist

21 may have extensive elbow-to-elbow training in anesthesiology, and may be credentialed
22
to monitor general anesthesia in hospitals. Heath Decl. ¶ 44. Because these individuals
23
24 do not possess the label of anesthesiologist, however, it would be necessary to evaluate

25 carefully the extent of the anesthesia practices that individual is allowed to perform in
26

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hospitals, the nature of his or her training in anesthesiology, and his or her understanding
2
3 of the monitoring techniques that comprise standard clinical monitoring. RT 747 (“So

4 there are people who work in intensive care units who look after patients who are on

5
ventilators, many of whom are unconscious, many of whom are deliberately placed into a
6
state of general anesthesia, and that's done by people who are not anesthesiologists. And
7

8 so some of those people I think are good at assessing anesthetic depth and it's just that

9 you don't have that label on them and so you have to do more work to determine whether
10
that was the right kind of person or not.”). In particular, CDCR would have to ensure that
11
12 a non-anesthesiologist is experienced in monitoring anesthetic depth in paralyzed

13 patients, in whom many of the more obvious indicators of unconsciousness -- eyelid
14
reflex, response to stimuli -- will not be present. Concannon Tr. Aff. ¶ 23. In sum, an
15
16 individual retained to monitor an inmate’s anesthetic depth should be someone who is

17 credentialed to perform anesthetic monitoring in a hospital, and who does such

18
monitoring in paralyzed patients as a routine part of their practice. Heath Decl. ¶ 44.
19

20

Although the universe of professionals who would be capable of assessing

21 anesthetic depth is thus slightly broader than the category of “board-certified
22
anesthesiologist,” plaintiff believes that as a remedial matter, in light of the CDCR’s
23
24 history of poor screening of the execution team, its inability to ensure that even the

25 medical personnel on the execution team possess the mindset necessary to treat the
26

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procedure with the care that it demands, and the very poor history San Quentin medical
2
3 staff have as evidenced by the Plata findings, the Court should order CDCR to retain a

4 board-certified anesthesiologist to monitor anesthetic depth. Doing so will ensure that the

5
person chosen has the extensive training necessary to induce and maintain general
6
anesthesia, and will avoid the need for the inquiry into training and qualifications that
7

8 would be necessary if the CDCR were to retain a doctor who is not an anesthesiologist.

9

This task should not be that difficult. CDCR was able to obtain the services

10

of three board-certified anesthesiologists (Dr. Rosko, Dr. Singler and Anesthesiologist
11

12 #2) within two days. UF 118a and 118b. Although the CDCR may argue that the last-

13 minute withdrawal of Dr. Singler and Anesthesiologist #2 demonstrates that
14
anesthesiologists as a group will not participate in executions, that withdrawal appears to
15
16 have been the result of an unfortunate situation marked by confusion, in which the

17 professionals rightly felt they have been tricked into participating in something other than
18
what they agreed to. UF 92-113; RT 1059-65; Order of February 22, 2006 (noting
19
20 disconnect between Court’s orders and Defendant’s understandings of them); RT 1059

21 (Defendants’ attempt to convince anesthesiologists that Ninth Circuit’s opinion was not a
22
court order, and ex parte attempts to obtain “clarification” from this Court.) Thus, one of
23
24 the necessary components of a plan to have a competent professional monitor anesthetic

25

26

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depth, learned from our experiences last February, is that the Court will have to clearly
2
3 establish the roles of the person(s) involved.

4

Necessary Components of Anesthesia Monitoring in an Execution. To be

5
effective in the context of an execution, assessment of anesthetic depth must include a
6
number of components.
7

8

First, the anesthesia professional must certify that the inmate has reached a

9 surgical plane of anesthesia before the pancuronium and potassium are injected, see
10
Taylor, Order of June 26, 2006, at 14, and then must continue to monitor the inmate’s
11
12 anesthetic depth for the duration of the execution. Heath Decl. ¶¶ 34, 38. This is

13 particularly necessary if thiopental is used as the anesthetic, because it is so sensitive to
14
errors, but is also necessary with pentobarbital, as both drugs have the potential to wear
15
16 off, or to be ineffective in adequately sedating an inmate if the full dose is not delivered.

17

Second, if the monitoring reveals that the inmate is not adequately

18
anesthetized, the anesthesia professional must be prepared to administer more anesthetic
19

20 or to quickly cause the execution team to halt the procedure so as to administer more

21 anesthetic. RT 629-30. As this Court and the Ninth Circuit recognized, monitoring
22
anesthetic depth will not reduce the risk to the inmate unless that monitoring is used to
23
24 help the execution team remedy inadequate anesthetization. Id. If the latter option is

25 used, the protocol must provide an effective procedure for communication between the
26

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anesthesia professional and the team member who will administer additional anesthetic,
2
3 and it may be necessary to make additional changes to the execution facility to facilitate

4 communication. In addition, the protocol necessarily would have to provide for a backup

5
dose of anesthetic that is prepared and ready at hand. RT 640 (“Definitely something
6
could happen that you'd have to give more thiopental. That was foreseen, I think, by that
7

8 Ninth Circuit decision [in Morales] that we were talking about, also.”).

9

Third, the anesthesia professional must be allowed to exercise his or her

10

medical judgment as to the means of monitoring anesthetic depth, within the boundaries
11

12 of medically accepted standard monitoring techniques. See Order, Feb. 14, 2006, at 14

13 (anesthesia professional shall use medically accepted monitoring techniques); American
14
Society of Anesthesiologists, Standards for Basic Anesthetic Monitoring, Ex. 61
15
16 (“Qualified anesthesia personnel shall be present in the room throughout the conduct of

17 all general anesthetics, regional anesthetics and monitored anesthesia care.”). In other
18
words, CDCR must not be permitted to specify that certain techniques, but not others,
19
20 may be used; that determination is a medical one, and must be left to the anesthesia

21 professional. Heath Decl. ¶ 43. Nor may CDCR require the anesthesia professional to
22
deviate from medically accepted techniques for reasons of expediency or other medically
23
24 illegitimate concerns.

25

26

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Screening of the Anesthesia Professional. Experience in California and
2
3 other states has demonstrated the importance of adequate screening of execution
4 personnel. Heath Decl. ¶¶ 3-4. It would be even more crucial to screen meaningfully the
5
anesthesia professional who would have significant control over whether an execution is
6
humane or not. That this is the case is demonstrated by the recent disclosure in Taylor v.
7
8 Crawford that the surgeon, John Doe I, who had control over Missouri’s lethal injection
9 procedure had been denied privileges at two hospitals and disciplined for misrepresenting
10
his malpractice history, and had been a defendant in numerous malpractice suits. Heath
11
12 Decl. ¶ 4 (describing John Doe I’s problematic history, as disclosed by the St. Louis Post-
13 Dispatch). Perhaps unsurprisingly, John Doe I’s misconduct was not limited to his
14
professional life; as the head of the execution team, John Doe I reduced the dose of
15
16 thiopental without informing the Department of Corrections, falsified records, and gave
17 the court multiple conflicting explanations for his misconduct. See Taylor, Order of June
18
26, 2006, at 6-13; Heath Decl. ¶ 4. Thus, the CDCR should be required to screen any
19
20 anesthesia professional much as a physician applying to a hospital would be screened for
21 malpractice, substance abuse and licensure problems, as well as any other conduct that
22
would lead a hospital to hesitate to give that person responsibility for patients and
23
24 medications. Heath Decl. ¶¶ 8-10, 45; Concannon Decl. ¶ 10. Health care professionals
25 should be consulted to determine how a hospital would screen its incoming physicians.
26
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Heath Decl. ¶ 10.

2

3

In addition, any anesthesia professional who is retained must be able to

4 discern the signs of potential consciousness and understand the dangers of the execution

5
procedure, including the potential for conscious paralysis from pancuronium, and the pain
6
caused by potassium chloride. For example, Dr. Singler believed that the injection of
7

8 concentrated potassium would not require a surgical plane of anesthesia, and that 75

9 milligrams of thiopental would provide sufficient anesthetization, RT 1050, and these
10
opinions may have contributed to his evident failure to consider the possibility that he
11
12 might need to cause the execution team to administer more anesthetic, as well as his

13 conclusion that he need only monitor Mr. Morales until the injection of the pancuronium.
14
Id. at 978 (“[P]ursuant to an order that I believe came from this Court I agreed to monitor
15
16 Mr. Morales’s state of unconsciousness from the time he was placed in the chamber and

17 began receiving anesthetic drugs until the time that pancuronium bromide was started.”).
18
As in a hospital setting, it is imperative that the anesthesia professional understand the
19
20 risks of the procedure so that he or she can avoid them.

21

Finally, whomever is selected must be willing to abide by the protocol, or

22
seek to have it modified in a transparent manner, if they feel it necessary to change the
23

24 procedures. Only this way can CDCR avoid the situation that arose for Mr. Morales

25 wherein Dr. Singler unilaterally directed the team to inject only 1 gram of thiopenthal, or
26

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at the least communicated to them in a manner that led them to firmly believe they should
2
3 inject only a gram. RT 1105-1109. And, in this way, we can be assured that the

4 professional’s instructions actually are followed properly, unlike the situation wherein

5
Dr. Singler informed the team to increase the rate of the saline drip so as to allow for
6
more rapid and more easily measured application, RT 1109 (concern about rate drugs
7

8 pushed); 1107 (instructed them to do it faster so as to monitor push), and the team

9 apparently misunderstood that direction. Ex. 78 (slow rate in previous protocol); Ex. 17,
10
p. 30 (slow rate in new protocol).30 At the very least, the instructions to the team need to
11

12 be clear, and team members must have sufficient capability to understand medically what

13 they are being told and how to react to it. Of course, all such instructions should be
14
formally made a part of the protocol before they are employed in an execution; otherwise,
15
16 the inmate will have no way of knowing how he will be executed. See Taylor, Order of

17 June 26, 2006, at 11 (“It is obvious that the protocol as it currently exists is not carried
18
out consistently and is subject to change at a moment’s notice.”).
19

20

21

22

23

30 As discussed elsewhere, Dr. Singler seemed to change the nature of his concern

24

(slow administration of Pentothal, to ensuring push was not affecting the vein), as well

as the nature of this direction to the team (faster rate, to slower rate), later in his

25 testimony. This appeared when he was confronted with the fact that the team appeared

26

not to head or understand his concern and direction; and when confronted with the fact

that they had added check valves which dramatically slow the rate of flow.

27

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B. The Use of Monitoring Equipment Would Not Eliminate the Need for

2

3

Trained and Experienced Professionals.

4

Although not in the testimonial record, Dr. Singler was set to use a variety

5 of devices, one of which was the BIS monitor.31 RT 117, Mar. 30, 2006. The list of
6
7 appropriate devices was described by Dr. Rosko: a cardiogram, a blood pressure cuff, and

8 an oxymeter. UF 120b.32 As stated above, and as agreed to by every medical

9
professional involved in this case save one, monitoring equipment such as the BIS
10
monitor is meant to be used only as an adjunct to clinical observation by adequately
11

12 trained individuals, and thus there is no monitor or combination of monitors that can

13 substitute for evaluation by a highly trained anesthesia professional. Heath Decl. ¶ 48.
14
The anesthesia community is in near-universal agreement that the BIS monitor – which is
15
16 fallible, and even unreliable in many circumstances – cannot be used as the sole monitor

17 of anesthetic depth. (Perhaps not surprisingly, the only dissenters from this consensus are
18
Dr. Dershwitz and Dr. Singler. See Heath Decl. ¶ 53.) Consequently, while a BIS
19

20

31

21

He described them in his deposition as blood pressure device, a pulse oxymeter, and

22 a BIS monitor. Singler Depo., at 216; Heath Decl. n.2.

23 32

24

The cardiogram could monitor heart function, the blood pressure cuff could monitor

dramatic falls in pressure that may indicate shock, or sudden rises that may indicate

25 response. The oxymeter measures oxygen, which may inform the medical professional that

26 breathing is occurring when it should not be. These monitors are standard in clinical anesthetic monitoring. See Heath Decl ¶ 39; Concannon Tr. Aff. ¶ 13.

27

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monitor may be a helpful addition to an anesthesia professional’s considered means of
2
3 monitoring anesthetic depth during an execution, the use of a BIS alone, in conjunction

4 with the poorly trained members of the execution team, would simply exacerbate existing

5
risks by providing false assurances.
6
The American Society of Anesthesiologists gave careful consideration to
7

8 the utility of a BIS monitor for monitoring anesthetic depth in its Practice Advisory for

9 Intraoperative Awareness and Brain Function Monitoring (2005), and concluded that a
10
BIS monitor could be used as one monitor among many in a trained professional’s
11

12 clinical evaluation. Ex. 60, at 22-23. In addition, the Practice Advisory cautions that BIS

13 monitors have been shown to be unreliable in patients who are paralyzed by
14
neuromuscular blocking agents – which would make the BIS monitor useless as a
15
16 monitor in an execution after the injection of pancuronium – and that various factors,

17 such as movement of the forehead muscles, can affect the BIS readout in ways that do not
18
correlate with the level of anesthetic depth. Id. at 21; see also Heath Decl. ¶ 51; Messner
19
20 et al., The Bispectral Index Declines During Neuromuscular Block in Fully Awake

21 Persons, Anesth. Analg., 2003; 97-488, attached as Ex. 16 to Heath Decl.33 Notably, the
22

23 33

24

This is of particular concern here, with such a low bolus dose and the risk that its

effect would diminish rapidly if administered imprecisely, as well as the slow assent from

25 the thiopental drip. In effect, the BIS would shut off at exactly the point during which the

26 inmate would begin to re-achieve consciousness, leaving him paralyzed, awakened and about to receive the potassium.

27

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Medical Director of Aspect Medical Systems, which manufactures and distributes the BIS
2
3 monitor, testified that the use of a BIS monitor in a North Carolina execution, without
4 trained personnel, was “entirely contrary to its intended use, its cleared operations for
5
use, and its Operations Manual.” See Affidavit of Dr. Scott Kelley ¶ 21, Brown v. Beck,
6
attached as Ex. 17 to Heath Decl. Dr. Kelley also warned that the BIS monitor’s readouts
7
8 may be rendered unreliable in certain circumstances, and therefore a trained professional
9 must always interpret the BIS monitor’s readouts. Id. ¶¶ 14-15. The limitations of the
10
BIS monitor in assessing anesthetic depth are discussed in more detail in Dr. Heath’s
11
12 Declaration, ¶¶ 47-53, as well as Dr. Heath’s declaration filed in this case on February
13 14, 2006. In sum, the BIS monitor’s limitations render it imperative that the monitor be
14
used only by adequately trained anesthesia professionals who can understand the limits
15
16 and pitfalls of the BIS monitor readouts, and can integrate the BIS readout into the
17 overall evaluation.
18
Because the BIS monitor and other EEG monitors are, as Dr. Heath put it,
19
20 “nowhere near as efficient and reliable to replace bedside clinical determination of
21 anesthetic depth that we talked about before by a trained and experienced clinician,” RT
22
at 602, such monitors can provide no assurances that inmates are in fact deeply
23
24 anesthetized. Although CDCR may argue that these concerns about the BIS monitor
25 apply only in a surgical setting, where an anesthesiologist is attempting to calibrate
26
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1
anesthetic depth and make treatment decisions based on his assessments, that is simply
2
3 not the case. The limitations on the reliability of the BIS monitor, discussed above, apply
4 in all situations when the BIS is used, regardless of the dose of anesthetic used and the
5
purposes of the induction of anesthesia. Heath Decl. ¶ 52. It is simply never safe,
6
regardless of the context, to use a BIS monitor as the sole measure of anesthetic depth.
7
8 Therefore, EEG monitors alone cannot mitigate the substantial risk of pain that is inherent
9 in CDCR’s current execution procedure.
10
Indeed, adding a BIS monitor to the execution procedure, without providing
11
12 for assessment of anesthetic depth by an anesthesia professional, would simply
13 exacerbate the risks already inherent in the procedure. Heath Decl. ¶ 48. Execution
14
team members might be even less likely to observe the inmate carefully if they believe
15
16 that simply by looking at the BIS monitor readout, they can reliably determine whether
17 the inmate is adequately anesthetized. And after the pancuronium is administered, the
18
BIS monitor will necessarily show a value that is consistent with deep unconsciousness,
19
20 whether or not the inmate is actually in that state. In sum, the addition of a BIS monitor
21 to the existing protocol would simply contribute to the risk of failure.
22
/ /
23
24
25
26
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C. The Elimination of Pancuronium Bromide.

2

3

The elimination of pancuronium bromide from the protocol will minimize

4 the potential for conscious suffocation, and the masking of a painful execution discussed

5
above. In this regard, the protocol would move closer towards complying with minimum
6
7 veterinary standards for euthanasia. Concannon Decl. ¶ 25 (“I am unaware of any

8 veterinarian or veterinary group that advocates the use of neuromuscular blocking agents

9
during the euthanasia procedure.”); id. ¶ 26 (“The use of Pancuronium in a euthanasia
10
procedure, even after the administration of an anesthetic, is troubling and gives me great
11

12 concern.”).

13

Removing pancuronium from the protocol also will render the assessment

14
of anesthetic depth more straightforward. The use of pancuronium makes assessing
15

16 anesthetic depth more difficult even for highly trained anesthesiologists, because the

17 resulting paralysis removes several of the indicators on which anesthesiologists rely.
18
Concannon Tr. Aff. ¶ 24 (“With fewer variables to monitor, a well trained veterinarian
19
20 can be challenged to accurately determine level of consciousness in a paralyzed patient

21 and an untrained observer will most likely be unable to determine level of
22
consciousness.”); id. ¶ 26. If pancuronium remains in the protocol, the CDCR will have
23
24 to recruit an anesthesia professional who routinely assesses depth in paralyzed patients.

25 Eliminating pancuronium, on the other hand, may make it more likely that, as a practical
26

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matter, a well-credentialed CRNA or specifically-trained licensed physician would be
2
3 capable of effectively monitoring anesthetic depth.

4

However, the continued use of potassium, which is unnecessary, RT 478,

5
will still necessitate that an adequately trained anesthesia professional monitor anesthetic
6
depth. RT 483 (“[P]otassium can be used as a method of [execution], but if it is going to
7

8 be used, then it has to be done by a person who is experienced in assessing anesthetic

9 depth and who takes various measures to actually assess the anesthetic depth.”). The
10
veterinarians have undertaken this exact analysis and determined that potassium, in
11
12 conjunction with general anesthesia, is a permissible but better avoided means of

13 euthanasia. Concannon Tr. Aff. ¶ 19 (“I do not know of any veterinarians who opt to use
14
potassium as their routine, ordinary-course method of euthanizing animals. I would not
15
16 recommend doing so.”); AVMA Report, Ex. 42, at 680-81. If potassium is used, even

17 without a neuromuscular blocking agent, the AVMA and veterinary standards of care
18
require that the veterinarian performing euthanasia have sufficient expertise and access to
19
20 the patient to allow adequate monitoring of anesthetic depth. AVMA Report, Ex. 42, at

21 681; Concannon Tr. Aff. ¶¶ 17, 20.
22
Pancuronium bromide “paralyzes all skeletal or voluntary muscles, but []
23
24 has no effect whatsoever on awareness, cognition, or sensation.” Beardslee v. Woodford,

25 395 F.3d 1064, 1071 (9th Cir. 2005). UF 18. Any honest appraisal would admit that
26

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because the dose of thiopental or phenobarbital should be sufficient to stop breathing in
2
3 all cases where adequately administered, RT 461-62, the pancuronium is merely for

4 “cosmetic” effect, (as Dr. Singler noted at the Governor’s meeting, RT 1077, and when

5
he seemingly endorsed Dr. Heath’s position on this issue, RT 1158-59). Dr. Dershwitz
6
has admitted as much. RT 1165. However, at the hearing here, Dr. Singler, articulated
7

8 what he considers a “valid medical purpose” for the use of pancuronium bromide – the

9 maintaining of a hypoxic condition if one is inadequately sedated. That purpose
10
completely contravenes the guarantees of the Eighth Amendment.
11

12

It must be stressed here that both veterinarians and end-of-life care

13 physicians have already undertaken the exact risk/benefit calculation that pancuronium
14
presents to this Court. Both entities, after careful review of the medical and ethical issues
15
16 involved, have chosen to eliminate the use of neuromuscular blocking agents such as

17 pancuronium. RT 463-67 (Dr. Heath described the medical consensus that it is unethical
18
to use neuromuscular blockers for cosmetic purposes in end-of-life situations); Exs. 63,
19
20 64 (articles of the Ethics Committee of the Society of Critical Care Medicine, and record

21 of Dr. Robert Truog, recommending against the use of paralytic drugs in end-of-life
22
care); Concannon Tr. Aff. ¶¶ 24-26, 31 (“If asked to design a euthanasia protocol based
23
24 on the AVMA Report, I would not include a neuromuscular blocker because these drugs

25 are not listed in any protocols deemed acceptable or conditionally acceptable. As I said
26

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earlier, I do not know of any veterinarian who uses neuromuscular blockers during
2
3 euthanasia.”). The consensus is that it is much more important to be able to adequately

4 evaluate the patient and accurately determine any distress or indicia of error than it is to

5
alleviate the misapprehensions of family and pet owners, which can be addressed through
6
counseling. Any potential medical benefit, such as inability to breathe, is already
7

8 accomplished using a properly administered sufficient dose of barbiturate. RT 461-62. It

9 is time for the State of California to acknowledge this and join the medical and scientific
10
community on this issue.
11

12

Pancuronium is used “[i]n paralyzing skeletal musculature. It prevents that

13 muscle from contracting in response to a stimulus from the nervous system.” RT 1028.
14
“It does not change the drive in the brain stem that’s sending signals to these muscles
15
16 trying to get them to breathe. That doesn’t change. The alarm signals don’t change, but

17 your body’s ability to execute is suppressed.” RT 1033.
18
“As your carbon dioxide rises higher and higher, you’re urged to breathe.
19
20 Your stimulus, the adrenaline response to that, also begins to increase so it would

21 increase over time.” RT 1032. While the drug itself is “not painful on injection, [] the
22
consequences can be terrifying if you were awake and unable to breathe. That feeling of
23
24 suffocation would be terrifying.” RT 1030.

25

26

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“If you let all the air out of your lungs and then sit there and do nothing and
2
3 don’t breathe again, it very rapidly becomes very unpleasant. And then as the level of

4 carbon dioxide builds up you suffocate, and that’s excruciating.” RT 553 (Dr. Heath

5
testimony). “It’s the agony of -- that would be with drowning or strangulation or some
6
kind of suffocation like that.” Id.
7

8

Pancuronium also masks the indicators of consciousness from inadequate

9 sedation. RT 1175. Many of the signs that anesthesiologists use to assess anesthetic
10
depth are masked by the pancuronium, such as eyelash reflex and response to noxious
11
12 stimuli. Concannon Tr. Aff. ¶ 23. Yet because pancuronium has no anesthetic

13 properties, it cannot prevent an inmate from regaining consciousness if anesthesia was
14
inadequate. Heath Decl. of Jan. 20, 2006, ¶ 37l RT 263 (“The neuromuscular blockers by
15
16 themselves don’t contribute to any analgesia or sedation or a diminishing of

17 consciousness. What they will do is they block the activity of voluntary muscles, and I
18
think what happens is when you give them you run the risk of having a veterinary patient
19
20 who is aware, yet when you look at them they don't appear to be conscious.”). As Dr.

21 Singler noted, “[i]f you were unconscious and unaware of your inability to breathe, the
22
rise in your blood carbon dioxide would provide a sufficient stimulus to awaken you and
23
24 then allow you to realize your condition.” RT 1032; see also RT 339-40 (Dr. Ebling

25 testimony). “[I]t’s a time-related effect. As your carbon dioxide rises higher and higher,
26

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you’re urged to breathe. Your stimulus, the adrenaline response to that, also begins to
2
3 increase so it would increase over time.” RT 1032.

4

Using defendants’ lethal injection method and assuming successful delivery

5
of five grams of thiopental, an inmate would be rendered deeply unconscious and fully
6
apneic by an overdose of sodium thiopental in about one minute. RT 1014-16.
7

8 Thereafter, the inmate’s apnea, or inability to breathe, would create a condition of

9 decreasing blood oxygen levels and increasing blood carbon dioxide levels called
10
hypoxia. RT 1016-18. As plaintiff has shown, the dropping blood levels of thiopental
11
12 pursuant to the drug’s re-distribution cycle in the first four minutes results in a

13 concomitant lowered ability to suppress stimulus response (i.e., more “consciousness”).
14
See RT 330-31, 355-56 (Dr. Ebling testimony). Therefore, Dr. Singler explained the
15
16 “valid medical purpose” for the use of pancuronium in an execution is because “even

17 though it is likely that a large dose of barbiturate by itself will render -- will be lethal, it
18
does not exclude the possibility that as we now go into this redistribution phase [of
19
20 thiopental] as we talk about carbon dioxide and the possible resumption of respiratory

21 effort, the state has an interest in maintaining that hypoxia.” RT 1174 (emphasis added).
22
But, this process is only effective if Mr. Morales never regains the ability to breathe in
23
24 the first place. Because if he does, then “valid medical purpose” articulated by Dr.

25 Singler is that pancuronium will ensure the inmate continues to suffocate even if he is
26

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awakened by the stimulus of his suffocation – that way an execution can be terminated
2
3 more quickly. See RT 1173-74. And this condition would be undetectable by the

4 execution team and the witnesses: As Dr. Singler conceded under further questioning by

5
the Court, “If a person was conscious at some level . . . the pancuronium would conceal
6
that fact.” RT 1175. From the perspective of ensuring a humane execution, therefore,
7

8 this cannot be a “valid medical purpose.”

9

There is “a window of eight minutes before hypoxia by itself relieves you

10

from -- from conscious suffering.” RT 1034. Accordingly, if an inmate is not fully
11

12 anesthetized and apneic before the injection of pancuronium bromide into his veins – and

13 contemporaneous records suggest that several were not – the inclusion of pancuronium in
14
defendants’ lethal injection protocol would subject him to up to eight full minutes of
15
16 torture as his brain floods his body with adrenaline and sends continuous signals to the

17 body to try to breathe – “an undesirable state of affairs” according to Dr. Singler. RT
18
1032. And, the resulting hypoxia may never render Mr. Morales unconscious in time for
19
20 the potassium injection.

21 / /
22
/ /
23

24

25

26

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Defendants have been repeatedly confronted with evidence, largely culled
2
3 from their own contemporaneous records, that condemned inmates may not have
4 experienced the intended effects of sodium thiopental administration during their
5
executions. At the hearing, it was established that the inability to regularly administer
6
thiopental in the proper manner, and the lowered bolus dose, greatly increase the risk that
7
8 inadequate sedation will occur under the new protocol. Dr. Singler’s “medical” reason
9 for pancuronium appears to be a concession to failure, which is understandable given the
10
record here. In effect, reducing the bolus dose has increased this risk of error, and,
11
12 according to defendants, the need for pancuronium. But, the solution is not to continue to
13 mask that failure and to increase the dangers to Mr. Morales by inducing conscious
14
suffocation. This is somewhat cynical logic has a disastrous premise – once defendants
15
16 assume inadequate sedation, then this also elevates the risk of experiencing a grotesque
17 pancuronium suffocation and/or a painful potassium death. Perhaps this is of little
18
concern to Dr. Singler, who, for flawed reasons, does not believe concentrated potassium
19
20 requires a high level of sedation. RT 454. However, it is of great concern to the rest of
21 the medical community, including Dr. Dershwitz and Dr. Ekins. RT 1205 (Dr. Dershwitz
22
testified that potassium was akin to a surgical stimulus); RT 901 (Dr. Ekins recommends
23
24 that when using “these drugs” a trained individual who can monitor the drugs’ effect be
25 present). If one were to examine this with a more jaundiced eye one might conclude that
26
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defendants’ rationale is one which is designed to ensure that a very risky endeavor will
2
3 never be exposed.

4

We heard from two witnesses about executions they observed where they

5 may not have been given pancuronium initially.34 It appeared some of the inmates were
6
not adequately sedated, as they never ceased attempting to breathe and reacted to the
7

8 painful stimulus of the potassium, only to be then paralyzed by the pancuronium. Others,

9 however, were adequately sedated, and they appeared to be in much less difficulty. It
10
should also be noted that animals are routinely euthanized without pancuronium, and they
11

12 do not present with any distressing features that are not accepted as part of the process by

13 pet owners, veterinarians and veterinarian technicians. AVMA Report, Ex. 42, at 679-80
14
(describing the effect of the injection of pentobarbital alone for euthanasia).
15

16

Dr. Singler also offered that pancuronium may assist the process because of

17 the cardiac collapse that prevents the rapid intake of the potassium. RT 1175. The theory

18

34 This information is contained in Dr. Dershwitz’s declaration, exhibit 39, page 9. 19 Both parties have objected to this exhibit. However, if the Court is to consider it, it should

20 be noted that the previous protocol in North Carolina to which Dr. Dershwitz refers only

had 1.5 grams of thiopental initially administered, then potassium, then pancuronium, then 21 the remaining thiopental. But, there is a question as to whether it was followed in all

22 inmates. That cannot be answered because of protective orders and only rudimentary

discovery in the North Carolina litigation. And, it is not known what the rate of 23 administration was in those cases, or what any records show about breathing.

24

In this Declaration, Dr. Dershwitz notes that even a 300 mg/min drip of thiopental

will have negligible effect in an execution involving 3 grams of sedative initially. Id. at 625 7. He had the same opinion in an earlier affidavit in this litigation, even with a 500 mg/min

26 dose. Exhibit 38, at 5-6.

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is that because it is taking so long for inmates to die from the potassium, it is necessary to
2
3 continue hypoxia because the sedation may wear off. Id. The premise of a cardiac

4 collapse theory is shaky, at best, and Dr. Singler has never provided any evidence that it

5
actually is occurring. Dr. Heath, who, unlike Dr. Singler, examined the EKG records
6
from the executions, concluded that there was no evidence that cardiac collapse occurred
7

8 in all or most executions: “[L]ooking at EKG records I see some where I think there’s

9 collapse from the pentothal, but that’s the unusual result.” RT 545-46. And, it does not
10
explain how the pancuronium would be able to take effect despite this collapse. But,
11
12 even if the “shock theory” was true, the whole purpose of dramatically lowering the bolus

13 dose and adding a drip was to eliminate this possibility and make the process go faster.
14
UF 2. Thus, again, one has to assume a greatly elevated risk of a painful execution to
15
16 justify the continued use of pancuronium.

17

If anything, the new protocol has greatly strengthened the argument that

18
pancuronium must be eliminated from California’s lethal injection procedure. In light of
19

20 the Eighth Amendment’s prohibition on those punishments which implicate “an

21 unnecessary risk of unconstitutional pain or suffering” (Cooper v. Rimmer, 379 F.3d
22
1029, 1033 (9th Cir. 2004)), a logical response from defendants to apparent difficulties in
23
24 thiopental administration would be to ensure that, even if the thiopental does not work

25 properly, an inmate will not be subjected to extreme suffering and if he was, that this
26

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could be detected and treated. Instead, defendants have created a protocol whereby,
2
3 unless the first drug works flawlessly, an inmate will be subjected to eight minutes of

4 “excruciating,” “terrifying” suffocation, and painful potassium injection – and no one will

5
know. Such a foreseeable and easily avoidable outcome clearly constitutes “torture or a
6
lingering death,” and contravenes the Eighth Amendment. In re Kemmler, 136 U.S. 436,
7

8 447 (1890).

9

Plaintiff incorporates herein by reference pages 14 through 16 of his

10

Motion for Temporary Restraining Order, Memorandum of Points and Authorities in
11

12 Support Thereof filed with the Court on January 20, 2006; and pages 12 through 14 of his

13 Reply Memorandum in Support filed with the Court on January 25, 2006, as well as all
14
documentation attached to the foregoing documents and referenced therein.
15
16 / /

17 / /
18

19

20

21

22

23

24

25

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D. Conclusion

2

3

To reasonably minimize the significant, unnecessary risk that inmates will

4 suffer excruciating pain during their executions, it is necessary that an individual with

5
extensive training and experience in monitoring anesthetic depth monitor the inmate
6
7 before and during the administration of pancuronium and potassium. Preferably, that

8 individual should be a board-certified anesthesiologist. See Taylor, Order of Sept. 12,

9
2006, at 2. The individual should be screened much as he or she would be if applying for
10
a hospital position: he or she should be subject to a background and licensure check and
11

12 carefully interviewed to determine fitness for the responsibility. That individual should

13 then be permitted to exercise his or her medical judgment as to the appropriate means of
14
monitoring, subject to the constraints and concerns described above.
15

16

17 4. What would be the advantages and disadvantages of an execution protocol that 18 achieves its purpose by using one or more sedatives, such as sodium thiopental or
pentobarbital with or without a narcotic, and eliminates the other two drugs that 19 currently are used? Should a single dose, multiple doses, a continuous infusion, or 20 some combination of these be used? What modifications to OP 770 would be
necessary?
21

22

Using a single anesthetic as the sole means of execution, if done in

23 connection with a fail-safe administration method, would eliminate the grave risk of
24
conscious pain and suffering that is unavoidably imposed by the current three drugs used
25
26 by CDCR. That alone may be reason for CDCR to give this option serious consideration.

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Errors in implementing a protocol consisting of only an overdose of an anesthetic would
2
3 not likely subject inmates to excruciating pain. By eliminating potassium and

4 pancuronium from the protocol, and giving an appropriate overdose of a barbiturate

5
sufficient to cause death, CDCR would minimize the risk of conscious pain that is
6
inherent in the current procedure.
7

8

There are risks inherent in a single-drug execution procedure, as Dr. Heath

9 testified at the hearing, and these risks must be addressed in any single-drug protocol.
10
First, to minimize the risk of unsuccessful single-drug executions, CDCR still must
11
12 address the likelihood of errors in administration or preparation, as well as drug

13 diversion, indifference, and misconduct, that currently infect CDCR’s execution system.
14
The improvements in training, screening, facilities, and record-keeping discussed above,
15
16 in the response to the Court’s Question 1, therefore are necessary even if a single-drug

17 protocol is instituted. Second, to ensure the safety of a single-drug protocol, a physician
18
should be retained to oversee the executions. This is necessary to ensure that the
19
20 execution team is able to react effectively to any unanticipated occurrences during the

21 procedure. The execution team members’ lack of medical training and the untested
22
nature of a single-drug protocol render it imperative that someone with extensive medical
23
24 training monitor the execution and direct any intervention that is necessary to protect the

25

26

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safety of the inmate. Employing a physician in this manner would simply bring CDCR’s
2
3 execution process up to the standards observed in veterinary euthanasia.

4

A. Expert Ethical Limitations.

5
As noted above, plaintiff’s expert witnesses are prevented by their personal
6
ethics from providing specific comments on the advantages and disadvantages of an
7

8 execution protocol that has not yet been adopted. Plaintiff has therefore been unable to

9 consult with his experts regarding several of the issues raised by the Court, including
10
whether the barbiturate should be administered by means of a continuous infusion;
11

12 whether single or multiple doses should be used; or whether the barbiturate should be

13 combined with a narcotic. Court’s Request for Briefing, at 2. Without medical and
14
scientific input on these details of the procedure, plaintiff cannot provide any additional
15
16 information not already in the record with respect to these issues. For plaintiff’s counsel

17 to attempt to comment on these medical issues, or provide recommendations, without the
18
assistance of medical experts, would do a disservice to the Court, CDCR, and the inmates
19
20 who might be executed under a protocol revised in this manner. Indeed, for counsel to

21 attempt to provide medically uninformed recommendations on dosage or other specifics
22
would be no better a revision process than the one undertaken by Mr. Gillette and Andrea
23
24 Hoch at the meeting in the Governor’s Office. Plaintiff is therefore unable to provide a

25 specific discussion of how a single-drug protocol would be implemented.
26

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With these limitations and in good faith of attempting to accommodate the
2
3 Court as much as possible, plaintiff will discuss some of the issues that would be

4 implicated if CDCR were to implement a protocol using only a single drug.

5
B. The Process of Developing a Protocol that Uses Only a Single Drug.
6
The process of designing a single-drug protocol would need to be
7

8 undertaken by CDCR in close consultation with medical, pharmacokinetic and

9 pharmacodynamic, and veterinary experts who can provide input with respect to specific
10
elements of the procedure, including dosage and administration method. Only with
11

12 informed scientific input can CDCR design a protocol that reliably causes a humane

13 death.
14
15

It will be possible for CDCR to procure the assistance of such experts.

16 Historically, medical professionals have been willing, despite the ethical limitations

17 observed by many in medical professions, to provide assistance in designing execution
18
protocols. Heath Decl. ¶ 53. The very first lethal injection protocol, developed in
19
20 Oklahoma in the late 1970s, was designed by a physician and medical examiner, Dr. Jay

21 Chapman. Id. Similarly, Missouri’s execution protocol was designed by John Doe I, a
22
surgeon, in the early 1990s. He determined the dosages of each drug and the method of
23
24 administration. Heath Decl. ¶ 53. And, of course, in California, Dr. Singler was willing

25 to provide CDCR with fairly specific advice as to improvements that he believed could be
26

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made in the lethal injection procedure, see Ex. 71, RT 1072-73; his suggestions were
2
3 simply rejected by Mr. Gillette. This included using a single drug barbiturate protocol.

4 In addition, Dr. Rosko, a psychiatrist at San Quentin, was willing both to participate in

5
Mr. Morales’s execution and to assist in modifying the protocol thereafter. UF 119-24.
6
There is no legal barrier to physician participation in California. See Thorburn v.
7

8 Department of Corrections, 66 Cal. App. 4th 1284 (1998). There may well be other

9 states that have turned to medical professionals to design their execution procedures;
10
given the paucity of information that is currently publicly available regarding the
11
12 development of lethal injection protocols, it is notable that there are as many as three

13 documented instances of doctors assisting in designing execution protocols. Thus, there
14
is no reason to believe that CDCR would be unable to retain medical experts to assist in
15
16 determining the specifics of a single-drug protocol.

17

C. A Single-Drug Protocol Could Minimize the Risk of Conscious

18
Suffering.
19

20

A single-drug protocol, assuming use of the correct drug and proper

21 administration, would minimize the risk of excruciating pain and agony that is currently
22
imposed by the use of pancuronium and potassium. RT 900 (Ekins); Concannon Tr. Aff.
23
24 ¶ 17. The inclusion of those drugs in the protocol renders the procedure needlessly

25 dangerous. Even in ideal clinical circumstances, highly trained practitioners such as Dr.
26

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Concannon would not employ potassium and pancuronium for euthanasia, because of the
2
3 dangers they create. Concannon Tr. Aff. ¶¶ 17; 25. In the execution context, therefore, it

4 is particularly senseless that CDCR has chosen to use such a dangerous combination of

5
drugs. Even adequately trained, supported personnel would find such executions difficult
6
to perform, and the nature of lethal injection is such that even a single person’s error,
7

8 deviation from the protocol, or misconduct could have catastrophic consequences for the

9 inmate. This is particularly true of the new protocol, which requires a level of precision
10
the team has been unable to attain ever. Using a drug or drug combination that is less
11
12 extremely sensitive to error, therefore, will help minimize the risks to inmates.

13

Dr. Concannon, a trained veterinary anesthesiologist, testified that he would

14
not use potassium for euthanasia unless the situation demanded it:
15

16

I would not choose to use potassium for euthanasia because

17

euthanasia by potassium is needlessly complicated. Simpler

18
procedures are inherently more likely to go smoothly. The
19

20

need to place an animal under general anesthesia also renders

21

euthanasia by potassium less efficient than euthanasia

22
procedures where anesthesia and euthanasia are achieved, in
23

24

that order, via a single injection. All other things being equal,

25

26

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I would choose to use a euthanasia method that does not

2

3

require me to guard against inflicting suffering on a patient.

4 Concannon Trial Aff. ¶ 17.

5
It is striking that Dr. Concannon, who possesses the training and expertise
6
necessary to ensure that euthanasia by potassium is conducted humanely, and conducts
7

8 euthanasia in the much more favorable setting of a veterinary hospital, prefers not to use

9 potassium. Nor would Dr. Concannon, or any veterinarian, add a neuromuscular blocker
10
to a euthanasia procedure. RT 262-63. The dangers of doing so are simply too great, and
11
12 therefore the prevailing standard of care in veterinary medicine is not to use any

13 neuromuscular blockers for euthanasia, even in deeply anesthetized animals. Id. ¶ 25.
14
The dangers of potassium and pancuronium that lead veterinarians to reject them for use
15
16 in euthanasia operate with even more force in an execution setting, where many personnel

17 do not have medical or veterinary training, and personnel are not operating in a clinical
18
setting. RT 911 (Dr. Ekins testified that he agreed that “the more complex you make the
19
20 endeavor, the more important it is the people engaging in the process are trained in that

21 endeavor and have some experience that they bring to it.”).
22
A single drug could be used to cause death for purposes of an execution. A
23
24 sufficient overdose of any anesthetic will cause death. Heath Decl. of Feb. 14, 2006, ¶ 2.

25 The predominant, preferred method of veterinary euthanasia is to use a single barbiturate,
26

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1 pentobarbital, or a solution primarily composed of that barbiturate, to cause death.35 See
2
3 AVMA Report, Ex. 42, at 679-81; RT 264 (Dr. Concannon), 817 (Dr. Heath). The

4 AVMA Report does not unconditionally recommend any non-barbiturate anesthetics for

5
use in euthanasia by single injection. Id. Because veterinarians have devoted their
6
considerable expertise to analyzing state-of-the-art scientific evidence and developing the
7

8 most humane, quick, and efficient methods of euthanasia possible, see id. at 672, and also

9 have considered issues ancillary to the welfare of the patient, such as the comfort of the
10
owners witnessing the procedure, the veterinarians’ use of a single barbiturate injection
11

12 should not be lightly ignored by CDCR. As Dr. Concannon noted, to ignore the body of

13 veterinary knowledge would be a “disservice.” RT 280 (“With such an important
14
decision to make, I would think that the Court would look at any – any pertinent
15
16 information to help them form a decision, and without a large body of scientific data that

17 explores human euthanasia and describes the proper methods prepared by a group of
18
experts, I think that, as in other aspects of medical care, using animal data, animal
19
20 information is – is appropriate in helping to form decisions.”).

21

As Dr. Concannon, who euthanizes animals using a pentobarbital solution,

22
stated at trial, using a single barbiturate to cause death has the advantage of necessarily
23

24 causing the animal to be anesthetized before causing death. RT at 266; Concannon Hrg.

25 35

26

This brief therefore discusses only the use of barbiturate anesthetics, although there

may be other anesthetics that could be used humanely.

27

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Aff. ¶ 17. Thus, if the solution has its expected effect, the animal is first placed in a deep
2
3 plane of anesthesia; then, a result of that anesthesia, the animal stops breathing, and then

4 its heart stops. See AVMA Report, Ex. 42, at 679-80. The AVMA describes the use of a

5
single barbiturate as follows: “Barbiturates depress the central nervous system in
6
descending order, beginning with the cerebral cortex, with loss of consciousness
7

8 progressing to anesthesia. With an overdose, deep anesthesia . . . is followed by cardiac

9 arrest.”
10
11

All barbituric acid derivatives used for anesthesia are acceptable for

12 euthanasia when administered intravenously. There is a rapid onset of action, and loss of

13 consciousness induced by barbiturates results in minimal or transient pain associated with
14
venipuncture. Id. For these reasons, the injection of a single barbiturate to cause death is
15
16 the euthanasia method “of choice” for veterinarians. Concannon Decl. ¶ 2.

17

These characteristics of a single-barbiturate protocol would make it less

18
sensitive to error than the current three-drug protocol. When pancuronium and potassium
19

20 are included in the execution protocol, every flaw in the procedure, every institutional

21 failure, creates a risk of subjecting inmates to excruciating pain that is very difficult, if
22
not impossible to correct, given the confines of the procedure, its uncertainty and the
23
24 personnel involved. Simple human errors also will subject inmates to conscious

25 suffering, as the nature of the lethal injection process is such that any error at any stage,
26

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such as drug custody, drug preparation, syringe selection, injection, and catheter
2
3 placement can have a catastrophic effect on the integrity of the process.

4

As Dr. Heath put it, “No human endeavor can be performed with perfection

5
every time. What you have to do is try to – try to set things up so that foreseeable error is
6
addressed and that unforeseen errors you have the ability as best you can to intervene and
7

8 correct.” RT 495. Errors at any one point in the lethal injection process can also be hard

9 to detect, particularly given the partitioning of tasks among different team members.
10
Eliminating pancuronium and potassium from the execution procedure therefore will help
11
12 minimize the risk of conscious suffering that would attend even executions performed in

13 circumstances that are an improvement over the current execution system maintained by
14
CDCR.
15

16

D. A Single-Drug Protocol Would Still Involve Risk to the Inmate.

17

A single-drug protocol may help minimize the risk of pain that is inherent

18
in the three-drug protocol, but it would involve an independent set of risks. Any
19

20 execution procedure using only a single drug must adequately account for these risks.

21

First, a failure to deliver the full dose of anesthetic could result in the partial

22
depression of the respiratory system, resulting in the inmate waking up with brain
23

24 damage. See Heath Decl. of Feb. 21, 2006, ¶ 3; RT at 834-35. Thus, even with a single-

25 drug protocol, ensuring that the execution team is able to deliver the full intended dose
26

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into the inmate’s circulation is crucial. The problems currently afflicting CDCR’s
2
3 execution procedure, such as drug diversion and drug custody problems, drug delivery
4 risks created by the execution facility, and the failure to plan for IV access problems,
5
therefore create risks to the inmate even in the context of a single-drug protocol. See RT
6
at 833. This was the conclusion the Court reached in its Order of February 22, 2006, and
7
8 it is no less true today. If anything, the additional evidence uncovered by this litigation,
9 including the apparent disarray of the team, has strongly reinforced this principle.
10
Second, although there is a great deal of experience using such a procedure
11
12 with a wide variety of animals, a single-drug protocol has never been used to execute an
13 inmate. Consequently, nobody in CDCR or on the execution team will know precisely
14
what to expect, the universe of unexpected effects that could arise, or even how long the
15
16 execution will last and what it will look like. Heath Decl. ¶ 59; RT 1076 (Singler: 5
17 grams of thiopental takes up to 45 minutes); but see 1118-19 (Singler: hypoxic death
18
from 1 gram of thiopental barbiturate takes 20-40 minutes using flat line, which is a very
19
20 restrictive definition). This uncertainty in itself creates the risk that the execution team
21 will not be adequately prepared to handle the procedure and recognize and react
22
effectively to any contingencies that arise. For instance, if the execution team is
23
24 surprised and discomfited by movements that occur, or by how long the procedure takes,
25 if they do not have adequate guidance, they might react in a manner that is unsafe for the
26
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1
inmate, such as by injecting pancuronium without first assessing the inmate’s status. The
2
3 team’s performance in previous executions provides ample reason to be concerned about
4 this possibility. For example, when inmates have not flatlined quickly enough after the
5
administration of potassium, the execution team has repeatedly given a second dose of
6
potassium without inquiring as to the reason that the inmates did not flatline as quickly as
7
8 expected. Yet one explanation for the occurrence is that a drug delivery problem, such as
9 leaking tubing or infiltration, affected the delivery of all of the drugs, including the
10
anesthetic. In an execution such as Massey’s, in which the execution team observed not
11
12 only the failure to flatline but also IV insertion problems, continued respiration, and
13 twitching, the team’s failure to consider a drug delivery problem and the need to give
14
more anesthesia in the back-up line is particularly troubling. Thus, the execution team
15
16 certainly cannot be trusted to react effectively and safely in the context of a procedure
17 that has never been used before.
18
In other words, the use of a single-drug protocol cannot be seen as a
19
20 panacea to the numerous problems afflicting the execution process. The execution team
21 clearly has not been capable of rationally and effectively solving problems on its own. In
22
addition to the administration of a second dose of potassium, the record is replete with
23
24 examples of issues arising and being turned into safety risks by the execution team’s lack
25 of problem-solving ability, including the translation of the protocol’s requirements into
26
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the manufacturer’s concentration and the resulting reduction in dose; the change in the
2
3 packaging of the thiopental from a 5-gram kit to a 500-mg kit; the need to hang the IV

4 bags somewhere in the gas chamber; and the failure to set the left IV in the S. Williams

5
execution. Particularly because the team and CDCR may not know precisely what could
6
occur during a single-drug execution, the execution team must not be left on its own to
7

8 flail. Doing so would needlessly put the inmate at risk for brain damage or other pain or

9 injury.
10
11

In fact, judging from the single, brief interaction the team had with Dr.

12 Singler, they appeared appreciative of the advice and expertise. To deprive them of this

13 additional confidence in their procedures is certainly not in their interest either. And, it
14
would provide the public with an assurance that executions are being carried out lawfully
15
16 and humanely, using the available expertise and most recent scientific and ethical

17 principles.
18
E. Implementing a Single-Drug Protocol
19

20

Because of the risks that will inhere in a single-drug protocol, if the CDCR

21 opts to use a single-drug protocol, it must also (1) remedy the systemic problems
22
discussed in Plaintiff’s response to the Court’s Question 1; and (2) retain a physician to
23
24 oversee the procedure and guide the execution team’s response to any problems that arise.

25

26

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To reasonably minimize the risk of botched or inhumane executions, the
2
3 CDCR must remedy the issues discussed above. Notably, the veterinary profession has
4 determined that proper training, record-keeping, and facility design are important to
5
ensure that euthanasia is performed humanely even when the drugs used are not
6
inherently painful. Concannon Decl. ¶¶ 5-6. Thus, the veterinary standards regarding
7
8 training and screening of euthanasia personnel and other aspects of the euthanasia process
9 (discussed above and in Dr. Concannon’s declaration) are observed in animal euthanasia
10
even though the predominant method of veterinary euthanasia is a single injection of
11
12 pentobarbital. Id. ¶¶ 8-19. The veterinary standards make eminent sense: Poor training,
13 unsafe practices, and poor responses to problems can lead to botched procedures and
14
suffering even if the procedure itself does not inherently involve the risk of conscious
15
16 suffering. Id. The same is true in an execution setting. For instance, ineffective IV
17 placement (whether caused by the cramped execution facility or poor training) could
18
render a single-drug execution inhumane by leading to infiltration (which can be quite
19
20 painful) or by requiring a central line placement or cut-down. Drug diversion could lead
21 to an insufficient dose of barbiturate being delivered. Untrained personnel would be
22
unable to detect these problems. To reasonably ensure that single-drug executions are
23
24 humane, successful, and performed according to protocol, therefore, the CDCR must be
25 required to institute the changes outlined in the response to Question 1.
26
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In addition, the CDCR should be ordered to recruit a physician to monitor
2
3 executions using a single-drug protocol. An individual knowledgeable in the
4 physiological changes expected when an overdose of an anesthetic is administered, as
5
well as the pharmacology of the drug used, is necessary to ensure that the execution in
6
fact goes as planned and is humane for several reasons. First, even if the execution team
7
8 is given the additional training in the procedure that is necessary, they do not have
9 extensive medical training or training or experience in euthanasia, and therefore they
10
cannot be expected to understand the course and effect of the drug or detect problems.
11
12 See Concannon Decl. ¶ 17 (although euthanasia technicians can be trained to detect and
13 remedy certain problems, they do not have a veterinarian’s grasp of physiology and
14
pharmacology, and therefore cannot detect and remedy all of the problems that a
15
16 veterinarian could). In addition, as discussed above, there is the danger that the execution
17 team may see effects (such as agonal movements) that they mistake for problems, and
18
they may react in a way that is dangerous. Second, a physician also could react to any
19
20 problems that might occur and give instructions to the execution team accordingly. Heath
21 Decl. ¶ 56. The execution team has demonstrated that they are not adept at solving
22
problems in a rational manner, and given their lack of medical training, they should not
23
24 be forced to attempt to remedy medical problems. Doing so would place the inmate at
25 risk. Third, a physician could provide assurances, both to witnesses and to the CDCR,
26
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that executions are being performed humanely and that any movements or other physical
2
3 effects are not indicative of problems.

4

In sum, performing executions using an untested method without a

5
physician or other highly trained medical professional present would leave the execution
6
team members in the untenable position of performing an execution without knowing
7

8 what to expect, and without the necessary training to react effectively should problems

9 arise. Id. That is not fair to the execution team, and it certainly would not protect the
10
inmates’ right to an execution free of needless risk of pain.
11
12 / /

13 / /
14

15

16

17

18

19

20

21

22

23

24

25

26

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F. Certain Elements of the One-Drug Protocol Should Not be Considered

2

3

Disadvantages.

4

From the perspective of CDCR, there may be purported disadvantages of

5
using a single-drug protocol with respect to the observations of witnesses to the
6
7 procedure. These considerations should never be allowed to outweigh the welfare of the

8 inmate, however, and therefore these asserted disadvantages should not be sufficient

9
reason not to use a one-drug protocol.
10
As Dr. Concannon testified, animals euthanized with pentobarbital may
11

12 display voluntary or involuntary movements during the process. Concannon Hrg. Aff.

13 ¶ 25. Similarly, in end-of-life care settings for humans, there is the possibility of agonal
14
gasping or other movements. RT 465. Dr. Singler noted the commonly observed “death
15
16 rattle” resulting from pentobarbital overdose of sufficient quantity, which he considered a

17 “cosmetic” circumstance. RT 1077. Removing pancuronium from the protocol may
18
result in more of these movements occurring during executions and being observed by
19
20 witnesses, though it is impossible to know with certainty how a single-drug execution

21 will appear to witnesses.36 It is also unclear how long a pentobarbital execution would

22
36
23

Notably, the use of pancuronium in California has not prevented these movements

24 from occurring. RT 245-46 (Rocconi). However, removing potassium will certainly reduce the visually disturbing nature of the process. Retaining the pancuronium, however,
25 would appear ill-advised given the need to be able to monitor sufficiently the effectiveness

26 of the overdose, as the veterinarians have recognized, and Dr. Singler noted. RT 1081-82. This would appear even more profound given the circumstances surrounding the conditions

27

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last, although gorilla euthanasias using a pentobarbital solution are over in a matter of
2
3 minutes. Loomis Decl. ¶ 7. Given that some of CDCR’s previous executions lasted over

4 20 minutes, it is hardly certain that pentobarbital executions would take longer than the

5
current procedures.
6
It may very well be that, with a proper exploration of the pharmacokinetics
7

8 and pharmacodynamics of other barbiturates, this would be more easily determined. Dr.

9 Ebling had not studied this area, and was relatively uncertain. He was aware, however,
10
that some veterinarian barbiturate combinations alleviate cosmetic concerns and that
11
12 these do not employ a paralytic or potassium. RT 420-21. It is known that if insufficient

13 doses are given such that respiratory drive continues, it could appear unpleasant or be
14
somewhat prolonged. RT 428-31; RT 1017-18.
15

16

Uncertainty about the cosmetics of a single-drug execution should not

17 outweigh the advantages that such a protocol would confer on the inmate himself. In the
18
veterinary euthanasia context, the potential disadvantages of a euthanasia method to
19
20 ancillary participants -- such as pet owners and euthanasia personnel -- are routinely

21 weighed against the advantages of the method for the animals themselves, and the
22
benefits to the animal always take priority. Concannon Decl. ¶ 13. Unproven concerns
23
24 about the sensibilities of witnesses should not be given higher priority than ensuring

25 humane executions, particularly when it is clear that eliminating pancuronium and
26
at San Quentin and the team member difficulties.
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potassium from the protocol will minimize the risk of conscious suffering. Indeed, as Dr.
2
3 Concannon and Dr. Heath testified, it is unethical to use pancuronium to obscure

4 movements while risking the welfare of the patient or inmate. RT 465-66; Concannon Tr.

5
Aff. ¶¶ 25-26.
6
Rather, to the extent that these aesthetic concerns are real, they can be
7

8 addressed even in the context of a single-drug protocol: As in euthanasia and end-of-life

9 situations, the possibility of movement can be explained to those who will witness it. RT
10
465-66 (“And the articles very forcibly state that that's not appropriate or acceptable, that
11
12 that -- those movements, while they can be disturbing to family members, the way to

13 address that is not by concealing them, but by explaining to people what they represent if
14
they -- should they occur.”); Exhibits 63 and 64. There is no reason that CDCR could not
15
16 explain to witnesses what they might see during an execution. Indeed, doing so would be

17 more effective than using pancuronium to mask movements, because witnesses to
18
executions routinely observe twitching or heaving during executions, and they are
19
20 disturbed by these observations. RT 245-46 (Rocconi); 467 (“[Pancuronium] clearly

21 didn’t do the job that they were hoping it would do because people saw movements that

22
disturbed them.”).
23

24

One argument defendants may make was proffered by Dr. Singler at the

25 hearing. He testified that there may be “an extremely rare case” with an inmate who has
26

27
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a “favorable airway” that allows breathing. RT 1080. However, he appears alone in this
2
3 position, and even he conceded that an inmate given a sufficient dose of pentobarbital

4 will expire. RT 1080. A sufficient dose of pentobarbital should oblate all respiratory

5
drive in the brain – meaning that there is no signal from the brain to breathe. RT 462
6
(agreement between Dr. Heath and Dr. Dershwitz). At that point, it matters not that the
7

8 airway is or isn’t blocked, because breathing has ceased. The 5 gram dose of thiopental,

9 effectively delivered, will cause death. RT 542-43. So will a large enough dose of
10
pentobarbital. RT 1081. The same is true for a sufficient dose in animals. RT at 287.
11

12

This testimony by Dr. Singler, and the uncertainty expressed by Dr. Ekins,

13 are a reflection of their assumption that the breathing records in this case reflect an
14
adequate initial dose of thiopental. From this, they work backwards to posit that 5 grams
15
16 may not be sufficient to oblate respiratory drive. Their assumption, however, is by no

17 means certain. And, the probability of this occurring is, in Dr. Singler’s opinion, an
18
“extreme outlier.” RT 1080. It was so extreme, that he could not quantify it. RT 1081.
19
20 It may be that we are talking about the type of probability that Dr. Dershwitz ascribes to

21 the chance that someone given 5 grams of thiopental is conscious. Exhibit 38, pp. 2-3. In
22
fact, given his agreement with Dr. Heath concerning respirations, this is very likely. As
23
24 noted elsewhere, this testimony also appears at odds with the testimony given by Dr.

25 Singler when defending OP 770. In any event, if there is a difficulty, it reflects
26

27
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insufficient sedation, and is easily managed by the addition of sufficient drug to negate
2
3 that respiratory drive, i.e. a second dose.

4

G. Specifics of a Single-Sedative Protocol

5
The Court has asked the parties to discuss several specific aspects of a
6
potential one-drug protocol, including the dose and method of administration. Plaintiff’s
7

8 ability to address these issues is limited by his experts’ ethical obligations and the Court

9 has now entered an area that may impact upon counsel’s ethical obligations.
10
1. The Relative Advantages of Using Pentobarbital or Thiopental. The
11

12 Court has asked specifically about two barbiturates, thiopental and pentobarbital, as

13 potential execution agents. Either one would be lethal if used in sufficient dose. As
14
discussed above, however, the AVMA has determined that pentobarbital is the best
15
16 barbiturate to use in animal euthanasia. That conclusion is the result of expert

17 consideration of different barbiturates and the AVMA’s priorities of performing

18
euthanasia humanely and reliably. Concannon Decl. ¶ 5.
19

20

Specifically, pentobarbital’s longer duration of effect may render it a

21 superior drug to thiopental. The longer-acting nature of pentobarbital led Dr. Singler to
22
recommend its use in a single-drug protocol: “If you are using a single-drug protocol and
23
24 if you are concerned about possibilities, small possibilities although they might be some

25 minutes to half an hour to an hour out . . . then you prefer to have a non-ultrashort-acting
26

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barbiturate still in the system to assure unconsciousness. Pentobarbital would provide
2
3 that in a single-drug protocol.” RT 1080. Dr. Singler’s opinion on this issue is consistent

4 with the AVMA’s. It is also consistent with Dr. Ebling’s. The reality is that thiopental is

5
a bad drug to use in lethal injection executions in all circumstances, given the difficulties
6
with administration and the nature of that drug. It’s only purpose to act faster than any
7

8 other drug. But, its disadvantages clearly outweigh this action.

9

Defendants may argue that the onset time is uncertain. But, this is only

10

because the hearing did not concern the pharmacology of pentobarbital. It is still a short-
11

12 acting barbiturate, and the onset (i.e. cessation of breathing) may not be any longer than

13 thiopental, assuming a sufficient dose. RT 816.
14
2. The Dose of Barbiturate. As discussed in the Declaration of Dr.
15
16 Loomis, the dose of pentobarbital used in gorilla euthanasia is calculated by individuals

17 with knowledge of the drug’s pharmacology and effects. See Loomis Decl. ¶¶ 5-6; also
18
Concannon Tr. Aff. ¶ 29. In all instances, it is a single bolus dose and not a continuous
19
20 infusion. Dr. Singler appears to have agreed. RT 1090. The CDCR should consult with

21 experts to determine the appropriate dose of the appropriate sedative, and they must
22
ensure that the dose is sufficient to avoid the inmate waking up with brain damage. RT
23
24 1081 (9 grams 100 percent effective). In addition, the execution team should be prepared

25

26

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to administer a second dose if necessary, and to be able to recognize when that would be
2
3 required.

4

3. The Use of a Narcotic. Plaintiff has already discussed the use of a

5
narcotic. It is true that the narcotic would alleviate some of the variations attendant with
6
thiopental’s rapid redistribution that make redistribution even faster in an execution
7

8 setting than the Russo chart indicates, although it would not itself change the fact that

9 thiopental rapidly redistributes. It is also true that pre-administration of a narcotic may
10
hasten the speed by which breathing stops. And, a narcotic would alleviate some pain
11
12 sensation. This is undoubtedly why Dr. Singler considered it at the Governor’s meeting.

13

However, those advantages are accounted for by the elimination of

14
pancuronium and potassium. Without those noxious chemicals, and with proper
15

16 administration of a proper sedative, there is little concern about pain. The veterinarians

17 seem to have solved this problem, if it existed at all, after study and review. Animal
18
euthanasia is relatively quick, much quicker than executions are presently. Exhibit 15 (20
19
20 minutes from first injection to flat line). And, executions could proceed much more

21 quickly if the state would use an adequate facility and provide adequately trained and
22
lawfully engaged personnel so that catheter-setting was not so prolonged, and it did not
23
24 take so long to determine if the lines are flowing properly, assuming the team has those

25 capabilities in the first place. Exhibit 14 (23 minutes from prisoner entering chamber to
26

27
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start of drugs); Exhibit 15 (14 minutes); Exhibit 13 (23 minutes); Exhibit 12 (13
2
3 minutes).37

4

There may be disadvantages to the use of narcotics, depending upon which

5
one is used and the dose. One is the potential for mistaking the effects as those
6
associated with the sedative, causing a delay in the process if a second dose is required
7

8 because of inadequate administration.

9

H. The Use of Thiopental in O.P. 770 increases the risk of an

10

Unnecessarily Painful Death.
11

12

The dosage and method of administration of sodium thiopental in the

13 current version of O.P. 770 has increased the risk that an execution will result in a painful
14
death. This is true particularly given CDCR’s long IV tubing, variable rate of
15
16 administration, and history of IV access difficulties. By decreasing the size of the initial

17 bolus dose of thiopental from five grams to 1.5 grams, the new protocol has reduced the
18
initial dose of thiopental to a level that is the lowest of any state. Lowering the dose of
19
20 thiopental decreases the margin of error in administration and increases the risk that a

21 particular problem will both go unnoticed and result in the inmates being aware during
22
the execution.
23

24
37

25

Observing a drip is only one component in determining adequate IV access. As

26 discussed, even if there is a flow, the IV may not be working properly from infiltration. The slow settings may cause additional difficulties.
27
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Under the previous version of O.P. 770, a five gram bolus dose of
2
3 thiopental was delivered to the inmate. Assuming successful delivery of the five grams, it

4 is beyond dispute that in all but the rarest of cases, an inmate would be rendered deeply

5
unconscious and fully apneic by that overdose within approximately one minute. RT
6
1014-16. However, evidence culled from contemporaneous execution logs has
7

8 established that certain condemned inmates did not experience the intended effects of the

9 thiopental during their executions, as a result continuing to attempt to breathe and
10
reacting to the administration of the pancuronium and potassium. Defendants’ varying
11
12 attempts to explain this ring hollow, with both their experts admitting error in

13 administration is a potential reason for this that must be considered. The notion that
14
experienced doctors do not know how to measure breathing is simply “looking for
15
16 zebras”, and that Dr. Singler has a special method of detecting breathing that is not even

17 recognized in his own profession is laughable. See Exhibit 61, Standards for Basic
18
Anesthetic Monitoring (in addition to equipment, examination of color and chest
19
20 movements).

21

The changes made, however, reflect a fundamental lack of understanding of

22
the properties of thiopental and its action after delivery to the body. Thiopental is an
23

24 ultra-short acting barbiturate generally used in anesthesiology solely for the induction of

25 anesthesia, not for the maintenance of anesthesia. A single dose of thiopental
26

27
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1
administered directly into a patient by rapid push intravenous injection results in arterial
2
3 blood concentrations rising very rapidly and will produce peak blood concentrations
4 within less than one minute. The rate at which a certain anesthetic state is achieved from
5
sodium thiopental and its depth and duration is extremely variable and dependent on the
6
drug dose and concentration, the time to administer the drug, the rate at which the drug is
7
8 delivered to the brain, the rate of uptake in the brain, the rate of decrease of
9 concentrations in the brain and the patient’s physical characteristics, such as cardiac
10
output. After administration, thiopental moves rapidly through the lungs into the arteries
11
12 and into the brain and other highly vascular and highly profuse organs. To achieve a
13 level of anesthetic depth sufficient to insure that an inmate will not be consciously aware
14
of pain from the potassium chloride injection, an inmate must achieve a blood
15
16 concentration level of thiopental in the range of 45 to 57 micrograms per milliliter. This
17 level, called burst suppression, is a level at which the brain waves reflected in an EEG
18
pattern evidence intermittent flat lines that last at least three seconds. Ebling Decl, ¶ 19.
19
20 While a 1.5 gram dose successfully delivered to an inmate typically would produce burst
21 suppression within one minute, the unique pharmacokinetic and pharmacodynamic
22
properties of the drug however limit the ability to maintain that level long enough to
23
24 insure a pain free execution.
25
26
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1
Once thiopental enters the arteries it begins to rapidly disappear in a
2
3 polyphasic fashion. After it peaks in arterial blood, the concentration dissipates in such a
4 way that anywhere from every one to five minutes the concentration is halved, as the drug
5
is rapidly distributed from the arterial blood to the most highly perfused and vascular
6
tissues such as the brain, kidneys, liver, heart and thyroid. Thereafter thiopental is very
7
8 rapidly redistributed back into the blood through the venous drainage of the tissues, its
9 action in the brain is terminated and it is redistributed to bulkier tissues. The initial
10
redistribution phase lasts for about 3 or 4 distribution half-lives or 4 to 20 minutes after
11
12 the cessation of administration, and has great variability depending upon the individual.
13 Dr. Dershwitz estimated it to be fast (1 minute half-life for 4 minutes) in an execution
14
setting because of the stress, a feature borne out in the execution logs with heart rates
15
16 well above the norm. During this rapid redistribution phase awakening from anesthesia
17 will occur after a single dose of moderate size. During this phase if the subject is not
18
anesthetized with other drugs he will become fully awake. O.P. 770 reflects no
19
20 understanding of these principles and as a result creates significant and unnecessary risks
21 for the inmate.
22
Because of the rapid distribution phase of thiopental, the rate of injection of
23
24 the drug is important in analyzing concentration levels and its effect in maintaining
25 anesthesia. If the thiopental is administered too slowly or if subsequent drugs are
26
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administered too quickly a substantial risk exists that the thiopental will either not have
2
3 had full sedative effect or will start to exit the brain before the administration of the
4 pancuronium and potassium.38 The peak brain and blood concentrations will be

5
decreased approximately by half for every rapid arterial blood distribution half-life that it
6
takes to administer the dose. For example in administering a dose of thiopental over two
7

8 and one half minutes can result in a two-fold difference in peak brain concentrations from

9 levels achieved with a more rapid rate of administration. O.P. 770 fails to specify the rate
10
of infusion for the 1.5 gram bolus dose, and has never been able to do it properly (mainly
11

12 because of great concern that a fast push would blow a vein). It thus introduces an

13 element of variability that creates an unacceptable risk of inadequate anesthesia.
14
In addition, the rate and half-life of the rapid distribution phase is
15
16 significantly influenced by the rate of blood circulation. The faster the blood is circulated

17 the more rapidly thiopental is taken up by the highly perfused tissues. The more rapidly
18
the drug is taken up by the tissues the lower the peak arterial concentrations are achieved
19
20 and lower brain concentration levels that are achieved. Where circulatory flow rates are

21 high, because the patient is anxious, apprehensive, fearful, or excited, thiopental will be
22

23 38

24

Although not necessary a problem in California, it has also been noted that

extremely rapid administration of thiopental, followed by very rapid injections of

25 pancuronium and potassium can also be extremely hazardous. The point is the great

26 variability and the inability of all but well trained anesthesiologists to accomplish the precision necessitated by these properties.

27

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1
more rapidly washed out of tissues and the duration of the period of consciousness will be
2
3 of shorter duration. Up to a two-fold increase in dose requirement can occur in patients
4 who are in a hyperdynamic, high cardiac output state because their hearts are pumping
5
blood rapidly and the rate of perfusion accelerates the redistribution of the drug. O.P.
6
770 makes no effort to take into account the high probability that an inmate facing
7
8 execution will be in a hyperdynamic state and thus will reachieve consciousness far more
9 quickly than a non-excited individual.
10
While CDCR modified the method of administration of thiopental in O.P.
11
12 770 by adding an IV drip to the protocol, the addition of the IV drip as instituted in the
13 protocol will have no effect on the depth or duration of the unconsciousness achieved
14
from the drug. Indeed, there is no evidence to suggest that any serious attempt to
15
16 consider whether the dose concentration and administration rates of the thiopental drip
17 was meaningfully analyzed to determine whether they would contribute to the
18
maintenance of the inmates’ anesthetic depth. The decision to alter the dosage and
19
20 method of administration resulted not from a comprehensive analysis of the properties of
21 the drug but rather from a 15 minute Internet search conducted by Dr. Rosko
22
investigating how a continuous IV thiopental infusion should be designed. However, Dr.
23
24 Rosko conducted the search without any contextual information and while under the
25 misimpression that the initial dose would be five grams. Because the IV drip is
26
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administered using lengthy IV tubing, by the time the thiopental drip reaches the veins of
2
3 the inmate, the pancuronium and potassium will have already been injected and will

4 likely have reached the inmate. Thus if, as is entirely possible, the initial thiopental dose

5
has started to wear off, the inmate will feel the effects of the pancuronium and potassium
6
before he feels the effect of the thiopental delivered through the IV drip. Moreover the
7

8 addition of the drip increases the risk of a painful execution because it eliminates the

9 possibility that the left arm could be used to administer the drugs in case the right arm
10
fails.
11

12

The administration of thiopental as described in O.P. 770 and prior

13 executions creates a substantial risk of an inadequately sedated inmate. Thiopental
14
requires very accurate and regulated administration to be effective and the window of
15
16 opportunity for proper brain concentration during an entire execution is very narrow

17 indeed. In combination with a poorly informed and inadequately trained team with a
18
history of IV access problems, and a very difficult site with highly unusual and
19
20 inordinately complex set up, the new protocol increase the likelihood that the window

21 will close before the administration of the drugs is completed and thus greatly and
22
unnecessarily heightens the risk that an execution will be unnecessarily painful.
23

24

25

26

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I. Alternative Drug Combinations

2

3

Although the Court has not raised this, there may be alternatives besides a

4 single sedative, with or without a narcotic. Dr. Ebling and Dr. Concannon noted that

5
many veterinarians use pentobarbital solutions that contain chemicals not present in
6
executions, but that meet the veterinary standard of care for humane euthanasia. Some of
7

8 these solutions are discussed in the AVMA Report, but plaintiff has no basis to opine on

9 whether the additional chemicals would be safe for use in humans. They appear to be
10
used when euthanizing large primates as well, although there is an additional concern
11

12 with those mammals surrounding the need to be able to insert catheters that requires a

13 chemical restraint, which has not been adopted by any state in their lethal injection
14
protocols. See Declaration of Michael Loomis.
15

16

The point is that defendants need to move off their mind-set that eliminates

17 the consideration of alternatives to the three-drug cocktail and begin to explore seriously
18
alternatives that other disciplines offer. The arbitrary rejection of them without further
19
20 consideration has, itself, created an unnecessary risk of a painful execution.

21

22
5. Additional Evidence to be Submitted in Connection with the Evidentiary 23 Hearing.
24
Contemporaneous with the filing of this brief, plaintiff Michael Morales
25
26 submits supplemental declarations of expert witnesses Dr. Kevin Concannon, Dr.

27
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William Ebling and Dr. Mark Heath, and a declaration from Dr. Mark Loomis. At the
2
3 evidentiary hearing held in this matter, on September 28, 2006, this Court granted leave

4 to plaintiff to submit a supplemental declaration from Dr. Ebling in response to the

5
testimony of defendants’ expert witness, Dr. Brent Ekins. The post-trial declarations of
6
Dr. Concannan and Dr. Heath supplement their testimony at the hearing in response to
7

8 this Court's request that the parties address certain specific issues in their post-trial

9 briefing. See Request for Briefing, at 1(c), October 3, 2006. The declaration of Dr.
10
Loomis, a veterinarian with expertise in the care of gorillas, is submitted herewith for the
11
12 same reason. All four of these expert declarations are highly relevant to the issues raised

13 at the hearing and responsive to this Court's request for input from the parties stated in the
14
Request for Briefing. This Court should consider this additional evidence in its
15
16 consideration of the claims submitted in this proceeding.

17

In addition, there remains substantial documentary evidence highly relevant

18
to the issues in this case that plaintiff has repeatedly sought from defendants, that this
19

20 Court has ordered defendants to produce on more than one occasion, and that defendants

21 have failed to produce, in derogation of this Court’s orders. These documents plainly
22
contain information highly relevant to the issues before the Court, and plaintiff should
23
24 have the opportunity to present this evidentiary material for the Court's consideration, in

25 further support of his claims. These materials, which are set forth and discussed in
26

27
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1
greater detail at Section 1(c)(4) in this brief, include the following: Magistrate Judge
2
3 Seeborg ordered defendants to "provide all documents pertaining to revisions of O.P.770,
4 including documents prepared or generated in connection with the meeting with the
5
Office of the Governor on February 28, 2006," and "all communications regarding
6
executions or lethal injection to or from Drs. Rosko, Singler, and Ekins" (Mag. Seeborg's
7
8 Order at 7, Sept. 12, 2006), yet defendants made no search for responsive documents.
9 Plaintiff requested all documents generated from visits by CDCR personnel to witness
10
executions in the State of Texas, and defendants excused their failure to produce any such
11
12 documents by claiming that none were requested. Despite clear requests for such
13 materials, defendants did not even conduct searches for documents pertaining to certain
14
changes in O.P. 770 made in response to problems with certain prior executions;
15
16 documents generated by Dr. Rosko on the execution system; and copies of team-leader
17 memos. Each of these categories plainly bears the issues involved herein, yet plaintiff
18
and this Court are denied access to the information. Defendants should be ordered yet
19
20 again to produce relevant materials so that this Court may have a more comprehensive
21 evidentiary record before it.
22
Finally, this Court has expressed particular interest in the experience of
23
24 other jurisdictions that use the three-drug execution protocol in connection with its
25 consideration of the California protocol. While nearly every state that conducts
26
27
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1
executions uses the same three drugs as California in their lethal injection protocols,
2
3 anecdotal and the other limited evidence available suggests that the amount of the dose,

4 rates of administration, method of administration, and other important components of a

5
lethal injection protocol differ widely between states. In this Court's consideration of Mr.
6
Morales's claims, additional evidence regarding the protocols and experiences of other
7

8 states would be of great evidentiary value. Through legal process and informal requests,

9 such material could be gathered by the parties and submitted to the Court in relatively
10
short order for its consideration.
11

12

13 November 10, 2006
14

Respectfully submitted,

15

16

By:

/s/

DAVID A. SENIOR

17

KATHLEEN T. SAENZ

18

BENJAMIN D. WESTON

Attorneys for Plaintiff

19

MICHAEL ANGELO MORALES

20

21

22

23

24

25

26

27
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 Case 5:06-cv-00219-JF Document 283 Filed 11/28/2006 Page 1 of 14

1 David A. Senior (# 108759) McBreen & Senior
2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
3 Phone: (310) 552-5300 Fax: (310) 552-1205
4 dsenior@mcbreensenior.com

5 John R. Grele (# 167080) Law Offices of John R. Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP
10 330 North Wabash Avenue Chicago, IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Attorneys For Plaintiff MICHAEL ANGELO MORALES

14

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA DISTRICT OF CALIFORNIA

15

SAN JOSE DIVISION

16

MICHAEL ANGELO MORALES,

) CAPITAL CASE

17

)

) Case No. C 06 0219 (JF) (RS)

18

)

C 06-926 (JF) (RS)

19

Plaintiff, ) SUPPLEMENTAL DECLARATION ) OF WILLIAM EBLING, Ph.D

20

v.

)

James E. TILTON, Acting Secretary of the )

21 California Department of Corrections and

)

Rehabilitation; Robert L. AYERS, Acting

)

22 Warden, San Quentin State Prison, San

)

Quentin, CA; and DOES 1-50;

)

23

)

24

Defendants. )

25

William F. Ebling, for his supplemental submission on behalf of Plaintiff Michael Morales,

26 states as follows:

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1

1. I testified on behalf of plaintiff Michael Morales as an expert in the fields of

2 pharmacokinetics and pharmacodynamics at the hearing held in this action on September 26, 2006.

3 Subsequent to my testimony and after my departure from the hearing, I was informed that Brent

4 Ekins, a clinical pharmacist qualified by the Court as an expert in pharmacology and toxicology,
5 offered certain testimony and opinions that in part responded to my earlier testimony. Counsel for
6 Mr. Morales has requested I submit a supplemental declaration in rebuttal to Dr. Ekins’ testimony. I
7
have now read Dr. Ekins’ testimony at the hearing and offer these comments for the Court. 8

9

2. Dr. Ekins misunderstands the notion of a half-life of a drug. His statement that “Half

10 life is a concept where you have a steady state blood level in a patient, and then we measure half

11 lives” (p.865, l. 15-17), is wrong. Ekins also mistakenly stated that “you can’t measure a . . . a half

12 life until you’ve reached the steady stage.” (p. 922, l. 1-3) In fact, there is nothing about the concept

13 of half-life that requires that the drug be at steady state. Half-life exists regardless whether the
14 administration of the drug took place over a long enough duration to come to a constant level (steady
15 state) or whether it is given by bolus injection. This is a fundamental concept that can be found in
16 any textbook of pharmacokinetics. The half-lives reported in the chart contained in the Russo
17 review article were determined after short infusions, the subjects had not reached steady state. In
18 19 fact, in order to achieve steady state with thiopental, one would need to infuse it for at least 4
20 terminal elimination half-lives, or almost 48 hours.

21

3. In response to a question from counsel for Defendants, Dr. Ekins opined that the issue

22 of the half life of thiopental has no particular relevance to the use of the drug in a lethal injection

23 execution given the short “time frame that is usual for these procedures,” because “the issue of half

24 life comes into play if you’re going to use this for several hours.” (p. 866, l. 1-11.) Dr. Ekins’

25 testimony fails to recognize that several half-lives exist for thiopental with different durations and
26 rates, and he confuses the concepts of distribution and elimination half lives. The brief initial
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1 distribution half-lives relevant to a lethal injection execution are those referenced in the chart

2 contained in the Russo paper and are measured in the time frame of minutes. I chose the figure of

3 two minutes to err on the conservative side, although in the execution setting it may be much faster.

4 In estimating the time course of action of thiopental in the body from a pharmacokinetic and
5 pharmacodynamic perspective, the short distribution half-life is the primary determinant of
6 thiopental duration of action after rapid short duration infusions such as administered for anesthetic
7
induction and as sought to be administered in the lethal injection protocol of Procedure No. 770. 8

9

4. In his testimony, Dr. Ekins apparently is referring not to the brief distribution half life

10 that occurs at the initial stages, but rather to the elimination or slowest half life, which occurs at the

11 very end of the process and is relevant for the removal of drugs from the body. The time course of

12 thiopental blood concentration decline following rapid bolus administration is characterized by three

13 phases of decline, two rapid distribution phases and a slower elimination phase. The rate of decline
14 in blood concentrations during each phase changes continuously and this changing rate is described
15 with a half-life term which characterizes the time required to decrease the concentration by half.
16 During each time interval equal in duration of one half-life, concentrations will decrease in half. For
17 example, to illustrate how thiopental concentrations decline during the rapid distribution phase, I
18 19 will use the following example. If we assume that the initial rapid distribution half-life in an inmate
20 is two minutes, then two minutes (or one half-life) after a rapid bolus dose of thiopental the drug

21 concentration will be one-half of the peak concentration that occurred at the end of the bolus dose.

22 After an additional two minutes (or one additional half-life) the concentration will be one-fourth of

23 the peak, and again two minutes later (or three half-lives), concentrations will be one-eighth of the

24 peak concentration. Typical rapid initial distribution half-lives set forth in the Russo chart range

25 from one minute to five minutes depending on the individual. Following a single rapid bolus dose,
26 the rapid initial distribution phase may consist of three to four rapid distribution half-lives, so this
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1 phase can last anywhere from between four and 20 minutes depending on the individual. During this

2 initial phase, peak blood concentrations will decline by 87-94%. After the initial rapid distribution
3 phase, the second, slower distribution phase occurs over the next 40 to 120 minutes, during which
4 typically two half-lives lasting from 20 to 60 minutes each bring the blood concentration level down 5
to less than two percent of the peak concentration level. Finally, the very slow terminal elimination 6
phase occurs, during which blood concentration levels of the remaining thiopental is decreased by 7
half every five to 12 hours. In contrast to the two earlier distribution phases in which thiopental is 8 9 distributing from blood to muscle, body fat and skin, this later elimination phase is governed by
10 metabolic elimination. It should be noted that brain concentrations track arterial blood

11 concentrations except they lag behind about 30 to 45 seconds) During cross-examination

12 (pp. 877-79, 922-23), Dr. Ekins confirmed that his perspective of half-life is not on the rapid

13 distribution half-lives that are relevant to the evanescent action of thiopental in the first or second
14 distribution phases , but rather that his professional perspective is that of a toxicologist whose focus
15 is on how long it will take for the body to eliminate the burden of an overdose. Clinical
16 toxicologists, like Dr. Ekins, are primarily focused on metabolic or excretory elimination, not on the
17 distribution/redistribution processes relevant in anesthesia. Dr. Ekins apparently does not
18 19 understand the pivotal role of distribution half-lives in charting the time course of thiopental’s ultra-
20 short duration action. He views half-life only in the context of the terminal elimination stage, where

21 a half-life has a duration of up to 12 hours. His conclusions regarding elimination half-lives thus are

22 irrelevant to any discussion about time course of action in anesthesia or execution settings.

23

5. Dr. Ekins also stated that the variability of the initial half-lives found in the studies

24 was only present if a single dose was given. (p. 936, l. 18--21.) This is an incorrect review of the

25 literature. It confuses variation in the initial half-life times that depend upon patient factors such as
26 age, weight and cardiac output (which is heart rate and stroke-volume), with the more complicated
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1 notion that administration of additional doses of thiopental affects the relative extent by which

2 concentrations will fall within each distribution phase, before progressing to the next distribution or
3 terminal elimination phase. The half-life variability across populations remains regardless of
4 additional doses. The notion that administration of additional doses of thiopental affects the 5
apparent pharmacokinetics of thiopental is as follows: Within any particular individual, if a second 6
dose is added, the extent of fall that will occur during each phase will change to some extent 7
depending on the timing of the second dose, its relative magnitude and the duration of the 8 9 administration of the second dose. For example, if the initial distribution phase half-life is one
10 minute as was noted for one individual in the Russo chart, and the initial bolus dose is 1.5 grams, the

11 blood concentration will fall for approximately four rapid distribution half-lives before entering the

12 slower distribution phase. During this initial rapid distribution phase, blood concentrations are

13 halved every minute or half-life such that after four minutes the blood concentration will be, in this
14 case, 6.25% of the peak blood concentration . After four half-lives, the rapid distribution phase is
15 exhausted and the remaining 6.25% of the concentrations in the blood will fall according to the
16 second slow distribution phase, and then later the final terminal elimination phase. For a subsequent
17 bolus dose, the initial distribution phase will account for a somewhat smaller percentage
18 19 disappearance of blood concentrations than the 90 percent reduction in blood concentrations
20 accounted for during the initial distribution phase of the first dose. For example, if a second dose of

21 the same size were administered 10 minutes after the initial dose, the peak concentrations resulting

22 from that dose may fall for three 1 minute half-lives before entering in to the slower distribution

23 phase. (i.e. a fall to 12.5% of this second peak rather than the 6.25% as seen after the administration

24 of the first dose). After the second dose, the remaining 12.5% of the second dose is distributed and

25 eliminated by the slower distribution phase and the terminal elimination phase. In this example the
26 relative contribution of the initial rapid distribution phase to the overall disappearance of the second
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1 thiopental dose was slightly reduced. Although the actual magnitudes of the half-lives (i.e. one to

2 five minutes) however, remains as variable even when additional doses are given. I believe that Dr.
3 Ekins was referring to the long duration infusion situations that he may be more familiar with in the
4 context of clinical toxicology. If thiopental was infused for several hours and then stopped, the 5
resulting decline in thiopental concentrations due to the rapid initial distribution phase, would play a 6
relatively minor role in the overall disappearance of the thiopental concentrations. But of course this 7
infusion scenario is not within the relevant time frame that concerns protocol 770. Therefore, this 8 9 complicated notion dealing with the relative extent of distribution with repeated bolus doses is not
10 relevant in the execution context. It certainly does not influence variability.

11

6. If Dr. Ekins’ testimony is that the magnitude of half-lives, particularly redistribution

12 half-lives, are dependent on the number of times you administer the drug or the duration of infusion,

13 that testimony also is incorrect. There is no basis or support for this opinion in pharmacokinetics.
14 The magnitude of half-lives of a drug (meaning how long they take to dissipate by one-half) are
15 independent of dose duration or number of doses. This is a first principle in pharmacokinetics. Of
16 course the intensity of effect and the duration of effect are dependent on the dose, the rate of
17 administration and the number of subsequent doses or infusion regimens. In this sense the time
18 19 course and intensity of thiopental’s action is “context sensitive” and depends on how the drug is
20 administered, including any previous doses in the case. A major part of the training of

21 anesthesiologists is the development of the appreciation of the fundamental properties of the drugs

22 and how they are expected to respond within these administration contexts, as well as the ability to

23 effectively respond in light of those contexts. However, the fundamental half-lives of thiopental do

24 not change.

25 7. Dr. Ekins’ suggestion that my past thiopental studies have utilized an inappropriate
26 one-compartment physiologic model (p.867, l. 9-15) demonstrates a profound lack of familiarity
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1 with my past work and analysis. Neither I nor my professional collaborators have ever stated that

2 thiopental is capable of study using a one compartment model, indeed in our physiologic models we
3 routinely employ more than 10 compartments. Dr. Ekins apparently misunderstands the concept of
4 an effect compartment, which is a representation of the site of effect as a single compartment such as 5
the arterial blood supply or the brain. That site is connected to the rest of the body, which is of 6
course multi-compartmental. All of the studies recognize this and account for it. 7
8. If Dr. Ekins is attempting to state that the studies I participated in only measure 8 9 arterial blood supply, that is incorrect as well. Many measure brain functioning. Further, the
10 relationship between the arterial blood supply and the brain is well-known and is factored into any

11 modeling. In the case of thiopental, we know the amount of time it takes to reach the brain, and to

12 redistribute out, and the rate at which it does this, all in relation to the arterial blood supply.

13

9. Dr. Ekins’ discussion of the use of thiopental to maintain anesthesia (p. 867-68)

14 ignores the operative mode of use of thiopental in Procedure No. 770. In the lethal injection
15 protocol, thiopental is effectively being used to induce anesthesia using a bolus dose. Thus, in
16 Procedure No. 770, thiopental is being used with the same intent that an anesthesiologist administers
17 thiopental in a surgical procedure to induce anesthesia. In both types of procedure, the drug is
18
19 administered over a relatively short period of time rather than through prolonged infusion. The

20 initial distribution/redistribution process (the first and second phases) predominate at a minimum for

21 at least the first 40 to 120 minutes after the initial injection. Thiopental does have the slower

22 elimination half-life as Dr. Ekins has referred to, however, this half-life does not significantly

23 influence the time course of thiopental’s concentrations for at least 45 minutes after the initial
24 injection. By that time, the concentrations are so low that thiopental’s pharmacologic action has 25
dissipated. This slow elimination phase is not relevant in the context of execution. 26

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1

10. Dr. Ekins’ discussion of maintaining anesthesia levels with thiopental is related to a

2 continuous infusion model, which, in Procedure No. 770 comes in the form of an IV drip. This,
3 however, is not the type or amount of dosing that affects the initial redistribution half-life in an
4 execution, and none of the literature he cites states otherwise. First, because of the timing involved 5
and the length of tubing, that drip does not deliver thiopental to the body until after the potassium 6
chloride is administered through the IV. Second, it will take a while for that constant rate drip to 7
achieve the elevated levels of thiopental required to fill in a developing “gap” of inadequate 8 9 thiopental concentrations that potentially could result from the redistribution of the bolus dose.
10 Thus, a gap in anesthetic coverage can occur as the initial dose is redistributed, but before any

11 thiopental from the drip has had the opportunity to “catch-up” and accumulate to sufficient levels to

12 refill the gap. The DP Crankshaw 1985 paper that Dr. Ekins cites comes to the conclusion that a

13 complex infusion scheme that varies the rate is required to insure appropriate thiopental levels in an
14 infusion context. Procedure 770 uses only a simple infusion scheme in an attempt to maintain
15 anesthesia and therefore increases the risk that an inmate will not be properly anesthetized.
16 11. Dr. Ekins testified that he is not aware of any studies measuring the levels of
17 thiopental in the brains of animals (p. 869, l. 2-5), although he also testified that after being deposed
18 19 by counsel for Mr. Morales he read an article that I co-authored with Wada (p. 863, l. 17-18). In
20 fact, that article concerns the physiological model of thiopental in the rat and contains more than 70

21 determinations of brain levels of thiopental in rats. By measuring the arterial blood concentrations

22 and the brain concentrations and by conducting contemporaneous EEG readings following

23 administration of doses of thiopental, we have been able to correlate brain concentrations with drug

24 effect and have been able to chart the time course of the drug in the body as the thiopental moves

25 from arterial blood into brain and back into the veins. Dr. Ekins’ testimony reflects inattention to the
26 article which he claims to have read as well as unfamiliarity with other learned studies and literature
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1 in the field which have established the time course of thiopental in the body. It is standard

2 knowledge today in anesthesia how quickly blood and brain concentrations track Thiopental
3 research conducted using principles of pharmacokinetics and pharmacodynamics has measured
4 blood and brain concentrations and monitored EEG activity in animals, and measured blood 5
concentrations and EEG changes in man, and correlated the data to determine how the blood and 6
brain concentrations track and what brain concentrations are required to produce different levels of 7
anesthesia in man. This was the principle in Gustofsson’s two articles, on which I was a co-author, 8 9 and the Wada article. These and other works of my collaborators have been repeatedly as examples
10 of seminal clinical pharmacology studies that have led to our understanding of the determinates of

11 thiopental action.

12

12. Dr. Ekins’ statement that the lethal injection drip “simply replace[s]” the thiopental

13 that has been distributed from the bolus dose indicates a lack of understanding of the procedure and
14 the time course of thiopental, and a misreading of the literature he cites. First, as stated above,
15 because of the length of the IV tubing used for the continuous drip, the thiopental administered by
16 the drip will not enter the inmate’s veins until four or five minutes after the intravenous infusion has
17 been started, assuming flawless administration, with the result being that the drugs administered by
18 19 the drip will not enter the inmate’s veins until after the potassium chloride has been administered in
20 many inmates. Second, Dr. Ekins’ suggestion that a constant intravenous infusion will result in the

21 replacement of what is removed from the initial bolus dose would be correct only if the drug being

22 administered exhibited one-compartment pharmacokinetic behavior. Thiopental has at least three

23 phases and even Dr. Ekins testified that it has four or five compartments. While using a loading

24 dose followed by steady state infusion to instantaneously achieve and then maintain a constant

25 concentration would be effective with a one compartment drug, for multi-compartment drugs the
26 infusion rate cannot be constant but must vary continuously with time to maintain concentrations. In
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1 recognition of this principle, it is standard practice to use computer-controlled infusion pumps in

2 anesthesia to maintain constant levels of anesthetics, as the computer-controlled infusion pumps
3 incorporate the pharmacokinetic model of the drug, and continuously vary the infusion rate of the
4 drug to “clamp” the concentration at the desired level. The single rate infusion paradigm set forth in 5
Procedure No. 770’s drip and endorsed by Dr. Ekins will not be able to keep up with the rapid multi6
phase distribution of the thiopental (first or second phases) and therefore concentrations could fall 7
dramatically for some period of time with this technique. While Dr. Ekins contends that the three 8 9 articles he reviewed after his deposition confirm the viability of the technique proposed in Procedure
10 No. 770 (p. 947, l. 18 to p. 948 l. 7), those articles in fact all refer to the fact that thiopental must be

11 infused with a complex changing infusion rate to maintain constant concentrations, a far different

12 protocol than provided under Procedure No. 770. In Procedure 770, the IV drip dose will not be

13 sufficient to catch the falling bolus dose for some time for several reasons. Most important are the

14 timing of the drip, and the fact that the bolus dose is given over a period of three to four minutes,

15 rather than the 10 to 15 seconds it is routinely administered and which is assumed in the studies.
16 And, the articles he relied upon to state that the drip is twice the level that would be used in surgery
17
is misleading because thiopental is not used by itself to maintain anesthesia. 18

19

13. Dr. Ekins’ testimony that delivery of 1.5 grams of thiopental would result in a surgical

20 level of anesthesia within one minute and would produce a pain-free execution (p. 871) demonstrates

21 that he does not understand the nature of anesthesia practice, which relies on the complex interaction

22 of several drugs administered at the right doses and the right times to create surgical anesthesia. In

23 clinical practice, thiopental is not used as a maintenance anesthetic, but rather as an induction agent,

24 usually with an induction dose of a narcotic, to initiate anesthesia to allow the anesthesiologist to

25 insert a tube across the vocal cords and into the trachea to support breathing, a procedure that takes
26 about 30 seconds. Only for those 30 seconds must the thiopental work to block consciousness and
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1 create such profound brain depression that the brain cannot respond to this noxious stimulus. Once

2 the tube has been inserted, the anesthesiologist starts the maintenance anesthesia, usually using a
3 combination of nitrous oxide and a narcotic, and perhaps a potent vapor anesthetic such as
4 isoflurane. Unlike thiopental, all of these maintenance anesthetics have good analgesic effects, with 5
the effects exceptionally good when a narcotic is used. After induction, the effect of thiopental 6
dissipates rapidly and the ability of the drug to continue to ablate response to the insertion of an 7
endotracheal tube (which is a less painful stimulus than a potassium chloride injection) is gone in 8 9 approximately two minutes, and the narcotics and nitrous oxide take over the role of maintaining
10 anesthesia and producing analgesia.

11

14. Moreover, Dr. Ekins’ testimony that the doses of thiopental would create a pain free

12 procedure misrepresents how the execution procedure relates to the procedures employed in the

13 clinical practice of anesthesia. The two procedures are not equivalent. Procedure No. 770 uses a
14 single anesthetic, an ultra-short acting induction agent with very poor analgesic activity, with no
15 other drugs used to maintain anesthesia and produce analgesia. In contrast, in a surgical setting, a
16 whole tool kit of drugs is available to induce and maintain anesthesia and analgesia. Dr. Ekins in
17 effect takes the position that procedures such as opening the chest cavity in cardiac surgery are being
18 19 performed using only an induction dose of thiopental without any other anesthetics. Dr. Ekins’s
20 testimony demonstrates a lack of understanding of the nature of anesthesia practice and a lack of

21 recognition that thiopental is not an analgesic, but must always be supplemented with a narcotic to

22 get adequate analgesia control.

23

15. Dr. Ekins relies on the Gentry article for the proposition that only at slow infusion

24 rates is dose requirement dependent on rate (p. 895, l. 10-11), but in doing so he fails to appreciate

25 the unique challenges raised by a lethal injection execution. Dr. Ekins’ conclusion fails to take into
26 consideration the end point or target level of anesthetic depth and the target concentration levels
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1 associated with the target being studied by Gentry. These are very different levels than required to

2 conduct an execution. The endpoint studied in the Gentry paper is extremely light, focusing on the
3 level of unconsciousness at which a subject will drop a syringe, a level in fact very close to the
4 subject being awake with eyes open, with a thiopental concentration level of approximately 4 ug/ml. 5
To employ the Gentry studies in the context of execution dose requirements, one must first take into 6
consideration the depth of anesthesia required in the execution context. This is not dropping a 7
syringe. Second one must take into consideration the infusion rates required to meet this execution 8 9 requirement. Because of linear first order principles one can legitimately scale the results of the
10 Gentry paper to the execution context to determine the range of infusion rates where rate influences

11 dose requirement. In the context of an execution, we need to reach and maintain for at least thirty

12 minutes a concentration that will continue to ablate awareness through the flush, the administration

13 of pancuronium, and the concentrated potassium chloride injection, as well as through any delay
14 between the end of the thiopental injection and the start of the potassium chloride injection. Such a
15 concentration is at least in the burst suppression range, or at a minimum at least ten times higher in
16 concentrations than required to achieve syringe drop in the Gentry studies. Because he used such a
17 low threshold for affect (4 ug/ml), and a much higher one is required for executions (at least 40
18 19 ug/ml), the infusion rates that are required to achieve execution ready levels will be at least 10 times
20 higher than those used in Gentry. In Gentry, the infusion rate was 40 mg/min and below but this is

21 in the context of the Gentry endpoint. Therefore, with execution endpoints, the Gentry paper

22 confirms that the sensitive rates must be at least as high as 400 mg/min. Rates at least as high as 400

23 mg/min are thus in the range where infusion rates play a significant role in determining dose
24 requirement. Accordingly, in the execution context the effectiveness of a given dose will be affected 25
by the rate of administration. 26

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1

16. Another feature of this article that Dr. Ekins fails to consider is the effect of extended

2 administration of the initial bolus dose over several minutes. The article clearly notes that this
3 reduces peak effect significantly. This is not what happens in the surgical setting, as the bolus doses
4 are given in 10 seconds or so. Thus, uncontrolled administration rates as in Procedure No. 770 will 5
lead to an elevated risk that the inmate was sufficiently anesthetized during the execution to 6
withstand the noxious stimulus of the potassium chloride. 7
17. Contrary to Dr. Ekins’ testimony (p. 923), the protocol in Procedure No. 770 is 8 9 equivalent to giving only a single bolus dose of thiopental to the inmate. The single bolus dose is
10 administered over 2 minutes in the most optimal circumstances, which appears to have been

11 accomplished very rarely in previous executions, but because of the length of line and slow drip, it

12 does not fully reach the inmate for several minutes. The drip infusion is started one minute later

13 which delivers additional thiopental to the patient four to five minutes later. With clinical doses
14 used to induce anesthesia, the duration of burst suppression is about 1 minute. In the context of a
15 lethal injection the question is whether the 1.5 gram dose of the thiopental will maintain burst
16 suppression levels of unconsciousness before the pancuronium and potassium chloride are delivered
17 to the inmate. Thus in the surgical setting, the anesthesiologist has a very narrow window of time to
18 19 intubate the patient; in an execution context, the state has a very narrow window in which to kill the
20 inmate before his blood concentration levels are below burst suppression and he could feel the

21 suffocation form the pancuronium and the pain of the potassium chloride injection.

22

18. Dr. Ekins’ testimony that blood concentration levels of thiopental of 13-15 ug/ml are

23 necessary to perform surgery is misleading and relies on research results taken totally out of context.

24 In the studies relied upon by Ekins, thiopental was used to induce anesthesia but the patients also

25 received a maintenance anesthetic consisting of a very high dose narcotic with nitrous oxide.
26 Accordingly, the concentration levels recognized in these studies cannot be used as a guide for what
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1 amount of thiopental as the sole anesthetic agent is required to block pain in an execution because

2 the published levels are recorded in a surgical maintenance context with many different drugs. In

3 such a setting, thiopental concentrations would be lower because the majority of the anesthesia is
4 coming from the narcotic infusion and the nitrous oxide, another anesthetic. It should also be noted
5 that this study relied on venous concentrations, which are much lower than arterial concentrations
6 and not a reliable method of measuring blood level as it relates to level of unconsciousness.
7 I declare under penalty of perjury under the laws of the State of the United States that the
8
9 foregoing is true and correct. Executed this 9th day of November 2006 in Newark, Delaware.

10

___William F. Ebling /s/ ______________

11

William F. Ebling, Ph.D

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DESIGNATED FOR PUBLICATION

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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12 Michael Angelo MORALES,

Case Number C 06 219 JF RS Case Number C 06 926 JF RS

13

Plaintiff,

DEATH-PENALTY CASE

14

v.

MEMORANDUM OF INTENDED

15 James E. TILTON, Secretary of the California

DECISION; REQUEST FOR

Department of Corrections and Rehabilitation, and RESPONSE FROM DEFENDANTS

16 Robert L. Ayers Jr., Acting Warden of San Quentin State Prison,

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Defendants.

[]

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I

20

Few issues in American society have generated as much impassioned debate as the death

21 penalty. At one end of the spectrum, abolitionists condemn the intentional taking of human life

22 by the State as barbaric and profoundly immoral. At the other, proponents see death, even a

23 painful death, as the only just punishment for crimes that inflict unimaginable suffering on

24 victims and their surviving loved ones. Even among those with less absolute positions, there are

25 vigorous arguments about the social, penological, and economic costs and benefits of capital

26 punishment.

27

Any legal proceeding arising in this context thus acts as a powerful magnet, an

28 opportunity for people who care about this divisive issue to express their opinions and vent their

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1 frustrations. However, because courts (and particularly trial courts) exist not to resolve broad

2 questions of social policy but to decide specific legal and factual disputes, it is important at the

3 outset for this Court to make very clear what this case is not about.

4

This case is not about whether the death penalty makes sense morally or as a matter of

5 policy: the former inquiry is a matter not of law but of conscience; the latter is a question not for

6 the judiciary but for the legislature and the voters. Nor is it about whether California’s primary

7 method of execution—lethal injection—is constitutional in the abstract: the arguments and

8 evidence presented by the parties address the specific manner in which California has

9 implemented that method and proposes to do so in the future. Nor is it about whether the

10 Constitution requires that executions be painless: binding precedent holds that the Eighth

11 Amendment prohibits only “the unnecessary and wanton infliction of pain,” Gregg v. Georgia,

12 428 U.S. 153, 173 (1976) (plurality opinion), and procedures that create an “unnecessary risk”

13 that such pain will be inflicted, Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004).

14

Nor, finally, does it somehow involve a comparison of the pain that Plaintiff, a

15 condemned inmate at California’s San Quentin State Prison, might suffer when he is executed

16 with the horrific suffering of the young woman he raped and murdered. The Court has

17 considered seriously the constitutional issues raised by this case not because of some imagined

18 personal sympathy for Plaintiff but because it is its fundamental duty to do so. As a practical

19 matter, there is no way for a court to address Eighth Amendment issues in the capital context

20 other than in a case raised by a death-row inmate; by definition, the acts of which such an inmate

21 stands convicted are viewed by the law and a majority of the community as so abhorrent as to

22 warrant the ultimate penalty. Lest there be any doubt, this Court has the most profound sympathy

23 for the family and loved ones of Plaintiff’s victim.

24

In fact, this case presents a very narrow question: does California’s lethal-injection

25 protocol—as actually administered in practice—create an undue and unnecessary risk that an

26 inmate will suffer pain so extreme that it offends the Eighth Amendment? Because this question

27 has arisen in the context of previous executions, see Beardslee v. Woodford, 395 F.3d 1064 (9th

28 Cir. 2005); Cooper, 379 F.3d 1029, and is likely to recur with frequency in the future, the Court

2
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1 has undertaken a thorough review of every aspect of the protocol, including the composition and

2 training of the execution team, the equipment and apparatus used in executions, the

3 pharmacology and pharmacokinetics of the drugs involved, and the available documentary and

4 anecdotal evidence concerning every execution in California since lethal injection was adopted as

5 the State’s preferred means of execution in 1992, see 1992 Cal. Stat. 558. The Court has

6 reviewed a mountain of documents, including hundreds of pages of legal briefs, expert

7 declarations, and deposition testimony, and it has conducted five days of formal hearings,

8 including a day at San Quentin State Prison that involved a detailed examination of the execution

9 chamber and related facilities. The Court concludes that absent effective remedial action by

10 Defendants—the nature of which is discussed in Part IV of this memorandum—this exhaustive

11 review will compel it to answer the question presented in the affirmative. Defendants’

12 implementation of lethal injection is broken, but it can be fixed.

13

II

14

Plaintiff Michael Angelo Morales raped and murdered Terri Winchell. A jury convicted

15 Plaintiff of murder, found special circumstances, and sentenced him to death. See generally

16 Morales v. Woodford, 388 F.3d 1159, 1163-67 (9th Cir. 2004).

17

In California, “[i]f a person under sentence of death does not choose either lethal gas or

18 lethal injection within 10 days after the warden’s service upon the inmate of an execution warrant

19 [then] the penalty of death shall be imposed by lethal injection.” Cal. Penal Code § 3604(b)

20 (West 2006). More specifically, “[t]he punishment of death shall be inflicted . . . by an

21 intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by 22 standards established under the direction of the Department of Corrections.”1 Id. § 3604(a). 23 Defendants2 have adopted San Quentin Operational Procedure No. 0-770 (“OP 770”) as

24

25

1The Department of Corrections was reorganized into the Department of Corrections and

26 Rehabilitation on July 1, 2005.

27

2At the commencement of the present litigation, the Defendants were Roderick Q. Hickman, who

was the Secretary of the California Department of Corrections and Rehabilitation, and Steven W.

28 Ornoski, then the Acting Warden of San Quentin State Prison; they were sued in their official capacities.

Both of these positions have experienced multiple changes in personnel since this action was filed; each

3

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1 California’s protocol governing executions by lethal injection. This protocol, like those used by

2 the federal government and most other states, provides for the injection of three drugs into a

3 person being executed: sodium thiopental, a barbiturate sedative, to induce unconsciousness;

4 pancuronium bromide, a neuromuscular blocking agent, to induce paralysis; and potassium

5 chloride, to induce cardiac arrest.

6

Plaintiff filed the present action on January 13, 2006, contending that OP 770 and the

7 manner in which Defendants implement it would subject him to an unnecessary risk of excessive

8 pain, thus violating the Eighth Amendment’s command that “cruel and unusual punishments [not

9 be] inflicted.” U.S. Const. amend. VIII. Five days later, the Superior Court of California for the

10 County of Ventura issued a death warrant, setting Plaintiff’s execution for February 21, 2006.

11 This Court then ordered briefing and limited discovery and held two hearings on Plaintiff’s

12 application for a preliminary injunction to stay his execution so that the Court could conduct a

13 full evidentiary hearing to consider his claims.

14

On February 14, 2006, the Court issued an order conditionally denying Plaintiff’s request

15 for a stay of execution. Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006). The Court

16 reviewed in detail evidence from execution logs, which indicated that “inmates’ breathing may

17 not have ceased as expected in at least six out of thirteen executions by lethal injection in 18 California.”3 Id. at 1045. This and other evidence raised concerns that inmates may have been

19 conscious when they were injected with pancuronium bromide and potassium chloride, drugs that

20 the parties agreed would cause an unconstitutional level of pain if injected into a conscious

21 person. Given this evidence, the Court fashioned a remedy that was intended to permit

22 Defendants to proceed with Plaintiff’s execution as scheduled by executing him with only

23 barbiturates or by retaining the services of a qualified expert to ensure that Plaintiff would be

24 unconscious when exposed to the painful drugs. Id. at 1047. In so holding, the Court stated,

25

26
time, the proper Defendants automatically were substituted pursuant to Federal Rule of Civil Procedure
27 25(d)(1). The current Defendants are Secretary James E. Tilton and Acting Warden Robert L. Ayers Jr.

28

3In fact, there have been only eleven executions by lethal injection in California; the first two

executions following the reinstatement of the death penalty were by lethal gas.

4

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1

Whether or not Defendants implement the remedy and thus

proceed to execute Plaintiff as scheduled, the Court respectfully

2

suggests that Defendants conduct a thorough review of the lethal-

injection protocol, including, inter alia, the manner in which the

3

drugs are injected, the means used to determine when the person

being executed has lost consciousness, and the quality of

4

contemporaneous records of executions, such as execution logs and

electrocardiograms. Given the number of condemned inmates on

5

California’s Death Row, the issues presented by this case are likely

to recur with considerable frequency. Because California’s next

6

execution is unlikely to occur until the latter part of this year, the

State presently is in a particularly good position to address these

7

issues and put them to rest. It is hoped that the remedy ordered by

this Federal Court in this case will be a one-time event; under the

8

doctrines of comity and separation of powers, the particulars of

California’s lethal-injection protocol are and should remain the

9

province of the State’s executive branch. A proactive approach by

Defendants would go a long way toward maintaining judicial and

10

public confidence in the integrity and effectiveness of the protocol.

11 Id. at 1046-47.

12

The day after the Court issued its order, Defendants responded that they had retained the

13 services of two anesthesiologists who would attend Plaintiff’s execution pursuant to the terms of

14 the order. Based upon Defendants’ written submissions, and over Plaintiff’s strenuous

15 objections, the Court stated that it was satisfied that the anesthesiologists would “take all

16 medically appropriate steps to ensure that Plaintiff is and remains unconscious” when injected

17 with pancuronium bromide and potassium chloride. (Final Order Re Defendants’ Compliance

18 with Conditions, Doc. No. 67 at 4 n.3.; id. at 5 (finding that “the anesthesiologists designated by

19 Defendants are qualified professionals who will use their professional judgment not merely to

20 observe the execution but to ensure that Plaintiff is and remains unconscious”).)

21

On February 19, 2006, the United States Court of Appeals for the Ninth Circuit affirmed.

22 438 F.3d 926 (9th Cir. 2006). The Ninth Circuit construed this Court’s order as

23

clearly contemplating that [the anesthesiologists] have the authority

to take “all medically appropriate steps”—either alone or in

24

conjunction with the injection team—to immediately place or

return Morales into an unconscious state or to otherwise alleviate

25

the painful effects of either or both the pancuronium bromide or

potassium chloride.

26

Id. at 931.

27

However, for reasons that remain somewhat unclear, there was a “disconnect between the

28

5
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1 expectations articulated in the orders of this Court and the Court of Appeals and the expectations

2 of the anesthesiologists” regarding how they would participate in Plaintiff’s execution. (Order on

3 Defendants’ Motion to Proceed with Execution, Doc. No. 78 at 3.) Defendants apparently had

4 told the anesthesiologists that the anesthesiologists merely would have to observe the execution,

5 while Defendants’ counsel represented to the Court that the anesthesiologists would ensure that

6 Plaintiff would remain unconscious after he was injected with sodium thiopental. This

7 disconnect became apparent on the evening of February 20, 2006, approximately three or four

8 hours before Plaintiff’s scheduled execution (which Defendants had set for 12:01 a.m. on

9 February 21), when Defendants provided copies of the Ninth Circuit’s opinion to the

10 anesthesiologists. Almost immediately, the anesthesiologists stated that they could not proceed

11 for reasons of medical ethics. Several hours of tense discussions (including what Warden

12 Ornoski described as “training” of the anesthesiologists) and telephonic hearings followed,

13 during which Defendants postponed the execution. At approximately 2:45 a.m. on February 21,

14 Defendants stated that they would seek approval from the Court to execute Plaintiff using only

15 sodium thiopental (and without the participation of the anesthesiologists); the execution was

16 rescheduled for 7:30 p.m.

17

The parties submitted briefing on Defendants’ request, and the Court heard approximately

18 one hour of telephonic argument during the morning of February 21. Because Defendants had

19 indicated their desire to proceed using only sodium thiopental only hours earlier, the record

20 contained virtually no evidence as to the details of how such an execution would be carried out, 21 and Plaintiff had no meaningful opportunity for appellate review.4 Accordingly, shortly before

22 3:00 p.m., the Court issued an order in which it held that, in light of the unique circumstances

23 then presented,

24

due process requires that . . . Defendants’ obligations be set forth in

a way that leaves no room for reasonable doubt. Accordingly,

25

while Defendants may proceed with the execution this evening

using only sodium thiopental, they may do so only if the sodium

26

thiopental is injected in the execution chamber directly into the

27

28

4Obviously, this situation would not have arisen had Defendants elected this option initially

pursuant to the Court’s order of February 14.

6

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1

intravenous cannula by a person or persons licensed by the State of

California to inject medications intravenously.

2

(Id.) Defendants were unwilling or unable to execute Plaintiff in accordance with these

3

requirements, and a stay of execution to permit an evidentiary hearing issued automatically

4

pursuant to the Court’s order of February 14. 415 F. Supp. 2d at 1048.

5

The Court then set an expedited schedule for an evidentiary hearing to be held in May

6

2006. Thereafter, at the joint request of the parties, the evidentiary hearing was deferred until

7

September 2006 to enable the parties to complete discovery.

8

On February 28, 2006, the Governor’s Office hosted a meeting lasting approximately an

9

hour and a half at which potential changes to OP 770 were discussed. Although more significant

10

modifications were proposed by some of the participants, the Governor’s Legal Affairs Secretary

11

concluded that the only change that would be undertaken at that time was what was described as

12

a “tweak” of the chemical aspects of the protocol. It was decided that the dosages of the three

13

drugs would be adjusted and that a continuous infusion of sodium thiopental during the

14

administration of pancuronium bromide and potassium chloride would be added. There is no

15

indication from the record that the participants in the meeting addressed or considered issues

16

related to the selection and training of the execution team, the administration of the drugs, the

17

monitoring of executions, or the quality of execution logs and other pertinent records.

18

Defendants issued the revised version of OP 770 on March 6, 2006; this version remains current

19

and is the version that Defendants intend to follow in executing Plaintiff.

20

The Pacific News Service (“PNS”) thereafter filed a related lawsuit, Pacific News Service

21

v. Tilton, No. C 06 1793 JF RS (N.D. Cal. filed Mar. 8, 2006), challenging Defendants’ use of

22

pancuronium bromide during executions. PNS moved to consolidate its action with this one.

23

The Court noted that “despite the fact that not consolidating the actions may leave an unresolved

24

First Amendment challenge to California’s lethal-injection protocol pending even after the

25

conclusion of the proceedings in Morales, Defendants urge the Court to take a deliberate

26

approach to managing these cases, with PNS being addressed after Morales.” The Court declined

27

to consolidate the cases, stating, “While the Court is committed to resolving all aspects of the

28

7
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1 present litigation expeditiously, it will defer to the State’s expressed concerns.” (Order Denying

2 Motion to Consolidate without Prejudice, Doc. No. 110 at 2.) In reaching this conclusion, the

3 Court observed,

4

At the hearing, counsel for Morales expressed the concern that an

appeal of the Court’s judgment in Morales might be pending while

5

the PNS action was still unresolved. Because of the closely related

nature of these actions, as well as the Court’s inherent authority to

6

determine the timing of its decisions, the Court considers this

scenario unlikely.

7

(Id. at 3 n.1.)

8

On March 30, 2006, the Court convened at San Quentin State Prison for what the parties

9

agreed would be a preliminary session of the evidentiary hearing. At San Quentin, the Court

10

examined the equipment and facilities used during executions, and it heard partial testimony

11

from the then-leader of Defendants’ execution team.

12

In preparation for the remainder of the evidentiary hearing, the parties filed a joint pre-

13

hearing conference statement containing detailed factual stipulations and also submitted

14

voluminous testimony, including the testimony of experts and present and former execution team

15

members, by means of deposition excerpts. The evidentiary hearing recommenced on September

16

26 and concluded on September 29, 2006. Following the evidentiary hearing, the parties

17

submitted closing briefs.

18

III

19

From the evidence in the record and the parties’ extensive briefing, the Court has learned

20

a great deal about executions by lethal injection in general and their implementation in California

21

in particular. The opportunity to make first-hand observations at San Quentin was quite useful,

22

and the oral testimony and written declarations of well-qualified experts on both sides have been

23

very helpful. Yet in many respects, the Court finds itself in virtually the same position today that

24

it was in when it considered Plaintiff’s motion for a preliminary injunction in February 2006.

25

As they did in February, the parties agree that it would be unconstitutional to inject a

26

conscious person with pancuronium bromide and potassium chloride in the amounts

27

28

8
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1 contemplated by OP 770. Defendants’ principal medical expert, Dr. Robert C. Singler,5 testified

2 that it would be “terrifying” to be awake and injected with the contemplated dosage of

3 pancuronium bromide and that it would be “unconscionable” to inject a conscious person with

4 the contemplated amount of potassium chloride. The parties also agree, as they did in February,

5 that assuming effective anesthesia, the use in executions of pancuronium bromide or potassium

6 chloride as such does not violate the Eighth Amendment. As it has from its inception, the

7 resolution of this case thus turns on a single factual question: whether OP 770, as implemented,

8 provides constitutionally adequate assurance that condemned inmates will be unconscious when

9 they are injected with pancuronium bromide and potassium chloride.

10

On the surface, this would appear to be a relatively straightforward inquiry. As

11 Defendants have pointed out repeatedly and as this Court itself has found in three separate capital

12 cases, including this one, the amount of sodium thiopental to be given to the condemned person

13 pursuant to OP 770 is sufficient to cause virtually all persons to become unconscious or even to

14 cease breathing within one minute. Morales, 415 F. Supp. 2d at 1043-44; Beardslee v.

15 Woodford, No. C 04 5381 JF, 2005 WL 40073, at *2 (N.D. Cal. Jan. 7, 2005); Cooper v.

16 Rimmer, No. C 04 436 JF, 2004 WL 231325, at *3 (N.D. Cal. Feb. 6, 2004). Accordingly,

17 assuming that the sodium thiopental is delivered properly, there should be virtually no risk that 18 an inmate will suffer an unconstitutional level of pain.6

19

However, the record in this case, particularly as it has been developed through discovery

20 and the evidentiary hearing, is replete with evidence that in actual practice OP 770 does not

21 function as intended. The evidence shows that the protocol and Defendants’ implementation of it

22

23
5Dr. Singler also was one of the anesthesiologists retained by Defendants to participate in
24 Plaintiff’s scheduled execution, and he attended the meeting at the Governor’s Office on February 28,
2006.
25
6Although Plaintiff’s expert witnesses raised questions at the evidentiary hearing with respect to
26
the effectiveness of the one-and-one-half-gram bolus dose of sodium thiopental in the current version of
27 the protocol (compared to the five-gram dose in all prior versions), the Court did not find that testimony
persuasive. Having reviewed all of the expert testimony, the Court is satisfied that even one and one-half
28 grams of sodium thiopental, if properly administered, are sufficient to eliminate any unconstitutional risk
that an inmate will be conscious when the pancuronium bromide and potassium chloride are injected.
9
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1 suffer from a number of critical deficiencies, including:

2

1. Inconsistent and unreliable screening of execution team members: For example, one

3 former execution team leader, who was responsible for the custody of sodium thiopental (which

4 in smaller doses is a pleasurable and addictive controlled substance), was disciplined for

5 smuggling illegal drugs into San Quentin; another prison guard led the execution team despite

6 the fact that he was diagnosed with and disabled by post-traumatic stress disorder as a result of

7 his experiences in the prison system and he found working on the execution team to be the most

8 stressful responsibility a prison employee ever could have.

9

2. A lack of meaningful training, supervision, and oversight of the execution team:

10 Although members of the execution team testified that they perform numerous “walk-throughs” 11 of some aspects of the execution procedure before each scheduled execution,7 the team members

12 almost uniformly have no knowledge of the nature or properties of the drugs that are used or the

13 risks or potential problems associated with the procedure. One member of the execution team, a

14 registered nurse who was responsible for mixing and preparing the sodium thiopental at many

15 executions, testified that “[w]e don’t have training, really.” While the team members who set the

16 intravenous catheters are licensed to do so, they are not adequately prepared to deal with any

17 complications that may arise, and in fact the team failed to set an intravenous line during the

18 execution of Stanley “Tookie” Williams on December 13, 2005. Although Defendants’ counsel

19 assured the Court at the evidentiary hearing that “Williams was a lesson well learned, one that

20 will never occur again,” the record shows that Defendants did not take steps sufficient to ensure

21 that a similar or worse problem would not occur during the execution of Clarence Ray Allen on 22 January 17, 2006, or Plaintiff’s scheduled execution the following month.8

23

3. Inconsistent and unreliable record-keeping: For example, there are no

24 contemporaneous records showing that all of the sodium thiopental in the syringes used for

25

26

7The execution team neither has received any training in nor has it practiced mixing sodium

27 thiopental since at least as far back as 1998.

28

8Indeed, the execution team members’ reaction to the problem at the Williams execution was

described by one member as nothing more than “shit does happen, so.”

10

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1 injections actually was injected, and, in fact, testimony revealed that in at least several executions

2 it was not. A number of the execution logs are incomplete or contain illegible or overwritten

3 entries with respect to critical data such as the inmate’s heart rate and the time at which

4 observations were made. Inexplicably, Defendants use blank paper for their electrocardiogram

5 (EKG) tracings instead of the graph paper that typically is used, and provide neither

6 standardization markings nor paper-speed documentation, thereby precluding accurate 7 interpretation of the tracings, even as to heart rate.9

8

4. Improper mixing, preparation, and administration of sodium thiopental by the

9 execution team: Among other things, team members’ admitted failure to follow the simple

10 directions provided by the manufacturer of sodium thiopental further complicates the inquiry as

11 to whether inmates being executed have been sufficiently anesthetized.

12

5. Inadequate lighting, overcrowded conditions, and poorly designed facilities in which

13 the execution team must work: The execution chamber was not designed for lethal-injection

14 executions; San Quentin officials simply made slight modifications to the existing gas chamber,

15 such as drilling holes in the chamber wall for intravenous lines and installing a metal hook at the

16 top of the chamber from which the bags containing the lethal drugs are suspended. The bags are

17 too high to permit the execution team to verify whether the equipment is working properly. The

18 lighting is too dim, and execution team members are too far away, to permit effective observation

19 of any unusual or unexpected movements by the condemned inmate, much less to determine

20 whether the inmate is conscious; this is exacerbated by the fact that the chamber door is sealed

21 shut during executions as if lethal gas were being disseminated, rendering it virtually impossible

22 to hear any sound from the chamber. For some executions, the small anteroom from which the

23 execution team injects the lethal drugs has been so crowded with prison officials and other

24 dignitaries that even simple movement has been difficult.

25
9There is also an extremely troubling absence of reliable documentation as to the disposition of
26
sodium thiopental taken from the prison pharmacy by execution team members purportedly for training
27 purposes; team members testified that the actual drugs are not used in training, yet it appears that
substantial quantities of sodium thiopental—again, an addictive controlled substance—were not returned
28 to the pharmacy. These circumstances may warrant investigation by an appropriate law-enforcement
agency.
11
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1

Defendants observe correctly that Plaintiff’s burden of proof at the present stage of the

2 instant proceeding is greater than it was at the preliminary-injunction stage and that there still is

3 no definitive evidence that any inmate has been conscious during his execution. Nonetheless, the

4 evidence is more than adequate to establish a constitutional violation. Given that the State is

5 taking a human life, the pervasive lack of professionalism in the implementation of OP 770 at the

6 very least is deeply disturbing. Coupled with the fact that the use of pancuronium bromide

7 masks any outward signs of consciousness, the systemic flaws in the implementation of the

8 protocol make it impossible to determine with any degree of certainty whether one or more

9 inmates may have been conscious during previous executions or whether there is any reasonable

10 assurance going forward that a given inmate will be adequately anesthetized. The responsibility

11 for this uncertainty falls squarely upon Defendants, and the circumstances clearly implicate the

12 Eighth Amendment.

13

As this Court noted in its order of February 14, 2006, anomalies in six execution logs

14 raise substantial questions as to whether certain inmates may have been conscious when

15 pancuronium bromide or potassium chloride was injected. 415 F. Supp. 2d at 1044-46. These

16 substantial questions remain unanswered despite the depth and breadth of the evidentiary record

17 and the parties’ briefing. If anything, the questions have become even more substantial. One of

18 the executions not discussed by the Court in its order of February 14 was that of Robert Lee

19 Massie, who was executed on March 27, 2001. Massie’s execution was explored in detail at the

20 evidentiary hearing. Testifying on behalf of Defendants, Dr. Singler opined that based upon the

21 heart rates reflected in the execution log, Massie well may have been awake when he was

22 injected with potassium chloride. Significantly, Dr. Singler testified that he was unable to give a

23 definitive opinion principally because of the poor quality of the log itself, and in particular an

24 unclear entry in the log as to Massie’s heart rate.

25

Dr. Singler’s testimony regarding Massie’s execution is merely the most dramatic

26 evidence concerning the risks posed by Defendants’ acts and omissions.10 Dr. Singler also

27

28

10Cf., e.g., California: Official Admits Execution Was Bungled, N.Y. Times, Sept. 27, 2006, at

A21 (“A state official admitted that prison guards had bungled the execution of the gang leader Stanley

12

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1 testified to a number of additional concerns, most notably the fact that overcrowding, obstructed

2 sight lines, and poor lighting in the execution chamber and adjoining anteroom make accurate

3 observations of the inmate during an execution extremely problematic. Whatever the merits of

4 the protocol in the abstract, there can be no real doubt that Defendants’ implementation of OP

5 770 has major flaws, many of which are apparent from the undisputed facts to which Defendants

6 stipulated in the amended joint pre-hearing conference statement.

7

The Framers of our Constitution were not far removed from a society in which

8 condemned prisoners were put to death by being beheaded, drawn, and quartered. The Eighth

9 Amendment was adopted in part as a response to such brutality, and it since has been construed

10 by our Supreme Court to require that punishment for crimes comport with “the evolving

11 standards of decency that mark the progress of a maturing society.” Roper v. Simmons, 543 U.S.

12 551, 561 (2005) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion)). While

13 opponents of the death penalty believe that any means of execution necessarily violates such

14 standards, the Supreme Court repeatedly has held otherwise, see, e.g., Gregg, 428 U.S. 153, in

15 large part because the Constitution itself makes explicit reference to capital punishment, U.S.

16 Const. amends. V & XIV § 1. The use of lethal injection in executions represents an evolution

17 from earlier methods such as hanging, electrocution, and lethal gas that now are viewed by most

18 jurisdictions as unduly harsh. Needless to say, when properly administered, lethal injection

19 results in a death that is far kinder than that suffered by the victims of capital crimes.

20

At the present time, however, Defendants’ implementation of California’s lethal-injection

21 protocol lacks both reliability and transparency. In light of the substantial questions raised by the

22 records of previous executions, Defendants’ actions and failures to act have resulted in an undue

23

24
Tookie Williams last December . . . at a federal court hearing in San Jose on lethal injection.”); Maura
25 Dolan & Henry Weinstein, The Chaos Behind California Executions: Trial Testimony Paints Lethal
Injection Methods as Haphazard, with Little Medical Oversight, L.A. Times, Oct. 2, 2006, at A1. Even
26 Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation and one of the strongest 27 advocates of the death penalty in California, has recognized that California “is legitimately criticized for
not doing enough homework on the protocol.” Quoted in Henry Weinstein, State Will Help Shape Fate
28 of Lethal Injection: The Morales Case Gives California a Key Role in a National Debate Over the
Method’s Humaneness, L.A. Times, Feb. 23, 2006, at A1.
13
Case Nos. C 06 219 JF RS & C 06 926 JF RS MEMORANDUM OF INTENDED DECISION; REQUEST FOR RESPONSE FROM DEFENDANTS (DPSAGOK)

Case 5:06-cv-00219-JF Document 290 Filed 12/15/2006 Page 14 of 17

1 and unnecessary risk of an Eighth Amendment violation. This is intolerable under the

2 Constitution. See Beardslee, 395 F.3d at 1070-71; Cooper, 379 F.3d at 1033; Taylor v.

3 Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035 (W.D. Mo. June 26, 2006) (holding that

4 Missouri’s lethal-injection protocol violates Eighth Amendment).

5

IV

6

As this Court previously has noted, “under the doctrines of comity and separation of

7 powers, the particulars of California’s lethal-injection protocol are and should remain the

8 province of the State’s executive branch.” 415 F. Supp. 2d at 1046. Moreover, despite its

9 critical assessment of Defendants’ performance to date, this Court has no intention of interfering

10 with or delaying California’s implementation of a constitutional execution protocol. California’s

11 voters and legislature repeatedly have expressed their support for capital punishment. This case

12 thus presents an important opportunity for executive leadership.

13

The Court is prepared to issue formal findings of fact and conclusions of law with respect

14 to the deficiencies in the administration of California’s current lethal-injection protocol that have

15 been brought to light in this case. However, it will require additional time to do so, in part 16 because Defendants still have not fulfilled their discovery obligations.11 In addition, while the

17 Court has deferred consideration of the issues raised in the PNS matter until after it issues a

18 formal decision in this case, it still must resolve PNS in order to facilitate speedy and complete

19 appellate review of all of the current challenges to OP 770. (See Doc. No. 110 at 2-3.) Finally,

20 while it is a virtual certainty that any judgment in this case will be appealed by one party or the

21 other, it seems fair to suggest that a judgment adverse to Defendants grounded in the extensive

22 factual record present here is far more likely to delay the resumption of executions in California

23 than is one favorable to Defendants. Because the Court is prepared to find that the sequence of

24 three drugs described in OP 770 when properly administered will provide for a constitutionally

25 adequate level of anesthesia, and given that the deficiencies in the implementation of the protocol

26

27
11Relatedly, the Court has deferred ruling on the objections of the Governor’s Office to certain
28 discovery orders issued by the assigned magistrate judge. See Morales v. Tilton, No. C 06 219 JF RS,
2006 WL 2724152, at *3 (N.D. Cal. Sept. 22, 2006).
14
Case Nos. C 06 219 JF RS & C 06 926 JF RS MEMORANDUM OF INTENDED DECISION; REQUEST FOR RESPONSE FROM DEFENDANTS (DPSAGOK)

Case 5:06-cv-00219-JF Document 290 Filed 12/15/2006 Page 15 of 17

1 appear to be correctable,12 a thorough, effective response to the issues raised in this memorandum 2 likely will enable the Court to enter such a favorable judgment.13

3

Accordingly, and respectfully, the Court urges the Governor’s Office to take this

4 opportunity to address seriously now, rather than later, the significant problems with OP 770 and

5 its implementation. In light of the well-documented management issues in California’s prison

6 system generally, see, e.g., Plata v. Schwarzenegger, No. C 01 1351 TEH, 2005 WL 2932253

7 (N.D. Cal. Oct. 3, 2005), the Court believes that the Governor’s Office is in the best position to

8 insist on an appropriate degree of care and professionalism in carrying out what Defendants 9 properly characterize as the “solemn” task of executions.14

10

Toward that end, acknowledging its own limited role and with deference to the role of the

11 State’s executive branch, and informed by what it has learned in the course of the present

12 litigation, the Court offers the following observations:

13

First, given past experience, it seems unlikely that a single, brief meeting primarily of

14 lawyers, the result of which is to “tweak” OP 770, will be sufficient to address the problems

15

16
12While there have been numerous legal challenges to lethal-injection protocols across the
17 country, it is by no means clear that every jurisdiction has problems similar in either nature or extent to
California’s. For example, Virginia has executed sixty-six inmates pursuant to its lethal-injection
18 protocol, which appears to provide for training, physical facilities, and oversight far superior to that
provided by California’s. See Walker v. Johnson, 448 F. Supp. 2d 719 (E.D. Va. 2006).
19
13Following the conclusion of the evidentiary hearing, the Court propounded a series of written
20 questions that provided the parties with an opportunity to discuss potential remedies for the deficiencies
21 in the administration of OP 770. (Request for Briefing, Doc. No. 256.) For different reasons, the parties
largely declined to do so. Plaintiff argued that since Defendants are obligated by statute to design and
22 implement an execution protocol, he should not be asked to do Defendants’ work. Defendants contended
that while the evidence indeed suggests a need for improvement in the implementation of the protocol,
23 the situation does not rise to the level of a constitutional violation. Plaintiff’s position is somewhat
understandable, since Plaintiff’s primary interest in the present litigation is not improving California’s
24 lethal-injection protocol but rather delaying or avoiding his own execution. However, if Defendants’
goal is to resume executions as soon as possible, the Court respectfully suggests that their unwillingness
25 to see the situation for what it is and to be proactive is self-defeating.

26

14Part of the problem may be that the prison officials responsible for implementation of the

27 protocol see their legal obligations too narrowly. Warden Ornoski testified that he believes that a
“successful execution” is simply one where “the inmate ends up dead at the end of the process.” When

28 asked whether he considered a successful execution to mean anything else, he responded, “I’m thinking
not.”

15

Case Nos. C 06 219 JF RS & C 06 926 JF RS

MEMORANDUM OF INTENDED DECISION; REQUEST FOR RESPONSE FROM DEFENDANTS

(DPSAGOK)

Case 5:06-cv-00219-JF Document 290 Filed 12/15/2006 Page 16 of 17

1 identified in this case. Rather, as contemplated by the Court in its order of February 14, 2006, “a

2 thorough review of the lethal-injection protocol, including, inter alia, the manner in which the

3 drugs are injected, the means used to determine when the person being executed has lost

4 consciousness, and the quality of contemporaneous records of executions, such as execution logs

5 and electrocardiograms,” 415 F. Supp. 2d at 1046, likely will be necessary. To be meaningful,

6 such a review may require consultation with independent experts and with other jurisdictions,

7 and it must be undertaken with an openness to the idea of making significant improvements in

8 the “infrastructure” of executions.

9

Second, given that because of the paralytic effect of pancuronium bromide, a

10 determination of an inmate’s anesthetic depth after being injected with that drug is extremely

11 difficult for anyone without substantial training and experience in anesthesia, the protocol must

12 ensure that a sufficient dose of sodium thiopental or other anesthetic actually reaches the

13 condemned inmate and that there are reliable means of monitoring and recording the inmate’s

14 vital signs throughout the execution process. An adequate protocol also must include a means of

15 providing additional anesthetic to the inmate should the need arise. Because an execution is not

16 a medical procedure, and its purpose is not to keep the inmate alive but rather to end the inmate’s

17 life, the Court agrees with Defendants that the Constitution does not necessarily require the 18 attendance and participation of a medical professional.15 However, the need for a person with

19 medical training would appear to be inversely related to the reliability and transparency of the

20 means for ensuring that the inmate is properly anesthetized: the better the delivery system, the

21 less need there is for medical participation.

22

Third, because the constitutional issues presented by this case stem solely from the effects

23 of pancuronium bromide and potassium chloride on a person who has not been properly

24 anesthetized, removal of these drugs from the lethal-injection protocol, with the execution

25 accomplished solely by an anesthetic, such as sodium pentobarbital, would eliminate any

26

27

15As noted earlier, this Court’s order of February 14 giving Defendants the option of having an

anesthesiologist ensure Plaintiff’s unconsciousness was intended as a one-time solution to permit

28 Plaintiff’s execution to proceed as scheduled. It was not meant to suggest or to hold that the participation

of medical professionals in lethal-injection executions generally is required by the Constitution.

16

Case Nos. C 06 219 JF RS & C 06 926 JF RS

MEMORANDUM OF INTENDED DECISION; REQUEST FOR RESPONSE FROM DEFENDANTS

(DPSAGOK)

Case 5:06-cv-00219-JF Document 290 Filed 12/15/2006 Page 17 of 17

1 constitutional concerns, subject only to the implementation of adequate, verifiable procedures to 2 ensure that the inmate actually receives a fatal dose of the anesthetic.16 Should Defendants wish

3 to retain a three-drug protocol, which it most certainly is their right to do, they must address in a

4 serious way the broader structural problems in implementation outlined in this memorandum.

5

V

6

Accordingly, and good cause therefor appearing, within thirty days Defendants shall

7 advise the Court and Plaintiff of their response to this memorandum, including specifically

8 whether Defendants and the Governor’s Office intend to review and revise OP 770 further and, if 9 so, how much additional time, if any, they believe they will need to complete that task.17

10 Plaintiff may file a response to Defendants’ submission within fifteen days after the submission

11 has been served upon his counsel of record. The Court will not construe any pleading filed in

12 response to this memorandum as a waiver of any arguments with respect to the constitutionality

13 of the current version of OP 770, its implementation, or any other legal issue or procedural

14 question presented by the instant case.

15

IT IS SO ORDERED.

16

17 DATED: December 15, 2006 18

__________________________________ JEREMY FOGEL United States District Judge

19

16Along the same lines,
20
it is somewhat significant that at least nineteen states have enacted laws

21

that either mandate the exclusive use of a sedative or expressly prohibit

the use of a neuromuscular blocking agent in the euthanasia of animals.

22

It is also of some significance that the leading professional association of

veterinarians promulgated guidelines that prohibit the use of a sedative

23

with a muscle-paralyzing drug for purposes of euthanasia. . . .

Beardslee, 395 F.3d at 1073 (footnote omitted). As noted previously, the use of pancuronium bromide
24 also is at issue in the PNS litigation.

25

17The Court notes that any proposed time line may need to be altered depending on the outcome

of Morales v. California Department of Corrections and Rehabilitation, No. CV 061436 (Cal. Super. Ct.
26
County of Marin filed Apr. 5, 2006), which addresses whether Defendants must follow California’s

27 Administrative Procedures Act in promulgating a lethal-injection protocol, and which is scheduled to be
decided on cross-motions for summary judgment on January 31, 2007. Cf. Bowling v. Ky. Dep’t of Corr.,

28 No. 06-CI-00574 (Ky. Franklin Cir. Ct. Nov. 30, 2006) (holding that Kentucky’s lethal-injection protocol

violates Commonwealth Administrative Procedures Act).

17

Case Nos. C 06 219 JF RS & C 06 926 JF RS

MEMORANDUM OF INTENDED DECISION; REQUEST FOR RESPONSE FROM DEFENDANTS

(DPSAGOK)

 
 Case 5:06-cv-00219-JF Document 292 Filed 01/16/2007 Page 1 of 4

1

EDMUND G. BROWN JR. Attorney General of the State of California

2

MARY JO GRAVES Chief Assistant Attorney General

3

GERALD A. ENGLER Senior Assistant Attorney General

4

RONALD S. MATTHIAS Supervising Deputy Attorney General

5

DANE R. GILLETTE Senior Assistant Attorney General

6

State Bar No. 65925 455 Golden Gate Avenue, Suite 11000

7

San Francisco, CA 94102-7004 Telephone: (415) 703-5866

8

Fax: (415) 703-1234 Email: dane.gillette@doj.ca.gov

9 Attorneys for Defendants

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13 MICHAEL ANGELO MORALES,

CAPITAL CASE

14

Plaintiff, C 06-219 JF RS

15

v.

16 JAMES E. TILTON, Acting Secretary; ROBERT L. 17 AYERS, JR., Warden,

18

Defendants.

19

20

DEFENDANTS’ RESPONSE TO MEMORANDUM OF INTENDED DECISION

21

22

23

24

25

26

27

28

Case 5:06-cv-00219-JF Document 292 Filed 01/16/2007 Page 2 of 4

1

EDMUND G. BROWN JR. Attorney General of the State of California

2

MARY JO GRAVES Chief Assistant Attorney General

3

GERALD A. ENGLER Senior Assistant Attorney General

4

RONALD S. MATTHIAS Supervising Deputy Attorney General

5

DANE R. GILLETTE Senior Assistant Attorney General

6

State Bar No. 65925 455 Golden Gate Avenue, Suite 11000

7

San Francisco, CA 94102-7004 Telephone: (415) 703-5866

8

Fax: (415) 703-1234 Email: dane.gillette@doj.ca.gov

9 Attorneys for Defendants

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13 MICHAEL ANGELO MORALES,

14

Plaintiff,

15

v.

16 JAMES E. TILTON, Acting Secretary; ROBERT L. 17 AYERS, JR., Warden,

18

Defendants.

CAPITAL CASE
C 06-219 JF RS
DEFENDANTS’ RESPONSE TO MEMORANDUM OF INTENDED DECISION

19

20

In its Memorandum of Intended Decision filed on December 15, 2006 (Memorandum),

21 the Court asked Defendants to “advise the Court and Plaintiff of their response to this memorandum,

22 including specifically whether Defendants and the Governor’s Office intend to review and revise

23 OP 770 further and, if so, how much additional time, if any, they believe they will need to complete

24 the task.” Memorandum at 17. Defendants respectfully submit this response.

25

In its Memorandum, the Court was careful to explain that this case presents the narrow

26 question of whether actual implementation of California’s lethal injection protocol creates an undue

27 and unnecessary risk that an inmate would experience extreme pain in violation of the Eighth

28 Amendment’s prohibition against cruel and unusual punishment. Id. at 2. In addressing that issue

Defendants’ Response to Memorandum of Intended Decision - C 06-219 JF RS 1

Case 5:06-cv-00219-JF Document 292 Filed 01/16/2007 Page 3 of 4

1 the Court identified certain “correctable” deficiencies in the implementation of California’s lethal

2 injection protocol and indicated that “a thorough, effective response to the issues raised in this

3 memorandum likely will enable the Court to enter . . . a favorable judgment.” Id. at 14-15.

4

Although the Governor is not a party to this case, the Court expressed its belief that the

5 Governor’s Office is in the best position to direct the changes needed to correct deficiencies noted

6 in the memorandum and invited the Governor “to take this opportunity to address” the

7 implementation of OP 770. Id. at 15. The Governor’s Office is filing a separate response

8 confirming its commitment to this effort.

9

The Governor’s Office and Defendants are committed to reviewing, evaluating, and

10 revising the current lethal injection protocol with respect to the identified deficiencies and any others

11 that may emerge during the evaluation. However, such efforts, to be fully effective, must involve

12 a deliberative process that is not chilled by threats of depositions, subpoenas, or other premature

13 discovery efforts. Consultants, experts, and others may be reluctant to share information if there is

14 the threat of discovery. Accordingly, Defendants and the Governor’s Office have respectfully

15 submitted a separate motion for protective order designed to allow this important deliberative

16 process to proceed in an effective manner.

17

The Defendants and the Governor’s Office intend to review and revise OP 770 and to

18 correct deficiencies in the implementation of the protocol. Care must be taken, however, to ensure

19 that the efforts are comprehensive and effective. As the Court indicated in an earlier order, “a

20 thorough review of the lethal injection protocol, including inter alia, the manner in which the drugs

21 are injected, the means used to determine when the person being executed has lost consciousness,

22 and the quality of contemporaneous records of executions” may be necessary. Morales v. Hickman,

23 415 F.Supp.2d 1037, 1046 (N.D. Cal. 2006), quoted at Memorandum at 16. To allow a thorough

24 review and opportunity to take corrective action, Defendants will submit to the Court and Plaintiff

25 a report setting forth a revision of OP 770 and identifying corrective actions addressing deficiencies

26 in the implementation of lethal injection executions by May 15, 2007.

27

28

Defendants’ Response to Memorandum of Intended Decision - C 06-219 JF RS 2

Case 5:06-cv-00219-JF Document 292 Filed 01/16/2007 Page 4 of 4

1

Dated: January 16, 2007

2

Respectfully submitted,

3

EDMUND G. BROWN JR. Attorney General of the State of California

4

MARY JO GRAVES

Chief Assistant Attorney General

5

GERALD A. ENGLER

6

Senior Assistant Attorney General

RONALD S. MATTHIAS

7

Supervising Deputy Attorney General

8

/s/ Dane R. Gillette

9

DANE R. GILLETTE

10

Senior Assistant Attorney General

Attorneys for Defendants

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defendants’ Response to Memorandum of Intended Decision - C 06-219 JF RS 3

 
 Case 5:06-cv-00219-JF Document 294 Filed 01/16/2007 Page 1 of 7

1 EDMUND G. BROWN JR. Attorney General of the State of California
2 STACY BOULWARE EURIE Senior Assistant Attorney General
3 JONATHAN K. RENNER Supervising Deputy Attorney General
4 STEVEN M. GEVERCER, State Bar No. 112790 Deputy Attorney General
5 1300 I Street, Suite 125 P.O. Box 944255
6 Sacramento, CA 94244-2550 Telephone: (916) 327-4853
7 Fax: (916) 324-8835 Email: steven.gevercer@doj.ca.gov
8 Attorneys for Non-Party, Office of Governor Arnold
9 Schwarzenegger

10 DANE R. GILLETTE Senior Assistant Attorney General
11 State Bar No. 65925 455 Golden Gate Avenue, Suite 11000
12 San Francisco, CA 94102-7004 Telephone: (415) 703-5866
13 Fax: (415) 703-1234 Email: dane.gillette@doj.ca.gov
14 Attorneys for Defendants

15

16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

18

SAN JOSE DIVISION

19 20 MICHAEL ANGELO MORALES,

Case Number C 06 219 JF RS Case Number C 06 926 JF RS

21

Plaintiff, DEATH PENALTY CASE

22

v.

23 JAMES E. TILTON, et al.,

24

25

Defendants.

THE OFFICE OF THE GOVERNOR AND THE DEFENDANTS’ POINTS AND AUTHORITIES IN SUPPORT OF JOINT MOTION FOR A PROTECTIVE ORDER PURSUANT TO FRCP 26 (c) 4

26

Date:

March 9, 2007

Time:

9:00 a.m.

27

Dept.:

Courtroom 3

Judge:

The Honorable

28

Jeremy Fogel

The Office of the Governor and Defendants’ Joint Motion for a Protective Order

Case 5:06-cv-00219-JF Document 294 Filed 01/16/2007 Page 2 of 7

1

I.

2

INTRODUCTION

3

This motion seeks an order that will protect the deliberative process of the Governor’s

4 Office and California Department of Corrections and Rehabilitation (CDCR) (jointly, Moving

5 Parties)1/ from unnecessary discovery disputes as the Moving Parties work to effectively respond

6 to this Court’s Memorandum of Intended Decision issued December 15, 2006 (Memorandum).

7 A protective order is necessary to: (1) protect the Moving Parties’ ability to obtain accurate and

8 candid information from a variety of sources regarding the deficiencies in the implementation of

9 California’s lethal injection protocol addressed by the Court’s Memorandum; and (2) protect the

10 Moving Parties’ deliberative process as they substantively review and revise the lethal injection

11 protocol. The Moving Parties are seeking this protective order now (rather than waiting for

12 further discovery) because Plaintiff has already repeatedly sought discovery of pre-decisional

13 and deliberative information protected by the deliberative process privilege. The instant

14 protective order will allow the Moving Parties to do the important and sensitive work requested

15 by this Court while still protecting Plaintiff’s right to discovery of non-privileged information.

16

II.

17

STATEMENT OF FACTS RELEVANT TO THIS MOTION

18

In March 2006, Plaintiff sought discovery of documents in the possession of the

19 Governor’s Office relating to a February 28, 2006 meeting attended by the Governor’s Legal

20 Affairs Secretary and attorneys on her staff. The Governor’s Office objected to producing

21 documents in the possession of the Legal Affairs Secretary on several grounds including the

22 deliberative process privilege. On September 22, 2006, this Court “in the interests of comity and

23 respect for the separation of powers” deferred ruling on the objections asserted by the

24 Governor’s Office to discovery orders issued by the assigned Magistrate “until after the

25 impending evidentiary hearing.” (See, Page 5 of Order Regarding Objections to Magistrate

26 Judge’s Order dated September 22, 2006.) No ruling has been issued on these objections.

27

28

1. While the Governor’s Office joins CDCR in seeking this protective order, the Governor’s

Office is not a party to this case.

The Office of the Governor and Defendants’ Joint Motion for a Protective Order
2

Case 5:06-cv-00219-JF Document 294 Filed 01/16/2007 Page 3 of 7

1

On September 27, 2006, the Governor’s Legal Affairs Secretary, Andrea Hoch, was

2 served with a subpoena to appear at 9:00 a.m. the following day in the trial of this matter. The

3 Governor’s Office filed a Motion to Quash the subpoena based upon several applicable

4 privileges including deliberative process. Plaintiff subsequently withdrew the subpoena and the

5 Court, on October 2, 2006, terminated the motion to quash the subpoena as moot.

6

Most recently, on December 20, 2006, plaintiff served a deposition subpoena in a related

7 state court proceeding that seeks to depose the person most knowledgeable about “the plans and

8 intentions of the California Department of Corrections and Rehabilitation (“CDCR”) to respond

9 to the Memorandum of Intended Decision and Request For Response issued on December 15,

10 2006 by Judge Jeremy Fogel.” Attached as Exh. “A” to Declaration of Steven Gevercer filed

11 herewith. This subpoena is the latest illustration of why the Moving Parties have an immediate

12 need to obtain protection for pre-decisional work in this case, and is further evidence of

13 Plaintiff’s continuing intent to obtain and disclose protected pre-decisional documents and

14 statements.

15

In light of the repeated efforts by Plaintiff to obtain information protected by the

16 deliberative process privilege, the Moving Parties have a legitimate concern about their ability to

17 address the deficiencies in the implementation of the lethal injection protocol and to review and

18 revise the substance of the protocol without later having to face a discovery request or subpoena

19 for these pre-decisional documents and conversations.

20

III.

21

ARGUMENT

22

A. A PROTECTIVE ORDER IS ESSENTIAL TO ALLOW CALIFORNIA’S

EXECUTIVE BRANCH OF GOVERNMENT TO EFFECTIVELY

23

ADDRESS DEFICIENCIES IN BOTH THE IMPLEMENTATION AND

SUBSTANCE OF THE LETHAL INJECTION PROTOCOL.

24

25

1. A Protective Order Will Simply Confirm That the Deliberative

Process Privilege Protects California’s Pre-decisional Review of the

26

Lethal Injection Protocol from Discovery.

27

Under well-established Ninth Circuit law, the deliberative process privilege allows

28 government agencies to protect from disclosure pre-decisional information closely related to the

The Office of the Governor and Defendants’ Joint Motion for a Protective Order
2

Case 5:06-cv-00219-JF Document 294 Filed 01/16/2007 Page 4 of 7

1 decision making process. National Wildlife Fed. v. U.S. Forest Service, 861 F.2d 1114, 1116-

2 1117 (9th Cir. 1988). To be protected under the deliberative process privilege, the information

3 must be “both (1) predecisional or antecedent to the adoption of agency policy and (2)

4 deliberative, meaning it must actually be related to the process by which policies are

5 formulated.” Id. at p. 1117 (internal quotes and citations omitted). The ability of the Governor’s

6 Office and CDCR to receive candid recommendations from experts, consultants, professionals,

7 and other public officials is essential to their ability to consider policy alternatives when

8 addressing defects in the protocols implementation as well as substantively revising the lethal

9 injection protocol. The need for frank discussion about a change in an important public policy is

10 the quintessential example of when the deliberative process privilege should apply.

11

In addition to the legal elements that must be met before information can be protected by

12 the deliberative process, federal courts have identified three separate policy grounds that explain

13 the need for the deliberative process privilege. First, it protects creative debate and candid

14 consideration of alternatives within an agency, and thereby improves the quality of agency

15 decisions. Second, it protects the public from the confusion that would result from a premature

16 exposure to discussions occurring before the policies affecting it had actually been settled upon.

17 Third, it protects the integrity of the decision making process itself by confirming that “officials

18 should be judged by what they decided not for matters they considered before making up their

19 minds.” Jordan v. United States Department of Justice, 591 F.2d 753, 772-773 (D.C. Cir. 1978).

20 Without question, these policy grounds apply directly to the very sensitive and controversial area

21 of capital punishment by lethal injection. Addressing deficiencies in the implementation of the

22 California’s lethal injection protocol and revising the substance of the protocol will both require

23 debate and candid consideration of alternatives by the Moving Parties. Significantly, it is the

24 final policy that truly concerns Plaintiff – not the recommendatory information received,

25 debated, and considered by the Moving Parties while many options are being discussed.

26 / / /

27 / / /

28 / / /

The Office of the Governor and Defendants’ Joint Motion for a Protective Order
3

Case 5:06-cv-00219-JF Document 294 Filed 01/16/2007 Page 5 of 7

1

2. This Court Has Broad Discretion to Grant a Protective Order Where,

as Here, the Interests of Justice Are Served by Placing Reasonable

2

Limits on Discovery.

3

This court has broad discretion under Federal Rule of Civil Procedure 26(c) to issue “any

4 order which justice requires to protect a party or person from annoyance, embarrassment,

5 oppression, or undue burden.” The Supreme Court has interpreted this language as conferring

6 “broad discretion on the trial court to decide when a protective order is appropriate and what

7 degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). The

8 Supreme Court further noted that the trial court is in a unique position to weigh the needs of the

9 parties and should be given substantial latitude to do so:

10

[T]rial court is in the best position to weigh the fairly competing

needs and interests of the parties affected by discovery. The unique

11

character of the discovery process requires that the trial court have

substantial latitude to fashion protective orders.

12

13 Id. (emphasis added); see also 8 Wright, Miller & Marcus, Federal Practice and Procedure, Civil

14 §§ 2036, at 489 (2d ed. 1994) (“Thus, a court may be as inventive as the necessities of a

15 particular case require in order to achieve the benign purposes of the rule.”).

16

Consistent with the requirements of Rule 26(c), good cause exists in this case for a

17 protective order regarding the deliberative process of reviewing, evaluating and revising both the

18 substance and implementation of California’s lethal injection protocol. “[T]he underlying

19 purpose of [the deliberative process privilege] is to protect the consultive functions of

20 government by maintaining the confidentiality of advisory opinions, recommendations, and

21 deliberations comprising part of a process by which governmental decisions and policies are

22 formulated.” National Wildlife Fed. 861 F.2d at 1117. There is no question the review of the

23 lethal injection protocol will require frank debate and candid consideration of policy alternatives,

24 and that the threat of disclosure of these executive level deliberations is concrete and continuing.

25 As a consequence, good cause exists for a protective order that will facilitate the free flow of

26 information as the Moving Parties receive information and deliberate about both the

27 implementation deficiencies and substantive changes needed by the lethal injection protocol.

28 / / /

The Office of the Governor and Defendants’ Joint Motion for a Protective Order
4

Case 5:06-cv-00219-JF Document 294 Filed 01/16/2007 Page 6 of 7

1

B. THE REQUESTED PROTECTIVE ORDER WILL FURTHER THE

INTERESTS OF JUSTICE WHILE SIMULTANEOUSLY PROTECTING

2

PLAINTIFF’S RIGHT TO DISCOVERY.

3

The Moving Parties recognize that withholding information on the basis of the

4 deliberative process requires a balancing of Plaintiff’s need for accurate fact finding against the

5 Moving Parties’ interest in non-disclosure. Federal Trade Commission v. Warner

6 Communication 742 F.2d 1156, 1161 (9th Cir. 1984). A protective order can be issued

7 consistent with this balancing of interests. Specifically, the Moving Parties request a protective

8 order that would contain the following elements:

9

(1) All pre-decisional, deliberative documents and statements generated or

received by the Moving Parties as they review, evaluate, and address

10

deficiencies in the implementation of California’s lethal injection protocol

shall be presumptively deemed privileged in this case;

11

(2) All pre-decisional, deliberative documents, and statements generated or received

12

by the Moving Parties as they review, evaluate, and substantively revise

California’s lethal injection protocol shall be presumptively deemed privileged in

13

this case; and

14

(3) Plaintiff is not precluded from seeking a motion to compel the discovery

of documents and information that are withheld as subject to the

15

deliberative process privilege; however, in such a motion, Plaintiff will

bear the initial burden of establishing good cause that demonstrates why

16

the presumption of privilege should not apply.

17

A protective order consistent with these elements would adequately protect the interests

18 of all parties. And given the importance and sensitivity of substantively revising California’s

19 lethal injection protocol, and responding to this Court’s concerns regarding implementation, the

20 Moving Parties should be granted a protective order that will prevent these policy decisions from

21 being chilled by the constant threat of subpoena and deposition.

22

IV.

23

CONCLUSION

24

This is a unique case involving a matter of intense public interest. The Court has urged

25 the Governor’s office to exercise executive leadership and to participate in the review and

26 revision of California’s lethal injection protocol and its implementation. Both the Governor’s

27 Office and the Defendants intend to conduct such a review. In order to protect the integrity of

28 the decision making process and provide an environment in which decision makers (and those

The Office of the Governor and Defendants’ Joint Motion for a Protective Order
5

Case 5:06-cv-00219-JF Document 294 Filed 01/16/2007 Page 7 of 7

1 who provide them with recommendations) can have a candid dialogue, this case requires that a

2 protective order issue. Moreover, a protective order that limits access to deliberative matters

3 will not prejudice the plaintiff, who will have ample opportunity to challenge any revised lethal

4 injection protocol once such a revised protocol becomes final. In contrast to the lack of

5 prejudice to Plaintiff, the benefits to the executive decision making process, however, will be

6 invaluable and substantial. For all of these reasons, the protective order outlined in this motion

7 should be granted.

8

DATED: January 16, 2007

9

Respectfully Submitted,

10

EDMUND G. BROWN JR.

Attorney General of the State of California

11

STACY BOULWARE EURIE

12

Senior Assistant Attorney General

JONATHAN RENNER

13

Supervising Deputy Attorney General

14

STEVEN M. GEVERCER Deputy Attorney General

15

16

/s/ Steven M. Gevercer

17

STEVEN M. GEVERCER Deputy Attorney General

18

Attorneys for Non-Party, Office of Governor

19

Arnold Schwarzenegger

20

/s/ Dane Gillette - original signature on file with

21

Attorney Steven M. Gevercer

22

DANE GILLETTE Supervising Deputy Attorney General

23

Attorneys for Defendant California Department of

24

Corrections and Rehabilitation

25

26

27

28

The Office of the Governor and Defendants’ Joint Motion for a Protective Order
6

 
 Case 5:06-cv-00219-JF Document 291 Filed 01/16/2007 Page 1 of 4

1 EDMUND G. BROWN JR. Attorney General of the State of California
2 STACY BOULWARE EURIE Senior Assistant Attorney General
3 JONATHAN K. RENNER Supervising Deputy Attorney General
4 STEVEN M. GEVERCER, State Bar No. 112790 Deputy Attorney General
5 1300 I Street, Suite 125 P.O. Box 944255
6 Sacramento, CA 94244-2550 Telephone: (916) 327-4853
7 Fax: (916) 324-8835 Email: steven.gevercer@doj.ca.gov
8 Attorneys for Non-Party, Office of Governor
9 Arnold Schwarzenegger

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13 14 MICHAEL ANGELO MORALES,

Case Number C 06 219 JF RS Case Number C 06 926 JF RS

15

Plaintiff, DEATH PENALTY CASE

16

v.

17 JAMES E. TILTON, et al.,

18

19

Defendants.

RESPONSE BY THE GOVERNOR’S OFFICE TO THE COURT’S MEMORANDUM OF INTENDED DECISION DATED DECEMBER 15, 2006

20

21

22

23

24

25

26

27

28

Response by the Governor’s Office to the Court’s Memorandum of Intended Decision.

Case 5:06-cv-00219-JF Document 291 Filed 01/16/2007 Page 2 of 4

1

RESPONSE BY THE GOVERNOR’S OFFICE TO

THE COURT’S MEMORANDUM OF INTENDED DECISION.

2

3

Although the Governor is not a party to this case, he appreciates the Court’s invitation to

4 address the deficiencies in implementation of the lethal injection protocol identified in the

5 Memorandum of Intended Decision filed on December 15, 2006 (Memorandum) and the

6 opportunity to review, evaluate and revise the current lethal injection protocol. The Governor’s

7 Office files this response to confirm that the Governor and his administration are committed to

8 fixing the identified deficiencies and intend to review, evaluate and revise the lethal injection

9 protocol.

10

In the Memorandum, the Court was careful to explain that this case is not about whether

11 lethal injections are constitutional in the abstract, or whether executions must be painless.

12 (Memorandum at p. 2.) Instead, this case presents the narrow question whether the actual

13 implementation of California’s lethal injection protocol creates an undue and unnecessary risk

14 that an inmate would experience pain so extreme that it would offend the Eighth Amendment’s

15 prohibition against cruel and unusual punishment. (Ibid.)

16

In addressing the narrow issue presented, this Court identified certain “correctable”

17 deficiencies in the implementation of California’s lethal injection protocol. (Memorandum at pp.

18 14-15.) The Court indicated that “a thorough, effective response to the issues raised” in the

19 Court’s Memorandum likely would enable the Court to enter a favorable judgment in this matter.

20 (Id. at 15.)

21

The Court expressed its belief that the Governor’s Office is in the best position to direct

22 the changes needed to correct the deficiencies noted in the Court’s Memorandum.

23 (Memorandum at p. 15.) Accordingly, the Court respectfully invited the Governor’s Office to

24 take this opportunity to address the implementation of the lethal injection protocol and to advise

25 the court if the Governor’s Office and defendants intend to review and revise the current lethal

26 injection protocol. (Memorandum at pp. 15, 17.)

27

In response to the Court’s December 15th Memorandum, the Governor’s Office took

28 immediate action. The next business day, the Governor directed his administration to correct the

Response by the Governor’s Office to the Court’s Memorandum of Intended Decision.
1

Case 5:06-cv-00219-JF Document 291 Filed 01/16/2007 Page 3 of 4

1 deficiencies identified by the Court. (See Press Release dated December 18, 2006 attached as

2 Exhibit A.) As an initial matter, the Governor directed his administration to (1) establish a

3 screening process for selection of execution team members and a periodic review process for

4 team members; (2) establish a comprehensive training program for all execution team members;

5 (3) develop standardized record-keeping to ensure there are complete and reliable records of

6 each execution; (4) recommend how to improve the death penalty facility at San Quentin Prison

7 to ensure that there is adequate equipment, lighting and space for the execution team; and (5)

8 identify the best experts to provide advice on the lethal injection protocol and its

9 implementation. (Ibid.)

10

The Governor’s review of the lethal injection protocol is significant and important. But

11 if the review is going to be thorough and comprehensive, then it must involve a certain amount

12 of deliberative process. That deliberative process should not be chilled by threats of depositions,

13 subpoenas or other discovery. Experts, consultants, professionals and other public officials

14 should feel comfortable discussing alternatives, options and possibilities without fear that they

15 will be subpoenaed or deposed simply due to their participation in pre-decisional policy

16 discussions. The administration is already working to identify appropriate experts and to consult

17 with other jurisdictions. However, some of these sources of information may be reluctant to

18 cooperate without a protective order from the Court. Accordingly, the Governor’s Office and

19 defendants will be filing a separate request for a protective order so that this important

20 deliberative process can proceed in an effective manner.

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

Response by the Governor’s Office to the Court’s Memorandum of Intended Decision.
2

Case 5:06-cv-00219-JF Document 291 Filed 01/16/2007 Page 4 of 4

1

The Governor’s Office appreciates this opportunity to respond to the Court’s

2 Memorandum. The Governor’s Office will review and revise the lethal injection protocol to

3 make certain that the protocol and its implementation are constitutional.

4

DATED: January 16, 2007

5

Respectfully Submitted,

6

EDMUND G. BROWN JR.

Attorney General of the State of California

7

STACY BOULWARE EURIE

8

Senior Assistant Attorney General

JONATHAN RENNER

9

Supervising Deputy Attorney General

10

STEVEN M. GEVERCER Deputy Attorney General

11

12

/s/ Steven M. Gevercer

13

STEVEN M. GEVERCER Deputy Attorney General

14

Attorneys for Non-Party Witness Office of the

15

Governor Arnold Schwarzenegger

16

17

18

19

20

21

22

23

24

25

26

27

28

Response by the Governor’s Office to the Court’s Memorandum of Intended Decision.
3

 
 Case 5:06-cv-00219-JF Document 304 Filed 01/31/2007 Page 1 of 6

1 David A. Senior (#108759) McBreen & Senior
2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
3 Phone: (310) 552-5300 Fax: (310) 552-1205
4 dsenior@mcbreensenior.com

5 John R Grele (#167080) Law Offices of John R Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP
10 One IBM Plaza Chicago, IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Attorneys For Plaintiff MICHAEL ANGELO MORALES

14

15

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

SAN JOSE DIVISION

17

MICHAEL ANGELO MORALES,

) CASE NO. C 06 0219 (JF) (RS)

18

)

C 06-926 (JF) (RS)

Plaintiff,

)

19

)

vs.

) RESPONSE TO DEFENDANTS’ AND

20

) GOVERNOR’S POST MEMORANDUM

JAMES E. TILTON, Acting Secretary of ) BRIEFING

21 the California Department of Corrections; )

ROBERT L. AYERS, Acting Warden, San )

22 Quentin State Prison, San Quentin, CA; )

and DOES 1-50,

)

23

Defendants.

)

)

24

25

26

27 _____________________________________

RESPONSE TO DEFENDANTS’ POST-MEMO BRIEF

28 Case Nos. C 06 219 JF RS, C 06 926 JF RS

1

Case 5:06-cv-00219-JF Document 304 Filed 01/31/2007 Page 2 of 6

1

The Court, in its Memorandum of Intended Decision (“Memorandum”), found that

2 Defendant’s lethal injection protocol, as then constituted, violated Plaintiff’s rights under the

3 Eighth and Fourteenth Amendments. See Memorandum, at 13-14. The Court inquired whether

4 Defendants intended to change that lethal injection procedure, and if so, by when. Defendants

5 and the Office of the Governor have responded that they will, yet again, change the protocol and

6 will announce those changes by May 15, 2007.

7

This is Defendants’ third bite at the apple. They are now saying they are going to do that

8 which they should have done in response to the Court’s Order of February 14, 2006; and, what

9 they had the chance to do on March 3, 2006. Plaintiff is highly skeptical Defendants are either

10 able or willing to take the time and make the fundamental changes necessary to bring the

11 protocol in compliance with the Eighth Amendment, as the record demonstrates Defendants’

12 profound lack of dedication to that effort and a willingness to settle for window dressing instead

13 of real change.

14

The ad hoc, secretive manner in which Defendants are proceeding also does not bode well

15 for the bona fides of the revision effort. The sole evidence of what Defendants plan to do is

16 found in a press release issued by the Governor’s Office, but that press release is not binding on

17 the government, and does not provide any meaningful procedures or guidelines for the process.

18 In stark contrast, when Governor Jeb Bush of Florida decided to reexamine the state’s lethal-

19 injection procedures following the botched execution of Angel Diaz, Governor Bush issued an

20 Executive Order that established the goals, purpose, and procedures of an official Commission

21 on the Administration of Lethal Injections. Exhibit A, Exec. Order No. 06-260, at 3 (Florida,

22 Dec. 15, 2006) (establishing commission composed of medical, scientific, and corrections

23 experts; establishing selection process for members; providing that the commission’s meetings 24 will be open to the public; setting timeframe for issuance of findings and conclusions).1 Thus,

25

26 1 Unless otherwise indicated, all exhibits are appended to the Declaration of John R

27 _____________________________________

RESPONSE TO DEFENDANTS’ POST-MEMO BRIEF

28 Case Nos. C 06 219 JF RS, C 06 926 JF RS

2

Case 5:06-cv-00219-JF Document 304 Filed 01/31/2007 Page 3 of 6

1 Florida has created a regularized, open process, which, at least at this juncture, bespeaks its

2 willingness to give thoughtful consideration to the dangers of lethal injection and the possibility

3 of meaningful alterations in the protocol. California’s proposed revision “process,” if one can

4 call it that, is amorphous, shrouded in secrecy, and apparently to date has been given little or no

5 thought. Because process necessarily affects outcome, at least at this point, Defendants have

6 given little reason to hope that the State’s final product will reflect careful, informed, and

7 thorough consideration of this Court’s concerns and the evidence of the CDCR’s systemic and

8 fundamental failures.

9

Asking the Court to give pre-approval to a request that the process be done in secret, and

10 appointing to head that process the very same Legal Affairs Secretary who truncated the review

11 in February of 2006, and whose position engendered tangled privilege litigation, only adds to the

12 sense of foreboding. As discussed in the accompanying Opposition to Motion for Protective

13 Order, there exists no basis in fact or law for keeping the process secret, and very many good

14 reasons not to shield it from public and judicial scrutiny.

15

Defendants’ request for secrecy is particularly outrageous given the current status of this

16 litigation. The Court has already noted that it “is prepared to issue formal findings of fact and

17 conclusions of law with respect to the deficiencies in the administration of California’s current

18 lethal-injection protocol that have been brought to light in this case.” Morales v. Tilton, 2006

19 U.S. Dist. LEXIS 92243, *29 (N.D. Cal. Dec. 15, 2006). It has not done so to date,

20 “in part because Defendants still have not fulfilled their discovery obligations. n. 11” Id.

21 “Relatedly, the Court has deferred ruling on the objections of the Governor’s Office to certain

22 discovery orders issued by the assigned magistrate judge. See Morales v. Tilton, No. C 06 219 JF

23 RS, 2006 U.S. Dist. LEXIS 73136, 2006 WL 2724152, at *3 (N.D. Cal. Sept. 22, 2006).” Id. at

24 *29 n. 11.

25

It thus seems redundant for Plaintiff to ask the Court to order Defendants to comply with

26

Grele in Support of Plaintiff’s Opposition to Motion for Protective Order. 27 _____________________________________

28

RESPONSE TO DEFENDANTS’ POST-MEMO BRIEF

Case Nos. C 06 219 JF RS, C 06 926 JF RS

3

Case 5:06-cv-00219-JF Document 304 Filed 01/31/2007 Page 4 of 6

1 this Court’s earlier discovery orders, which Defendants continue to ignore. Moreover,

2 conspicuously absence from the briefs recently filed by Defendants is any mention or even

3 acknowledgment of their ongoing failure to comply with their discovery obligations. Defendants

4 failure not only to comply with the discovery orders, but to even acknowledge their failings

5 merits the most severe discovery sanctions available and should compel the Court to draw the

6 greatest adverse factual inferences possible in its formal findings of fact and conclusions of law.

7 Plaintiff cannot chase Defendants to obtain the requested discovery when Defendants are

8 completely unwilling to pretend they will make any efforts to comply.

9

Should the Court decline to issue its findings at this juncture, Plaintiff intends to pursue

10 the discovery deficiencies noted by the Court. Memorandum, at 14. While Defendants plainly

11 desire to maintain secrecy over the current review, that request cannot excuse their continuing

12 arrogant flouting of the Court’s orders. If Defendants fundamentally alter the protocol, the

13 applicability of this discovery will be determined then; however, other items are plainly relevant

14 regardless of the State’s actions, including who determined the 1.5 gram bolus dose and why; 15 discovery over Dr. Singler’s contract and billing materials2; why the photographs of injection

16 sites are missing; and, discovery from CDCR officials, particularly those in Sacramento.

17

Another area of inquiry is presented by the Defendant’s use of the order in Walker v.

18 Johnson, after review of Virginia’s lethal injection protocol. See also Memorandum, at 15 n. 12.

19 As Plaintiff explained, the Walker litigation is shrouded in secrecy, which has made it very

20 difficult to determine whether the plaintiff there was even given access to critical witnesses and

21 records, or if any records exist. It may be that no problems were noted because no one was

22 looking at or documenting inmate responses to the drugs, or because the district court there

23 limited the inquiry substantially (it was decided without any hearing). As the evidence here

24 shows and the Court acknowledged, the use of pancuronium masks deficiencies in the process.

25

26

2 Relevant to privilege assertions by the Governor’s office and to the basis for the

circulatory collapse theory. 27 _____________________________________

28

RESPONSE TO DEFENDANTS’ POST-MEMO BRIEF

Case Nos. C 06 219 JF RS, C 06 926 JF RS

4

Case 5:06-cv-00219-JF Document 304 Filed 01/31/2007 Page 5 of 6

1 Memorandum, at 16. Simply because Virginia has not recorded difficulties does not mean its

2 processes are an adequate constitutional floor.

3

Because the litigation over lethal injection is evolving, and the level of examination of

4 other states’ procedures varies greatly depending upon the amount of court inquiry that is

5 permitted and what records exist, Plaintiff has no doubt evidence will surface as a result of 6 additional inquiries that may better inform whatever final order is issued in this case.3 Plaintiff

7 will submit those materials as they become available.

8

Finally, the Court should also be mindful of the discovery violations when reviewing the

9 State’s new found Eighth Amendment religion, and review the State’s future conduct very

10 carefully. While the Court’s order has thrown the State a third rescue line and the State now

11 claims to have grabbed hold, lest we forget that there are few atheists in fox holes. The State’s

12 new found Eighth Amendment conversion can only be viewed over time to ensure its authenticity

13 and righteous conviction. See Id. at *30 (the State’s “thorough, effective response to the issues

14 raised in this memorandum likely will enable the Court to enter such a favorable judgment.”

15 (emphasis added)).

16 ///

17

18

3 For instance, shortly before this Court issued its December 15 Memorandum, the

19 Florida execution of Angel Diaz was badly botched due to infiltrated IVs, leaving Mr. Diaz writhing in pain for 34 minutes, and resulting in 12-inch chemical burns on each arm. See

20 Exhibit F (Tampbay.com article re. Diaz execution). It has now come to light that the execution

team began injecting thiopental and then pancuronium into the primary IV; was unable to 21 complete the injection of pancuronium; and then switched to the other IV without administering

22 any more thiopental. See Exhibit G (Gainesville Sun article re. deviations from protocol in Diaz execution). This is precisely the scenario that Dr. Heath testified was highly foreseeable: Team

23 members who do not understand the drugs may not recognize the need to inject more thiopental

even when it appears that infiltration has prevented the successful delivery of the thiopental and 24 the inmate is clearly conscious. Hrg. Tr. 525-26. The Diaz execution also definitively disproves

25 Dr. Singler’s argument that infiltration could never cause an inhumane execution. One would hope that the CDCR would take this confirmation of the dangers of the execution process

26 extremely seriously, and would consider how to avoid such a calamity in California.

27 _____________________________________

28

RESPONSE TO DEFENDANTS’ POST-MEMO BRIEF

Case Nos. C 06 219 JF RS, C 06 926 JF RS

5

Case 5:06-cv-00219-JF Document 304 Filed 01/31/2007 Page 6 of 6

1 Dated: January 31, 2007

Respectfully submitted,

2

3

4

By: _______/s/___________________

JOHN R GRELE

5

Attorney for Plaintiff

MICHAEL ANGELO MORALES

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 _____________________________________

28

RESPONSE TO DEFENDANTS’ POST-MEMO BRIEF

Case Nos. C 06 219 JF RS, C 06 926 JF RS

6

 
 Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 1 of 22

1 David A. Senior (#108759) McBreen & Senior
2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
3 Phone: (310) 552-5300 Fax: (310) 552-1205
4 dsenior@mcbreensenior.com

5 John R Grele (#167080) Law Offices of John R Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP
10 One IBM Plaza Chicago, IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Attorneys For Plaintiff MICHAEL ANGELO MORALES

14 UNITED STATES DISTRICT COURT
15 NORTHERN DISTRICT OF CALIFORNIA
16 SAN JOSE DIVISION
17

18 MICHAEL ANGELO MORALES

)

)

19

Plaintiff,

)

)

20

v.

)

)

21

)

JAMES TILTON, Acting Secretary of the )

22 California Department of Corrections;

)

ROBERT AYERS, Warden of San Quentin )

23 State Prison; and DOES 1-50,

)

)

24

Defendants.

)

_____________________________________

25

Case nos. 06-219 (JF)(RS) 06-926 (JF)(RS)
OPPOSITION TO MOTION FOR PROTECTIVE ORDER
Date: February 20, 2007 Time 1:30 p.m. Court: Courtroom 4

26

27 Plaintiff’s Opp. to Mot. for Protective Oder
28 case nos. 06-219 (JF)(RS) & 06-926 (JF)(RS)

Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 2 of 22

1 ii 2 I. 3 4 5 6 7 8 9 10 11 II. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The Defendants and the Governor are Seeking an Advisory Opinion With Respect to Materials and Information that May Not be Sought in Discovery and May Not be Privileged. . . . . . . . . . . . . . . . . . . . 2
B. Shifting the Burden of Establishing That Materials Are Discoverable to Plaintiff Contravenes the Policies Underlying the Federal Rules and Privilege Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. The State Has Failed to Demonstrate Good Cause for a Protective Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
D. A Protective Order Would Interfere with State Processes . . . . . . . . . . . . . . . . . . 15
E. A Protective Order Would Frustrate Constitutional Inquiry and Only Insulate Incompetence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Plaintiff’s Opp. to Mot. for Protective Oder case nos. 06-219 (JF)(RS) & 06-926 (JF)(RS) i

Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 3 of 22
1 TABLE OF AUTHORITIES
2 CASES
3
4 Abbott Laboratoriess v. Gardner, 387 U.S. 136 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5 Anchorage Equal Rights Commission, 220 F.3d 1134 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 3
6 Burlington N. & Sante Fe Railway Co. v. United States District Ct., 408 F.3d 1142 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7 Calderon v. United States District Ct. for N. District of Cal.,
8 134 F.3d 981 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9 Communist Party of the U.S. v. Subversive Activities Control Board, 367 U.S. 1 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10 Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44 (S.D.N.Y. 1996) . . . . . . . . . . . . . . . . . 7
11 Fitzgerald v. Cassill, 216 F.R.D. 632 (N.D. Cal. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12 Hartford Insurance Co. v. Garvey, 109 F.R.D. 323 (N.D. Cal. 1985) . . . . . . . . . . . . . . . . . . . . . 6
13 Hickman v. Taylor, 329 U.S. 495 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9
14 Kelly v. San Jose, 114 F.R.D. 653 (N.D. Cal. 1987) . . . . . . . . . . . . . . . . . . . . . 7, 8, 9, 10, 11, 14
15 Meadows v. Kindercare Learning Ctrs., No. Civ. 03-1647-HU, 2004 WL. 2203299
16 (D. Or. Sept. 29, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
17 Morales v. Tilton, 2006 U.S. Dist. LEXIS 92243 (N.D. Cal. Dec. 15, 2006) . . . . . . . . . . . 17, 18
18 North Pacifica, LLC v. City of Pacifica, 274 F. Supp. 2d 1118 (N.D. Cal. 2003) . . . . . 5, 7, 9, 10
19 Pagano v. Oroville Hospital, 145 F.R.D. 683 (N.D. Cal. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 4
20 Phillips v. City of Fairfield, No. CIV. S-04-0377 (FCD), 2006 WL. 2868966 (E.D. Cal. Oct. 6, 2006)................................................................................ 8
21 Scott v. Board of Education, 219 F.R.D. 333 (D.N.J. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
22 Soto v. City of Concord, 162 F.R.D. 603 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11
23 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) . . . . . . . . . . . . . . . . . . . . . . 3
24 Taylor v. Crawford, No. 05-4173 (FJG) (W.D. Mo. July 14, 2006) . . . . . . . . . . . . . . . . . . . . . 13
25 United States v. Lee, Goddard & Duffy, LLP, No. SACA06-408DOC (RNBX), 2006 WL 2404137 (C.D. Cal. June 29, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
26 United States v. Martin, 278 F.3d 988 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
27 United States v. Nixon, 483 U.S. 683 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9
28
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Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 4 of 22

1

STATUTES

2 Fed. R. Civ. P. 26(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 11

3 Fed. R. Civ. P. 45(c)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

4 Fed. R. Civ. P. 45(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

5 U.S. Const., art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

6

MISCELLANEOUS

7 26A Wright & Miller, Federal Practice and Procedure § 5680 . . . . . . . . . . . . . . . . . . . . . . . . . 2

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 5 of 22

1 David A. Senior (#108759) McBreen & Senior
2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
3 Phone: (310) 552-5300 Fax: (310) 552-1205
4 dsenior@mcbreensenior.com

5 John R Grele (#167080) Law Offices of John R Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP
10 One IBM Plaza Chicago, IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Attorneys For Plaintiff MICHAEL ANGELO MORALES

14 UNITED STATES DISTRICT COURT
15 NORTHERN DISTRICT OF CALIFORNIA
16 SAN JOSE DIVISION
17

18 MICHAEL ANGELO MORALES

)

)

19

Plaintiff,

)

)

20

v.

)

)

21

)

JAMES TILTON, Acting Secretary of the )

22 California Department of Corrections;

)

ROBERT AYERS, Warden of San Quentin )

23 State Prison; and DOES 1-50,

)

)

24

Defendants.

)

_____________________________________

25

Case nos. 06-219 (JF)(RS) 06-926 (JF)(RS)
OPPOSITION TO MOTION FOR PROTECTIVE ORDER
Date: February 20, 2007 Time 1:30 p.m. Court: Courtroom 4

26

In response to the Court’s third plaintive request for the State to undertake dramatic

27 action to rectify what is a clearly unconstitutional procedure, the State has returned with a

28 process that appears burdened by the same difficulties that prevented an adequate remedy nearly

Plaintiff’s Opp. to Mot. for Protective Oder case nos. 06-219 (JF)(RS) & 06-926 (JF)(RS)

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1 a year ago, yet were only discovered on the eve of the hearing. This time, though, the State seeks

2 success by insulating themselves from review. The first paper to hit the Court’s screen after all

3 that has transpired and the Court’s very clear desire for transparency is a pleading that entangles

4 us in privilege litigation. This is not an auspicious beginning.

5

I.

6

ARGUMENT

7

The Governor’s and Defendants’ motion for a protective order is so seriously deficient as

8 to lead Plaintiff to the conclusion that they are merely seeking to have the Court issue some sort

9 of guidelines as to how to go about conducting their business. This way, when the issues of

10 discovery and privileges are properly before the Court, they can point to something the Court

11 stated in response to their Motion as a basis for keeping their review of 770 secret. Or, they can

12 have the Court rule now on what type of discovery is necessary on whatever they plan to do, in

13 advance of them having done anything. The Court should not, and cannot, take such bait.

14

To begin with, the State relies on a highly questionable deliberative process privilege.

15 They cite to Wright and Miller in support, but ignore the authors’ very strong denunciation of

16 such a privilege, unknown in the common law, rejected by Congress and untethered to any

17 rationale that can withstand scrutiny. See 26A Wright & Miller, Federal Practice and Procedure

18 § 5680 (noting the “puny instrumental rationale” for the privilege). They also fail to address

19 Judge Seeborg’s cogent analysis of why the privilege does not apply here, and the briefing

20 concerning that order, which will not be repeated here. Assuming such a privilege exists and is

21 one that actually operates here, there is no basis in law or fact for any decision on the issue now,

22 and several very good reasons not to issue one.

23 A. 24

The Defendants and the Governor are Seeking an Advisory Opinion With Respect to Materials and Information that May Not be Sought in Discovery and May Not be Privileged.

25

The CDCR, joined by the Governor’s Office, has moved this Court to issue an advisory

26 opinion determining whether, as a hypothetical matter, conversations that have not yet occurred,

27 documents that have not yet been created, and deliberations that have not yet been undertaken are

28 likely to be protected by the deliberative process privilege. Because there is no way to know

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Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 7 of 22

1 now, in advance, what discovery Plaintiff may seek upon the conclusion of the State’s revision

2 process, and none of the facts necessary to determine privilege issues are yet in existence, the

3 State urges this Court to address issues that are not ripe for decision. Such a ruling would violate

4 the fundamental tenet that federal courts may not rule except upon the existence of a genuine

5 case or controversy.

6

It is well-established that the federal courts’ “role is neither to issue advisory opinions nor

7 to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent

8 with the powers granted the judiciary in Article III of the Constitution.” Thomas v.

9 Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (citing U.S. Const., art.

10 III). “[P]remature adjudication” of unripe issues risks “entangling [the courts] in abstract

11 disagreements,” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), which in turn results in

12 advisory opinions that, because of intervening events or litigation, do not end up affecting or

13 determining the rights of the parties. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

14 101 (1998) (a “hypothetical judgment” where subject-matter jurisdiction may not exist “comes to

15 the same thing as an advisory opinion”).

16

These principles have particular relevance in the context of adjudicating claims of

17 privilege. The privilege analysis is dependent on a number of events: first, a party must seek

18 discovery of the information that may be privileged; second, the party seeking to withhold the

19 information must assert a claim of privilege; and third, the court must determine whether the

20 information is in fact privileged based upon the precise facts surrounding the creation of the

21 information, its purpose, its content, the relative interests of the litigants in disclosure or

22 concealment, and any other circumstances that are relevant to the specific privilege at issue. That

23 this is the case is demonstrated by the rules and decisions governing the determination of

24 privilege. Rule 26(b)(5) provides: “When a party withholds information otherwise discoverable

25 under these rules by claiming that it is privileged . . . the party shall make the claim expressly and

26 shall describe the nature of the documents, communications, or things not produced or disclosed

27 in a manner that, without revealing information itself privileged or protected, will enable other

28 parties to assess the applicability of the privilege or protection.” See also Rule 45(d)(2). The

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Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 8 of 22

1 importance of providing the court and other litigants with sufficient factual information to

2 determine whether specific documents are privileged in light of their content, creation, and

3 purpose is underscored by the rule that boilerplate objections are not sufficient to assert a

4 privilege. See Burlington N. & Sante Fe Ry. Co. v. United States Dist. Ct., 408 F.3d 1142, 1149

5 (9th Cir. 2005) (holding that party claiming privilege must provide enough specific information

6 for court to determine whether privilege applies to each document individually); Pagano v.

7 Oroville Hosp., 145 F.R.D. 683, 700 n.16 (N.D. Cal. 1993) (ruling on privilege without a

8 privilege log or “specific designation of documents that are privileged” would be “premature”).

9 Needless to say, therefore, a court cannot adjudicate a blanket privilege that purportedly applies

10 to documents and information that have not yet been created consistently with the Federal Rules

11 and the prohibition on advisory opinions.

12

Unsurprisingly, courts confronted with anticipatory privilege claims similar to those

13 raised here by the State have refused to adjudicate them on the ground that they are premature.

14 See, e.g., Communist Party of the U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 107

15 (1961) (finding that a self-incrimination challenge to statute was premature, as there was no way

16 to know whether the individuals at issue would end up asserting the privilege; whether the

17 government would refuse to honor the privilege; and the precise circumstances of the assertion of

18 the privilege); United States v. Lee, Goddard & Duffy, LLP, No. SACA06-408DOC (RNBX),

19 2006 WL 2404137, at *5 n.3 (C.D. Cal. June 29, 2006) (refusing to adjudicate defendants’

20 anticipatory assertion that some of the documents sought by the United States might be

21 privileged, and stating that “any comment in that regard at this stage would be premature and

22 based on an incomplete record”); Meadows v. Kindercare Learning Ctrs., No. Civ. 03-1647-HU,

23 2004 WL 2203299, at *2-*3 (D. Or. Sept. 29, 2004) (holding that whether a claim would

24 implicate attorney-client privilege could not be determined at the motion to dismiss stage because

25 of its fact-specific nature, and that application of privilege was more appropriately determined in

26 the context of a motion for a protective order).

27

Applying the deliberative process privilege is a particularly fact-specific inquiry. First,

28 the deliberations at issue must concern “the formulation of important public policy.” Morales v.

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Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 9 of 22

1 Tilton, Order of May 2, 2006 (Doc. No. 151) (Seeborg, M.J.) (quoting Scott v. Board of Educ.,

2 219 F.R.D. 333, 337 (D.N.J. 2004).) While some aspects of the State’s protocol revision process

3 may involve important overarching policy questions, that process will presumably involve

4 relatively minor, detail-oriented decisions as well. There is no way of knowing ahead of time

5 what issues will be analyzed by the State, or which will turn out to be “important public policy”

6 issues. Second, the Court must analyze the nexus between the information at issue and the

7 deliberation process, which requires consideration of whether the material is “interwoven” with

8 the decisional process, and whether revealing the information would reveal that process. North

9 Pacifica, LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1121-22 (N.D. Cal. 2003). It goes

10 without saying that it is impossible to undertake this inquiry with respect to documents and

11 materials that have not yet been created. Finally, because the deliberative process privilege is

12 qualified, the Court must balance the government’s interest in protecting the deliberations at

13 issue and the potential harm from disclosure of the materials at issue, with the plaintiff’s need for

14 the information sought and the need for accurate judicial factfinding. Id. at 1122. That task

15 cannot be performed without knowing what information Plaintiff seeks, what the end product of

16 the State’s deliberations is, and what the equities of disclosure are in light of the substantive

17 issues that may be being litigated at that time.

18

Thus, it is impossible to know now whether any of the information and materials

19 generated by the State in its review of the lethal-injection system will be covered by deliberative

20 process privilege, or if so, whether that privilege will be outweighed by the parties’ interests in

21 light of the circumstances existing after the submission of the proposed revisions. Even more

22 fundamentally, it is impossible to know with certainty whether Plaintiff will seek discovery of

23 matters touching upon the deliberative process at all, since the need to do so is to some extent

24 dependent on the product of that deliberative process. To grant the State’s requested relief,

25 therefore, this Court would have to assume hypothetical facts or circumstances and then

26 adjudicate whether those hypothetical situations would support a claim of privilege. See

27 Calderon v. United States Dist. Ct. for N. Dist. of Cal., 134 F.3d 981, 989 (9th Cir. 1998)

28 (“[A]ny ruling as to the legitimacy of a step not yet taken would be tantamount to an advisory

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Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 10 of 22

1 opinion.”). This uncertainty compels the conclusion that if this Court were to rule on privilege

2 issues now, it would be issuing an advisory opinion.

3

Granting the order sought by the State here would not be any less an advisory opinion

4 simply because the State’s proposal would allow Plaintiff to overcome the presumption of

5 privilege upon a showing of good cause. The Court must have some basis on which to accept the

6 State’s assertion that the burden of proof with respect to privilege should be reversed and placed

7 on Plaintiff. Justifying such a ruling would be no small task, as the traditional placement of the

8 burden of establishing privilege on the party asserting it is established by the Federal Rules, see

9 Fed. R. Civ. P. 26(c), and underscored in innumerable decisions, see, e.g., Hartford Ins. Co. v.

10 Garvey, 109 F.R.D. 323, 327 (N.D. Cal. 1985) (because of federal policy of broad discovery,

11 burden of establishing privilege is on its proponent). In other words, the Court would have to

12 consider, anticipatorily, all of the issues discussed above, in order to determine that the

13 deliberative process privilege will likely be implicated by the materials created during the

14 revision process and the equities are such that shifting the burden of proof is warranted.

15 Moreover, the Court would have to accept, without any factual support whatsoever, the State’s

16 astounding assertion that absent the anticipatory protections it seeks, experts will not be willing

17 to participate in the process, and officials will be chilled in discussing their views. Notably, the

18 State does not represent that it has already attempted to retain experts and encountered problems

19 doing so; it merely speculates that it might have trouble doing so in the future. Mot. for

20 Protective Order 3. Thus, the State is asking the Court to assume all of the facts in its favor, and

21 on that basis issue a preemptive ruling, regardless of what the facts may actually turn out to be.

22 This Court should reject the State’s attempt to gain, through an advisory opinion, a level of

23 secrecy that goes well beyond that permitted by the Federal Rules and established privilege law.

24 B.
25

Shifting the Burden of Establishing That Materials Are Discoverable to Plaintiff Contravenes the Policies Underlying the Federal Rules and Privilege Law.

26

In asserting that its materials should be presumptively privileged, thereby shifting the

27 burden of establishing that materials are discoverable onto Plaintiff, the State is urging this Court

28 to depart from the policy of broad discovery espoused by the Federal Rules of Civil Procedure,

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Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 11 of 22

1 and the longstanding understanding that privilege must be proven by the entity asserting it. The

2 State has provided no justification for such a departure from settled discovery rules. Nor could

3 it; the preemptive endorsement of secrecy that the State seeks is unprecedented and must be

4 rejected.

5

The discovery provisions of the Federal Rules of Civil Procedure are designed to provide

6 the parties with “the fullest possible knowledge of the issues and facts” relating to relevant

7 issues, and therefore discovery rules “are to be accorded a broad and liberal treatment.” Hickman

8 v. Taylor, 329 U.S. 495, 501, 508 (1947). Privilege rules therefore are in some tension with the

9 broad discovery espoused by the Federal Rules. Kelly v. San Jose, 114 F.R.D. 653, 659 (N.D.

10 Cal. 1987). Because privileges prevent the disclosure of even relevant information, they

11 “derogate the search for the truth,” and consequently “are to be narrowly construed.” Id.; see

12 also United States v. Nixon, 483 U.S. 683, 710 (1974) (same).

13

Moreover, the “burden of establishing application of the privilege is on the party asserting

14 it.” North Pacifica, LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1122 (N.D. Cal. 2003); Fed. 15 R. Civ. P. 26(c); Fed. R. Civ. P. 45(c)(3)(A), (d)(2).1 That allocation of the burden of proof

16

1

Although the CDCR and the Governor’s Office have maintained that the

17 Governor’s Office is not a party to this action -- an assertion that this Court has not resolved, and

Plaintiff contests -- the framework of asserting and adjudicating privilege is substantially similar 18 regardless of whether the entity asserting privilege is a party or not. See Concord Boat Corp. v.

19 Brunswick Corp., 169 F.R.D. 44, 48-49 (S.D.N.Y. 1996) (equating the frameworks for litigating privilege in the context of Rule 26, for parties, and Rule 45, for subpoenaed non-parties). Non-

20 parties must be subpoenaed for purposes of discovery, of course, but Rule 45 establishes

privilege rules for non-parties that are essentially identical to those that Rule 26 establishes for 21 parties. Thus, in order to quash a subpoena on grounds of privilege, the subpoenaed party must

22 specifically object and provide a privilege log. Fed. R. Civ. P. 45(d)(2). Moreover, the burden of establishing that the subpoena should be quashed because it seeks privileged information rests on

23 the subpoenaed party -- i.e., the entity asserting privilege. See Fitzgerald v. Cassill, 216 F.R.D.

632, 636 (N.D. Cal. 2003) (noting, in context of motion to quash subpoena, that burden of 24 demonstrating that subpoenaed documents were privileged rested with the movant); see also

25 Phillips v. City of Fairfield, No. CIV. S-04-0377 (FCD), 2006 WL 2868966, at *1 (E.D. Cal. Oct. 6, 2006) (denying motion to quash because movant had not carried the burden of

26 establishing privilege). Regardless of whether a party or non-party asserts a privilege, therefore,

the entity asserting the privilege traditionally has the burden of establishing it. Because the 27 litigation burdens on the CDCR and the Governor’s Office are not materially different even if the

28 Governor’s Office is not a party, this discussion does not distinguish between the Rule 26 and Rule 45 frameworks.

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Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 12 of 22

1 furthers the policy of broad discovery by ensuring that privileges do not sweep too broadly. The

2 litigant asserting the privilege is the only entity with knowledge of the precise contents and

3 purpose of the materials sought, of course, and thus is best positioned to litigate the elements of

4 the claimed privilege. Conversely, placing the burden on the party seeking disclosure would

5 disadvantage that party, as it is obviously more difficult to establish the absence of the elements

6 of the privilege without knowing very much about the relevant facts surrounding the disputed

7 documents. Thus, placing the burden on the party seeking disclosure would result in the over-

8 protection of otherwise discoverable information, as the party seeking disclosure will fail to

9 establish discoverability more often than is warranted simply because of the unequal access to the

10 information necessary to litigate the privilege. Rule 26(c), then, places the burden of establishing

11 privilege on the entity asserting it in order to further the liberal discovery espoused by the Rules.

12 See Kelly, 114 F.R.D. at 661 (placing burden on entity asserting privilege expresses a policy

13 decision to weight the scales in favor of disclosure; noting “the well-established notion that

14 because privileges operate in derogation of the truth finding process the law places the burden of

15 proving all the elements essential to invoking any privilege on the party seeking its benefits”). In

16 seeking to reverse this burden, the State is attempting once more to escape the broad discovery to

17 which Plaintiff is entitled.

18

To justify standing privilege law on its head in this manner, the State relies on the

19 traditional rationale for the deliberative process privilege, asserting that without the

20 unprecedented protection of a preemptive protective order, deliberations will be chilled and

21 experts will be reluctant to participate. Yet this purported justification for shifting the burden to

22 Plaintiff is misplaced because it simply restates the rationale underlying all privileges, without

23 explaining why the traditional degree of protection afforded every other litigant is insufficient

24 here. Every privilege exists in order to foster open, vigorous exchange by providing potential

25 litigants with some expectation that certain types of communications will not be subject to

26 disclosure. See, e.g., Hickman, 329 U.S. at 510-511 (work product privilege protects attorney’s

27 ability to prepare for litigation); Kelly, 114 F.R.D. at 658-59 (deliberative process privilege

28 fosters honest assessments of policies and free exchange of policy ideas). But both the drafters

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Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 13 of 22

1 of the Federal Rules and courts confronted with claims of privilege have determined that the

2 freedom of deliberation fostered by the various privileges is sufficiently protected by the entity’s

3 knowledge that it will be able to assert privilege once the communications have already occurred,

4 and obtain an adjudication of the applicability of the privilege to individual communications after

5 the fact. It is understood, and accepted, that litigants take the risk that some of their

6 communications eventually will be subject to disclosure, despite their reasonable expectation, at

7 the time of the communications, that the communications were privileged. See Soto v. City of

8 Concord, 162 F.R.D. 603, 612 (N.D. Cal. 1995) (rejecting unsupported assertion that the mere

9 risk of future disclosure would render police officers less candid in internal affairs

10 investigations); cf. Nixon, 483 U.S. at 712 (discussing the President’s interest in confidentiality,

11 stating that “we cannot conclude that advisers will be moved to temper the candor of their

12 remarks by the infrequent occasions of disclosure because of the possibility that such

13 conversations will be called for in the context of a criminal prosecution”).

14

In other words, existing privilege law, with its placement of the burden of proof on the

15 entity asserting privilege, is understood to adequately protect deliberations and provide parties

16 with the necessary sense of security. See North Pacifica, LLC, 274 F.R.D. at 1120-22

17 (explaining how traditional law of deliberative process privilege, with burden placed on the party

18 asserting it, protects the state’s ability to formulate policy); Kelly, 114 F.R.D. at 658-59 (same);

19 cf. United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002) (“Our expectation of privacy, in

20 other words, has been embodied in the law of privilege, which protects certain

21 communications.”). This is the case even where it is the government that asserts a privilege, and

22 regardless of the subject of deliberations. Kelly, 114 F.R.D. at 658-59. The State provides no

23 justification for disturbing this established understanding.

24

The State may argue, in reply, that the unprecedented degree of secrecy it seeks here is

25 justified because the deliberations in question concern a “sensitive” or controversial topic. See

26 Mot. for Protective Order at 3. That argument is meritless because, once again, it attempts to

27 invert the deliberative process privilege. The established framework of deliberative process

28 privilege does allow courts to account for the sensitivity of the deliberations at issue, but not in

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Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 14 of 22

1 the manner the State proposes. Importantly, the sensitivity of the topic at issue does not increase

2 the likelihood that particular communications will be covered by the deliberative process

3 privilege or that the privilege will be implicated in the first place. See North Pacifica, 274 F.

4 Supp. at 1121-22 (whether something is subject to deliberative process privilege is determined by

5 whether an important policy (as opposed to a day-to-day decision) is at issue; whether the

6 materials are predecisional; and whether they are closely related to the deliberative process).

7 Rather, the deliberative process doctrine allows courts to consider the sensitivity of the

8 deliberations at issue in determining whether, notwithstanding the fact that the privilege applies,

9 the government should nonetheless be forced to disclose the information. Id. at 1122. Thus, the

10 sensitivity of the issue may help the government prevent the privilege from being overcome by

11 the plaintiff’s interests in disclosure, but it does not affect whether or not the materials are

12 privileged in the first place. Clearly, this framework reflects a judicial conclusion that the

13 sensitivity of the issue should not lessen the government’s burden of establishing the existence of

14 the privilege. By arguing that the sensitivity of the lethal-injection protocol should be considered

15 first, and cause the Court to shift the burden to Plaintiff, the State once again seeks to subvert

16 established discovery law and replace it with a judicial endorsement of presumptive secrecy.

17

Finally, the State points to no case in which a court has determined that an entity’s need

18 to deliberate or communicate will be adequately protected only by an anticipatory guarantee that

19 all communications related to a topic will be presumptively shielded from disclosure. Nor can it:

20 For the reasons stated above, such a ruling would directly contravene the longstanding policies

21 embodied in existing privilege law. Indeed, the Kelly court, considering shifting the burden of

22 proving discoverability to the plaintiff in a civil rights case, unequivocally rejected the idea:

23

Since privileges operate in derogation of the truth finding process, and since the

policies that inform federal civil rights statutes are profoundly important, courts

24

should not use empirically unsupported and debatable assumptions to rationalize

shifting a burden of justification away from the party asserting privilege (where

25

the burden of justification classically rests) and on to a plaintiff who is attempting

simultaneously to enforce his rights and policies that the people, speaking through

26

Constitutional amendments and federal statutes, have elevated to the highest

levels of priority.

27

28

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1 114 F.R.D. at 664; see also Soto, 162 F.R.D. at 612. These words have particular resonance

2 here, where the State has repeatedly attempted to thwart Plaintiff’s diligent attempts to enforce

3 his Eighth Amendment rights by pressing meritless assertions of privilege. Despite the State’s

4 continuing obduracy and derogation of its discovery obligations, Plaintiff has proven his

5 substantive allegations. Throughout the duration of this litigation, this Court has been able to use

6 existing privilege law to chart a course that protects both the State’s asserted interests in

7 deliberation -- where they are legitimate -- and Plaintiff’s interest in obtaining the information

8 necessary to prove his claims. The State provides no legitimate justification for abrogating well-

9 established privilege law now, and this Court should not accept the invitation to do so.

10 C. The State Has Failed to Demonstrate Good Cause for a Protective Order.

11

In order to establish its entitlement to a protective order, the State must demonstrate good

12 cause. Fed. R. Civ. P. 26(c). Instead of attempting to put forth an actual showing of good cause,

13 however, the State has simply proffered conclusory assertions of “chill” and difficulty employing

14 experts that would be insufficient even if they were not belied by events in other states. This

15 Court should reject the State’s baseless assertions.

16

To the extent that the State proffers any reason for its asserted need of presumptive

17 secrecy in revising its lethal injection apparatus, the State appears to rely primarily on its belief

18 that it may have difficulty receiving “candid recommendations from experts [and] consultants”

19 unless those experts and consultants are assured that they will forever be insulated from

20 deposition or other discovery. Mot. for Protective Order at 3. Notably, the State proffers no

21 evidence that potential experts have asked for such protection, or expressed reluctance to

22 participate because of concerns regarding future discovery.

23

Indeed, there is every reason to think that experts will be willing to participate in the

24 revision process even if their identities and deliberations are public. Notably, Florida’s

25 Commission on Administration of Lethal Injections, established after the botched execution of

26 Angel Diaz, is operating in public, and has been able to retain medical and corrections experts to

27 deliberate over potential improvements in the lethal-injection protocol. The commission

28 members, all of whom have been publicly identified, include Dr. David Varlotta, an

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Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 16 of 22

1 anesthesiologist with Unicom Anesthesia Associates; Dr. Peter Springer, the Volusia County

2 EMS Medical Director; and Dr. Steve Morris, an expert in hospital administration and quality 3 assurance at the University of Florida. See Exhibits B & C (newspaper articles).2 These experts

4 clearly are willing to participate even knowing that the Commission’s meetings are public, and

5 that its findings will also be public. See Exhibit A, Exec. Order No. 06-260, at 3 (Florida, Dec.

6 15, 2006). Moreover, these individuals apparently had no qualms about public identification,

7 giving lie to the State’s suggestion that experts will not participate unless completely shielded

8 from discovery.

9

That the Florida Commission is undertaking the protocol revision process outside of the

10 context of pending litigation does not render Florida’s experience irrelevant here. The

11 Commission’s meetings are contemporaneously open to the general public, which is if anything

12 more likely to chill discussion than the uncertain prospect of future disclosure to the litigants in a

13 single case. Moreover, it is self-evident that should Florida’s revised protocol be subject to

14 lethal-injection litigation in the future, the expert members of the Commission will possess

15 relevant information concerning the new protocol and therefore will be potentially subject to

16 deposition or subpoena. Yet that prospect has not stopped Florida from retaining experts and

17 proceeding with its revision process.

18

In addition, experts have provided Missouri and Maryland with advice regarding their

19 protocols even in the context of litigation. In Missouri, following the district court’s order that

20 the State create a written protocol in consultation with a board-certified anesthesiologist, the

21 State was able to retain an anesthesiologist to consult on the development of the protocol. See

22 Submission of Proposed Execution Protocol, at 4 n.2 [Doc. No. 198], Taylor v. Crawford, No.

23 05-4173 (FJG) (W.D. Mo. July 14, 2006). In Maryland, during litigation over their protocol, Dr.

24 Dershwitz advised counsel for the State that Maryland needed to have a “plan B” for obtaining

25 central line access if peripheral access was impossible. Dr. Dershwitz later testified that he

26 would have given the same advice even had he known that it would be discoverable. See Exhibit

27

28

2 Unless otherwise indicated, all exhibits referenced herein are appended to the

Declaration of John R Grele, submitted herewith.

Plaintiff’s Opp. to Mot. for Protective Oder case nos. 06-219 (JF)(RS) & 06-926 (JF)(RS) 12

Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 17 of 22

1 D (Trial Tr. 204-05, Evans v. Saar). Clearly, then, experts have been willing to participate and

2 give advice on execution protocols even when the circumstances suggest that their advice will

3 become discoverable.

4

The remainder of the State’s purported justifications for the protective order are simply

5 boilerplate assertions of the standard rationales behind the deliberative process privilege. Mot.

6 for Protective Order at 4. Conclusorily -- and circularly -- stating that the State’s deliberations

7 regarding public policy should be protected by the deliberative process privilege is a far cry from

8 establishing good cause for a protective order. Rather, it simply highlights the principal failing

9 of the State’s motion: While some materials and information created by the State might be

10 subject to deliberative process privilege, there is simply no way to know whether that is the case

11 now, before any deliberations have been undertaken. The State simply cannot establish good

12 cause without pointing to some evidence or proffering some sort of rationale based on actual

13 facts, but this is precisely what the State cannot do at this juncture.

14

Indeed, the import of the State’s motion is that it is attempting to secure protection from

15 disclosure for information that is not actually subject to the deliberative process privilege. By

16 shifting the burden of persuasion to Plaintiff, and by arguing without any factual support that

17 every conversation, document, or other interaction that occurs during the revision process

18 implicates the deliberative process privilege, the State is attempting to broaden the scope of the

19 deliberative process privilege. But see Kelly, 114 F.R.D. at 658-59 (stating that the deliberative

20 process privilege applies narrowly to important policy decisions, and “the rationale that supports

21 this privilege should fix the limits of its reach”). Such an unprecedented expansion of the

22 privilege must rest on a strong showing of important interests that outweigh Plaintiff’s well-

23 established interest in normal civil discovery. But again, the State provides absolutely no basis to

24 afford protection even to information that, under the normal privilege framework, would most

25 likely end up being subject to discovery.

26

Finally, the State cannot establish good cause for its sweeping proposed protective order

27 because there are less-intrusive protections that can be employed should the Court determine, at

28 the appropriate time, that certain materials should be protected from full public disclosure. Thus,

Plaintiff’s Opp. to Mot. for Protective Oder case nos. 06-219 (JF)(RS) & 06-926 (JF)(RS) 13

Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 18 of 22

1 the Court, for good cause, could enter a protective order that permits disclosure of certain

2 information only to Plaintiff’s counsel; protects the identities of experts; allows redactions; or 3 implements any other measure that is tailored to the specific interests and information at issue.3

4 The State does not attempt to argue, for instance, that experts invariably will not be willing to

5 participate even if their identities will be protected. Nor does it assert that conversations will be

6 unduly chilled by the mere possibility that Plaintiff will seek to conduct depositions of the

7 individuals involved, even if the substance of those depositions were protected from general

8 public disclosure. Moreover, Plaintiff’s counsel have demonstrated throughout this litigation that

9 they are fully willing and able to comply with a protective order: Counsel have closely guarded

10 any identifying information that was disclosed, and have respected the wishes of even non-team

11 members to remain anonymous (such as Anesthesiologist #2, who was deposed anonymously).

12 Thus, there is no reason that this Court cannot consider the appropriateness of a more narrow

13 protective order should the need arise, once the parties and the Court are in possession of facts

14 that will allow meaningful adjudication.

15 D. A Protective Order Would Interfere with State Processes

16

There is another, more difficult aspect of the Motion. Should any anticipatory protective

17 order issue now, the State is very likely to use it to preclude discovery in the state court hearing

18 on the Administrative Procedures Act, and to frustrate potential legislative, administrative or

19 other state court inquiry, by seeking refuge in the Supremacy Clause. As counsel for the media

20 notes, it directly flies in the face of the will of 83% of the California electorate, which is why

21 they need a federal court to issue the order and cannot move for one in state court. Even more

22 troublesome, because the State seems uninterested in or incapable of criminal investigation into

23 the illegal dispensing and disappearance of Schedule II drugs, a protective order may allow the

24 State to conceal evidence of criminal wrongdoing. In short, any anticipatory protective order,

25 like every other advisory opinion, serves no legitimate purpose and has the potential to create

26 great mischief.

27

28

3 Plaintiff does not concede, of course, that such protections will be necessary or

justified. These issues, however, are more properly litigated when and if they actually arise.

Plaintiff’s Opp. to Mot. for Protective Oder case nos. 06-219 (JF)(RS) & 06-926 (JF)(RS) 14

Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 19 of 22

1

That this is a concern is shown by the Governor’s use of a deposition notice in the APA

2 litigation. Motion, at 2 & Exhibit A. They decline to inform the Court that the deposition was

3 never taken, and that the assertion of privilege as to the current revision process was respected in

4 that litigation during Ms. Dull’s deposition. See Declaration of John R Grele, ¶ 5 & Exhibit E.

5 They further decline to indicate that this notice has in any way caused them difficulty in their

6 review process. More important, the use of the deposition notice here highlights the intent to

7 have this Court issue an order they could not lawfully obtain in state court, and raises concerns

8 that this is the true intent behind the Motion.

9 E.
10

A Protective Order Would Frustrate Constitutional Inquiry and Only Insulate Incompetence

11

Plaintiff implores the Court to examine the record here when considering any need for a

12 deliberative process privilege in advance of state action.

13

On February 28, 2006, a meeting was called in Sacramento by the Governor’s Legal

14 Affairs Secretary, Andrea Hoch, and was attended by Robert Singler, M.D., Dane Gillette,

15 Steven Ornoski, Bruce Slavin, Dan Maguire, Tami Bogert, Peter Szkrenyi, Dave Runnels, and 16 Darc Keller. UF 116.4 The meeting was in response to the Court’s February 14, 2006 order for

17 CDCR to review its lethal-injection protocol, and lasted approximately an hour to an hour and a

18 half. UF 115. All present had read a copy of this Court’s February 14, 2006 order, and appeared

19 to be familiar with this Court’s respectful suggestion to CDCR that it review its lethal-injection

20 protocol. UF 117. Warden Ornoski recalls that the Senior Assistant Attorney General was

21 present and provided an opinion to the attendees of the meeting that the claims raised by Michael

22 Morales “were pretty meritless.” UF 117c.

23

24

4

In this regard, the meeting was attended by not less that three lawyers from the

25 Governor’s staff (Hoch, Bogert, and Maguire), and CDCR’s General Counsel (Slavin) and its counsel in this litigation, a Senior Assistant Attorney General (Gillette). The meeting also was

26 attended by Darc Keller, an Assistant Secretary at CDCR. Singler testified that it was “not at all”

his intent to participate at the meeting “to assist the state in designing a lethal injection protocol.” 27 RT 992 (Singler testimony, Sept. 28, 2006). Yet, according to Warden Ornoski, Singler in fact

28 provided the State with the expertise which led Hoch to reduce the dose of Thiopental to 1.5 grams. Ornoski Depo. at 288-89.

Plaintiff’s Opp. to Mot. for Protective Oder case nos. 06-219 (JF)(RS) & 06-926 (JF)(RS) 15

Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 20 of 22

1

Hoch was “quite frankly, she was the -- the most prolific speaker as far as questions, she

2 wanted to know just about everything . . .” UF 117b. “[I]t was difficult for her to visualize all

3 that without seeing the [execution facility], probably would have been more fruitful if she had

4 gone out there before we had the meeting.” Ornoski Depo. at 295. It was clear to Warden

5 Ornoski that Hoch needed to come “out with [CDCR Secretary Jeanne Woodford] to view the

6 death chamber and see the process firsthand so that she had a better sense of what was -- what

7 was going on in there.” Ornoski Depo. at 291.

8

Notwithstanding, Hoch rendered a conclusion without any reasonable understanding of

9 the issues. She concluded that the:

10

only change that would be undertaken at that time was what was

described as a ‘tweak’ of the chemical aspects of the protocol. It

11

was decided that the dosages of the three drugs would be adjusted

and that a continuous infusion of sodium thiopental during the

12

administration of pancuronium bromide and potassium chloride

would be added. There is no indication from the record that the

13

participants in the meeting addressed or considered issues related

to the selection and training of the execution team, the

14

administration of the drugs, the monitoring of executions, or the

quality of execution logs and other pertinent records.

15

Morales v. Tilton, 2006 U.S. Dist. LEXIS 92243, *15 (N.D. Cal. Dec. 15, 2006).

16

CDCR issued a revised version of its execution protocol six days later reflecting only this

17

“tweak.” No one was assigned any tasks or responsibilities to take any further action. UF 118.

18

When the February 28, 2006 meeting took place, all attendees believed their discussions

19

and writings were protected deliberations, thereby allowing the free unmitigated flow of ideas to

20

address this Court’s February 14, 2006 respectful suggestion to CDCR that it review its lethal-

21

injection protocol. Operating under the ambit of deliberative tranquility, the free flow of

22

unencumbered thoughts and ideas – with full access to shared information from other States’

23

Attorneys Generals, CDCR records and personnel, execution team members, execution facilities

24

in and out of California, anesthesiologists, access to observe actual executions in Texas,

25

scientific research, and legal expertise – resulted in a one hour round table meeting, headed by a

26

lawyer who had never even seen the California execution chamber. Moreover, the meeting was

27

predicated on the Attorney General’s legal opinion that the undertaking was in response to

28

Plaintiff’s Opp. to Mot. for Protective Oder case nos. 06-219 (JF)(RS) & 06-926 (JF)(RS) 16

Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 21 of 22

1 contentions without merit, and the CDCR Director’s opinion that the issues evolved from “loose

2 language” from the Ninth Circuit, and a District Court’s failure to understand the process.

3

What little is known about the prior venture into the issue is that the State completely

4 failed to do what this Court has now been compelled to do – “review of every aspect of the

5 protocol, including the composition and training of the execution team, the equipment and

6 apparatus used in executions, the pharmacology and pharmacokinetics of the drugs involved, and

7 the available documentary and anecdotal evidence concerning every execution in California since

8 lethal injection was adopted as the State’s preferred means of execution in 1992. (Citation

9 omitted).” Morales v. Tilton, 2006 U.S. Dist. LEXIS 92243, *5 (N.D. Cal. Dec. 15, 2006). The

10 LAS also failed to review “a mountain of documents, including hundreds of pages of legal briefs,

11 expert declarations, and . . . the execution chamber and related facilities” (id.) when rendering

12 her “tweak” decision. All of this information was readily available to her while she operated

13 under what she perceived to be the deliberative process privilege, yet not one bit of it was

14 entertained. If anything, the deliberative process privilege was used as a basis to do nothing, and

15 hide it.

16

Not only would a privilege hide and perpetuate state inaction, it would conceal the use of

17 highly questionable “experts” who have opinions unsupported by anything other than conjecture,

18 and then insulate that reliance from review. The difficulty with such an approach is highlighted

19 by the discovery process and hearings conducted so far here. As the Court heard already, the

20 modification of the bolus dose was arrived at based on a circulatory collapse theory that was

21 announced on the eve of Mr. Morales’ scheduled execution and without any review of the doctor

22 execution logs, the observing doctor’s testimonies, or the heart data, all of which seriously 23 question that opinion.5 As the parties stipulated, the drip mechanism was designed by an expert

24 who thought the initial bolus dose being delivered was 5 grams. All of the experts involved

25 assumed a delivery mechanism that applied the bolus dose without any delays. None of this

26 would have been available to the Court if such a protective order were in place.

27

28 5 Not to mention that lack of any supporting scientific basis for such an opinion.

Plaintiff’s Opp. to Mot. for Protective Oder case nos. 06-219 (JF)(RS) & 06-926 (JF)(RS) 17

Case 5:06-cv-00219-JF Document 303 Filed 01/31/2007 Page 22 of 22

1

Additional information would have been hidden with such an order. This includes the

2 highly dysfunctional process which was employed (i.e. “tweak” 770). See Evid. Hrg. Exhibit 71.

3 It also includes that the State ignored the initial input from their own expert that a single dose

4 barbiturate would be sufficient because the State was concerned about the “cosmetics” of the

5 process that pancuronium provides (i.e. hide the “death rattle”). Id.

6

Not only would the State be able to hide such information as was presented at the hearing,

7 it would be able to hide highly relevant information that may surface through its review. For

8 instance, if all agree that pancuronium’s purpose would be to hide difficulties in the process (a

9 position shared by Dr. Heath, Dr. Dershwitz and at one time, Dr. Singler), the Court and the

10 public need to know this. Or, if the State decides not to undertake certain efforts, this needs to be

11 known and acknowledged. It may be that they have a reason for such actions, but given the

12 Court’s Memorandum and the evidence presented so far, they should be able to articulate them in

13 some sort of persuasive fashion.

14

The Governor, of course, can appoint whomever he wishes to do whatever he desires in

15 whatever fashion he feels is appropriate. That is his prerogative. However, that does not mean it

16 warrants a blank check and, as a result, can avoid constitutional scrutiny.

17

II.

18

CONCLUSION

19

The Court should deny the Motion without prejudice, not issue any “guidelines” as to

20 what type of process they are engaged in, or should engage in, not discuss what would or would

21 not be privileged, and wait to see how Defendants and the Governor conduct their review and

22 what the results are. It is only then that issues of privilege and necessary protections should be

23 addressed. That is the process under the Rules of Civil Procedure and the one used here prior to

24 the hearing, which preserved anonymity while uncovering vital information.

25 Dated: January 31, 2007

Respectfully submitted,

26

27

By: _______/s/___________________

JOHN R GRELE

28

Plaintiff’s Opp. to Mot. for Protective Oder case nos. 06-219 (JF)(RS) & 06-926 (JF)(RS) 18

 
 Case 5:06-cv-00219-JF Document 312 Filed 03/06/2007 Page 1 of 2

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

12 Michael Angelo MORALES,

Case Number C 06 219 JF RS Case Number C 06 926 JF RS

13

Plaintiff,

DEATH-PENALTY CASE

14

v.

ORDER DENYING WITHOUT

15 James E. TILTON, Secretary of the California

PREJUDICE JOINT MOTION FOR A

Department of Corrections and Rehabilitation, and PROTECTIVE ORDER

16 Robert L. Ayers Jr., Warden of San Quentin State Prison,

17

Defendants.

[Docket Nos. 294 & 311]

18

19

Defendants and the Office of Governor Arnold Schwarzenegger, a nonparty, have filed a

20 joint motion for a protective order in the present action. Plaintiff, the Pacific News Service

21 (which is the plaintiff in the related action of Pacific News Service v. Tilton, No. C 06 1793 JF

22 RS), and Intervenors The Los Angeles Times, The San Francisco Chronicle, and McClatchy

23 Newspapers, Inc., oppose the motion. Sally J. Lieber, the Speaker pro Tempore of the California

24 State Assembly, seeks leave to intervene to file a brief as amicus curiæ in opposition to the

25 motion. The Court heard argument on the motion on February 23, 2007.

26

For the reasons discussed by the Court at oral argument, the motion is denied without

27 prejudice. The parties and Intervenors agree that no new discovery requests of any kind may be

28 propounded in the instant action prior to May 15, 2007, or the date Defendants’ revisions to the

Case Nos. C 06 219 JF RS & C 06 926 JF RS ORDER DENYING WITHOUT PREJUDICE JOINT MOTION FOR A PROTECTIVE ORDER (DPSAGOK)

Case 5:06-cv-00219-JF Document 312 Filed 03/06/2007 Page 2 of 2

1 lethal-injection protocol are filed, whichever is earlier, without prior Court approval.

2

This order does not affect any discovery pending in the instant action as of December 15,

3 2006, that remains outstanding as of the date of this order, nor does it affect any ongoing or

4 future discovery proceedings in California State courts.

5

Good cause appearing therefor, Assemblymember Lieber’s request to intervene as amicus

6 curiæ is granted.

7

IT IS SO ORDERED.

8

9 DATED: March 6, 2007 10

__________________________________ JEREMY FOGEL United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2
Case Nos. C 06 219 JF RS & C 06 926 JF RS ORDER DENYING WITHOUT PREJUDICE JOINT MOTION FOR A PROTECTIVE ORDER (DPSAGOK)

 
 base 5:06-cv-OO219-JF Document 301 Filed 01/31/2007 Page 1 of 20

KEKER & VAN NEST, LLP JON B. STREETER - #101970 WENDY J. THURM - #163558
AJAY S. KRISHNAN - #222476 710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400
Facsimile: (415) 397-7188 5 E-mail: jstreeter@kvn.com

6 ACLU FOUNDATION OF NORTHERNCALIFORNIA ALAN SCHLOSSER - #49957
7 MICHAEL RISItER - # 191627 39 Drumm Street
8 San Francisco, CA 94111 Telephone: (415) 621-2493
9 Facsimile: (415) 255-1478 E-mail: aschlosser@aclunc.org
10 Attomeys for Plaintiff
11 PACIFIC NEWS SERVICE

12 UNITED STATES DISTRICT COURT
13 NORTHERN DISTRICT OF CALIFORNIA
14 SAN JOSE DIVISION
15

16 MICHAEL ANGELO MORALES,
17
Plaintiff, 18
V.
19 JAMES E. TILTON, et al.,
20 Defendants.
21

Case No. C 06 219 JF RS C 06 926 JF RS
DEATH PENALTY cAsE
RELATED CASE PLAINTIFF PACIFIC NEWS SERVICE’S OPPOSITION TO THE OFFICE OF THE GOVERNOR AND THE DEFENDANTS’ JOINT MOTION FOR A PROTECTIVE ORDER

22

Date: February 20, 2007

Time: 1:30 p.m.

23

Dept.: Courtroom 3

Judge: The Hon. Jeremy Fogel

24

25

26

27

28

388417.03

RELATED CASE PLAINTIFF PACIFIC NEWS SERVICE’S OPPOSITION TO JOINT MOTION FOR A PROTECTIVE ORDER
CASE NOS. C 06 219 JF RS & C 06 926 JF RS

;ase 5:06-cv-OO219-JF Document 301 Filed 01/31/2007 Page 2 of 20

1

I. INTRODUCTION

2

" Pacific News Service ("PNS"), the plaintiff in the related case, Pacific News Service v.

3 Tilton, Case No. C 06-1793 JF RS, opposes the joint motion of Defendants and the Governor’s

4 Office (jointly "the Government") for a protective order. The Government’s motion, which is

5 based on the deliberative process privilege, is both premature and inconsistent with the law

6 governing that privilege.

7

The Government has announced that it will revise California’s lethal injection protocol

8 ("OP 770"), after the Court ruled in this case that the current protocol will likely violate the

9 Eighth Amendment. But as the Court indicated in its Memorandum of Intended Decision, PNS’s

10 First Amendment challenge to OP 770 is pending, and must be decided "in order to facilitate

11 speedy and complete appellate review of all of the current challenges to OP 770." As such, any

12 order protecting evidence that is generated while the Government revises OP 770 will impact

13 PNS’s discovery rights.

14

Indeed, the protective order that the Government now seeks particularly affects PNS,

15 because it purports to cover evidence that is central to our First Amendment claim. PNS’s

16 lawsuit alleges that pancuronium bromide, a paralytic drug administered during executions,

17 conceals important information about whether the inmate is experiencing pain. This conduct

18 infringes the First Amendment right of the publi.~ and the press to attend and to witness

19 executions meaningfully. Key evidence in PNS’s case will be Defendants’ reasons for retaining

20 pancuronium bromide in the protocol, if Defendants make that decision. And because OP 770

21 involves a series of drugs that are operating on the inmate’s body at different rates during the

.22 same time period, Defendants’ reasons for keeping pancuroninm bromide in the lethal injection

23 protocol cannot be analyzed in a vacuum. Thus, PNS will likely need information about

24 Defendants’ reasoning generally in redesigning the :protocol.

25

But the Government wants to block PNS’s access to precisely this information about

26 Defendants’ decision-making. The Government asks the Court to rule that certain documents

27 and statements that will be generated or received during the upcoming revision to OP 770 should

28

388417.03

RELATED CASE PLAINTIFF PACIFIC NEWS SERVICE’S OPPOSITION TO JOINT MOTION FOR A PROTECTIVE ORDER
CASE NOS. C 06 219 JF RS & C 06 926 JF RS

;ase 5:06-cv-OO219-JF Document 301 Filed 01/31/2007 Page 3 of 20

1 be presumptively protected by the deliberative process privilege. Additionally, Plaintiffs would

2 only be able to obtain access to those documents upon a showing of"good cause."

3

Such an anticipatory protective order would give far too much weight to a very limited

4 evidentiary privilege that is disfavored in civil rights cases, and that cannot easily be evaluated in

5 the context of the PNS case. This is particularly true because the Government carries a double

6 burden in its motion: Rule 26(c) requires any party seeking a protective order to first show good

7 cause; and case law places the burden of establishing a privilege on the party asserting it. With

8 these principles in mind, there are three reasons to deny the Government’s motion:

9

First, the Court does not currently have enough concrete information to meaningfully

10 accept the Government’s assertion of privilege. To determine whether the deliberative process

11 privilege attaches to a document or statement, the Court must be able to examine the particular

12 document or statement, and it must know what the government’s final decision is, when that

13 decision effectively became final, and who the deliberators were. The Court does not have any

14 of this information before it, nor does PNS, because this information does not exist yet. Because

15 the Court lacks this necessary information for evaluating the claim of privilege, any order that

16 the Court issues now would be so vague as to be meaningless.

17

Second, the Government cannot use the deliberative process privilege where, as here, the

18 Government’s deliberation is itself at i~sue. Judge Seeborg has already so ruled in the Morales

19 case. That ruling is equally, if not more, applicable to PNS, given that our lawsuit centers on

20 Defendants’ reasons for using pancuronium bromide.

21

Third, the Government’s proposed protective order sets up a process whereby Plaintiffs

22 would have to establish "good cause" before obtaining documents covered by the deliberative

23 process privilege, which is only a qualified privilege. But no "good cause" requirement exists in

24 the case law. And the Government gives .no reason why one should apply here.

25

26

27

28

388417.03

RELATED CASE PLAINTIFF PACIFIC NEWS SERVICE’S OPPOSITION TO JOINT MOTION FOR A PROTECTIVE ORDER
CASE NOS. C 06 219 JF RS & C 06 926 JF RS

Case 5:06-cv-OO219-JF Document 301 Filed 01/31/2007 Page 4 of 20

1

II. PROCEDURAL BACKGROUND

2 A. PNS’s First Amendment claim focuses on Defendants’ reasoning when designing and revising OP 770.
3 Plainitff PNS filed suit in March 2006 to vindicate the First Amendment right of the press
4 and the public to attend and to witness executions meaningfully.1 The lawsuit challenges
5 California’s practice of paralyzing inmates while executing them. Paralysis is brought about by
6 the administration ofpancuronium bromide, the second of three drugs administered during lethal
7 injection executions. PNS alleges that this paralysis does not in any way advance California’s
8 interest in killing the inmate or ensuring a humane execution. Rather, pancuronium bromide
9 only serves to conceal from witnesses any pain that an inmate experiences while being executed.
10 Because the First Amendment entitles the press and the public to witness executions
11 meaningfully, the state’s practice of paralyzing inmates infringes that right.
12 As PNS argued in its opposition to Defendants’ motion to dismiss, this case will turn on
13 balancing the government’s legitimate interest in administering pancuronium bromide against
14 PNS’s First Amendment interest in meaningfully witnessing executions.2 To perform that
15 balancing test, the Court must know Defendants’ actual reasons for administering pancuronium
16 bromide. This is a central dispute in this case. The Government presented evidence at the
17 evidentiary hearing on Mr. Morales’s claim suggesting that, in a rare set of cases, pancuronium
18 bromide will cause the death ~fthe inmate.3 PNS disputes the Government’s evidence, disputes
19 that this is a sufficient reason to paralyze inmates, and disputes that this was the Government’s
20 real reason for administering pancuronium bromide. PNS intends to prove that pancuronium
21 bromide does not actually advance the killing process in any meaningfully way. Rather, PNS
22

23

24 The following description ofPNS s case derives from PNS s complaint. See Complaint for Declaratory and Injunctive Relief, PNS v. Tilton, Case No. 06-1793 (Docket Item No. 2).
25 :2 See Plaintiff Pacific News Service’s Opposition to Defendants’ Motion to Dismiss Complaint,
26 PNSv. Tilton, Case No. 06-1793 (Docket Item No. 36) at 10-12. 3 See Declaration ofAjay S. Krishnan in Support of Related Case Plaintiff Pacific News
27 Service’s Opposition to the Office of the Governor and the Defendants’ Joint Motion for a Protective Order ("Krishnan Decl."), Ex. A (Transcript of Proceedings, September 28, 2006 ) at
28 1034:25- 1036:3.

388417.03

RELATED CASE PLAINTIFF PACIFIC NEWS SERVICE’S OPPOSITION TO JOINT MOTION FOR A PROTECTIVE ORDER
CASE NOS. C 06 219 JF RS & C 06 926 JF RS

.~ase 5:06-cv-OO219-JF Document 301 Filed 01/31/2007 Page 5 of 20

1 intends to show that, given the effects, amount, and timing of the drugs that are administered,

2 pancuronium bromide actually serves no legitimate purpose during an execution.

3

Thus, the PNS case presents an evidentiary dispute about the Government concealing its

4 reasons for performing executions in the manner that it does.

5 B. The Government asserts the deliberative process privilege to try to protect the.very evidence that is the focus of PNS’s case.
6 On December 15, 2006, the Court announced that it intended to rule that OP 770 violates
7 the Eighth Amendment.4 The Court supplied a non-exhaustive list of five "critical deficiencies"
8 in OP 770, including: (1) inadequate screening of execution team members, (2) inadequate
9 training, supervision, and oversight of team members, (3) improper preparation and
10 administration of sodium thiopental, (4) inadequate record-keeping, and (5) inadequate execution
11 facilities.5 In response, the Governor’s Office directed its administration to,correct the
12 deficiencies identified by the Court.’’6 Defendants have stated that they are "committed to
13 reviewing, evaluating, and revising the current lethal injection protocol with respect to the
14 identified deficiencies and any others that may emerge during the evaluation.’’7 The Govern
15 has stated that it will reveal the new protocol on May 15, 2007. We do not know who will be
16 participating in this revision of the lethal injection protocol. And we do not know what form the
17 Government’s forthcoming process for revising the lethal injection protocol will take. We
18 therefore do not know who will be consulted and what types of documents will be generated.
19 In the midst of this information vacuum, the Government now requests a protective
20 order--based on the deliberative process privilege--to prevent disclosure of"pre-decisional,
21 deliberative documents and statements generated or received" during the forthcoming process of
22

23

24 4 See Memorandum of ii~ended Decision; Request for Response from Defendants
25 ("Memorandum of Intended Decision") (Docket Item No. 290). 5 ld. at 91-11.
26 6 Response by the Governor’s Office to the Court’s Memorandum of Intended Decision Dated 27 December 15, 2006 ("Governor’s Response") (Docket Item No. 291-1) at 1-2.
7 Defendants’ Response to Memorandum of Intended Decision ("Defendants’ Response") 28 (Docket Item No. 292) at 2.

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1 altering the lethal injection protocol.8 The Government’s proposed protective order states that

2 any such "pre-decisional, deliberative documents and statements generated or received" will be

3 presumptively protected from discovery, but that this presumption may be overcome by a 4 showing of good cause.9 The Government asserts that it needs such a protective order to ensure 5 a "candid dialogue.’’1° But the Government’s motion for a protective order is not supported by

6 any declarations or evidence of any kind.

7

Importantly, PNS does not intend to and will not seek discovery with regard to the

8 Government’s forthcoming process for revising the lethal injection protocol until the

9 Government announces its new protocol, which is expected to occur on May 15, 2007. Thus,

10 PNS’s discovery efforts will not disrupt the Government’s deliberations. PNS will continue,

11 however, to pursue the outstanding discovery that it has already sought but not received.

12

Lastly, it is worth mentioning that the Government filed its motion for a protective order

13 only in this case, Morales v. Tilton, Case No. C 06-219 JF RS. The Government never made any

14 effort to meet and confer with PNS, the plaintiff in the related case, despite the requirement that

15 a party moving for a protective order must certify that it "in good faith conferred or attempted to

16 confer with other affected parties in an effort to resolve the dispute." Fed. R. Civ. P. 26(c)

17 (emphasis added). This is so even though discovery is ongoing in the PNS case, this Court’s

18 Memorandum of Intended Decision explicitly stated that the PNS case is still, live, and the

19 protective Order the Government seeks obviously impacts PNS’s discovery rights~

20 C. Judge Seeborg has already ruled that Defendants cannot assert the deliberative process privilege to block diselosnre of its deliberations.
21 This is not the first time Defendants have invoked the deliberative process privilege in
22 this case.ll Defendants also tried to assert it the last time they revised OP 770, which resulted in
23 the March 16, 2006 version of OP 770. Specifically, early last year, Mr. Morales sought
24

25 8 The Office of the Governor and the Defendant’s Points and Authorities in Support of Joint
Motion for a Protective Order Pursuant to FRCP 26(c)(4) (Docket Item No. 294) ("Mot.") at 5. 26 9Id.
27 lo Id. at 5-6. 11 The following discussion derives from Magistrate Judge Seeborg’s Order Granting in Part
28 Plaintiff’s Motion to Compel (Docket Item No. 151) at 2-3.

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. 1 discovery regarding "the genesis and development of OP 770.’ At issue, among other things,

2 was discovery concerning a meeting held in February 2006 in-the Governor’s Office involving

3 various officials from the Governor’s Office, the Department of Corrections, and the Attorney

4 General’s Office at which the Government discussed revising OP 770. Defendants invoked the

5 deliberative process privilege, and Morales moved to compel.

6

Judge Seeborg categorically denied Defendants’ assertion of the deliberative process

7 privilege with regard to the "genesis and development of OP 770." He began by noting that the

8 deliberative process privilege is "strictly confined within the narrowest possible limits consistent

9 with the logic of its principles." He then rejected Defendants’ assertion of privilege on two

10 grounds. First, he ruled that the deliberative process privilege is limited to high-level policy

11 formulation, but that the Government’s development of OP 770 was merely the "routine

12 implementation by corrections officials of the State’s policy choice of lethal injection as its

13 primary method of execution." Second, and more importantly, Judge Seeborg ruled that the

14 privilege was inapplicable because the Government’s deliberations "are directly at issue in the

15 instant litigation due to allegations contained in [Morales’s] Amended Complaint." The Court

16 therefore rejected Defendants’ prior invocation of the deliberative process privilege. The

17. Government omits any mention of this prior ruling in its instant motion for a protective order.

18

III. ARGUMENT

19

Federal Rule of Civil Procedure 26(c) only permits the Court to issue a protective order

20 upon a showing of"good cause." Additionally, the burden of establishing a privilege rests on the

21 party asserting it. Weil v. Investment~Indicators, Research and Management, Inc., 647 F.2d 18,

22 25 (gth Cir. 1981). Moreover, the deliberative process privilege is a qualified privilege, and only

23 applies to a narrow category of documents. And it often requires a good deal of context to apply.

24 Given. these limitations, the Government lacks good cause for the sweeping anticipatory

25 protective order that it seeks.

26

27

28
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1 A. 2

The Court cannot issue now a meaningful order protecting deliberative documents because it currently lacks the information needed to evaluate the Government’s claim of privilege.

3

The deliberative process privilege is a qualified privilege, that "was designed to help

4 preserve the vigor and creativity of the process by which government agencies formulate

5 important public policies." Kelly v. City of San Jose, 114 F.R.D. 653, 658 (N.D. Cal. 1987)

6 (emphasis in original). Determining whether the deliberative process privilege acts to prevent

7 disclosure of documents or statements is a two-step process. North Pacifica, LLC v. City of

8 Pacifica, 274 F. Supp. 2d 1118, 1121-22 (N.D. Cal. 2003). In Step One, a court must determine

9 whether the privilege attaches to the documents or statements at issue, ld. In Step Two---if it is

10 determined that the privilege attaches--the court must determine whether a litigant’s "need for

11 the materials [or information] and the need for accurate fact-finding override the government’s

12 interest in non-disclosure." ld. at 1122 (alteration in original) (quoting Fed. Trade Comm "n v.

13 Warner Commc’ns, 742 F.2d 1156, 1161 (9th Cir. 1984)).

14

To determine whether the privilege attaches--/.e., to determine whether Step One is

15 satisfied--involves at least three considerations. First, the document or statement must be

16 "predecisional." A document or statement is "predecisional" if it was "’prepared in order to

17 assist an agency decisionmaker in arriving at his decision.’" Assembly of the State of California

18 v. U.S. Dep ’t of Commerce, 968 F.2d 916, 921 (9th Cir. 1992) (quoting Renegotiation Bd. v.

19 Gruman AircrafiEng’g Corp., 421 U.S. 168, 184 (1975)). This means that the document or

20 statement must predate the agency’s decision, and it must "contribute" meaningfully to the

21 agency’s decision. Carter v. U.S. Dep "t of Commerce, 307 F.3d 1084, 1089 (9th Cir. 2002)

22 (citing Assembly, 968 F.2d at 921).

23

Second, the document or statement must be "deliberative." A document or statement is

24--,,~ "deliberative" if"’the disclosure of [the] materials would expose an agency’s decisionmaking

25 process in such a way as to discourage candid discussion within the agency and thereby

26 undermine the agency’s ability to perform its functions.’" Assembly, 968 F.2d at 920 (alteration

27 in original) (quoting Dudman Commc ’ns Corp. v. Dep "t of the Air Force, 815 F.2d 1565, 1568

28 (D.C. Cir. 1987). In other words, deliberative documents or statements "reveal the mental

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1 processes of decision-makers. Id. at 921 (quoting Nat l Wildlife Fed n v. U.S. Forest Serv., 861

2 F.2d 1114, 1119 (9th Cir. 1988). "Purely factual material that does not reflect deliberative

3 processes is not protected." North Pacifiea, 274 F.Supp. 2d at 1122 (quoting FTC, 742 F.2d at

4 1161).

5

Third, the deliberation that takes place must amount to "policy formulation at the higher

6 levels of government." Order Granting in Part Plaintiff’s Motion to Compel (Docket Item No.

7 151) at 3 (quoting Scott v. Bd. of Educ., 219 F.R.D. 333, 337 (D.N.J. 2004)); see also Soto v. City

8 of Concord, 162 F.R.D. 603, 612 (N.D. Cal. 1995) ("The deliberative process privilege should be

9 invoked only in the context of communications designed to directly contribute to the formulation

10 of important public policy."). Indeed, usually only agency heads are allowed to invoke the

11 deliberative process privilege after personally reviewing the documents claimed to be privileged

12 "to insure that the privilege remains a narrow privilege which is not indiscriminately invoked."

13 United States v. Rozet, 183 F.R.D. 662, 665 (N.D. Cal. 1998); see Sanchez v. Johnson, No. C-00-

14 1593 CW (JCS), 2001 WL 1870308 at * 5 (N.D. Cal. Nov. 19, 2001). As Judge Seeborg ruled

15 last May, "Routine operating decisions cannot be transformed into policy formulation at the

16 higher levels of government simply because they are made at public institutions." Order

17 Granting in Part PlaintifFs Motion to Compel (Docket Item No. 151) at 3 (quoting Scott, 219

18 F.R.D. at 337).

..

19

Applying these principles to the protective order the Government seeks will pose an

20 obvious problem. As a threshold matter, it appears that the Government is asking the Court to

21 perform Step One of the privilege analysis now--that is, to rule now that the deliberative process

22 privilege presumptively attaches to a certain group of documents--and to perform Step Two

23 later, once the Government announces the new protocol. This is apparent because the

24 Government’s Proposed Order states, "All pre-decisional.deliberative documents and statements

25 generated or received [in the forthcoming process] shall be presumptively deemed privileged."

26 That language mirrors the considerations involved in Step One of the analysis. The Proposed

27 Order goes on to state that plaintiffs may nonetheless compel production of deliberative

28 documents upon a showing of"good cause" as to "why the presumption of privilege should not

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1 apply." This language roughly (but not accurately) reflects the balancing test of Step Two.

2 Thus, in order to issue the protective order the Government seeks, the Court must at least be able

3 to perform Step One of the privilege analysis at this time.

4

But the Court is unable to perform Step One of the privilege analysis now, when it has so

5 little concrete information about the documents or statements that will be generated or the

6 process that will take place. As a general matter, a blanket assertion of the deliberative process

7 privilege, as the Government attempts to do here, is insufficient to invoke the privilege.

8 Sanchez, 2006 WL 1870308 at *3 (holding assertion of deliberative process privilege inadequate

9 because it failed to "identify any specific documents"). If the Government were to invoke the

10 privilege in this blanket fashion, even after the documents and statements were generated, that

11 would still be insufficient to invoke the privilege. See id. Indeed, the type of anticipatory,

12 blanket relief that the Government seeks violates the rule that only the agency head may invoke

13 the deliberative process privilege afier personally reviewing the documents claimed to be

14 privileged. See id.; Rozet, 183 F.R.D. at 665; see also Kelly 114 F.R.D. at 669-70 (requiring a

15 declaration from a responsible non-lawyer official at the agency with personal knowledge of the

16 documents "to provide the court with the information it needs to make a reasoned assessment of

17 the weight of the interests"). PNS knows of no other such anticipatory ruling on the deliberative

18 process privilege, and the Government has cited none.

19

As a practical matter, the Court does not even have the information it would need to

20 evaluate the assertion of privilege. Consider the three requirements that must be satisfied before

21 the privilege attaches. First, to determine whether the documents or statements that will be

22 generated are "predecisional" we must know whether they predate or postdate the Government’s

23 decision. Although we know that the Government intends to announce its decision on May 15,

24 2007, it may effectively arrive at a final revised protocol wellbefore that time. And it is not at

25 all unusual for an agency to generate documents post-dating a decision that indicate the reasons

26 for that decision. See N.L.R.B.v. Sears, Roebuck & Co., 421 U.S. 132, 152-53 (1975). Thus, 27 May 15th is not a workable cut-off date for evaluating whether a document or statement predates

28 the decision. Additionally, until we know what the nature of the Government’s revised protocol

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1 is, we cannot know whether a particular document or statement meaningfully "contribute[d]" to

2 that decision. See Assembly, 968 F.2d at 920 ("’[T]he line between predecisional documents and

3 postdecisional documents may not always be a bright one.’") (alterations in original) (quoting

4 Sears, 421 U.S. at 152 n.19).

5

Second, the Court cannot determine at this time whether particular documents or

6 statements are "deliberative." This is because the "deliberative" requirement focuses on whether

7 the particular documents or statements "reveal the mental processes of decision-makers." The

8 Assembly and Carter cases are both excellent examples of how a Court needs to know both the

9 nature of the agency’s final decision and the particular documents at issue before it can

10 determine whether the document is "deliberative." Both cases dealt with the same fact pattern,

11 one pertaining to the 1990 census, and the other pertaining to the 2000 census. In both cases, the

12 Commerce Department was deciding whether to release its adjusted data, which is supposed to

13 more accurately reflect the population of minorities and disadvantaged groups. In both cases,

14 after a highly contextual analysis, the Ninth Circuit held that the public would not be able "to

15 derive the formulas, or the process that created the formulas, from the adjusted data." Carter,

16 307 F.3d at 1090-91 (quoting Assembly, 968 F.2d at 922-23). Thus, producing the documents

17 would not reveal the mental processes of agency employees. Obviously, this is the type of

18 contextual analysis that this Court could not possibly perform now, as both the documents and

19 the agency decision are merely hypothetical at this point.

20

Third, the Court cannot evaluate now whether the forthcoming process is indeed "policy

21 formulation at the higher levels of government." The Government has not told us the rank of the

22 government officials who will be involved in the forthcoming revision of OP 770. Moreover, we

23 do not have a complete sense of what they will be deciding. Defendants have announced that

24 they are "committed to reviewing~ evaluating, and revising the current lethal injection protocol

25 with respect to the identified deficiencies and any other that may emerge during the 26 evaluation.’’~z But most of the "identified deficiencies" do not seem to amount to high-level

27 policy formation. For instance, the Court identified inadequate training and screening of the

28
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1 execution team, inadequate record-keeping, inadequate drug-mixing, and inadequate lighting as

2 some critical deficiencies. While these issues are certainly important or "critical" to Mr.

3 Morales’ constitutional rights, these are not what one would typically call high-level decisions of

4 policy formulation. Indeed, the only reason why these "identified deficiencies" appear to be

5 high-level now is because Defendants performed their duties so inadequately in the past that it

6 gave rise to a federal civil-rights lawsuit. And while the Court invited a "thorough review" with 7 the possibility of"making significant improvements in the ’infrastructure’ of executions,’43 the

8 Government has not promised to do that. It has only really committed to ~reviewing the

9 "identified deficiencies." We will have to wait and see what the Government actually does

10 before we can know whether it is engaging in high-level policy formulation.

11

Thus, the Court cannot accept the Government’s assertion of privilege at this time. The

12 Government’s Proposed Order presumptively protects all "predecisional, deliberative documents

13 and statements." Issuing such an order would be tantamount to ruling that "All documents and

14 statements to which the deliberative process privilege attaches are presumptively protected by

15 the deliberative process privilege," or, more succinctly, "All privileged documents are

16 privileged." What would be the effect of such a ruling? What legal questions would such a

17 ruling decide? As opposed to litigating after May 15 whether certain documents and statements

18 are protected by the deliberative process privilege, the parties will have to litigate whether those

19 same documents and statements are protected by the Court’s protective order. Indeed, given 20 Defendants’ demonstrated reluctance to satisfy their discovery obligations thus far,14 the most

21 likely impact of issuing such a protective order now would be to embolden Defendants to assert

22 the deliberative process privilege in an overbroad manner, thus resulting in additional motion

23 practice after May 15.

24

25 12 Defendants’ Response at 2.
26 13 Memorandum of Intended Decision at 16.
27 14 See Memorandum of Intended Decision at 14 ("The Court is prepared to issue formal findings ...H. owever, it will require additional time to do so, in part because Defendants still
28 have not fulfilled their discovery obligations.").

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1 B. The qualified deliberate process privilege does not apply in a suit such as PNS’s,

where an agency’s deliberative process is itself at issue.

2

Although the Court currently lacks the information necessary to accept the Government’s

3

assertion of privilege, it does has enough information to reject it. The deliberative process

4

privilege is a qualified privilege. In cases such as PNS’s, where a civil-rights plaintiffplaces at

5

issue a government agency’s deliberative process--particularly in cases whether the agency’s

6

reasons or intent are at issue--the privilege gives way to the plaintiff’s need for relevant

7

evidence and the Court’s interest in accurate fact-finding. Judge Seeborg has already so ruled.

8

For Step Two of the deliberative process privilege analysis--/.e., determining whether a

9

litigant’s need for deliberative materials and the need for accurate fact-finding override the

10

government’s interest in non-disclosure--Ninth Circuit and the Northern District of California

11

employ a balancing test that weighs four non-exclusive factors:

12

1) the relevance of the evidence; 2) the availability of other evidence; 3) the

13

government’s role in the litigation; and 4) the extent to which disclosure would

hinder frank and independent discussion regarding contemplated policies and

14

decisions.

15 FTC, 742 F.2d at 1161; Sanchez, 2001 WL 1870308 at *5.

16

It is important not to overvalue an agency’s unsupported assertion that non-disclosure

17 promotes candor. See, e.g., Sanchez, 2001 WL 1870308 at *5 (stating the need to "deter

18 governmental units from too freely claiming a privilege that is not to be lightly invoked")

19 (quoting Coastal Corp. v. Duncan, 86 F.R.D. 514, 517 (D. Del. 1980)); Kelly, 114 F.R.D. at 669

20 (requiring the government to submit "competent declarations" showing the court "what interests

21 would be harmed, how disclosure under a protective order would cause the harm, and how much 22 harm there would be").15 This concern has lead to the rule that "[e]ven if established, the

23 privilege is strictly confined within the narrowest possible limits consistent with the logic of its

24 principles." Order Granting in Part.Plaintiff’s Motion to Compel (quoting North Pacifica, 274 F.

25

26 15 Indeed many have questioned the empirical basis behind the claim that a closed process
27 actually promotes candor. Kelly, 114 F.R.D. at 664-65; lrvin, 127 F.R.D. at 172 n.4; 26A Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5680
28 (2006).

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1 Supp. 2d at 1122); Sanchez, 2001 WL 1870308 at *6 (same quote) (quoting K.L.v. Edgar, 964 F.

2 Supp. 1206, 1208 (N.D. Ill. 1997)).

3

But in a civil-rights case where the government’s deliberations are themselves at issue,

4 the value of the first two factors, which go to the litigant’s need for the deliberative documents,

5 become the overwhelming consideration. See Order Granting in Part Plaintiff’s Motion to

6 Compel at 3 (quoting Scott, 219 F.R.D. at 337); Irvin, 127 F.R.D. at 174 (quoting United States

7 v. Bd. of Educ., 610 F. Supp. 695,700 (N.D. Ill. 1985)). This is because, when a lawsuit poses

8 the question, "What were the reasons and intent behind the government’s decisions?," the

9 government’s deliberations are not just relevant evidence: they are irreplaceable evidence. See

10 Bd. of Educ., 610 F. Supp. at 700 ("Here the deCisionmaking process is not ’swept up into’ the

11 case, it is the case.").

12

With this backdrop in mind, PNS’s need for relevant information and the Court’s interest

13 an accurate fact-finding will outweigh the Govemment’s interest in non-disclosure. PNS’s

14 lawsuit focuses on Defendants’ reasons for including pancuronium bromide in the lethal

15 injection’protocol. Obviously, to investigate this factual question, PNS needs to know

16 Defendants’ reasoning; no other evidence will do. Moreover, the Government’s invocation of

17 the weak policy interest in a closed process is no different from any other assertion of

18 deliberative process privilege in any other case. And, the Government has provided no evidence

19 of any sort. It simply asserts that individuals would not be willing to participate in its process

20 without a protective order. How many individuals? What roles would they play? What are their

21 specific reasons for not participating? The Government provides no specifics. Indeed, there is

22 some reason to disbelieve the Government’s bare assertion that a closed process is necessary to

23 design a new lethal injection protocol. After all, Florida is currently evaluating its own lethal ~.--:,~. 24 injection procedure by using a commission that holds public proceedings.16 Thus, the need for

25

26 16 See Krislman Decl., Ex. B (Florida executive order, Exec. Order No. 2006-260 (Dec. 15, 2006), "Executive Order that creates the Governor’s Commission on Administration of Lethal

27 Injection to review the method in which the lethal injection protocols are administered by the Department of Corrections," available at

28 http ://sun6.dms.state.fl.us/eog new/eog/orders/2006/December/06-260-1ethaliniection.pd f) (stating that "[a]ll meetings of the Commission shall be open to the public"). The court may take

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1 discovering evidence of the Government’s deliberations will outweigh the Government’s weak--

2 and potentially non-existent--interest in a closed process.

3

As such, the Court has a sufficient basis to reject the Government’s assertion of privilege

4 for failure to satisfy Step Two of the deliberative process privilege analysis.

5 C. The Court should not insert a "good cause" requirement into any protective order, because no such requirement exists in the case law.
6 The second portion of the Government’s proposed protective order--the portion that
7 purports to codify Step Two of the deliberative process privilege analysis--is entirely
8 unjustified: it seeks to impose upon Plaintiffs a "good cause" requirement that exists nowhere in
9 the case law. The Government simply invented this "good cause" requirement, and, without any
10 reasons or justification, inserted it into their proposed protective order. Recall that Rule 26(c)
11 states that a protective can only issue upon a showing of"good cause." Thus--to disambiguate
12 these two "good cause" requirements--the Government would have to show that there is "good
13 cause" to impose a "good cause" requirement on Plaintiffs. The Government has shown no
14 cause. The Court should not adopt such a requirement.
15 For Step Two of the deliberative process privilege analysis, the Ninth Circuit and the
16 Northern District do not place any burden on the party seeking disclosure, let alone a "good
17 cause" requirement; they simply ask the Court to balance the interests.17 This is true for the
18 other California district courts as well.18 Indeed, with regard to Step Two of the deliberative
19

20 judicial notice of publicly available m-ders fi’om other jurisdictions. See Pac. Gas & Elec. Co. v.

21 Lynch, 216 F. Supp. 2d 1016, 1025 (N.D. Cal. 2002). 17 SeeFTC, 742 F.2d at 1161-63; Sanchez, 2001 WL 1870308 at *5-*7; Chao v. Mazzola, No. C-

22 04-4949 PJH (EMC), 2006 WL 2319721 at *1 (N.D. Cal. Aug. 10, 2006); Pac. Gas & Elec. v.

Lynch, No. C-01-3023 VRW, 2002 WL 32812098 at *3 (N.D. Cal. Aug. 19, 2002); see also 23 Kelly, 114 F.R.D. 653 at 662-63 (placing the burden on the government by fashioning a ten-

factor balancing test that is "moderately pre-weighted in favor of disclosure"); North Pacifica, 24 274 F. Supp. 2d at:l I’22 (applying the eight-factor balancing test of United States v. Irvin, see~:’~

infra note 3, and stating that "[t]he burden of establishing application of the privilege is on the 25 party asserting it.").

18 See, e.g., Price v. County of San Diego, 165 F.R.D. 614, 619-20 (S.D. Cal. 1996); United 26
States v. Irvin, 127 F.R.D. 169, 173-174 (C.D. Cal. 1989) (performing an eight-factor balancing

27 test for Step Two, but not placing the burden on the party seeking discovery); Newport Pac., Inc. v. County of San Diego, 200 F.R.D. 628, 636-41 (S.D. Cal. 2001) (holding that "[a]s with any

28 privilege, the burden of establishing the application of the deliberative process privilege is on the party opposing discovery," and performing the eight-factor Irvin balancing test without placing

14

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1 process privilege analysis, PNS knows of no Ninth Circuit or California district court case

2 imposing any burden, let alone a "good cause" requirement, on the party seeking disclosure.

3 And the Government has not cited any such case.

4

Thus, there is absolutely no basis for inserting the Government’s "good cause"

5 requirement into any protective order. Shifting the burden from the party asserting the privilege

6 to the party seeking discovery is the Government’s own invention; it simply is not a part of the

7 privilege the Government asserts.

8

IV. CONCLUSION

9

For the foregoing reasons, PNS respectfully requests that the Court either (1) decline to

10 rule now on the Government’s assertion of the deliberative process privilege, or (2) rule now that

11 the Government cannot assert the deliberative process privilege as a basis for not disclosing

12 documents or statements received or generated during the forthcoming process of revising OP

13 770.

14 Dated: January31, 2007 15 16

ACLU FOUNDATION OF NORTHERN CALIFORNIA
KEKER & VAN NEST, LLP

17

18

By: /s/Aiav S. Krishnan

A JAY S. KRISHNAN

19

Attorneys for Plaintiff

PACIFIC NEWS SERVICE 20

21

22
23 the burden on the party seeking discovery); Am. Bankers Assocs. v. Lockyer, No. CIVS02-1138 FCD JFM, 2002 WL 32988052 at *2-*3 (E.D. Cal. Nov. 27, 2002) (recognizing both the four-
24 factor and eight-factor tests, and performing a balancing test without placing the burden on the party seeking discovery); Kay v. City of Rancho Palos Verdes, No. CV 02-03922 MMM RZ,
25 2003 WL 25294710 at "17-’22 (C.D. Cal. Oct. 10, 2003) (same).

26

27

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1

TABLE OF CONTENTS

2

3 4 5 6 7 8 9
III. 10 11 12 13 14 15 16

INTRODUCTION ............................................................................................................... 1

PROCEDURAL BACKGROUND .....................................................................................3.

Ao

PNS’s First Amendment claim focuses on Defendants’ reasoning

when designing and revising OP 770 ...................................................................3....

Bo

The Government asserts the deliberative process privilege to try to

protect the very evidence that is the focus of PNS’s case ....................................4....

Co

Judge Seeborg has already ruled that Defendants cannot assert the

deliberative process privilege to block disclosure of its deliberations .............5.......

ARGUMENT ..............................................’ ........................................................................6.

Ao

The Court cannot issue now a meaningful order protecting deliberative

documents because it currently lacks the information needed to

evaluate the Government’s claim of privilege ...................................................7......

Bo

The qualified deliberate process privilege does not apply in a suit such

as PNS’s, where an agency’s deliberative process is itself at issue .................1..2.....

Co

The Court should not insert a "good cause" requirement into any

protective order, because no such requirement exists in the case law .............1..4....

CONCLUSION ..................................................................................................................15

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

3

FEDERAL CASES

4 America Bankers Associates v. Lockyer,
5 No. CIVS02-1138 FCD JFM, 2002 WL. 32988052 (E.D. Cal. Nov. 27, 2002) .....................14, 15
6 Assembly of the State of California v. U.S. Department of Commerce, 7 968 F.2d 916 (9th Cir. 1992) .....................................................................................................7, 10

8 Carter v. United States Department of Commerce, 9 307 F.3d 1084 (9th Cir. 2002) ..................................................................................................7. , 10

10 Chao v. Mazzola, 11 No. C-04-4949 PJH (EMC), 2006 WL 2319721 (N.D. Cal, Aug. 10, 2006) ................ ...............1. 4

12 Coastal Corp. v. Duncan, 13 86 F.R.D. 514 (D. Del. 1980) ................................................................. ......................................1. 2

14 Dudman Communications Corp. v. Department of the Air Force, 15 815 F.2d 1565 (D.C. Cir. 1987) .......................................................................................................7

16 Federal Trade Commission v. Warner Communications, 17 742 F.2d 1156 (9th Cir. 1984) ............................................................................................7. , 12, 14

18 Kay v. City of Rancho Palos Verdes, 19 No. CV 02-03922 MMM RZ, 2003 WL. 25294710 (C.D. Cal. Oct. 10, 2003) ...........................1. 5

20 K.L. v. Edgar, 21 964 F. Supp. 206 (N.D. Ill. 1997) ..................................................................................................13

22 Kelly v. City of San Jose, 23 114 F.R.D. 653 (N.D. Cal. 1987) .....................................................................................7, 9, 12, 14

24 N.L.R.B. v. Sears, Ro-~buck & Co.,
25 421 U.S. 132 (1975) ......................... ...........................................................................................9, 10

26 National Wildlife Federation v. United States Forest Service,
27 861 F.2d 1114 (9th Cir. 1988) ............................... 2 ......................................................................... 8

28

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CASE NOS. C 06 219 JF RS & C 06 926 JF RS

5:06-cv-OO219-JF Document 301 Filed 01/31/2007 Page 19 of 20

1

TABLE OF AUTHORITIES

(cont’d)

2

Pa~e(s)

3

Pacific, Inc. v. County of San Diego,

200 F.R.D. 628 (S.D. Cal. 2001) ..................................................................................................1. 4 4

5 North Pacifica, LLC v. City of Pacifica, 274F. Supp. 2d 1118 (N.D. Cal. 2003) ...........................................................................7, 8, 12, 14
6

7 Pacific Gas & Electric Co. v. Lynch, 216 F. Supp. 2d 1016 (N.D. Cal. 2002) .........................................................................................13
8

9 Price v. County of San Diego, 165 F.R.D. 614 (S.D. Cal. 1996) .................................................... ..............................................1. 4
10

11 Renegotiation Board v. Gruman Aircraft Engineering Corp., 421 U.S. 168 (1975) .........................................................................................................................7
12

13 Sanchez v. Johnson, No. C-00-1593 CW (JCS), 2001 WL 1870308 5 (N.D. Cal. Nov. 19, 2001) ............8, 9, 12, 13, 14
14

15 Scott v. Board of Education, 219 F.R.D. 333 (D.N.J. 2004) ....................................................................................................8, 13
16

17 Soto v. City of Concord, 18 162 F.R.D. 603 (N.D. Cal. 1995) .............................~.... ................................................................... 8

19 United States v. Board of Education, 20 610 F. Supp. 695 (C.D. Cal. 1989) ................................................................................................13

21 United States v. Irvin, 22 127 F.R.D. 169 (C.D. Cal. 1989) .......................................................................................12, 13, 14

23 United States v. Rozet, 24 183 F.R.D. 662 (N.D. Cal. 1998) .................................................................................................8, 9

25 Weil v. Investment~Indicators, Research and Management, Inc., 26 647 F.2d 18 (9th Cir. 1981) .............................................................................................................6

27

28

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1

TABLE OF AUTHORITIES

(cont’d)

2

3

FEDERAL STATUTES

4 Federal Rule of Civil Procedure 26(c) .................................................................................5.., 6, 14
5

6

MISCELLANEOUS

7 26A Charles Alan Wright & Kenneth W. Graham, Jr., 8 Federal Practice and Procedure § 5680 (2006) ............................................................................12

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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CASE NOS. C 06 219 JF RS & C 06 926 JF RS

 
 Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 1 of 12

1 David A. Senior (# 108759) McBreen & Senior
2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
3 Phone: (310) 552-5300 Fax: (310) 552-1205
4 dsenior@mcbreensenior.com

5 John R. Grele (# 167080) Law Offices of John R. Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken Jenner & Block LLP
10 One IBM Plaza Chicago, IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Attorneys For Plaintiff MICHAEL ANGELO MORALES

14

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

MICHAEL ANGELO MORALES, 16

17

Plaintiff,

18

) Case No. ) ) COMPLAINT FOR EQUITABLE AND ) INJUNCTIVE RELIEF ) [42 U.S.C. § 1983] )

19

v.

)

)

20 RODERICK Q. HICKMAN, Secretary of the ) EXECUTION IMMINENT:

California Department of Corrections; STEVEN ) EXPEDITED REVIEW REQUESTED 21 ORNOSKI, Warden, San Quentin State Prison, )

22 San Quentin, CA; and DOES 1-50,

) )

23

Defendants.

)

)

24

25

26

27

28
1
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 2 of 12

1

NATURE OF ACTION

2 1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of

3 the right of plaintiff to be free from cruel and unusual punishment under the Eighth and Fourteenth

4 Amendments of the United States Constitution. Plaintiff seeks temporary, preliminary, and

5 permanent injunctive relief to prevent the defendants from executing plaintiff by means of lethal

6 injection, as that method of execution is currently used in California. Plaintiff contends that lethal

7 injection, as performed in California, unnecessarily risks infliction of pain and suffering. Plaintiff

8 further contends that the use of pancuronium bromide, a paralytic agent that acts as a chemical veil

9 over the lethal injection process, disguises the pain and suffering to which he will be subjected.

10 Plaintiff additionally contends that defendants, as a result of their failure to use medically approved

11 procedures and properly trained personnel, have inflicted pain and torture on several executed

12 prisoners in the past, making plaintiff certain he will suffer the same fate unless defendants adopt a

13 humane and safe execution protocol.

14

JURISDICTION AND VENUE

15 2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), § 1343 (civil

16 rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This action arises under the

17 Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983.

18 3. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that plaintiff is currently incarcerated at

19 San Quentin State Prison (“San Quentin”) in San Quentin, California, located in this District. All

20 executions conducted by the State of California (“State”) occur at San Quentin. The events giving

21 rise to this complaint have occurred and will occur in this District.

22

23

THE PARTIES

24 4. Plaintiff Michael Angelo Morales is a United States citizen and a resident of the State. He is

25 currently a death-sentenced prisoner under the supervision of the California Department of

26 Corrections. He is held at San Quentin State Prison, San Quentin, California, 94974.

27 5. Defendant Roderick Q. Hickman is the Secretary of the California Department of Corrections.

28
2
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 3 of 12

1 6. Defendant Steven Ornoski is the Warden of San Quentin State Prison, where the plaintiff is

2 incarcerated and where the plaintiff’s execution is scheduled to occur.

3 7. Plaintiff is ignorant of the true names of Does 1-50 but alleges that they have or will

4 participate in plaintiff’s execution by virtue of their roles in designing, implementing, and/or carrying

5 out the lethal injection process. When plaintiff discovers the Doe Defendants’ true identities, he will

6 amend his complaint accordingly.

7

GENERAL ALLEGATIONS

8 8. On January 18, 2006, a public session was held in the Superior Court of Ventura County in

9 the case of People v. Morales, No. CR 17960, at which hearing the court set February 21, 2006 as

10 the date of execution of Mr. Morales’ judgment of death.

11 9. Under California law, death sentences shall be carried out by “administration of a lethal gas

12 or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause

13 death, by standards established under the direction of the Department of Corrections.” Cal. Penal

14 Code § 3604(a). The statute prescribes no specific drugs, dosages, drug combinations, or the manner

15 of intravenous line access to be used in the execution process; nor does the statute prescribe any

16 certification, training, or licensure required of those who participate in the execution process. All of

17 the details of the execution process are to be determined by the Department of Corrections.

18 10. The Department of Corrections has decided to execute plaintiff by poisoning him with a lethal

19 combination of three chemical substances: sodium pentothal, a short-acting barbiturate; pancuronium

20 bromide, which paralyzes all voluntary muscles; and potassium chloride, an extremely painful

21 chemical which activates the nerve fibers lining the prisoner’s veins and interferes with the heart’s

22 contractions, causing cardiac arrest.

23 11. In performing plaintiff’s execution by lethal injection, the Department of Corrections will

24 follow the protocol established in San Quentin Operational Procedure No. 770. The protocol by

25 which lethal injection executions are performed under Procedure No. 770 violates constitutional and

26 statutory provisions enacted to prevent cruelty, pain, and torture.

27

28
3
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 4 of 12
1 12. Procedure No. 770 was adopted without any medical research or review to determine that a 2 prisoner would not suffer a painful death. No member of the medical community was involved in its 3 adoption. The procedure was adopted by the former Warden of San Quentin, Daniel Vasquez, after 4 observing two executions in Texas, without any input from or consultation with medical personnel. 5 13. The absence of standardized procedures for administration of the chemicals, the lack of 6 qualifications of the personnel involved in the process, and the combination of the three particular 7 chemicals used in Procedure No. 770 create a grave and substantial risk that plaintiff will be 8 conscious throughout the execution process and, as a result, will experience an excruciatingly painful 9 and protracted death. 10 14. Procedure No. 770 lacks medically necessary safeguards, thus increasing the risk that plaintiff 11 will suffer unnecessary pain during the letha l injection process. There is no standardized time to 12 administer each of the three chemicals. The protocol identifies no procedures for ensuring that the 13 anesthetic agent is properly flowing into the prisoner, and it identifies no procedures for ensuring that 14 the prisoner is properly sedated prior to the administration of the lethal chemicals as would be 15 required in any medical or veterinary procedure before the administration of a neuromuscular 16 blocking agent, such as pancuronium bromide, or the administration of a painful potassium chloride 17 overdose. 18 15. The protocol established in Procedure No. 770 does not establish any minimum qualifications 19 or expertise required of the personnel who perform all of the tasks in the lethal injection process. 20 There are no guidelines upon which these personnel can rely if they are required to exercise their 21 discretion during the process. The protocol has no plan in place if the plaintiff requires medical 22 assistance during the execution. 23 16. Sodium pentothal, in an ordinary clinical dose, is a very short-acting barbiturate that is 24 usually administered only during the preliminary phase of anesthesia administration. There is a 25 reasonable likelihood that sodium pentothal, if ineffectively delivered (which is particularly likely 26 given the inadequacy of the administration procedures under Procedure No. 770), will not provide a 27 sedative effect for the duration of the execution process. Without adequate sedation, plaintiff will 28
4
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 5 of 12

1 experience excruciating pain as a result of the conscious asphyxiation caused by pancuronium

2 bromide and the painful internal burn and cardiac arrest caused by a potassium chloride overdose.

3 17. Pancuronium bromide, the second chemical administered in the lethal injection process,

4 paralyzes voluntary muscles, including the diaphragm, but it does not affect consciousness or the

5 perception of pain. Pancuronium bromide, administered by itself as a “lethal dose,” would not result

6 in a quick death; instead, it would ultimately cause someone to suffocate to death while still

7 conscious. There is no indication in the Department of Correction’s lethal injection protocol,

8 however, that pancuronium bromide is used to cause death. It therefore is completely unnecessary in

9 the lethal injection process and only serves to mask any pain or suffering that the plaintiff may

10 experience.

11 18. Pancuronium bromide could not lawfully be used alone as the fatal agent because causing

12 death by suffocation violates the Eighth Amendment’s prohibition against crue l and unusual

13 punishment.

14

COUNT I

15

VIOLATION OF RIGHT TO BE FREE FROM CRUEL AND UNUSUAL

PUNISHMENT PURSUANT TO THE EIGHTH AND FOURTEENTH

16

AMENDMENTS TO THE UNITED STATES CONSTITUTION

(42 U.S.C. § 1983) 17

19. Plaintiff realleges and incorporates by reference the allegations contained in paragraphs 1 18

through 18. 19

20. Defendants Roderick Q. Hickman, Steven Ornoski, and Doe Defendants are acting under 20

color of California law in causing to be administered to plaintiff chemicals that will cause 21

unnecessary pain in the execution of a sentence of death, thereby depriving plaintiff of his rights 22

under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment, in 23

violation of 42 U.S.C. § 1983. 24

21. The California Department of Corrections Procedure No. 770, which specifies the State’s 25

lethal injection protocol, violates plaintiff’s rights under the cruel and unusual punishment clause of 26

the Eighth Amendment because (a) the protocol creates the unreasonable and unacceptable risk of 27

28
5
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 6 of 12
1 unnecessary physical and psychological pain; (b) the protocol does not comport with contemporary 2 norms and standards of society; and (c) the protocol offends the dignity of the person and society. 3 22. The Department of Correction’s lethal injection protocol requires utilization of three 4 dangerous chemicals but does not ensure that the personnel entrusted with the lethal injection 5 procedure possess the proper and necessary training, experience, or expertise to administer those 6 drugs. Moreover, the protocol fails to specify any timing for the administration of the three separate 7 chemicals, which is an essential requirement for their proper administration. 8 23. The use of pancuronium bromide as administered under the Department of Correction’s lethal 9 injection protocol increases the risk that the use of this chemical, in combination with the initial dose 10 of sodium pentothal, will result in plaintiff being paralyzed but conscious and suffering death from 11 the burning veins and heart failure caused by the administration of the potassium chloride. 12 Moreover, because the Department of Correction’s protocol calls for the potassium chloride to be 13 administered in a lethal dose, the use of pancuronium bromide serves no purpose in the execution 14 process. Pancuronium bromide unnecessarily increases the risk that a conscious prisoner will be 15 paralyzed during the injection of an extremely painful drug, yet be entirely unable to inform the 16 attendants of his condition. Without the use of pancuronium bromide, a prisoner would be able to 17 indicate that he was still conscious prior to the administration of potassium chloride. This is 18 particularly crucial because the Department of Correction’s protocol indicates that the prisoner will 19 be alone in a room when he is executed, making it impossible to determine whether a prisoner is 20 conscious once he is paralyzed by the pancuronium bromide. 21 24. The American Veterinary Medical Association (AVMA) states that a combination of a 22 barbiturate and a neuromuscular blocking agent such as pancuronium bromide, a combination similar 23 to that called for by Procedure No. 770, is not an acceptable euthanasia method for animals when 24 used alone. 25 25. Sodium pentothal, which is an extremely fast-acting but not long- lasting barbiturate in an 26 ordinary clinical dose, is used as the anesthetic agent in the Department of Correction’s lethal 27 injection procedure. In veterinary medicine, sodium phenobarbital, a somewhat slower-acting but 28
6
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 7 of 12
1 longer- lasting barbiturate, is used for animal euthanasia. The AVMA states that when potassium 2 chloride is used for euthanasia, it is extremely important for the personnel who perform euthanasia to 3 be trained and knowledgeable in anesthetic techniques and competent in assessing the anesthetic 4 depth appropriate for potassium chloride administration, a depth at which animals are in a surgical 5 plane of anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of 6 response to noxious stimuli. California law requires no n- veterinary personnel who perform animal 7 euthanasia to undergo strict training by a veterinarian and/or a registered veterinary technician who 8 specializes in anesthesia. The Department of Correction’s lethal injection protocol under Procedure 9 No. 770 includes no comparable requirement; in fact, it does not require any training of the personnel 10 who use the same drug in executing prisoners. 11 26. The Department of Correction’s lethal injection procedure fails to address the individual 12 prisoner’s medical condition and history. Several regularly prescribed drugs at San Quentin interfere 13 with the ability of sodium pentothal to act properly as an anesthetic. Moreover, the lethal injection 14 protocol allows for prisoners to take Valium shortly before the execution, a drug which can also 15 interfere with the sodium pentothal’s effectiveness. 16 27. Procedure No. 770 contains no description of the training, credentials, certifications, 17 experience, or proficiency required of any personnel involved in the administration of the lethal 18 injection procedure, notwithstanding the fact that it is a complex medical procedure requiring a great 19 deal of expertise in order to be performed correctly. For example, Procedure No. 770 does not 20 require at the execution the presence of any personnel who possess sufficient expertise to insert an 21 intravenous line properly, determine if there is a blockage in the intravenous line, or evaluate whether 22 a prisoner is properly sedated before proceeding with the painful parts of the execution process. 23 28. The absence of such trained personnel greatly increases the risk that a prisoner would not 24 receive the necessary amount of anesthetic prior to being paralyzed by the pancuronium bromide and 25 then experience the painful internal burn of the potassium chloride. Toxicology reports from 26 prisoners executed by other states suggest that some prisoners likely remained conscious during the 27 28
7
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 8 of 12
1 administration of lethal drugs, which could have occur red because of improper insertion of the 2 intravenous line, an unrecognized blockage in the line, or various other reasons. 3 29. Inducing unconsciousness by correctly administering sodium thiopental is indispensable to 4 preventing the wanton infliction of pain when the potassium chloride overdose is administered. 5 Procedure No. 770, however, does not require the preparation of backup syringes of sodium 6 thiopental. 7 30. The Department of Correction’s lethal injection protocol fails to address any reasonably 8 foreseeable complications with any appropriate medical response. Moreover, the protocol includes 9 no safeguards that would protect the prisoner in the event a stay of execution is entered after the 10 lethal injection process has begun. Thus, the protocol fails to provide any protections to prevent a 11 prisoner from being wrongly executed should a reprieve be granted after the process has begun but 12 before death has occurred. 13 31. At any time before the potassium chloride is administered, the prisoner could be readily 14 resuscitated if trained personnel and routine resuscitation medication and equipment were present at 15 the execution site. Even after the potassium chloride is administered, resuscitation would still be 16 possible, although admittedly it would be more challenging. Any resuscitation, however, would 17 require the close proximity of the necessary equipment, medication, and properly trained personnel. 18 The omission of such personnel and equipment under the protocol set forth in Procedure No. 770 19 further undermines the constitutionality of the procedure. 20 32. Although it is possible to conduct executions in a constitutionally compliant manner, the 21 Department of Corrections has chosen not to do so. The Department of Corrections could choose to 22 use different chemicals that pose a low risk of administration error yet do not cause extraordinarily 23 grave consequences to a condemned inmate if not properly administered; instead, it has knowingly or 24 recklessly chosen to use chemicals that pose a high risk of administration error. Moreover, it has not 25 taken precautions to ensure that the personnel who administer the lethal injection chemicals possess 26 the training, experience, and expertise needed to administer those che micals properly. Thus, while it 27 is possible for the Department of Corrections to choose different lethal injection chemicals and/or 28
8
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 9 of 12

1 retain qualified personnel to administer its chosen chemicals in order to ensure the constitutionality

2 of its lethal injection procedure, the Department of Corrections has not done so.

3

COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

4 33. The use of pancuronium bromide under the protocol established in Procedure No. 770 to

5 paralyze plaintiff greatly increases the risk that a conscious prisoner will be subjected to a painful and

6 protracted death. Moreover, it serve s no legitimate penological purpose.

7 34. Pancuronium bromide does not play a legitimate role in killing the condemned person. The

8 execution protocol provides that potassium chloride kills the condemned. The administration of

9 pancuronium bromide cannot be justified on the grounds that the drug paralyzes the breathing

10 muscles because death by asphyxiation is itself a form of cruel and unusual punishment under the

11 Eighth Amendment.

12 35. If panc uronium bromide is administered, paralyzing plaintiff during the execution procedure,

13 he will have no alternative “reasonable and effective means of communication” to communicate that

14 he was not properly anaesthetized because he will be dead at the conclusion of the procedure.

15 36. Enjoining the administration of pancuronium bromide will have no appreciable impact on

16 California correctional institution procedures. If anything, it will simplify the execution process by

17 eliminating one step in the process.

18 37. The question of whether there exist readily available alternatives to pancuronium bromide is

19 not an issue in this case because paralyzing a condemned inmate in the execution process is not a

20 legitimate penological goal.

21 38. The Ninth Circuit and this Court have previously held that Defendants and their predecessors,

22 in order to forestall discussion and criticism of California’s lethal injection procedure, have

23 implemented restrictions on the execution process in order to prevent witnesses from being aware of

24 complications experienced during the procedure.

25 39. The Department of Correction’s failure to require sufficient training, credentials, certification,

26 experience, or proficiency of the personnel involved in the administration of the lethal injection

27 procedure greatly increases the risk that a conscious prisoner will experience excruciating pain as a

28
9
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 10 of 12

1 result of the conscious suffocation caused by the pancuronium bromide and the painful internal burn

2 and cardiac arrest caused by a potassium chloride overdose. Moreover, it serves no legitimate

3 penological purpose.

4 40. Allowing personnel who lack sufficient training, credentials, certification, experience, or

5 proficiency to conduct the lethal injection procedure does not play a legitimate role in killing the

6 condemned person. Conscious suffocation, as caused by the administration of pancuronium bromide,

7 violates the Eighth Amendment because death by asphyxiation is itself a form of cruel and unusual

8 punishment. Similarly, conscious internal burning and cardiac arrest, as caused by a potassium

9 chloride overdose, constitute unnecessary physical and psychological pain in violation of the Eighth

10 Amendment.

11 41. If plaintiff remains conscious during the administration of the pancuronium bromide and

12 potassium chloride, he will have no alternative “reasonable and effective means of communication”

13 to communicate the fact that he was not properly anaesthetized because the pancuronium bromide

14 will paralyze him and he will be dead at the conclusion of the procedure.

15 42. Enjoining the administration of the lethal injection procedure by personnel who lack

16 sufficient training, credentials, certification, experience, or proficiency will have no appreciable

17 impact on the correctional institution.

18 43. The question of whether there exist readily available alternatives to requiring personnel who

19 possess sufficient training, credentials, certification, experience, or proficiency to conduct the lethal

20 injection procedure is not an issue in this case because causing a prisoner who has not been properly

21 anaesthetized as a result of administration error to experience excruciating pain from the conscious

22 suffocation caused by pancuronium bromide and the painful internal burn and cardiac arrest caused

23 by a potassium chloride overdose is not a legitimate penological goal.

24

EXHAUSTION ALLEGATIONS

25 44. On January 9, 2006, plaintiff filed an inmate appeal on CDC Form 602 alleging that his

26 execution under the lethal injection protocol of the California Department of Corrections would

27 constitute cruel and unusual punishment. A copy of the Form 602 is attached hereto as Exhibit A.

28
10
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 11 of 12

1 Plaintiff asked that his appeal be processed as an emergency appeal pursuant to 15 Cal. Code Regs.

2 § 3084.7 on the ground that the State of California shortly intended to seek his execution date.

3 45. On or about January 27, 2006, the Director’s Level Appeal Decision was issued, which stated

4 that “no further relief shall be afforded the appellant at the Director’s Level of Review.” The

5 decision stated that “This decision exhausts the administrative remedy available to the appellant

6 within CDCR.” A copy of the Director’s Level Appeal Decision is attached hereto as Exhibit B.

7 46. Plaintiff’s challenge to the lethal injection protocol that the Department of Corrections intends

8 to use to execute him is ripe for adjudication now.

9

PRAYER FOR RELIEF

10

WHEREFORE, Michael Angelo Morales prays for:

11

1.

Temporary, preliminary, and permanent injunctive relief to enjoin the defendants,

12 their officers, agents, servants, employees, and all persons acting in concert with them from

13 executing plaintiff by lethal injection using Procedure No. 770;

14

2.

In the event that Procedure No. 770 is not enjoined in its entirety as violating the

15

Eighth and Fourteenth Amendment s, temporary, preliminary, and permanent injunctive relief to 16

17 enjoin defendants, their officers, agents, servants, employees, and all persons acting in concert with

18 them from administering pancuronium bromide during the execution process;

19

3.

In the event that Procedure No. 770 is not enjoined in its ent irety as violating the

20 Eighth and Fourteenth Amendment s, temporary, preliminary, and permanent injunctive relief to

21 enjoin defendants, their officers, agents, servants, employees, and all persons acting in concert with

22 them from allowing personnel who lack sufficient training, credentials, certification, experience, or

23 proficiency to conduct the lethal injection procedure;

24 4.
25 States;
26

Reasonable attorneys’ fees pursuant to 42 U.S.C. § 1983 and the laws of the United

5.

Costs of suit; and

27

28

6.

Any such other relief as the Court deems just and proper.

11
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case 5:06-cv-00926-JF Document 1 Filed 02/10/2006 Page 12 of 12

1

MICHAEL ANGELO MORALES

2

3 By:

4

John R Grele

5 Dated: February 10, 2006

6 David A. Senior (# 108759)

McBreen & Senior 7 1880 Century Park East, Suite 1450

8

Los Angeles, CA 90067 Phone: (310) 552-5300

9 Fax: (310) 552-1205 dsenior@mcbreensenior.com

10 John R. Grele (# 167080)
11 Law Offices of John R. Grele 703 Market Street, Suite 550
12 San Francisco, CA 94103 Phone: (415) 348-9300
13 Fax: (415) 348-0364

14 jgrele@earthlink.net

15 Richard P. Steinken Benjamin J. Bradford

16 Janice H. Lam Stephanie L. Reinhart

17 Jenner & Block LLP

One IBM Plaza 18 Chicago, IL 60611-7603

19

Phone: (312) 923-2938 Fax: (312) 840-7338

20 rsteinken@jenner.com

21 Ginger D. Anders Jenner & Block LLP
22 601 Thirteenth Street, NW Suite 1200 South
23 Washington DC 20005-3823 Phone: (202) 639-6000
24 Fax: (202) 639-6066 25 ganders@jenner.com

26

27

28
12
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

 
 Case 5:06-cv-00926-JF Document 3 Filed 02/13/2006 Page 1 of 2

1

**E-filed 2/13/06**

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

MICHAEL ANGELO MORALES,

)

Case No. C 06 0219

11

)

)

12

Plaintiff,

)

)

13

)

)[PROPOSED] ORDER GRANTING

14

v.

)CONSOLIDATION

)

15 RODERICK Q. HICKMAN, Secretary of the

)

California Department of Corrections; STEVEN )

16 ORNOSKI, Warden, San Quentin State Prison, )

San Quentin, CA; and DOES 1-50,

)

17

)

)

18

Defendants.

)

)

19

20

This Court, having heard the application of Plaintiff for consolidation, and for good cause

21 shown, hereby GRANTS the application. This action is hereby consolidated with case no.

22 C 06- 0926 (JF).

23

IT IS SO ORDERED.

24 Dated:____2_/1_3_/_0_6_______________

25

_______________________________________ Jeremy Fogel United States District Court Judge

26

27

28

Order Granting Consolidation Case no. C 06 0219 (JF)

Case 5:06-cv-00926-JF Document 3 Filed 02/13/2006 Page 2 of 2
1 Submitted by:
2
3 David A. Senior (#108759) McBreen & Senior
4 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
5 John R Grele (#167080)
6 Law Offices of John R Grele 703 Market Street, Suite 550
7 San Francisco, CA 94103
8 Richard P. Steinken Jenner & Block LLP
9 One IBM Plaza Chicago, IL 60611-7603
10
11 Attorneys For Plaintiff MICHAEL ANGELO MORALES
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Order Granting Consolidation Case no. C 06 0219 (JF)

 
 Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 1 of 20

David A. Senior (# 108759) 1 McBreen & Senior
1880 Century Park East, Suite 1450 2 Los Angeles, CA 90067
Phone: (310) 552-5300 3 Fax: (310) 552-1205
dsenior@mcbreensenior.com 4

John R. Grele (# 167080) 5 Law Offices of John R. Grele
703 Market Street, Suite 550 6 San Francisco, CA 94103
Phone: (415) 348-9300 7 Fax: (415) 348-0364
jgrele@earthlink.net 8

Richard P. Steinken (admitted pro hac vice) 9 Jenner & Block LLP
One IBM Plaza 10 Chicago, IL 60611-7603
Phone: (312) 923-2938 11 Fax: (312) 840-7338
rsteinken@jenner.com 12

Attorneys For Plaintiff MICHAEL ANGELO MORALES 13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

SAN JOSE DIVISION

16 MICHAEL ANGELO MORALES,

) Case No. C 06-0926 (JF) (RS)

)

17

Plaintiff,

)

) AMENDED COMPLAINT FOR

18

) EQUITABLE AND INJUNCTIVE

19 v.

) RELIEF [42 U.S.C. § 1983] )

20

)

JEANNE WOODFORD, Acting Secretary of )

21 the California Department of Corrections;

)

22

EDDIE YLST, Acting Warden, San Quentin State Prison, San Quentin, CA; and DOES 1-50,

) )

23

)

Defendants.

)

24

)

25

26 1
27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
28

Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 2 of 20

1

NATURE OF ACTION

2 1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of

3 the right of plaintiff to be free from cruel and unusual punishment under the Eighth and Fourteenth

4 Amendments of the United States Constitution. Plaintiff seeks temporary, preliminary, and

5 permanent injunctive relief to prevent the defendants from executing plaintiff by means of lethal

6 injection, as that method of execution is currently used in California. Plaintiff contends that lethal

7 injection, as performed in California, unnecessarily risks infliction of pain and suffering. Plaintiff

8 further contends that the use of pancuronium bromide, a paralytic agent that acts as a chemical veil

9 over the lethal injection process, disguises the pain and suffering to which he will be subjected.

10 Plaintiff additionally contends that defendants, as a result of their deliberate failure to use medically

11 approved procedures and properly trained personnel, have inflicted pain and torture on several

12 executed prisoners in the past, making plaintiff certain he will suffer the same fate unless defendants

13 adopt a humane and safe execution protocol.

14

JURISDICTION AND VENUE

15 2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), § 1343 (civil

16 rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This action arises under the

17 Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983.

18 3. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that plaintiff is currently incarcerated at

19 San Quentin State Prison (“San Quentin”) in San Quentin, California, located in this District. All

20 executions conducted by the State of California (“State”) occur at San Quentin. The events giving

21 rise to this complaint have occurred and will occur in this District.

22

23

THE PARTIES

24 4. Plaintiff Michael Angelo Morales is a United States citizen and a resident of the State. He is

25 currently a death-sentenced prisoner under the supervision of the California Department of

26 2
27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
28

Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 3 of 20

1 Corrections and Rehabilitation (CDCR). He is held at San Quentin State Prison, San Quentin,

2 California, 94974.

3 5. Defendant Jeanne Woodford is the Acting Secretary of the CDCR.

4 6. Defendant Eddie Ylst is the Acting Warden of San Quentin State Prison, where the plaintiff is

5 incarcerated and where the plaintiff’s execution is scheduled to occur.

6 7. Plaintiff is ignorant of the true names of Does 1-50 but alleges that they have or will

7 participate in plaintiff’s execution by virtue of their roles in designing, implementing, and/or carrying

8 out the lethal injection process. When plaintiff discovers the Doe Defendants’ true identities, he will

9 amend his complaint accordingly.

10

GENERAL ALLEGATIONS

11 8. On January 6, 2006, the clerk of the Superior Court of Ventura County issued a Notice of

12 Public Session in the case of People v. Morales, No. CR 17960, scheduling a public session on

13 January 18, 2006 for the purpose of the setting of the date of execution of judgment of death of

14 February 21, 2006.

15 9. Under California law, death sentences shall be carried out by “administration of a lethal gas

16 or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause

17 death, by standards established under the direction of the Department of Corrections.” Cal. Penal

18 Code § 3604(a). The statute prescribes no specific drugs, dosages, drug combinations, or the

19 manner of intravenous line access to be used in the execution process; nor does the statute prescribe

20 any certification, training, or licensure required of those who participate in the execution process. All

21 of the details of the execution process are to be determined by the CDCR.

22 10. The CDCR has decided to execute plaintiff by poisoning him with a lethal combination of

23 three chemical substances: sodium pentothal, a short-acting barbiturate; pancuronium bromide, which

24 paralyzes all voluntary muscles; and potassium chloride, an extremely painful chemical which

25

26 3
27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
28

Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 4 of 20
1 activates the nerve fibers lining the prisoner’s veins and interferes with the heart’s contractions, 2 causing cardiac arrest. 3 11. In performing plaintiff’s execution by lethal injection, the CDCR will follow the protocol 4 established in San Quentin Operational Procedure No. 770, as well as certain practices not delineated 5 in the protocol. The protocol and actual practice by which lethal injection executions are performed 6 under Procedure No. 770 violates constitutional and statutory provisions enacted to prevent cruelty, 7 pain, and torture. 8 12. The absence of standardized procedures for administration of the chemicals, the lack of 9 qualifications of the personnel involved in the process, and the combination of the three particular 10 chemicals used in Procedure No. 770 create a grave and substantial risk that plaintiff will not be 11 adequately unconscious during the execution process and, as a result, will experience an 12 excruciatingly painful and protracted death. This risk has been realized in at least six of the previous 13 seven executions and in nine executions total. 14 13. Procedure No. 770 lacks medically necessary safeguards, thus increasing the risk that plaintiff 15 will suffer unnecessary pain during the lethal injection process. For example, there is no 16 standardized administration of each of the three chemicals. The protocol identifies no procedures for 17 ensuring that the anesthetic agent is properly flowing into the prisoner, and it identifies no procedures 18 for ensuring that the prisoner is properly sedated prior to the administration of the lethal chemicals as 19 would be required in any medical or veterinary procedure before the administration of a 20 neuromuscular blocking agent, such as pancuronium bromide, or the administration of a painful 21 potassium chloride overdose. 22 14. The protocol established in Procedure No. 770 does not establish any minimum qualifications 23 or expertise required of the personnel who perform all of the tasks in the lethal injection process, and 24 none exist. There are no guidelines or customary procedures upon which these personnel can rely if 25 26
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Case no 06-926 (JF)(RS)
28

Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 5 of 20
1 they are required to exercise their discretion during the process. There is no plan in place if the 2 plaintiff requires medical assistance during the execution. 3 15. Sodium pentothal, in an ordinary clinical dose, is a very short-acting barbiturate that is 4 usually administered only during the preliminary phase of anesthesia administration. There is a 5 reasonable likelihood that sodium pentothal will be ineffectively delivered, given the inadequacy of 6 the administration procedures, the personnel involved , and will not provide a sedative effect for the 7 duration of the execution process. This has actually occurred in many California executions. 8 Without adequate sedation, plaintiff will experience excruciating pain as a result of the conscious 9 asphyxiation caused by pancuronium bromide and the painful internal burn and cardiac arrest caused 10 by a potassium chloride overdose. 11 16. The American Veterinary Medical Association (AVMA) states that when potassium chloride 12 is used for euthanasia, it is extremely important for the personnel who perform euthanasia to be 13 trained and knowledgeable in anesthetic techniques and competent in assessing the anesthetic depth 14 appropriate for potassium chloride administration, a depth at which animals are in a surgical plane of 15 anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of 16 response to noxious stimuli. California law requires non- veterinary personnel who perform animal 17 euthanasia to undergo strict training by a veterinarian and/or a registered veterinary technician who 18 specializes in anesthesia. The Department of Correction’s lethal injection protocol under Procedure 19 No. 770 includes no comparable requirement No such training in fact occurs. 20 17. The AVMA also employs a longer- lasting barbiturate, sodium phenobarbital, for animal 21 euthanasia. The CDCR’s use of sodium pentothal exacerbates the risk of error created by its 22 deficient protocol because sodium pentothal is extremely volatile, short-acting, and sensitive to 23 human error. 24 18. Pancuronium bromide, the second chemical administered in the lethal injection process, 25 paralyzes voluntary muscles, including the diaphragm, but it does not affect consciousness or the 26
5 27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
28

Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 6 of 20
1 perception of pain. A similar paralytic agent has been used by CDCR in the past to torture prisoners 2 as part of its behavioral modification programs. Pancuronium bromide, administered by itself as a 3 “lethal dose,” would not result in a quick death; instead, it would cause someone to suffocate to death 4 while still conscious. The use of pancuronium bromide as administered under the CDCR’s lethal 5 injection protocol increases the risk that the use of this chemical, in combination with the initial dose 6 of sodium pentothal, will result in plaintiff being paralyzed but aware of pain and suffering death 7 from the burning veins and heart failure caused by the administration of the potassium chloride. 8 Pancuronium bromide unnecessarily increases the risk that a prisoner will be paralyzed during the 9 injection of an extremely painful drug, aware of this pain, yet be entirely unable to inform the 10 attendants of his condition. Without the use of pancuronium bromide, a prisoner would be able to 11 indicate that he was still conscious or had regained consciousness or awareness prior to the 12 administration of potassium chloride. Properly trained personnel would be able to assess 13 unconsciousness, which they at present cannot and do not do. This is particularly crucial because the 14 CDCR’s protocol indicates that the prisoner will be alone in a room when he is executed, making it 15 impossible to determine whether a prisoner is aware of or feeling pain at the time the pancuronium 16 bromide is administered, or if the administration causes the prisoner to become able enough to sense 17 the pain from pancuronium bromide and, then, potassium chloride. 18 19. The AVMA states that a combination of a barbiturate and a neuromuscular blocking agent 19 such as pancuronium bromide, a combination similar to that called for by Procedure No. 770, is not 20 an acceptable euthanasia method for animals when used alone. 21 20. Because the CDCR’s protocol calls for the potassium chloride to be administered in a lethal 22 dose, the use of pancuronium bromide serves no purpose in the execution process. It is completely 23 unnecessary in the lethal injection process and only serves to mask any pain or suffering that the 24 plaintiff may experience. 25 26
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Case no 06-926 (JF)(RS)
28

Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 7 of 20
1 21. Pancuronium bromide could not lawfully be used alone as the fatal agent because causing 2 death by suffocation violates the Eighth Amendment’s prohibition against cruel and unusual 3 punishment. 4
THE DEVELOPMENT OF THE CURRENT VERSION OF PROCEDURE NO. 770 5 6 22. The version of Procedure No. 770, under which defendants originally intended to execute 7 plaintiff, was adopted without any medical research or review to ensure that a prisoner would not 8 suffer a painful death. No member of the medic al community was involved in its adoption. The 9 procedure was adopted by the former Warden of San Quentin, Daniel Vasquez, after observing two 10 executions in Texas, without any further input from or consultation with medical personnel. The 11 procedure was not subsequently subject to any review by medical professionals or other persons 12 qualified to assess it to determine if it was an appropriate procedure or if it was being administered in 13 a manner that either caused or prevented unnecessary infliction of pain and suffering. In fact, 14 evidence demonstrated that Procedure No. 770 as administered was not properly sedating executed 15 inmates, as a result of which they were aware of and suffering from pain. Defendants knew this, yet 16 undertook no appropriate review or revisions of their procedures. 17 23. On February 14, 2006, the District Court for the Northern District of California found that 18 plaintiff had raised “substantial questions” that the 2003 protocol “creates an undue risk that plaintiff 19 will suffer excessive pain when he is executed.” Order Denying Conditionally Plaintiff’s Motion for 20 Preliminary Injunction, at 13 (February 14, 2006). The Court therefore suggested that defendants 21 “conduct a thorough review of the lethal- injection protocol, including, inter alia, the manner in which 22 the drugs are injected, the means used to determine when the person being executed has lost 23 consciousness, and the quality of contemporaneous records of executions, such as execution logs and 24 electrocardiograms. . . . A proactive approach by Defendants would go a long way towards 25 26
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Case no 06-926 (JF)(RS)
28

Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 8 of 20
1 maintaining judicial and public confidence in the integrity and effectiveness of the protocol.” Id. at 2 12-13. 3 24. In light of the substantial possibility that Plaintiff would suffer excruciating pain as he was 4 executed, the Court held that Defendants could proceed to execute Plaintiff only if they implemented 5 one of two proposed modifications of the execution procedure. Id. at 13-14. Defendants could either 6 certify that they would execute Plaintiff using only sodium pentothal or another barbiturate; or 7 procure the assistance of anesthesiologists to provide “independent verification” that Plaintiff was in 8 fact unconscious prior to the administration of the pancuronium bromide and potassium chloride. Id. 9 at 13-15. 10 25. Defendants first opted to employ anesthesiologists to “ensure that [Plaintiff] [was] 11 unconscious at all times following the administration of sodium thiopental.” Final Order Re 12 Defendants’ Compliance with Conditions, at 4 (February 16, 2006). Those anesthesiologists 13 withdrew from the execution, however, upon learning that, in accordance with the District Court’s 14 orders, they would “have the authority,” and would in fact be required to, “take all medically 15 appropriate steps – either alone or in conjunction with the injection team – to immediately place or 16 return Morales into an unconscious state or otherwise alleviate the painful effects of either or both the 17 pancuronium bromide or potassium chloride.” Opinion of February 19, 2006, at 13 (9th Cir.). 18 Defendants failed to advise the anesthesiologists of this and, in fact, misrepresented the Court’s 19 orders to the anesthesiologists, who became aware of the orders only at the last minute. Because the 20 anesthesiologists then refused to participate, Defendants did not go forward with the scheduled 12:01 21 a.m. execution on February 21, 2006. 22 26. Later that day, Defendants returned to the District Court and sought permission to perform 23 the execution at 7:30 p.m. on February 21, 2006, using the other alternative offered by the District 24 Court, administration of a lethal dose of sodium thiopental or other barbiturate. The Court issued an 25 order allowing the execution to proceed so long as “sodium thiopental [was] injected in the execution 26
8 27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
28

Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 9 of 20
1 chamber directly into the intravenous cannula by a person or persons licensed by the State of 2 California to inject medications intravenously.” Order on Defendants’ Motion to Proceed with 3 Execution, at 3 (February 21, 2006). Defendants declined to comply with the Court’s order, and the 4 execution did not go forward. 5 27. Because Defendants did not comply with either of the two conditions set forth in the Court’s 6 Orders, by the terms of the February 14, 2006 Order, a stay of execution automatically was entered 7 on February 21, 2006. 8 28. Following the events of February 21, 2006, Defendants modified the execution protocol, and 9 these modifications were incorporated in a new version of Procedure No. 770, dated March 6, 2006. 10 According to Defendants, the changes to the protocol were made after cons ultation with unidentified 11 “court experts,” and in part reflected deviations from the 2003 version of the protocol that had been 12 sanctioned by the Defendants but had not previously been formally adopted as revisions to the 13 protocol, or recorded in the contemporaneous records of executions. 14 29. The new version of Procedure No. 770, as well as Defendants’ actual practice in following the 15 new version, is substantially similar to the 2003 version in all material respects relating to the manner 16 in which the chemicals are administered. The new version employs the same three chemicals, 17 injected in the same sequence, but uses a lower initial dose of sodium pentothal, a lower dose of 18 pancuronium bromide, and a higher dose of potassium chloride. The only material difference 19 between the 2003 version of the protocol and the 2006 version is that, in addition to an initial bolus 20 dose of 1.5 grams of sodium pentothal, the new version provides that a continuous drip of five grams 21 of sodium pentothal shall be begun in a second IV line after the initial dose of sodium pentothal is 22 administered. Shortly after the drip is begun, a saline flush is sent through the first IV line and the 23 pancuronium and potassium are injected. 24 30. The new version of Procedure No. 770 utterly fails to address the “substantial questions” 25 raised by Plaintiff, and recognized by the District Court, regarding the significant risk that Plaintiff 26
9 27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
28

Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 10 of 20
1 will suffer excruciating pain during the execution. Among other things, the new version of Procedure 2 No. 770, like the 2003 version, fails to provide any procedure for ensuring that the inmate is in an 3 appropriate surgical plane of anesthesia prior to the administration of the pancuronium bromide; fails 4 to provide for any training to be given to the injection personnel; fails to require any level of 5 experience or other qualifications for such personnel; fails to ensure that an adequate dose of 6 anesthesia is able to reach the prisoner; and fails to provide procedures for obtaining IV access 7 should the inmate have unusable peripheral veins. Moreover, because the design of the execution 8 chamber remains the same, and the new version of the protocol makes no material changes in the 9 equipment used to administer the drugs, the new version does not alleviate the need to use multiple 10 IV extensions or other conditions that have caused the drug administration problems that plagued the 11 previous executions. 12 31. Indeed, the new version of Procedure No. 770 is even more deficient than the old version. 13 The additional deficiencies include, but are not limited to, the fact that the new version provides that, 14 much less sodium pentothal will be administered to the inmate, even assuming proper administration 15 by the execution team resulting in the full dose of pentothal reaching the prisoner. This significantly 16 decreased dose of sodium pentothal drastically lowers the margin of error in administering the 17 anesthesia and increases the probability that the inmate will not be placed in an appropriate surgical 18 plane of anesthesia. 19 32. Defendants have deliberately chosen to lower the dose of anesthetic in the belief that the 20 previously used five-gram dose of sodium pentothal rendered inmates “too unconscious” for the 21 potassium chloride to cause death as quickly as it would otherwise. Moreover, by their own 22 admission, Defendants are deliberately increasing the risk of excessive suffering in order to ensure 23 that executions are carried out as quickly as possible. 24 33. Defendants’ failure to address the substantial questions as to the significant risk of 25 excruciating pain created by the original version of Procedure No. 770, even after the experience of 26
10 27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
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Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 11 of 20

1 several recent executions during which indicia of inadequate sedation were present, and even after

2 the District Court recognized the seriousness and substantial nature of the risk, amounts to conscious

3 disregard of Plaintiffs’ constitutional right to be free from cruel and unusual punishment. Indeed,

4 Defendants have purposefully rendered the execution procedure more dangerous without any rational

5 reason for doing so.

6 34. Defendants’ creation of the new version of Procedure No. 770 in the space of a mere thirteen

7 days, without consultation with any members of the medical community or other experts – besides

8 the unnamed “court experts” – further evidences Defendants’ deliberate disregard of Plaintiff’s

9 Eighth Amendment rights. Defendants flagrantly ignored the District Court’s suggestion that they

10 conduct a “thorough” review of the execution procedures; no such review could have been conducted

11 in such a short time and none was. As a result, Defendants have substituted a new version of

12 Procedure No. 770 that simply perpetuates the deficiencies in the previous version and exacerbates

13 the already-significant risk of inadequate anesthesia.

14

15

COUNT I

VIOLATION OF RIGHT TO BE FREE FROM CRUEL AND UNUSUAL

16

PUNISHMENT PURSUANT TO THE EIGHTH AND FOURTEENTH

17

AMENDMENTS TO THE UNITED STATES CONSTITUTION

18

(42 U.S.C. § 1983)

19 35. Plaintiff realleges and incorporates by reference the allegations contained in paragraphs 1

20 through 34.

21 36. Defendants Jeanne Woodford, Eddie Ylst, and Doe Defendants are acting under color of

22 California law in causing to be administered to plaintiff chemicals that will cause unnecessary pain in

23 the execution of a sentence of death, thereby depriving plaintiff of his rights under the Eighth and

24 Fourteenth Amendments to be free from cruel and unusual punishment, in violation of 42 U.S.C.

25 § 1983.

26 11
27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
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Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 12 of 20
1 37. The CDCR’s Procedure No. 770, which specifies the State’s lethal injection protocol, and the 2 Defendants’ actual practice of impleme nting the protocol violates plaintiff’s rights under the cruel 3 and unusual punishment clause of the Eighth Amendment because (a) the protocol creates the 4 unreasonable and unacceptable risk of unnecessary physical and psychological pain; (b) the protocol 5 does not comport with contemporary norms and standards of society; and (c) the protocol offends the 6 dignity of the person and society. 7 38. The CDCR’s lethal injection protocol requires utilization of three dangerous chemicals but 8 does not ensure that the personnel entrusted with the lethal injection procedure possess the proper and 9 necessary training, experience, or expertise to administer those drugs. Moreover, the protocol fails to 10 provide specific guidelines for the administration of the three separate chemicals, which is an 11 essential requirement for their proper administration. 12 39. Procedure No. 770 contains no description of the training, credentials, certifications, 13 experience, or proficiency required of any personnel involved in the administration of the lethal 14 injection procedure, notwithstanding the fact that it is a complex medical procedure requiring a great 15 deal of expertise in order to be performed correctly. For example, Procedure No. 770 does not 16 require at the execution the presence of any personnel who possess sufficient expertise to insert an 17 intravenous line properly in all situations, determine if there is a blockage in the intravenous line, or 18 evaluate whether a prisoner is properly sedated before proceeding with the painful parts of the 19 execution process. Nor is it Defendants’ actual practice to require the participation of such 20 personnel. 21 40. The absence of such trained personnel greatly increases the risk that a prisoner would not 22 receive the necessary amount of anesthetic prior to being paralyzed by the pancuronium bromide and 23 then experience the painful internal burn of the potassium chloride. The execution logs of California 24 prisoners suggests that many executed prisoners did not receive enough sedative prior to the 25 administration of pancuronium bromide. Moreover, toxicology reports from prisoners executed by 26
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1 other states suggest that some prisoners likely remained conscious during the administration of lethal 2 drugs, which could have occurred because of improper insertion of the intravenous line, an 3 unrecognized blockage in the line, or various other reasons. The factors contributing to the 4 likelihood that prisoners in other states were executed while conscious are present in Procedure 770 5 and the actual practice of CDCR in implementing it. 6 41. Inducing and maintaining a sufficient level of unconsciousness by correctly administering 7 sodium pentothal is indispensable to preventing the wanton infliction of unnecessary pain when the 8 potassium chloride overdose is administered. Procedure No. 770, ho wever, does nothing to ensure 9 such a level of unconsciousness and does not require the preparation of backup syringes of sodium 10 pentothal. Nor does the protocol provide guidelines for ensuring that an inmate is deeply 11 anesthetized prior to injecting the second two drugs, or establish procedures for determining when an 12 additional dose of sodium pentothal should be administered. 13 42. The CDCR’s lethal injection protocol and practices fail to address any reasonably foreseeable 14 complications with any appropriate medical response. Moreover, the protocol and practices include 15 no safeguards that would protect the prisoner in the event a stay of execution is entered or a reprieve 16 granted immediately before or after the lethal injection process has begun. Thus, the protocol and 17 actual practices fail to provide any protections to prevent a prisoner from being wrongly executed 18 should a reprieve or stay be granted after the process has begun but before death has occurred. 19 43. At any time before the potassium chloride is administered, the prisoner could be readily 20 resuscitated if trained personnel and routine resuscitation medication and equipment were present at 21 the execution site. Even after the potassium chloride is administered, resuscitation would still be 22 possible, alt hough admittedly it would be more challenging. Any resuscitation, however, would 23 require the close proximity of the necessary equipment, medication, and properly trained personnel. 24 The omission of such personnel and equipment under the protocol set forth in Procedure No. 770 25 further undermines the constitutionality of the procedure. 26
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1 44. Although it is possible to conduct executions in a constitutionally compliant manner, the

2 Department of Corrections has deliberately chosen not to do so. As demonstrated by the events of

3 February 21, 2006, the CDCR could choose to use different chemicals that do not cause pain and

4 therefore do not carry extraordinarily grave consequences to a condemned inmate if not properly

5 administered. Instead, the CDCR has knowingly and recklessly chosen to use chemicals that will

6 subject the inmate to excruciating pain in the likely event of administration error. Moreover, it has

7 not taken precautions to ensure that the personnel who administer the lethal injection chemicals

8 possess the training, experience, and expertise needed to administer those chemicals properly. Thus,

9 while it is possible for the CDCR to choose different lethal injection chemicals and/or retain qualified

10 personnel to administer its chosen chemicals in order to ens ure the constitutionality of its lethal

11 injection procedure, the CDCR purposefully has not done so.

12 45. These numerous deficiencies in the CDCR’s lethal injection protocol are the direct result of

13 Defendants’ conscious disregard of the significant risk that the execution procedure will result in the

14 wanton and unnecessary infliction of extreme pain.

15

16

COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

17 46. The use of pancuronium bromide under the protocol established in Procedure No. 770 to

18 paralyze plaintiff greatly increases the risk that an inadequately sedated prisoner will be subjected to

19 a painful and protracted death, and will in fact cause such an unnecessarily painful death. Moreover,

20 it serves no legitimate penological purpose.

21 47. Pancuronium bromide does not play a legitimate role in killing the condemned person. The

22 execution protocol provides that potassium chloride kills the condemned. The administration of

23 pancuronium bromide cannot be justified on the grounds that the drug paralyzes the breathing

24 muscles because death by asphyxiation is itself a form of cruel and unusual punishment under the

25 Eighth Amendment.

26 14
27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
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Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 15 of 20
1 48. If pancuronium bromide is administered, paralyzing plaintiff during the execution procedure, 2 he will have no alternative “reasonable and effective means of communication” to communicate that 3 he was not properly anesthetized because he will be dead at the conclusion of the procedure. 4 49. Enjoining the administration of pancuronium bromide will have no appreciable impact on 5 California correctional institution procedures. If anything, it will simplify the execution process by 6 eliminating one step in the process. 7 50. The question of whether there exist readily available alternatives to pancuronium bromide is 8 not an issue in this case because paralyzing a condemned inmate in the execution process is not a 9 legitimate penological goal. 10 51. The Ninth Circuit and this Court have previously held that Defendants and their predecessors, 11 in order to forestall discussion and criticism of California’s lethal injection procedure, have 12 implemented restrictions on the execution process in order to prevent witnesses from being aware of 13 complications experienced during the procedure. 14 52. The Department of Correction’s failure to require sufficient training, credentials, certification, 15 experience, or proficiency of the personnel involved in the administration of the lethal injection 16 procedure greatly increases the risk that a prisoner will experience excruciating pain as a result of the 17 suffocation caused by the pancuronium bromide and the painful internal burn and cardiac arrest 18 caused by a potassium chloride overdose. Employing untrained personnel to perform executions 19 exacerbates the risks created by the deficiencies in the protocol and the methods and circumstances of 20 drug administration, because untrained personnel will be unable to react to and remedy problems that 21 arise during an execution. Allowing untrained personnel to develop deviations from the protocol that 22 become customary practices also increases the risk of inhumane executions due to the lack of vetting 23 by qualified experts and the danger that execution team turnover will lead to confusion as to how to 24 perform the execution. 25 26
15 27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
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Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 16 of 20

1 53. Allowing personnel who lack sufficient training, credentials, certification, experience, or

2 proficiency to conduct the lethal injection procedure does not play a legitimate role in killing the

3 condemned person. Suffocation while inadequately sedated or otherwise aware, as caused by the

4 administration of pancuronium bromide, violates the Eighth Amend ment because death by

5 asphyxiation is itself a form of cruel and unusual punishment. Similarly, internal burning and cardiac

6 arrest while insufficiently sedated or otherwise aware, as caused by a potassium chloride overdose,

7 constitute unnecessary physical and psychological pain in violation of the Eighth Amendment.

8 54. If plaintiff suffers unnecessary pain, he will have no alternative “reasonable and effective

9 means of communication” to communicate the fact that he was not properly anesthetized because he

10 will be unable to do so and the pancuronium bromide will paralyze him and he will be dead at the

11 conclusion of the procedure.

12 55. Enjoining the administration of the lethal injection procedure by personnel who lack

13 sufficient training, credentials, certification, experience, or proficiency will have no appreciable

14 impact on the correctional institution.

15 56. The question of whether there exist readily available alternatives to requiring personnel who

16 possess sufficient training, credentials, certification, experience, or proficiency to conduct the lethal

17 injection procedure is not an issue in this case because causing a prisoner who has not been properly

18 anaesthetized as a result of administration error to experience excruciating pain from the conscious

19 suffocation caused by pancuronium bromide and the painful internal burn and cardiac arrest caused

20 by a potassium chloride overdose is not a legitimate penological goal.

21

EXHAUSTION ALLEGATIONS

22 57. On January 9, 2006, plaintiff filed an inmate appeal on CDC Form 602 alleging that his

23 execution under the lethal injection protocol of the California Department of Corrections would

24 constitute cruel and unusual punishment. Plaintiff asked that his appeal be processed as an

25 emergency appeal pursuant to 15 Cal. Code Regs. § 3084.7 on the ground that the State of California

26 16
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Case no 06-926 (JF)(RS)
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Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 17 of 20
1 shortly intended to seek his execution date. On or about January 27, 2006, the Director’s Level 2 Appeal Decision was issued, which stated that “no further relief shall be afforded the appellate at the 3 Director’s Level of Review.” The decision stated that “This decision exhausts the administrative 4 remedy available to the appellant within CDCR.” 5 58. Notwithstanding his filing of an appeal on CDC Form 602, Plaintiff is not required to exhaust 6 administrative remedies before bringing this claim because resolution of the grievance seeking 7 modification of Procedure No. 770 is not possible through the appeal process and exhaustion is futile. 8 59. On November 24, 2004, Donald J. Beardslee, San Quentin Inmate No. C-82702, raised a 9 challenge similar to plaintiff’s claim here when he filed two inmate appeals on CDC Form 602 10 alleging that the Department of Correction’s lethal injection procedure violated his rights under the 11 First and Eighth Amendments to the United States Constitution. After being considered on an 12 emergency basis, the appeals were first denied by the Warden and then denied by the Director of the 13 Department of Corrections on Third Level Review. In denying Beardslee’s appeal, the Director’s 14 Level Appeal Decision stated that Beardslee’s “sentence and penalty were established by court in 15 California; therefore relief at the Director’s Level of Review cannot be afforded the appellant.” 16 Administrative review therefore cannot resolve any of the issues raised in plaintiff’s appeal. 17 60. Moreover, pursuit of administrative review is futile for additional reasons. In subsequent 18 proceedings in Beardslee’s case, the Court of Appeals for the Ninth Circuit observed that “by 19 regulation the California Department of Corrections does not permit challenges to anticipated 20 action[s]. 15 Cal. Code Regs. § 3084.3(c)(3).” Beardslee v. Woodford, 395 F.3d 1064, 1069 (9th 21 Cir. 2005). Thus, no administrative challenge to the lethal injection protocol is possible here. 22 61. Plaintiff’s challenge to the lethal injection protocol that the Department of Corrections intends 23 to use to execute him is ripe for adjudication now. 24 25 26
17 27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
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Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 18 of 20

PRAYER FOR RELIEF 1

2

WHEREFORE, Michael Angelo Morales prays for:

3

1.

Temporary, preliminary, and permanent injunctive relief to enjoin the defendants,

4 their officers, agents, servants, employees, and all persons acting in concert with them from

5 executing plaintiff by lethal injection using Procedure No. 770 and the practices associated with the

6 protocol;

7

2.

In the event that Procedure No. 770 is not enjoined in its entirety as violating the

8

9 Eighth and Fourteenth Amendments, temporary, preliminary, and permanent injunctive relief to

10 enjoin defendants, their officers, agents, servants, employees, and all persons acting in concert with

11 them from administering pancuronium bromide and potassium chloride during the execution process;

12

3.

In the event that Procedure No. 770 is not enjoined in its entirety as violating the

13 Eighth and Fourteenth Amendments, temporary, preliminary, and permanent injunctive relief to
14 enjoin defendants, their officers, agents, servants, employees, and all persons acting in concert with
15 them from allowing personnel who lack sufficient training, credentials, certification, experience, or
16
17 proficiency to conduct the lethal injection procedure;

18

4.

Reasonable attorneys’ fees pursuant to 42 U.S.C. § 1983 and the laws of the United

19 States;

20

5.

Costs of suit; and

21

6.

Any such other relief as the Court deems just and proper.

22

23

24

25

26 18
27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
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Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 19 of 20

MICHAEL ANGELO MORALES 1

2

3

4

5

6

7 Dated: April 6, 2006

8 David A. Senior (# 108759) McBreen & Senior
9 1880 Century Park East, Suite 1450
Los Angeles, CA 90067 10 Phone: (310) 552-5300

11 Fax: (310) 552-1205 dsenior@mcbreensenior.com

12 John R. Grele (# 167080)
13 Law Offices of John R. Grele

703 Market Street, Suite 550 14 San Francisco, CA 94103

15

Phone: (415) 348-9300 Fax: (415) 348-0364

16 jgrele@earthlink.net

By:__________________ John R Grele

17 Richard P. Steinken (admitted pro hac vice)

Janice H. Lam (admitted pro hac vice) 18 Stephanie L. Reinhart (admitted pro hac vice)

19

Jenner & Block LLP One IBM Plaza

20 Chicago, IL 60611-7603 Phone: (312) 923-2938

21 Fax: (312) 840-7338

rsteinken@jenner.com 22

23

Ginger D. Anders (admitted pro hac vice) Jenner & Block LLP

24 601 Thirteenth Street, NW Suite 1200 South

25 Washington DC 20005-3823

Phone: (202) 639-6000 26

19 27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case no 06-926 (JF)(RS)
28

Case 5:06-cv-00926-JF Document 19 Filed 04/06/2006 Page 20 of 20
Fax: (202) 639-6066 1 ganders@jenner.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
20 27 AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF
Case no 06-926 (JF)(RS)
28

 
 Case3:06-cv-00219-RS Document323 Filed07/02/07 Page1 of 23

1 David A. Senior (# 108759) McBreen & Senior
2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
3 Phone: (310) 552-5300 Fax: (310) 552-1205
4 dsenior@mcbreensenior.com

5 John R. Grele (# 167080) Law Offices of John R. Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP
10 330 N. Wabash Avenue Chicago, IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Attorneys for Plaintiff MICHAEL ANGELO MORALES

14

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

SAN JOSE DIVISION

16 MICHAEL ANGELO MORALES,

) Case No. C 06-0219 (JF)

17

)

C 06-0926 (JF)

Plaintiff,

)

18

) THIRD AMENDED COMPLAINT FOR

) EQUITABLE AND INJUNCTIVE

19

) RELIEF [42 U.S.C. § 1983]

v.

)

20

)

21

JAMES TILTON, Secretary of the California Department of Corrections; ROBERT AYERS,

) )

22 Warden, San Quentin State Prison, San Quentin, )

CA; ARNOLD SCHWARZENGGER,

)

23 Governor of the State of California; and DOES )

1-50,

24

Defendants.

)

) 25

26

27

28

1

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

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1

NATURE OF ACTION

2 1. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of

3 the right of Plaintiff to be free from cruel and unusual punishment under the Eighth and Fourteenth

4 Amendments of the United States Constitution. Plaintiff seeks temporary, preliminary, and

5 permanent injunctive relief to prevent the Defendants from executing Plaintiff by means of lethal

6 injection, as that method of execution is currently used in California. Plaintiff contends that lethal

7 injection, as performed in California, unnecessarily risks infliction of pain and suffering. Plaintiff

8 further contends that the use of pancuronium bromide, a paralytic agent that acts as a chemical veil

9 over the lethal injection process, disguises the pain and suffering to which he will be subjected.

10 Plaintiff additionally contends that Defendants, as a result of their deliberate failure to use medically

11 approved procedures and properly trained personnel, have inflicted pain and torture on several

12 executed prisoners in the past, making Plaintiff certain he will suffer the same fate unless Defendants

13 adopt a humane and safe execution protocol.

14

JURISDICTION AND VENUE

15 2. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), § 1343 (civil

16 rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This action arises under the

17 Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983.

18 3. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that Plaintiff is currently incarcerated at

19 San Quentin State Prison (“San Quentin”) in San Quentin, California, located in this District. All

20 executions conducted by the State of California (“State”) occur at San Quentin. The events giving

21 rise to this complaint have occurred and will occur in this District.

22

THE PARTIES

23 4. Plaintiff Michael Angelo Morales is a United States citizen and a resident of the State. He is

24 currently a death-sentenced prisoner under the supervision of the California Department of

25 Corrections and Rehabilitation (CDCR). He is held at San Quentin State Prison, San Quentin,

26 California, 94974.

27 5. Defendant James Tilton is the Secretary of the CDCR.

28

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1 6. Defendant Robert Ayers is the Warden of San Quentin State Prison, where the Plaintiff is

2 incarcerated and where the Plaintiff’s execution will occur.

3 7. Defendant Arnold Schwarzenegger is the Governor of the State of California.

4 8. Plaintiff is ignorant of the true names of Does 1-50 but alleges that they have or will

5 participate in Plaintiff’s execution by virtue of their roles in designing, implementing, and/or carrying

6 out the lethal injection process. When Plaintiff discovers the Doe Defendants’ true identities, he will

7 amend his complaint accordingly.

8

GENERAL ALLEGATIONS

9 9. On January 6, 2006, the clerk of the Superior Court of Ventura County issued a Notice of

10 Public Session in the case of People v. Morales, No. CR 17960, scheduling a public session on

11 January 18, 2006 for the purpose of the setting of the date of execution of judgment of death of

12 February 21, 2006.

13 10. Under California law, death sentences shall be carried out by “administration of a lethal gas

14 or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause

15 death, by standards established under the direction of the Department of Corrections.” Cal. Penal

16 Code § 3604(a). The statute prescribes no specific drugs, dosages, drug combinations, or the manner

17 of intravenous line access to be used in the execution process; nor does the statute prescribe any

18 certification, training, or licensure required of those who participate in the execution process. All of

19 the details of the execution process are to be determined by the CDCR.

20 11. The CDCR has decided to execute Plaintiff by poisoning him with a lethal combination of

21 three chemical substances: sodium pentothal, a short-acting barbiturate; pancuronium bromide, which

22 paralyzes all voluntary muscles; and potassium chloride, an extremely painful chemical which

23 activates the nerve fibers lining the prisoner’s veins and interferes with the heart’s contractions,

24 causing cardiac arrest.

25 12. In performing Plaintiff’s execution by lethal injection, the CDCR will follow the protocol

26 established in San Quentin Operational Procedure No. 770, as well as certain practices not delineated

27 in the protocol. The protocol and actual practice by which lethal injection executions are performed

28

3

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1 under Procedure No. 770 violates constitutional and statutory provisions enacted to prevent cruelty,

2 pain, and torture.

3 13. The remote administration of the chemical substances, the absence of standardized procedures

4 for administration of the chemicals, the lack of adequate training, screening and qualifications of the

5 personnel involved in the process, and the combination and amounts of the three particular chemicals

6 used in Procedure No. 770 create a grave and substantial risk that Plaintiff will not be adequately

7 unconscious during the execution process and, as a result, will experience an excruciatingly painful

8 and protracted death. This risk has been realized in at least six of the previous seven executions and

9 in nine executions total.

10 14. Procedure No. 770 lacks medically necessary safeguards, thus increasing the risk that Plaintiff

11 will suffer unnecessary pain during the lethal injection process. For example, there is no

12 standardized administration of each of the three chemicals. The protocol identifies no procedures for

13 ensuring that the anesthetic agent is properly flowing into the prisoner, and it identifies no

14 appropriate procedures or personnel for ensuring that the prisoner is properly sedated prior to the

15 administration of the lethal chemicals as required by the Eighth Amendment and as would be

16 required in any medical or veterinary procedure after administration of a sedative and before the

17 administration of a neuromuscular blocking agent, such as pancuronium bromide, or the

18 administration of a painful potassium chloride overdose.

19 15. The protocol established in Procedure No. 770 does not establish any minimum qualifications

20 required of the personnel who perform all of the tasks in the lethal injection process, and none exist.

21 Nor does it require the minimum expertise that would be necessary to ensure proper performance of

22 the tasks in the lethal injection procedure. There are no guidelines or customary procedures upon

23 which these personnel can rely if they are required to exercise their discretion during the process.

24 There is no plan in place if the Plaintiff requires medical assistance during the execution. Nor is there

25 any procedure, personnel or equipment available for obtaining access to Plaintiff’s veins should the

26 procedure described in Procedure No. 770 become difficult or impossible to accomplish, as has

27 recently been the case in several executions.

28

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1 16. Sodium pentothal is an ultra short-acting barbiturate that is usually administered only during

2 the preliminary phase of anesthesia administration, and never administered remotely in the manner

3 proposed. There is a reasonable likelihood that sodium pentothal will be ineffectively delivered,

4 given the inadequacy of the administration procedures and the personnel involved, and as a result

5 will not provide a sufficient sedative effect for the duration of the execution process. This has

6 actually occurred in many California executions and in executions in other states. Without adequate

7 sedation, Plaintiff will experience the conscious asphyxiation caused by pancuronium bromide and

8 the excruciatingly painful internal burning sensation and cardiac arrest caused by a potassium

9 chloride overdose.

10 17. The American Veterinary Medical Association (AVMA) states that when potassium chloride

11 is used for euthanasia, it is extremely important for the personnel who perform euthanasia to be

12 trained and knowledgeable in anesthetic techniques and competent in assessing the anesthetic depth

13 appropriate for potassium chloride administration, a depth at which animals are in a surgical plane of

14 anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of

15 response to noxious stimuli. California law requires non-veterinary personnel who perform animal

16 euthanasia to undergo strict training by a veterinarian and/or a registered veterinary technician who

17 specializes in anesthesia. California law does not permit non-veterinary personnel to perform

18 euthanasia using potassium chloride or neuromuscular blockers; rather, such personnel are limited to

19 using a lethal overdose of barbiturates such as pentobarbital. The Department of Correction’s lethal

20 injection protocol under Procedure No. 770 does not include comparable protections or require

21 comparable training, and thus a procedure under that protocol would be illegal if performed on

22 animals.

23 18. The AVMA also employs a longer-lasting and more stable barbiturate, sodium pentobarbital,

24 for animal euthanasia. The CDCR’s use of sodium pentothal knowingly exacerbates the risk of error

25 created by its deficient protocol because sodium pentothal is extremely volatile, short-acting, and

26 sensitive to human error, and because CDCR makes no determination of a suitable level for any

27

28

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1 particular inmate, despite this being a required procedure for administration of a sedative to all

2 humans and animals for any purpose

3 19. Pancuronium bromide, the second chemical administered in the lethal injection process,

4 paralyzes voluntary muscles, including the diaphragm, but it does not affect consciousness or the

5 perception of pain. A similar paralytic agent has been used by CDCR in the past to torture prisoners

6 as part of its behavioral modification programs. Pancuronium bromide, administered by itself as a

7 “lethal dose,” would not result in a quick death; instead, it would cause someone to suffocate to death

8 while still conscious. The use of pancuronium bromide as administered under the CDCR’s lethal

9 injection protocol in combination with the initial dose of sodium pentothal, increases the risk that

10 Plaintiff will become paralyzed while still aware of pain and suffering death from the burning veins

11 and heart failure caused by the administration of the potassium chloride. Pancuronium bromide

12 unnecessarily increases the risk that a prisoner will be paralyzed during the injection of an extremely

13 painful drug, aware of this pain, yet be entirely unable to inform the attendants of his condition.

14 Without the use of pancuronium bromide, a prisoner would be able to indicate that he was still

15 conscious or had regained consciousness or awareness prior to the administration of potassium

16 chloride. Properly trained and qualified personnel would be able to assess unconsciousness, which

17 CDCR personnel at present cannot and do not do and thus are unable to determine whether a prisoner

18 is aware of or feeling pain at the time the pancuronium bromide is administered, or if the

19 administration causes the prisoner to become able enough to sense the pain from pancuronium

20 bromide and, then, potassium chloride.

21 20. Because the CDCR’s protocol calls for the potassium chloride to be administered in a lethal

22 dose, the use of pancuronium bromide will serve no purpose in the execution process. It is

23 completely unnecessary in the lethal injection process and will only serve to mask any pain or

24 suffering that the Plaintiff may experience.

25 21. Pancuronium bromide could not lawfully be used alone as the fatal agent because causing

26 death by suffocation violates the Eighth Amendment’s prohibition against cruel and unusual

27 punishment.

28

6

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Case3:06-cv-00219-RS Document323 Filed07/02/07 Page7 of 23

1

THE DEVELOPMENT OF THE CURRENT VERSION OF PROCEDURE NO. 770

2 22. The version of Procedure No. 770, under which Defendants originally intended to execute

3 Plaintiff, was adopted without any medical research or review to ensure that a prisoner would not

4 suffer a painful death. No member of the medical community was involved in its adoption. The

5 procedure was adopted by the former Warden of San Quentin, Daniel Vasquez, after observing two

6 executions in Texas, without any further input from or consultation with medical personnel. The

7 procedure was not subsequently subjected to any review by medical professionals or other qualified

8 persons to assess if it was an appropriate procedure or if it was being administered in a manner that

9 either caused or prevented unnecessary infliction of pain and suffering. In fact, evidence

10 demonstrated that Procedure No. 770 as administered was not properly sedating executed inmates, as

11 a result of which they were aware of and suffering from pain. Defendants knew this, yet undertook

12 no appropriate review or revisions of their procedures.

13 23. On February 14, 2006, the District Court for the Northern District of California found that

14 Plaintiff had raised “substantial questions” that the 2003 protocol “creates an undue risk that Plaintiff

15 will suffer excessive pain when he is executed.” Order Denying Conditionally Plaintiff’s Motion for

16 Preliminary Injunction, at 13 (February 14, 2006). The District Court therefore suggested that

17 Defendants “conduct a thorough review of the lethal-injection protocol, including, inter alia, the

18 manner in which the drugs are injected, the means used to determine when the person being executed

19 has lost consciousness and the quality of contemporaneous records of executions, such as execution

20 logs and electrocardiograms. . . . A proactive approach by Defendants would go a long way towards

21 maintaining judicial and public confidence in the integrity and effectiveness of the protocol.” Id. at

22 12-13.

23 24. In light of the substantial possibility that Plaintiff would suffer excruciating pain as he was

24 executed, the District Court held that Defendants could proceed to execute Plaintiff only if they

25 implemented one of two proposed modifications of the execution procedure. Id. at 13-14.

26 Defendants could either certify that they would execute Plaintiff using only sodium pentothal or

27 another barbiturate; or procure the assistance of “qualified individual or individuals” to provide

28

7

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1 “independent verification” that Plaintiff was in fact unconscious prior to the administration of the

2 pancuronium bromide and potassium chloride. Id. at 13-15.

3 25. Defendants determined that satisfactorily “qualified individuals” would in fact be medical

4 doctors, and in particular board certified anesthesiologists, to allow Defendants to “ensure that

5 [Plaintiff] [was] unconscious at all times following the administration of sodium thiopental.”

6 Notwithstanding, Defendants did not go forward with the scheduled 12:01 a.m. execution on

7 February 21, 2006.

8 26. Later that day, Defendants returned to the District Court and advised that they then believed

9 that the most suitable manner to execute Plaintiff was by administering only a single lethal dose of

10 sodium thiopental or other barbiturate, and they sought permission to perform the execution at 7:30

11 p.m. on February 21, 2006 in this manner. The District Court issued an order allowing the execution

12 to proceed so long as “sodium thiopental [was] injected in the execution chamber directly into the

13 intravenous cannula by a person or persons licensed by the State of California to inject medications

14 intravenously.” Order on Defendants’ Motion to Proceed with Execution, at 3 (February 21, 2006).

15 Defendants declined to comply with the District Court’s order, and the execution did not go forward.

16 27. Because Defendants did not comply with the District Court’s Orders, by the terms of the

17 February 14, 2006 Order, a stay of execution automatically was entered on February 21, 2006.

18 28. Following the events of February 21, 2006, Defendants modified the execution protocol, and

19 these modifications were incorporated in a new version of Procedure No. 770, dated March 6, 2006.

20 According to Defendants, the changes to the protocol were made after consultation with unidentified

21 “court experts,” and in part reflected deviations from the 2003 version of the protocol that had been

22 sanctioned by the Defendants but had not previously been formally adopted as revisions to the

23 protocol, or recorded in the contemporaneous records of executions. Defendants, however, rejected

24 their own expert’s recommendation to use a single barbiturate as the sole lethal agent. This rejection

25 was grounded in two blatantly invalid considerations: no other state uses a barbiturate as the sole

26 lethal agent; and discontinuance of the use of pancuronium would eliminate the cosmetic appearance

27 of a serene execution that is achieved by paralyzing the inmate. The direction by Defendant

28

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1 Schwarzenegger to CDCR merely was to “tweak” the previous versions of OP 770, and to provide

2 for less sedative.

3 29. The March 6, 2006 version of Procedure No. 770, as well as Defendants’ stated intention to

4 follow the new version, was substantially similar to the 2003 version in all material respects relating

5 to the manner in which the chemicals are administered. The March 6, 2006 version employed the

6 same three chemicals, injected in the same sequence, and using the same remote administration, but

7 Defendants – after purported consultation with “experts” – determined to use a lower initial dose of

8 sodium pentothal, a lower dose of pancuronium bromide, and a higher dose of potassium chloride.

9 The only material difference between the 2003 version of the protocol and the March 6, 2006 version

10 is that, in addition to an initial bolus dose of 1.5 grams of sodium pentothal, the March 6 version

11 provided that a continuous drip of five grams of sodium pentothal would be begun in a second IV

12 line after the initial dose of sodium pentothal is administered. Shortly after the drip is begun, a saline

13 flush was to be sent through the first IV line and the pancuronium and potassium were to be injected.

14 30. The March 6, 2006 version of Procedure No. 770 utterly failed to address the “substantial

15 questions” raised by Plaintiff, and recognized by the District Court, regarding the significant risk that

16 Plaintiff will suffer excruciating pain during the execution. Among other things, the March 6, 2006

17 version of Procedure No. 770, like the 2003 version, failed to provide any procedure for ensuring that

18 the inmate is in an appropriate surgical plane of anesthesia prior to the administration of the

19 pancuronium bromide; failed to provide for any training to be given to the injection personnel; failed

20 to require any level of experience or other qualifications for such personnel; failed to ensure that an

21 adequate dose of anesthesia is able to reach the prisoner; and failed to provide procedures for

22 obtaining IV access should the inmate have unusable peripheral veins. Moreover, because the design

23 of the execution chamber remained the same, and the March 6, 2006 version of the protocol made no

24 material changes in the equipment used to administer the drugs, it did not alleviate the need to use

25 multiple IV extensions or other conditions that have caused the drug administration problems that

26 plagued the previous executions.

27

28

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1 31. Indeed, the March 6, 2006 version of Procedure No. 770 was even more deficient than the old

2 version. The additional deficiencies included, but were not limited to, the fact that Defendants’

3 purported experts determined that much less sodium pentothal should be administered to the inmate,

4 even assuming proper administration by the execution team resulting in the full dose of pentothal

5 reaching the prisoner. This significantly decreased dose of sodium pentothal drastically lowered the

6 margin of error in administering the anesthesia and increased the probability that the inmate would

7 not be placed in an appropriate surgical plane of anesthesia.

8 32. Defendants, relying on the advice of their selected expert, deliberately chose to lower the dose

9 of anesthetic in the belief that the previously used five-gram dose of sodium pentothal rendered

10 inmates “too unconscious” for the potassium chloride to cause death as quickly as it would otherwise.

11 Moreover, by their own admission, Defendants deliberately increased the risk of excessive suffering

12 in order to ensure that executions are carried out as quickly as possible.

13 33. Defendants’ failure to address the substantial questions as to the significant risk of

14 excruciating pain created by the original version of Procedure No. 770, even after the experience of

15 recent executions during which indicia of inadequate sedation were present, and even after the

16 District Court recognized the seriousness and substantial nature of the risk, amounted to conscious

17 disregard of Plaintiffs’ constitutional right to be free from cruel and unusual punishment. Indeed, on

18 March 6, 2006, after obtaining the advice of, inter alia, Robert Singler, M.D. and at the direction of

19 Andrea Hoch, Legal Affairs Secretary of Governor Arnold Schwarzenegger, Defendants purposefully

20 rendered the execution procedure more dangerous without any rational reason for doing so.

21 34. Defendants’ creation of the March 6, 2006 version of Procedure No. 770 in the space of a

22 mere thirteen days, without consultation with any members of the medical community or other

23 experts – besides the unnamed “court experts” and/or Robert Singler, M.D. – further evidenced

24 Defendants’ deliberate disregard of Plaintiff’s Eighth Amendment rights. Defendants flagrantly

25 ignored the District Court’s suggestion that they conduct a “thorough” review of the execution

26 procedures. As a result, Defendants substituted a different version of Procedure No. 770 that simply

27

28

10

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page11 of 23

1 perpetuated the deficiencies in the previous version and exacerbated the already-significant risk of

2 inadequate anesthesia.

3 35. After undertaking a review of the execution protocol, including the composition and training

4 of the execution team, the equipment and apparatus used in executions, the pharmacology and

5 pharmacokinetics of the drugs involved, and the available documentary and anecdotal evidence

6 concerning executions in California, on December 15, 2006, the District Court found that

7 Defendants’ Procedure 770 as actually administered in practice violated the Eighth Amendment.

8 36. Defendants immediately vowed to implement yet another review, evaluation, and revision of

9 Procedure 770. Defendant Schwarzenegger directed the revision be undertaken by his Legal Affairs

10 Secretary, Andrea Hoch.

11 37. Before conducting another review, evaluation, and revision of Procedure 770, Defendants

12 announced that this complete undertaking would be completed in less than 120 days, or by May 15,

13 2007. Defendants concluded that they would limit their review, evaluation, and revisions to only five

14 issues that they contend are raised in the District Court’s December 15, 2006 order, despite that

15 order’s express notation that it was not meant as an exhaustive recitation of the failings of

16 Defendants’ procedures.

17 38. Defendant CDCR appointed K. W. Prunty, Jr., Undersecretary Operations of the CDCR, and

18 “the attorneys” to revise the procedure. Prunty reports to James Tilton, the CDCR Secretary. Tilton

19 never has read the District Court’s December 15, 2006 order, and he admittedly is not “an expert” on

20 the Procedure.

21 39. After commencing its review, Defendant CDCR requested additional time to determine and

22 make any necessary revisions. Defendant Schwarzenegger denied the CDCR’s request and insisted

23 that the self-imposed and blindly created May 15, 2007 deadline be adhered to. Defendants

24 submitted a revised Procedure 770 to the District Court on May 15, 2007.

25 40. While on February 16, 2006, Defendants unilaterally determined that the most “qualified

26 individuals” to “ensure that [Plaintiff] [was] unconscious at all times following the administration of

27 sodium thiopental” would in fact be medical doctors, and in particular board certified

28

11

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page12 of 23

1 anesthesiologists, and in the space of two days did obtain two such medical professionals, Defendants

2 now have concluded that this is not the case. Defendants’ new Procedure makes no such provision

3 for qualified medical doctors to perform this complex task, or to perform or monitor any other tasks

4 associated with planning for or conducting executions. Nor have Defendants made provisions to

5 have a doctor perform a central line catheterization if necessary, despite Defendants’ knowledge that

6 some inmates will require a central line to avoid unsuccessful drug administration, and that central

7 line placement requires extensive medical training.

8 41. The May 15, 2007 version of Procedure No. 770 provides for an “assessment” of

9 consciousness to be performed by an Intravenous Team Member. This assessment does not

10 constitute effective monitoring of anesthetic depth, and will not be sufficient to ascertain whether the

11 inmate is placed into, and remains in, a surgical plane of anesthesia.

12 42. On February 21, 2006, Defendants unilaterally determined that, because Procedure 770

13 prevents them from ensuring that Plaintiff will be unconscious at all times following the

14 administration of sodium thiopental, a preferred method of execution would be to use only sodium

15 thiopental or another barbiturate or combination of barbiturates during Plaintiff's execution.

16 43. Subsequent to February 21, 2006, Dr. Mark Dershwitz, one of the medical experts retained by

17 Defendants to defend their protocol in this action and in previous lethal-injection challenges, has

18 advised several states, including those with which Defendants have exchanged execution-related

19 information, that using a single barbiturate as the sole lethal agent would be an easier, less complex,

20 and less dangerous means of accomplishing executions. Despite their knowledge of this advice, and

21 despite Defendants’ conclusions on February 21, 2006, regarding the single-drug protocol,

22 Defendants failed to give serious consideration to the use of a single-drug protocol, even though they

23 still have no reliable method to ensure that Plaintiff will be unconscious at all times following the

24 administration of sodium thiopental. Defendants’ new Procedure intends to make use of a

25 complicated three drug protocol involving the use of two excruciatingly painful drugs when improper

26 sedation occurs.

27

28

12

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page13 of 23

1 44. Before reviewing, evaluating, and/or revising its March 6, 2006 execution Procedure,

2 Defendants decided in January 2007 to build a new execution facility. The design and construction

3 of the new facility derived from the provisions of the March 6, 2006 execution Procedure, the latest

4 version of Procedure No. 770 then in existence, as the later announced May 15, 2007 version of the

5 procedure had not yet been created, reviewed, evaluated, and/or revised.

6 45. Defendants fraudulently claimed that the execution chamber could be designed and

7 constructed from discretionary budgeting, that a new execution chamber had been ordered to be built

8 by the District Court, and that the District Court ordered that construction be completed by May 15,

9 2007. Defendants’ tactics were an effort to avoid mandatory state legislative oversight and to obtain

10 a permanent lethal injection facility so as to justify a multi-million dollar expansion of death row at

11 San Quentin. Defendants thereafter designed and commenced construction of the chamber before

12 they had begun or finished their review, evaluation, and/or revisions to Procedure 770. Defendant

13 Tilton, the lead official in the CDCR later claimed he was not advised of this decision to build a new

14 chamber, or of the commencement of the construction of this facility.

15 46. On April 13, 2007, when Defendants’ fraudulent budgeting activities came to light,

16 Defendants backdated a budgeting request to January, 2007, and submitted same for legislative

17 consideration. On or about April 21, 2007, Defendant Schwarzenegger ordered that the construction

18 be stopped.

19 47. The May 15, 2007 version of Procedure No. 770, as well as Defendants’ stated intention to

20 follow the new version, is substantially similar to the 2003 version in all material respects relating to

21 the manner in which the chemicals are administered. The May 15, 2007 version employs the same

22 three chemicals, injected in the same sequence, but Defendants determined to use a greater initial

23 dose of sodium pentothal than the March 6, 2006 Procedure, but a smaller dose than was used in the

24 2003 version, a greater dose of pancuronium bromide , and a lower dose of potassium chloride.

25 48. The May 15, 2007 version of Procedure No. 770 utterly fails to even examine the many

26 “substantial questions” raised by Plaintiff, and recognized by the District Court, regarding the

27 significant risk that Plaintiff will suffer excruciating pain during the execution. Among other things,

28

13

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page14 of 23

1 the May 15, 2007 version of Procedure No. 770, like its predecessor March 6, 2006 and 2003

2 versions, fails to provide any adequate procedure and personnel for ensuring that the inmate is in an

3 appropriate surgical plane of anesthesia prior to the administration of the pancuronium bromide and

4 remains in a surgical plane of anesthesia for the duration of the execution; fails to provide for any

5 training to be given to the personnel involved; fails to require any level of experience or other

6 qualifications for such personnel; fails to provide for any mechanism to ensure that an adequate dose

7 of anesthesia is able to reach the prisoner; fails to provide guidelines for detecting and remedying the

8 foreseeable problems that could occur and that have recently caused botched executions in several

9 other states, or to ensure that personnel are sufficiently trained and qualified to exercise their

10 judgment in such situations; fails to ensure an appropriate delivery mechanism for any of the three

11 chemicals, and fails to provide procedures for obtaining IV access should the inmate have unusable

12 peripheral veins. The Procedure was prepared and submitted without an execution chamber to

13 provide any reference or concept.

14 49. Indeed, the May 15, 2007 version of Procedure No. 770 is even more ill-conceived and

15 deficient than the older versions. The additional deficiencies include, but are not limited to, the fact

16 that Defendants determined that much less sodium pentothal should be administered to the inmate

17 than that which was supposed to have been administered to inmates in all past executions, even

18 assuming proper administration by the execution team resulting in the full dose of pentothal reaching

19 the prisoner. This significantly decreased dose of sodium pentothal drastically lowers the margin for

20 error in administering the anesthesia and increases the probability that the inmate will not be placed

21 in an appropriate surgical plane of anesthesia.

22 50. Defendants – in conjunction with the advice of their selected experts – deliberately chose to

23 lower the dose of anesthetic in the belief that the previously used five-gram dose of sodium pentothal

24 rendered inmates “too unconscious” for the potassium chloride to cause death as quickly as it would

25 otherwise. Defendants were aware that such a theory was ill-conceived, medically unsound and

26 unsupported by the records in previous executions. Moreover, by their own admission, Defendants

27

28

14

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Case3:06-cv-00219-RS Document323 Filed07/02/07 Page15 of 23

1 deliberately increased the risk of excessive suffering in order to ensure that executions are carried out

2 as quickly as possible.

3 51. Defendants’ failure to address the substantial questions regarding the significant risk of

4 excruciating pain created by the original version of Procedure No. 770, even after the experience of

5 several recent executions during which indicia of inadequate sedation were present, and even after

6 the District Court recognized the seriousness and substantial nature of the risk, amounts to conscious

7 disregard of Plaintiffs’ constitutional right to be free from cruel and unusual punishment.

8 Defendants have flagrantly disregarded their January 16, 2007 representations to the District Court

9 that they intended to conduct a careful review, revision, and implementation of their execution

10 procedures. As a result, Defendants substituted a different version of Procedure No. 770 that simply

11 perpetuated the deficiencies in the previous version and exacerbates the already-significant risk of

12 inadequate anesthesia.

13

COUNT I

14

VIOLATION OF RIGHT TO BE FREE FROM CRUEL AND UNUSUAL

PUNISHMENT PURSUANT TO THE EIGHTH AND FOURTEENTH

15

AMENDMENTS TO THE UNITED STATES CONSTITUTION

16

(42 U.S.C. § 1983)

17 52. Plaintiff realleges and incorporates by reference the allegations contained in paragraphs 1

18 through 51.

19 53. Defendants James Tilton, Robert Ayers, and Arnold Schwarzenegger, and Doe Defendants

20 are acting under color of California law in causing to be administered to Plaintiff chemicals that will

21 cause unnecessary pain in the execution of a sentence of death, thereby depriving Plaintiff of his

22 rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment,

23 in violation of 42 U.S.C. § 1983.

24 54. The CDCR’s Procedure No. 770, which specifies the State’s lethal injection protocol, and the

25 Defendants’ actual practice of implementing the protocol violates Plaintiff’s rights under the cruel

26 and unusual punishment clause of the Eighth Amendment because (a) the protocol creates the

27 unreasonable and unacceptable risk of unnecessary physical and psychological pain; (b) the protocol

28

15

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page16 of 23

1 does not comport with contemporary norms and standards of society; and (c) the protocol offends the

2 dignity of the person and society.

3 55. The CDCR’s lethal injection protocol requires utilization of three dangerous chemicals but

4 does not ensure that the personnel entrusted with the lethal injection procedure possess the proper and

5 necessary training, experience, or expertise to administer those drugs. Moreover, the protocol fails to

6 provide specific guidelines for the administration of the three separate chemicals, which is an

7 essential requirement for their proper administration.

8 56. Procedure No. 770 contains little or no description of the training, credentials, certifications,

9 experience, or proficiency required of any personnel involved in the administration of the lethal

10 injection procedure, notwithstanding the fact that it is a complex medical procedure requiring a great

11 deal of expertise in order to be performed correctly. For example, Procedure No. 770 does not

12 require at the execution the presence of any personnel who possess sufficient expertise to insert an

13 intravenous line properly in all situations, determine if there is a blockage in the intravenous line, or

14 evaluate whether a prisoner is properly sedated before proceeding with the painful parts of the

15 execution process. Nor is it Defendants’ actual practice to require the participation of such

16 personnel.

17 57. The absence of such trained personnel greatly increases the risk that a prisoner would not

18 receive the necessary amount of anesthetic prior to being paralyzed by the pancuronium bromide and

19 then experience the painful internal burn of the potassium chloride. The execution logs of California

20 prisoners, and the recent experiences in other states which utilize similar protocols, suggest that many

21 executed prisoners did not receive enough sedative prior to the administration of pancuronium

22 bromide. Moreover, toxicology reports from prisoners executed by other states suggest that some

23 prisoners likely remained conscious during the administration of lethal drugs, which could have

24 occurred because of improper insertion of the intravenous line, an unrecognized blockage in the line,

25 or various other reasons. The factors contributing to the likelihood that prisoners in other states were

26 executed while conscious are present in Procedure No. 770 and the actual practice of CDCR in

27 implementing it.

28

16

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page17 of 23

1 58. Inducing and maintaining a sufficient level of unconsciousness by correctly administering

2 sodium pentothal is indispensable to preventing the wanton infliction of unnecessary pain when the

3 potassium chloride overdose is administered. Procedure No. 770, however, does nothing to ensure

4 such a level of unconsciousness. Nor does the protocol provide guidelines for ensuring that an

5 inmate is deeply anesthetized prior to injecting the second two drugs, or establish procedures for

6 determining when an additional dose of sodium pentothal should be administered.

7 59. Defendants’ decision to reject their own experts’ opinion that a single sedative should be

8 employed, and their decision to maintain the remote administration of the three drugs without

9 anesthetic monitoring despite evidence that such administration was not effectively sedating inmates,

10 and Defendants’ blind adherence to a procedure that lacks necessary medical safeguards and

11 personnel, despite evidence that such a process has resulted in a substantial and unnecessary risk of

12 undue pain and suffering in past executions and in the executions undertaken by other jurisdictions,

13 constitutes a deliberate decision to disregard the substantial and unnecessary risk of undue pain and

14 suffering in the Procedure as outlined and as employed.

15 60. The CDCR’s lethal injection protocol and practices fail to address any reasonably foreseeable

16 complications with any appropriate medical response, such as difficulty obtaining access to a

17 peripheral vein, or damage to such veins as a result of repeated failed attempts to insert the catheter.

18 Moreover, the protocol and practices include no safeguards that would protect the prisoner in the

19 event a stay of execution is entered or a reprieve granted immediately before or after the lethal

20 injection process has begun. Thus, the protocol and actual practices fail to provide any protections to

21 prevent a prisoner from being wrongly executed should a reprieve or stay be granted after the process

22 has begun but before death has occurred.

23 61. At any time before the potassium chloride is administered, the prisoner could be readily

24 resuscitated if trained personnel and routine resuscitation medication and equipment were present at

25 the execution site. Even after the potassium chloride is administered, resuscitation would still be

26 possible, although admittedly it would be more challenging. Any resuscitation, however, would

27 require the close proximity of the necessary equipment, medication, and properly trained personnel.

28

17

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page18 of 23

1 The omission of such personnel and equipment under the protocol set forth in Procedure No. 770

2 further undermines the constitutionality of the procedure.

3 62. Although it is possible to conduct executions in a constitutionally compliant manner, the

4 Department of Corrections has deliberately chosen not to do so. The CDCR could choose to use

5 different chemicals that do not cause pain and therefore do not carry extraordinarily grave

6 consequences to a condemned inmate if not properly administered, as all veterinary euthanasia does.

7 Instead, the CDCR has knowingly and recklessly chosen to use chemicals that will subject the inmate

8 to excruciating pain in the likely event of administration error. Moreover, it has not taken

9 precautions to ensure that the personnel who are involved in the process, including the preparation

10 and administration of the lethal injection chemicals, possess the training, experience, and expertise

11 needed to administer those chemicals properly. Thus, while it is possible for the CDCR to choose

12 different lethal injection chemicals and/or retain qualified personnel to administer its chosen

13 chemicals in order to ensure the constitutionality of its lethal injection procedure, the CDCR

14 purposefully has not done so.

15 63. These numerous deficiencies in the CDCR’s lethal injection protocol are the direct result of

16 Defendants’ conscious disregard of the significant risk that the execution procedure will result in the

17 wanton and unnecessary infliction of extreme pain.

18

COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

19 64. The use of pancuronium bromide under the protocol established in Procedure No. 770 to

20 paralyze Plaintiff greatly increases the risk that an inadequately sedated prisoner will be subjected to

21 a painful and protracted death, and will in fact cause such an unnecessarily painful death. Moreover,

22 it serves no legitimate penological purpose.

23 65. Pancuronium bromide does not play a legitimate role in killing the condemned person. The

24 execution protocol provides that potassium chloride kills the condemned. The administration of

25 pancuronium bromide cannot be justified on the grounds that the drug paralyzes the breathing

26 muscles because death by asphyxiation is itself a form of cruel and unusual punishment under the

27 Eighth Amendment.

28

18

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page19 of 23

1 66. Enjoining the administration of pancuronium bromide will have no appreciable impact on

2 California correctional institution procedures. If anything, it will simplify the execution process by

3 eliminating one step in the process.

4 67. The question of whether there exist readily available alternatives to pancuronium bromide is

5 not an issue in this case because paralyzing a condemned inmate in the execution process is not a

6 legitimate penological goal.

7 68. The Ninth Circuit and this Court have previously held that Defendants and their predecessors,

8 in order to forestall discussion and criticism of California’s lethal injection procedure, have

9 implemented restrictions on the execution process in order to prevent witnesses from being aware of

10 complications experienced during the procedure.

11 69. The CDCR’s failure to require sufficient training, credentials, certification, experience, or

12 proficiency of the personnel involved in the administration of the lethal injection procedure greatly

13 increases the risk that a prisoner will experience excruciating pain as a result of the suffocation

14 caused by the pancuronium bromide and the painful internal burn and cardiac arrest caused by a

15 potassium chloride overdose. Employing untrained personnel to perform executions exacerbates the

16 risks created by the deficiencies in the protocol and the methods and circumstances of drug

17 administration, because untrained personnel will be unable to react to and remedy problems that arise

18 during an execution. Allowing untrained personnel to develop deviations from the protocol that

19 become customary practices also increases the risk of inhumane executions due to the lack of vetting

20 by qualified experts and the danger that execution team turnover will lead to confusion as to how to

21 perform the execution.

22 70. Allowing personnel who lack sufficient training, credentials, certification, experience, or

23 proficiency to conduct the lethal injection procedure does not play a legitimate role in killing the

24 condemned person. Suffocation while inadequately sedated or otherwise aware, as caused by the

25 administration of pancuronium bromide, violates the Eighth Amendment because death by

26 asphyxiation is itself a form of cruel and unusual punishment. Similarly, internal burning and cardiac

27

28

19

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page20 of 23

1 arrest while insufficiently sedated or otherwise aware, as caused by a potassium chloride overdose,

2 constitute unnecessary physical and psychological pain in violation of the Eighth Amendment.

3 71. If Plaintiff suffers unnecessary pain, he will have no alternative “reasonable and effective

4 means of communication” to communicate the fact that he was not properly anesthetized because he

5 will be unable to do so and the pancuronium bromide will paralyze him and he will be dead at the

6 conclusion of the procedure.

7 72. Enjoining the administration of the lethal injection procedure by personnel who lack

8 sufficient training, credentials, certification, experience, or proficiency will have no appreciable

9 impact on the correctional institution.

10 73. The question of whether there exist readily available alternatives to requiring personnel who

11 possess sufficient training, credentials, certification, experience, or proficiency to conduct the lethal

12 injection procedure is not an issue in this case because causing a prisoner who has not been properly

13 anaesthetized as a result of administration error to experience excruciating pain from the conscious

14 suffocation caused by pancuronium bromide and the painful internal burn and cardiac arrest caused

15 by a potassium chloride overdose is not a legitimate penological goal.

16 74.

CDCR’s continued use of remote administration of the three-drug cocktail without

17 sufficient means of ensuring adequate sedation throughout the procedure greatly increases the risk

18 that a prisoner will experience excruciating pain as a result of the suffocation caused by the

19 pancuronium bromide and the painful internal burn and cardiac arrest caused by a potassium chloride

20 overdose. Enjoining the use of remote administration of the three-drug cocktail without sufficient

21 safeguards will have no appreciable impact on the correctional institution. The question of whether

22 there exist readily-available alternatives to employing emote administration of the three-drug cocktail

23 without sufficient safeguards because needlessly exposing inmates to an unreasonable risk of

24 excruciating pain is not a legitimate penological goal.

25 / /

26

27

28

20

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page21 of 23

1

EXHAUSTION ALLEGATIONS

2 75. On January 9, 2006, Plaintiff filed an inmate appeal on CDC Form 602 alleging that his

3 execution under the lethal injection protocol of the CDCR would constitute cruel and unusual

4 punishment. Plaintiff asked that his appeal be processed as an emergency appeal pursuant to 15 Cal.

5 Code Regs. § 3084.7 on the ground that the State of California shortly intended to seek his execution

6 date. On or about January 27, 2006, the Director’s Level Appeal Decision was issued, which stated

7 that “no further relief shall be afforded the appellate at the Director’s Level of Review.” The

8 decision stated that “This decision exhausts the administrative remedy available to the appellant

9 within CDCR.”

10 76. Notwithstanding his filing of an appeal on CDC Form 602, Plaintiff is not required to exhaust

11 administrative remedies before bringing this claim because resolution of the grievance seeking

12 modification of Procedure No. 770 is not possible through the appeal process and exhaustion is futile.

13 77. On November 24, 2004, Donald J. Beardslee, San Quentin Inmate No. C-82702, raised a

14 challenge similar to Plaintiff’s claim here when he filed two inmate appeals on CDC Form 602

15 alleging that the Department of Correction’s lethal injection procedure violated his rights under the

16 First and Eighth Amendments to the United States Constitution. After being considered on an

17 emergency basis, the appeals were first denied by the Warden and then denied by the Director of the

18 Department of Corrections on Third Level Review. In denying Beardslee’s appeal, the Director’s

19 Level Appeal Decision stated that Beardslee’s “sentence and penalty were established by court in

20 California; therefore relief at the Director’s Level of Review cannot be afforded the appellant.”

21 Administrative review therefore cannot resolve any of the issues raised in Plaintiff’s appeal.

22 78. Moreover, pursuit of administrative review is futile for additional reasons. In subsequent

23 proceedings in Beardslee’s case, the Court of Appeals for the Ninth Circuit observed that “by

24 regulation the California Department of Corrections does not permit challenges to anticipated

25 action[s]. 15 Cal. Code Regs. § 3084.3(c)(3).” Beardslee v. Woodford, 395 F.3d 1064, 1069 (9th

26 Cir. 2005). Thus, no administrative challenge to the lethal injection protocol is possible here.

27

28

21

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page22 of 23

1 79. Plaintiff’s challenge to the lethal injection protocol that the CDCR intends to use to execute

2 him is ripe for adjudication now.

3

PRAYER FOR RELIEF

4

WHEREFORE, Michael Angelo Morales prays for:

5

1.

Temporary, preliminary, and permanent injunctive relief to enjoin the Defendants,

6 their officers, agents, servants, employees, and all persons acting in concert with them from

7 executing Plaintiff by lethal injection using Procedure No. 770 and the practices associated with the

8 protocol;
9

2.

In the event that Procedure No. 770 is not enjoined in its entirety as violating the

10

11 Eighth and Fourteenth Amendments, temporary, preliminary, and permanent injunctive relief to

12 enjoin Defendants, their officers, agents, servants, employees, and all persons acting in concert with

13 them from administering pancuronium bromide and potassium chloride during the execution process;

14

3.

In the event that Procedure No. 770 is not enjoined in its entirety as violating the

15 Eighth and Fourteenth Amendments, temporary, preliminary, and permanent injunctive relief to

16 enjoin Defendants, their officers, agents, servants, employees, and all persons acting in concert with

17 them from allowing personnel who lack sufficient training, credentials, certification, experience, or

18 proficiency to conduct the lethal injection procedure;
19

4.

Reasonable attorneys’ fees pursuant to 42 U.S.C. § 1983 and the laws of the United

20

21 States;

22

5.

Costs of suit; and

23

6.

Any such other relief as the Court deems just and proper.

24

25

26

27

28

22

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

Case3:06-cv-00219-RS Document323 Filed07/02/07 Page23 of 23

1
Dated: July 2, 2007 2

MICHAEL ANGELO MORALES

3

4

David A. Senior (# 108759) 5 Benjamin D. Weston (#240641)

6

McBreen & Senior 1880 Century Park East, Suite 1450

7 Los Angeles, CA 90067 Phone: (310) 552-5300

8 Fax: (310) 552-1205 dsenior@mcbreensenior.com

9

John R. Grele (# 167080) 10 Law Offices of John R. Grele

703 Market Street, Suite 550 11 San Francisco, CA 94103

12

Phone: (415) 348-9300 Fax: (415) 348-0364

13 jgrele@earthlink.net

14 Richard P. Steinken (admitted pro hac vice)

Stephanie L. Reinhart (admitted pro hac vice)

15 Jenner & Block LLP

330 N. Wabash Avenue 16 Chicago, IL 60611-7603

17

Phone: (312) 923-2938 Fax: (312) 840-7338

18 rsteinken@jenner.com

19 Ginger D. Anders (admitted pro hac vice) Jenner & Block LLP

20 601 Thirteenth Street, NW

Suite 1200 South

21 Washington DC 20005-3823

22

Phone: (202) 639-6000 Fax: (202) 639-6066

23 ganders@jenner.com

By: /s/ Benjamin D. Weston

.

One of his attorneys

24

25

26

27

28

23

THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF

 
 Case3:06-cv-00219-RS Document430 Filed10/25/10 Page1 of 27

1 EDMUND G. BROWN JR. Attorney General of California
2 THOMAS S. PATTERSON Supervising Deputy Attorney General
3 MICHAEL J. QUINN Deputy Attorney General
4 State Bar No. 209542 JAY M. GOLDMAN
5 Deputy Attorney General State Bar No. 168141
6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004
7 Telephone: (415) 703-5846 Fax: (415) 703-5843
8 E-mail: Jay.Goldman@doj.ca.gov Attorneys for Defendants
9 Schwarzenegger, Cate, and Cullen

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13

14

MICHAEL ANGELO MORALES,

C 06-0219 JF

15 ALBERT G. BROWN,

DEFENDANTS’ NOTICE OF MOTION

16

Plaintiffs, AND MOTION TO DISMISS FOR

FAILURE TO STATE A CLAIM

17

v.

Date:

December 2, 2010

18

Time:

1:30 PM

MATTHEW CATE, et al.,

Dept:

Ct. Rm. 3, 5th Fl.

19

Judge

The Honorable Jeremy Fogel

Defendants. Trial Date None

20

Action Filed: 1/5/2006

21

22

23

24

25

26

27

28

Defs. Not. Of Mot and Mot. To Dismiss (C 06-0219 JF)

Case3:06-cv-00219-RS Document430 Filed10/25/10 Page2 of 27

1

TABLE OF CONTENTS

2

Page

3 Memorandum of Points and Authorities ......................................................................................... 1

4 Introduction ..................................................................................................................................... 1 Statement of Issues.......................................................................................................................... 2
5 Statement of the Case...................................................................................................................... 3

6 Statement of Facts ........................................................................................................................... 4

7

I. California’s New Lethal-Injection Regulations. ..................................................... 4

A. Team Selection and Required Qualifications.............................................. 4

8

B. Team Training. ............................................................................................ 5

9

C. The Execution. ............................................................................................ 6

10

1. Selection of Veins. .......................................................................... 6

2. Mixing and Custody of Chemicals.................................................. 6

11

3. Preparation of Chemicals and Syringes. ......................................... 6

12

4. Inserting IV Catheters and Execution-Room Monitoring of

Inmate.............................................................................................. 7

13

5. Administering Chemicals, Consciousness Checks, and

14

When to Use the Alternate IV Catheter. ......................................... 7

6. Physician Monitoring. ..................................................................... 8

15

7. Documented Post-Execution Critique for Compliance with

16

Regulations...................................................................................... 8

Argument ........................................................................................................................................ 8

17

I. Plaintiffs Fail to State a Claim Against the Regulations as Written or for an

18

Alternative Protocol to the New Regulations. ........................................................ 8

A. The Standard for a Rule 12(b)(6) Motion to Dismiss. ................................ 8

19

B. Baze v. Rees Establishes that California’s Lethal-Injection

20

Regulations are Facially Constitutional as a Matter of Law. ...................... 9

1. Plaintiffs Fail to Allege a Facial Claim that the Regulations

21

Lack Sufficient Requirements for the Minimum

Qualifications and Experience Required for Intravenous

22

Sub-Team Members. ..................................................................... 13

23

2. The Training Required by California Exceeds What Was Noted with Approval in Baze. ....................................................... 14

24

3. California’s Requirements for Mixing Sodium Thiopental

and Training in This Regard Comport With Baze. ....................... 15

25

4. California’s Regulations Regarding a Check for Inmate

26

Consciousness Exceed the Kentucky Protocol Approved In Baze. .............................................................................................. 16

27

5. California’s Required Dosage of Sodium Thiopental Is

Identical to Kentucky’s—Three Grams. ....................................... 17

28

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1

TABLE OF CONTENTS

2

(continued)

Page

3

6. Additional Inaccurate and Implausible Attacks on the

Regulations as Written Fail to State a Facial Challenge. .............. 17

4

C. Plaintiffs Have Failed to State a Claim that an Alternative to

5

California’s Regulations Will Eliminate a Substantial Risk of Severe Pain................................................................................................ 18

6 Conclusion .................................................................................................................................... 20

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ii
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1

TABLE OF AUTHORITIES

2

Page

3

CASES 4

5

Ashcroft v. Iqbal 129 S.Ct. 1937 (2009) ............................................................................................................... 9

6 Balistreri v. Pacifica Police Dep.’t

7

901 F.2d 696, 699 (9th Cir. 1990)............................................................................................. 8

8 Baze v. Rees

553 U.S. 35 (2008) ........................................................................................................... passim

9

Bell Atl. Corp. v. Twombly

10

550 U.S. 544 (2007) .............................................................................................................. 8, 9

11 Cooey II v. Strickland

12

589 F.3d 210 (6th Cir. 2009) ................................................................................................... 15

13 Emmett v. Johnson 532 F.3d 291 (4th Cir. 2008)................................................................................................... 15

14

Farmer v. Brennan

15

511 U.S. 825 (1994) ...................................................................................................... 9, 10, 19

16 Gregg v. Georgia

17

428 U.S. 153 (1976) .................................................................................................................. 9

18 Hamilton v. Jones 472 F.3d 814 (10th Cir. 2007)................................................................................................. 15

19 Harrison v. Little

20

571 F.3d 531 (6th Cir. 2009)................................................................................................... 15

21 Helling v. McKinney

22

509 U.S. 25 (1993) .............................................................................................................. 9, 10

23

Hill v. McDonough 547 U.S. 573 (2006) .................................................................................................................. 9

24 In re Kemmler

25

136 U.S. 436 (1890) .................................................................................................................. 9

26 Morales v. Cate

27

2010 WL 3835655 (N.D. Cal.).................................................................................................. 3

28
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1

TABLE OF AUTHORITIES

2

(continued)

Page

3 Morales v. Tilton

4

465 F.Supp.2d 972 (N.D. Cal. 2006) ........................................................................................ 3

5

Navarro v. Block 250 F.3d 729 (9th Cir. 2001)..................................................................................................... 8

6 Sprewell v. Golden State Warriors

7

266 F.3d 979 (9th Cir. 2001)..................................................................................................... 9

8 Thompson v. Davis 295 F.3d 890 (9th Cir. 2002)..................................................................................................... 8
9

10 STATUTES

11

United States Code, Title 42 § 1983................................................................................................................................ 1, 3, 9

12 CONSTITUTIONAL PROVISIONS
13 Eighth Amendment ................................................................................................................ passim
14 COURT RULES
15 Federal Rule of Civil Procedure 12(b)(6) ......................................................................... 1, 3, 8, 20
16

17 OTHER AUTHORITIES

18

California Business & Professions Code § 2860.5..................................................................................................................................... 5

19 California Code of Regulations, Title 15

20

§ 3349.1.2(4) ........................................................................................................................... 13

§ 3349.1.1(p) .................................................................................................................... passim

21

§ 3349.1.3(c)(2)................................................................................................................ passim

22

§ 3349.1.4(c) ..................................................................................................................... 14, 15 § 3349.1.4(e)(1)....................................................................................................................... 14

23

§ 3349.2.2(e)(1)....................................................................................................................... 14

§ 3349.3(c)(3) & (4) ................................................................................................................ 18

24

§ 3349.4.3(b) ........................................................................................................................... 15

§ 3349.4.5(g)(4)(F) & (G) ....................................................................................................... 10

25

§ 3349.4.5(g)(5)(A) ........................................................................................................... 16, 17

26

§ 3349 et seq. ............................................................................................................................ 3

27 California Code of Regulations, Title 16

28

§ 2542.1..................................................................................................................................... 5

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1

TABLE OF AUTHORITIES

2

(continued)

Page

3 California Code of Regulations, Title 22

4

§ 100106.................................................................................................................................... 5 § 100145.................................................................................................................................... 5

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 v
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1

TO PLAINTIFFS MICHAEL ANGELO MORALES AND ALBERT G. BROWN AND

2 THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on December 2, 2010, at 1:30 p.m. or as soon thereafter as

4 counsel may be heard, in Courtroom Three of the United States Courthouse, located at 280

5 South First Street, San Jose, California, Defendants Governor Arnold Schwarzenegger, Secretary

6 Matthew Cate, and Warden Vincent Cullen (Defendants) will and hereby do move the Court

7 under Federal Rule of Civil Procedure 12(b)(6) to dismiss two of Plaintiffs’ three claims for a

8 failure to state a claim: (1) Plaintiffs’ facial challenge to the State of California’s written

9 regulations governing the administration of the death penalty by use of lethal injection; and (2)

10 Plaintiffs’ attempt to allege a claim that, under the standard for adopting an alternative execution

11 protocol set forth in Baze v. Rees, 553 U.S. 35, 61 (2008), there exists a known and available

12 alternative to California’s regulations as written which, in comparison to California’s regulations,

13 significantly reduces a substantial risk of severe pain.

14

Defendants note that Plaintiffs reiterate throughout their Fourth Amended Complaint that,

15 while they are challenging California’s lethal-injection regulations as they are written, they are

16 also alleging a third claim by which they challenge the constitutionality of these same regulations

17 as they are applied. Defendants are not presently moving by way of this motion to dismiss

18 Plaintiffs’ third “as applied” claim.

19

Defendants’ motion is based on this notice of motion and motion, the memorandum of

20 points and authorities, the request for judicial notice, as well as the pleadings and records on file

21 in this case.

22

MEMORANDUM OF POINTS AND AUTHORITIES

23

INTRODUCTION

24

Plaintiffs, California death-row inmates, have filed their Fourth Amended Complaint under

25 42 U.S.C. § 1983, seeking relief for alleged violations of their right to be free from cruel and

26 unusual punishment. (Am. Compl. ¶ 1.) Plaintiffs attempt to challenge in two respects the

27 written regulations by which the California Department of Corrections and Rehabilitation

28 (CDCR) is required to execute inmates under a sentence of death by lethal-injection. First, 1
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1 Plaintiffs contend that, if an execution is carried out in compliance with California’s lethal-

2 injection regulations as they are written, that execution will carry a substantial risk that an inmate

3 will suffer torturous pain. Second, Plaintiffs attempt to allege a claim that California’s lethal-

4 injection regulations, as they are written, carry a substantial risk of harm in comparison to known

5 and feasible alternatives to California’s regulations.

6

However, Plaintiffs failed to state a claim for a facial challenge to California’s regulations

7 because the regulations are substantially similar to or exceed the regulations approved by the

8 United States Supreme Court in Baze. Plaintiffs have not alleged facts sufficient to state a claim

9 that, as written, California’s regulations will necessarily subject Plaintiffs to a substantial risk of

10 serious harm, where serious harm means severe pain.

11

Further, Plaintiffs have not articulated a claim that there is a feasible, readily implemented

12 alternate protocol which would, in comparison to California’s regulations, significantly reduce a

13 substantial risk of severe pain. Therefore, they have failed allege facts sufficient to state a claim

14 that, from an Eighth Amendment perspective, an alternate lethal-injection protocol ought to

15 displace California’s lethal-injection regulations

16

Therefore, at this point, Defendants respectfully request that Plaintiffs’ facial challenge to

17 California’s regulations, and attempt to allege a claim that an alternate protocol exists which

18 under the Baze test should displace California’s regulations, should each be dismissed.

19

STATEMENT OF ISSUES

20

1. In Baze v. Rees, 553 U.S. 35 (2008), the Supreme Court upheld Kentucky’s lethal-

21 injection protocol against a challenge under the Eighth Amendment of the Constitution. The

22 Court held that “[a] State with a lethal injection protocol substantially similar to the protocol we

23 uphold today would not create a risk that meets this standard.” Id. at 61. Given the similarities

24 between California’s regulations and Kentucky’s protocol have Plaintiffs’ failed to state facts

25 sufficient to allege a facial challenge to California’s written regulations?

26

2. Baze requires a comparison of an alternative protocol to the challenged portions of an

27 existing protocol, to determine whether the challenged terms of an existing protocol present a

28 demonstrated and substantial risk of severe pain in comparison to a specific, available, and 2
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1 feasible alternative. Plaintiffs have not alleged the terms of a known and available alternate

2 protocol that would satisfy the Eighth Amendment. Have Plaintiffs failed to allege a claim that

3 the challenged terms of California’s protocol should be displaced by an alternative protocol?

4

STATEMENT OF THE CASE

5

On January 5, 2006, Plaintiff Morales, a state prison inmate, filed this civil-rights lawsuit

6 under 42 U.S.C. § 1983. This Court described Plaintiff Morales’ challenge as follows: “This case

7 presents a vary narrow question: does California’s lethal-injection protocol—as actually

8 administered in practice—create an undue and unnecessary risk that an inmate will suffer pain so

9 extreme that it offends the Eighth Amendment?” Morales v. Tilton, 465 F.Supp.2d 972, 974

10 (N.D. Cal. 2006). Thereafter, a state-court judgment required that any lethal-injection protocol

11 must be adopted as regulations through California’s Administrative Procedure Act before any

12 executions could take place. Meanwhile, the U.S. Supreme Court issued its opinion in Baze, in

13 which it upheld the constitutionality of Kentucky’s lethal-injection protocol, and set forth

14 standards by which an Eighth Amendment challenge to a state’s execution protocol must be

15 adjudicated.

16

On July 30, 2010, the State of California’s Office of Administrative Law issued its Notice

17 of Approval of California’s new lethal-injection regulations, Cal. Code Regs. tit. 15 §§3349 et

18 seq. (Request For Judicial Notice, Exhibit A.) These regulations went into effect on August 29,

19 2010. (Id. ) Thereafter, the Court permitted Plaintiff Brown to intervene in this case. This Court

20 noted that Brown apparently raised substantial questions of fact about whether some of

21 California’s former lethal-injection protocol “have been addressed in actual practice.” Morales

22 v. Cate, 2010 WL 3835655 (N.D. Cal.) (emphasis in original). On October 8, 2010, Plaintiffs

23 filed their Fourth Amended Complaint in which they attempt to allege both facial and as-applied

24 challenges to California’s new lethal-injection regulations, and in addition, attempt to allege a

25 claim that unspecified alternate protocols prevail over California’s regulations under the test set

26 forth in Baze. Defendants now move under Rule 12(b)(6) to dismiss Plaintiffs’ facial challenge

27 and the claim that there is an alternate protocol to California’s regulations which satisfies the

28 Baze test.

3
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1

STATEMENT OF FACTS

2 I. CALIFORNIA’S NEW LETHAL-INJECTION REGULATIONS.

3

California, like the Federal government and more than 30 states, require the infusion of

4 three chemicals to carry out death sentences. Baze, 553 U.S. at 44.

5

Many, but not all, of Plaintiffs’ allegations go to the formation, qualifications, training, and

6 tasks assigned to, an Intravenous Sub-Team and an Infusion Sub-Team. California’s regulations

7 require that the Intravenous Sub-Team insert intravenous catheters, place electronic monitoring

8 sensors on an inmate, check an inmate for consciousness during an execution, monitor

9 intravenous lines, and crimp and uncouple intravenous lines. Cal. Code Regs. tit. 15 §§

10 3349.1.1(p), 3349.1.3(c)(2). The Infusion Sub-Team will receive the lethal-injection chemicals,

11 mix them according to the manufacturer’s instructions, draw them into syringes, label and color

12 code the syringes, and infuse the lethal-injection chemicals. Id. §§ 3349.1.1(o), 3349.1.3(c)(3).

13

A. Team Selection and Required Qualifications.

14

The Warden of San Quentin, with assistance, will normally coordinate the recruitment and

15 selection of team members from the employees of San Quentin. Id. § 3349.1.2(a)(1). If

16 necessary, however, the Warden may contract with other medical personnel to serve as members

17 of the team, or to serve as the physician attending the execution. Id. § 3349.1.2(a)(4)(B). The

18 Warden may also, if necessary, select team members from other CDCR locations or outside of

19 CDCR. Id. § 3349.1.2(a)(3). The Warden shall form and head a team-selection panel to review

20 the qualifications, interview prospective team members, and select members of the Lethal

21 Injection Team. Id. 3349.1.2(a)(4)(A). The selection panel must interview each prospective team

22 member; review all of their available performance evaluations; personnel, supervisory, and

23 training files; and perform a criminal-background check. Id. § 3349.1.2(b). In addition,

24 Intravenous Sub-Team members are also required to:

25

“(A) Maintain current certification and license to insert intravenous catheters into

26 peripheral veins.1

27

1 In California, the license held by registered nurses permits them to insert intravenous

catheters. There are other licensed medical professionals who are also allowed to insert

28

(continued…)

4

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1

(B) Maintain a current certification and license for placement of the Electrocardiogram

2 (ECG) leads used during the lethal injection process.

3

(C) Demonstrate ability to insert an intravenous catheter or catheters into an appropriate

4 vein or veins of an inmate.

5

(D) Demonstrate ability to set up intravenous lines and intravenous drip.

6

(E) Qualified in the appropriate placement of the ECG leads utilized during this process.

7

(F) Regularly set up intravenous lines in the performance of their job duties, unrelated to

8 their duties on the Lethal Injection Team.

9

(G) Have a basic understanding of the effects of the three chemicals used in the lethal

10 injection process.”

11

Id. § 3349.1.2(4)

12

B. Team Training.

13

All CDCR employees who are also lethal-injection team members are required to train

14 monthly, and this training shall include a simulation of an execution by lethal injection. Id. §

15 3349.1.4(c). Intravenous Sub-Team members shall also train in the use of electronic monitors for

16 vital signs, setting up intravenous lines and drip, determining the size of catheters to be used,

17 recognizing potential problems and recommendations for avoidance or resolution, checking for

18 consciousness, monitoring intravenous lines to ensure patency, and crimping and uncoupling

19 intravenous lines. Id. § 3349.1.4(c)(3). Training for Infusion Sub-Team members includes the

20 appropriate mixing of chemicals to be used in the lethal-injection process, the proper level and

21 rate for infusing the chemicals into intravenous lines, proper sequence for infusing the three

22 chemicals and the effects of each chemical, numbering and color coding for syringes of

23 chemicals, handling and accounting for controlled substances, and identifying, avoiding, and

24 resolving potential problems. Id.§ 3349.1.4(c)(4).

25 (…continued) intravenous catheters if they hold specific medical professional licenses, and complete additional
26 requirements to obtain a special certification. These professions include licensed vocational nurses, paramedics, and advanced emergency medical technicians (EMTs). Cal. Bus. & Prof.
27 Code § 2860.5, Cal. Code Regs. tit. 16 § 2542.1, Cal. Code Regs. tit. 22 § 100145, Cal. Code Regs. tit. 22 §100106.
28 5
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1

In addition to the monthly training, additional training shall be conducted in the 30 days

2 before a scheduled execution date. Id. § 3349.1.4(d)(2). Each training session shall be conducted

3 for a minimum of eight hours. Id. at § 3349.1.4(d)(3). No CDCR personnel on the Lethal

4 Injection team may participate in an execution unless they have had at least six prior training

5 sessions. These include at least three sessions in the six months before an execution, and one

6 training session per day for each of the three days immediately before an execution. Id. §

7 3349.1.4(d)(4). Each sub-team leader must maintain a training file that includes a record of all

8 lethal-injection-process training sessions. Id. §§ 3349.1.4(e)(1), 3349.2.2(e)(1).

9

C. The Execution.

10

1. Selection of Veins.

11

When an execution order is received, the inmate shall be referred to the Intravenous Sub-

12 Team for a vein assessment to determine the size, location, and resilience of the veins in the front

13 or inside of the elbow areas. If no suitable vein is found there, alternate sites will be considered,

14 including but not limited to the forearm, wrist, back of hand, top of foot, ankle, lower leg, or other

15 appropriate location, and the results will be reported to the Warden. Id. § 3349.3(c)(3) & (4).

16

2. Mixing And Custody of Chemicals.

17

The lethal-injection chemicals shall be obtained from a licensed pharmaceutical facility or

18 distributor, and the chemicals to be used shall be recorded in a mandatory chain-of-custody form

19 required by regulation. Id. § 3349.4.1(c)(1). The chemicals and saline to be used are to be

20 secured in the Lethal Injection Facility. Id. § 3349.4.1(c)(2). Three hours before the execution,

21 the chemicals shall be transferred to the Infusion Sub-Team, and two members shall verify this

22 transfer on a chain-of-custody form. Id. § 3349.4.3(a)(3).

23

3. Preparation of Chemicals and Syringes.

24

Two identical trays of chemicals and saline shall be prepared in color-coded syringes, and

25 the sodium thiopental shall be mixed according to the manufacturer’s instructions. Id. §

26 3349.4.3(b). Each tray shall include two syringes with 1.5 grams of sodium thiopental (a total of

27 3 grams per tray), followed by a syringe of 50 cc saline flush, then one syringe with 50

28 milligrams of pancruronium bromide, then a syringe with 50 cc of saline flush, then two syringes 6
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1 that shall each contain 100 milliequivalents of potassium chloride (a total of 200 milliequivilents

2 per tray), and a final syringe with 50 cc of saline flush. Id. § 3349.4.3(b)(2).

3

4. Inserting IV Catheters and Execution-Room Monitoring of Inmate.

4

During the execution the inmate shall be secured, and the Intravenous Sub-Team will insert

5 two intravenous catheters into pre-designated veins that were identified during the prior vein

6 inspection, and designate which will be the primary and back-up intravenous lines. Id. §

7 3349.4.5(e)(3) & (5). One Intravenous Sub-Team member must remain in the execution room to

8 continuously monitor the intravenous lines, and stand next to the inmate and access the inmate’s

9 consciousness throughout the execution. Id. § 3349.4.5((d)(8). The Warden must also take a

10 position within the execution room and must remain in close proximity to the inmate. Id. §

11 3349.4.5(f).

12

5. Administering Chemicals, Consciousness Checks, and When to Use The

Alternate IV Catheter. 13

14

The Warden will direct the Infusion Sub-Team to administer the lethal-injection chemicals

15 and saline. Id. § 3349.4.5(f)(6). If at any time the primary intravenous catheter fails, the Warden

16 shall be notified and will direct the entire lethal-injection sequence to begin again using the back-

17 up intravenous catheter and back-up tray of chemicals. Id. § 3349.4.5(g)(3).

18

The process will begin with the administration of the first 1.5 gram dosage of sodium

19 thiopental, followed by a consciousness assessment of the inmate. Id. at § 3349.4.5(g)(5)(A). The

20 Intravenous Sub-Team member shall brush the back of a hand over the inmate’s eyelashes, speak

21 to and gently shake the inmate. Id. Observations will be documented. Id. If the inmate is

22 unresponsive, this will demonstrate unconsciousness. Id. Then a second dosage of 1.5 grams of

23 sodium thiopental shall be administered, and a second consciousness check performed. Id. §

24 3349.4.5(g)(5)(C). If the inmate is unconscious, the remaining syringes shall be administered.

25 Id. § 3349.4.5(g)(5)(C)-(H).

26

However, if after the administration of either the first or second dosages of 1.5 grams of

27 sodium thiopental, the consciousness check shows that the inmate was not rendered unconscious,

28 then the Warden will direct that the back-up intravenous catheter and line be used, and the entire 7
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1 duplicate sequence of chemicals on the back-up chemical tray will be administered in the same

2 order. Id. § 3349.4.5(g)(6). That means a dosage of sodium thiopental, followed by a

3 consciousness check, then a second dosage of sodium thiopental, followed by a second

4 consciousness check, and then the remaining chemicals. Id.

5

6. Physician Monitoring.

6

The inmate’s heart activity shall be monitored by electronic devices, and the devices shall

7 be monitored by an attending physician. Id. § 3349.4.5(g)(7) & (8). Death will be determined by

8 the attending physician. Id. § 3349.4.5(g)(8).

9

7. Documented Post-Execution Critique For Compliance With Regulations.

10

Within 72 hours after each execution, the Warden must critique the execution. “The

11 purpose of the critique will be to evaluate the execution from all operational perspectives,

12 including compliance with the regulations.” Id. § 3349.4.6(n)(1). This critique shall be

13 documented and included in a master execution file, which is a permanent record maintained in

14 the Warden’s office. Id. §§ 3349.4.6(n)(2), 3349.1.1(w).

15 16 I. 17 18

ARGUMENT PLAINTIFFS FAIL TO STATE A CLAIM AGAINST THE REGULATIONS AS WRITTEN OR FOR AN ALTERNATIVE PROTOCOL TO THE NEW REGULATIONS. A. The Standard For A Rule 12(b)(6) Motion To Dismiss.

19

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block,

20 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is appropriate where the complaint lacks sufficient

21 facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

22 (9th Cir. 1990).

23

To sufficiently state a claim to relief, a pleading “does not need detailed factual allegations”

24 but the “[f]actual allegations must be enough to raise a right to relief above the speculative level.”

25 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court must assume the truth of facts

26 presented and construe all inferences from them in the light most favorable to the nonmoving

27 party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). However, “[t]hreadbare recitals of

28 the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 8
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1 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at

2 555). A court is not “required to accept as true allegations that are merely conclusory,

3 unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors,

4 266 F.3d 979, 988 (9th Cir. 2001). A complaint is insufficient if it alleges no more than enough

5 to leave open the possibility that a plaintiff might later establish some set of undisclosed facts to

6 support recovery. Twombly, 550 U.S. at 561. Instead, a complaint “must contain sufficient

7 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 129

8 S.Ct. at 1949.

9

B. Baze v. Rees Establishes That California’s Lethal-Injection Regulations

Are Facially Constitutional As a Matter of Law. 10

11

In 2008, two years after this action was initially filed, the U.S. Supreme Court clarified the

12 standards for challenging the constitutionality of written execution protocols. As that court noted,

13 the Eighth Amendment does not bar capital punishment. Baze, 553 U.S. at 47 (citing Gregg v.

14 Georgia, 428 U.S. 153, 177 (1976)). Rather, execution procedures only become “cruel when they

15 involve torture or lingering death.” In re Kemmler, 136 U.S. 436, 447 (1890). There must be

16 “something inhumane and a barbarous, something more than the mere extinguishment of life.”

17 Id. Before a risk of harm can qualify as cruel and unusual punishment, “the conditions presenting

18 the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise

19 to ‘sufficiently imminent dangers.’” Baze, 553 U.S. at 49-50 (quoting Helling v. McKinney, 509

20 U.S. 25, 33, 34–35 (1993) (emphasis added in Baze)).

21

To prevail on a claim that the risk of harm violates the Eighth Amendment, a plaintiff must

22 demonstrate a “substantial” and “objectively intolerable risk” of harm. Baze, 553 U.S. at 50

23 (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 (1994)). The prisoner must demonstrate that

24 the procedure at issue is “cruelly inhumane.” Baze, 553 U.S. at 52 (quoting Gregg, 428 U.S. at

25 175). Challenges to the execution procedures are properly raised by inmates under §1983. See

26 Hill v. McDonough, 547 U.S. 573, 576 (2006) (holding that challenge to state’s lethal-injection

27 protocol is cognizable under § 1983).

28 9
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1

In Baze v. Rees, the United States Supreme Court rejected a nearly identical challenge by

2 condemned inmates to Kentucky’s lethal-injection protocol, which also used a three-drug

3 combination consisting of 3 grams of sodium thiopental, 50 milligrams of pancuronium bromide, 4 and 240 millequivalents of potassium chloride.2 See Baze, 553 U.S. at 45. The Baze petitioners

5 claimed there was a significant and unnecessary risk that the sodium thiopental would not be

6 properly administered to achieve its intended effect. 553 U.S. at 49. They also advocated

7 adoption of a one-drug barbiturate protocol to eliminate any perceived risk. Id. at 51. The Court

8 rejected the Baze petitioners’ proposed “unnecessary risk” standard and held instead that

9 condemned inmates must demonstrate “‘a substantial risk of serious harm,’” or “an ‘objectively

10 intolerable risk of harm that prevents prison officials from pleading that they [are] ‘subjectively

11 blameless for purposes of the Eighth Amendment,’” (Id.) (quoting Farmer v. Brennan, 511 U.S.

12 825, 846 n.9 (1994)). The Court recognized that “[s]ome risk of pain is inherent in any method of

13 execution—no matter how humane—if only from the prospect of error in following the required

14 procedure.” Id. at 47. “[A] risk of future harm—not simply actually inflicting pain—can qualify

15 as cruel and unusual punishment,” but only if “the conditions presenting the risk [are] ‘sure or

16 very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent

17 dangers.’” Id. at 49-50 (quoting Helling v. McKinney, 509 U.S. 25, 33–35 (1993)). “Simply

18 because an execution method may result in pain, either by accident or as an inescapable

19 consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that

20 qualifies as cruel and unusual” under the Eighth Amendment. Id. at 50. Thus, to prevail on an

21 Eighth Amendment challenge to a state’s lethal-injection protocol, a condemned prisoner must

22 satisfy the “heavy” burden of proving that the protocol poses a substantial risk of serious harm

23 that is sure or very likely to cause needless suffering. Id.

24

In considering Kentucky’s protocol, the Baze court noted the existence of “important

25 safeguards to ensure that an adequate dose of sodium thiopental [,] . . . [t]he most significant of

26 2 California’s dosage requirements only differ from Kentucky’s as to the third drug to be
27 administered, potassium chloride. California only requires a total of 200 millequivilents of this drug. Cal. Code. Regs. tit. 15 § 3349.4.5(g)(4)(F) & (G).
28 10
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1 [which] is the written protocol’s requirement that members of the IV team must have at least one

2 year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or

3 military corpsman . . . [and] participate in at least 10 practice sessions per year.” Baze, 553 U.S.

4 at 55. Other safeguards in Kentucky’s protocol cited by the Supreme Court include the

5 requirement that the Kentucky IV team establish both primary and backup lines and prepare two

6 sets of the lethal-injection drugs before the execution commences. Id. “These redundant

7 measures ensure that if an insufficient dose of sodium thiopental is initially administered through

8 the primary line, an additional dose can be given through the backup line before the last two

9 drugs are injected.” Id. The Supreme Court also noted that the presence of a warden and deputy

10 warden in the execution chamber with the prisoner allowed him to watch for signs of IV

11 problems, and was sufficient to monitor consciousness of the inmate during the execution. Id. at

12 56.3 And it accepted that the task of mixing sodium thiopental could be accomplished by

13 following the manufacturer’s instructions. Id. at 54.

14

In addition to establishing the “substantial risk of serious harm” standard, the Baze plurality

15 set the standard for a condemned prisoner to contend that a state’s lethal-injection protocol should

16 be modified to satisfy the Eighth Amendment. An inmate can prevail on his claim only if he

17 demonstrates that: (1) the challenged protocol poses a substantial risk of serious harm, where

18 serious harm means “severe pain” and (2) the alternative procedures proposed are feasible,

19 readily implemented, significantly reduce a substantial risk of severe pain, and do not conflict

20 with the state’s legitimate peneological interests. Id. at 52. The Court emphasized that “an

21 inmate cannot succeed . . . simply by showing one more step the State could take as a failsafe for

22 other, independently adequate measures.” Id. at 60-61. The Court held that an inmate “must

23 show that the risk is substantial when compared to the known and available alternatives. A State

24 with a lethal injection protocol substantially similar to the protocol we uphold today would not

25 create a risk that meets this standard.” Id. at 61

26

3 In her dissent, Justice Ginsberg noted with approval that California’s consciousness

check, consisting of brushing an inmate’s eyelashes, speaking to the inmate and shaking him at

27 both the halfway point and, again, at the completion of the sodium thiopental injection, exceeded

Kentucky’s means for monitoring consciousness. Id. at 120-21.

28

11

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1

The Baze petitioners contended that they had identified a significant risk of harm that could

2 be eliminated by adopting a one-drug protocol that dispenses with the use of pancuroniun

3 bromide and potassium chloride. Id. at 51. The Court rejected this alternative, stating an inmate

4 may not challenge an execution protocol merely by showing that an alternative is “slightly or

5 marginally safer” and that courts should not be transformed into a board of inquiry charged with

6 determining the “best practices” for executions. Id.

7

California’s lethal-injection protocol satisfies the standard set forth in Baze. The protocol is

8 substantially similar to Kentucky’s lethal-injection protocol in that Plaintiffs cannot show a

9 demonstrated risk of severe pain. California’s protocol provides safeguards to ensure the

10 adequate delivery of sodium thiopental to place the inmate in a deep state of unconsciousness.

11 Moreover, Plaintiffs have not pleaded facts that, if assumed to be true, demonstrate that the risk of

12 an execution conducted in compliance with California’s lethal-injection regulations, as they are

13 written, is substantial when compared to the known and available alternatives. Baze, 553 U.S. at

14 52.

15

Instead, Plaintiffs state that an inmate will suffer pain during an execution if the first drug in

16 the process is not administered correctly. (Am. Compl. 12:27-13:1 (“It is indisputable and

17 undisputed that an inadequately anesthetized inmate injected with potassium chloride will

18 experience torturous pain.”); 33:2-5 (“Instead, Defendants’ Regs./Op 770 intends to continue to

19 make use of the same complicated three drug protocol involving the use of two drugs which

20 indisputably cause excruciating pain when improper sedation occurs.”); 51:8-10 (“Inducing and

21 maintaining a sufficient level of unconsciousness by correctly administering sodium thiopental is

22 indispensible to preventing the wanton infliction of severe pain when the potassium chloride

23 overdose is administered.”).

24

Plaintiffs defective claim attempts to attack aspects of California’s lethal-injection

25 regulations which are substantially similar to or exceed comparable aspects of the Kentucky

26 protocol upheld in Baze. And they fail to state facts that allege a particular aspect of California’s

27 protocol poses a substantial risk of serious harm such as severe pain. Plaintiffs also fail to plead

28 specific alternative procedures that are feasible, readily implemented, and do not plead facts 12
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Case3:06-cv-00219-RS Document430 Filed10/25/10 Page19 of 27

1 showing that there are alternative procedures which will significantly reduce a substantial risk of

2 severe pain when compared to the current California regulations.

3

1. Plaintiffs Fail to Allege a Facial Claim That the Regulations Lack

Sufficient Requirements for the Minimum Qualifications and

4

Experience Required for Intravenous Sub-Team Members.

5

Plaintiffs incorrectly allege that California’s regulations fail to require adequate screening

6 of members of the Intravenous Sub-Team, and do not require minimum qualifications and

7 experience levels for team members. (Am. Compl. 6:19-20, 9:14-15, 27:23-26 (alleged lack of

8 psychological criteria), 28:6-8 (no exclusion of individuals who in the past worked in the

9 condemned housing unit), 40:6-11 (failure to require experience with IVs), 40:14-15 (failure to

10 specify the categories of professional certifications required for team membership, which was an

11 aspect of the Kentucky protocol approved in Baze), 40:19-21 (failure to require qualified medical

12 personnel), 41:13-15, 44:24-25, 45:5-6 (failure to require experience monitoring IV lines), 50:9-

13 12 (failure to specify qualifications required of IV team members), and 50:14-16 (failure to

14 specify team members must have experience with IV line blockages).

15

In fact, California’s regulations are either substantially similar to, or exceed, the Kentucky

16 protocol approved by the Supreme Court in this regard. As noted above, California requires that

17 its Intravenous Sub-Team members must be licensed medical professionals. Cal. Code Regs. tit.

18 15 § 3349.1.2(4). California’s written requirement that qualifying professionals are limited to

19 those who maintain current licensure and certification for the setting of IV catheters and lines

20 serves to, like Kentucky’s protocol, limit qualifying team members to medical professionals who

21 are required by law to obtain the education and training necessary to perform these services for

22 the general public. Although California does not, like Kentucky, require that team members have

23 at least one year of prior experience, this is not significant because California has the added

24 requirement that its team members must also concurrently work in positions outside of the

25 execution team where they are required to regularly provide IV services. Id.

26

///

27

///

28 13
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1

2. The Training Required by California Exceeds What Was Noted With

Approval in Baze.

2

3

Plaintiffs have failed to state a claim that California’s regulations regarding training of

4 execution-team members violates the Eighth Amendment. Although Plaintiffs assert in a

5 conclusory manner that the regulations lack sufficient criteria and requirements for the training of

6 execution-team members, the truth is that California’s requirements in this regard exceed the

7 Kentucky training requirements approved in Baze.

8

Plaintiffs allege that California’s regulations as written fail to require sufficient training for

9 execution team members, criteria for trainers of the team, and do not require documentation of

10 training. (Id. at 6:19, 9:1-7, 9:14-15, 13:18-19 (regulations as written “lacks even the most basic

11 protection or training regimen”), 30:13-21, 41:17-19, 41:20-21, 41:22-25 (regulations do not

12 require 10 training sessions a year, which was required in the Kentucky protocol approved in

13 Baze), 41:27-28 (no requirement for training attendance records), 42:3-4 (failure to provide for an

14 evaluation team to evaluate training sessions), 42:5-7, 42:9-10, 42:13-16 (failure to require

15 training which includes setting of IV catheters on live subjects, as was required by the Kentucky

16 protocol approved in Baze), 43:8-11, 50:3-5, and 50:9-12.)

17

But Plaintiffs again ignore the amount of training required by California’s regulations, and

18 fail to note that it exceeds what was required under the Kentucky protocol approved in Baze.

19 California requires 12 full eight-hour training sessions per year. Cal. Code. Regs. tit. 15 §

20 3349.1.4(c). In addition, California requires that team members also participate in daily training

21 sessions for the three days before each execution. Id. § 3349.1.4(d)(4). By contrast, Kentucky

22 only requires 10 training sessions per year. Baze, 553 U.S. at 55. And California requires

23 documentation of training sessions by mandating that each sub-team leader must maintain a

24 training file that includes a record of all lethal-injection-process training sessions. Cal. Code.

25 Regs. tit. 15 §§ 3349.1.4(e)(1), 3349.2.2(e)(1).

26

California’s screening and training requirements are more than sufficient when compared to

27 the requirements noted by the Supreme Court in Baze. Indeed, various circuit courts have upheld

28 execution protocols that have training and team-member-qualification requirements which are 14

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1 similar, or less stringent, than those found in California’s written regulations. See Cooey II v.

2 Strickland, 589 F.3d 210 (6th Cir. 2009) (regarding Ohio’s qualifications, and training

3 requirements, for execution team members); Harrison v. Little, 571 F.3d 531, 538 (6th Cir. 2009)

4 (finding that the use of two paramedic technicians to administer the IV and monthly training

5 sessions of the execution team provided sufficient safeguards to assume proper administration of

6 Tennessee’s protocol); Emmett v. Johnson, 532 F.3d 291, 295 (4th Cir. 2008) (finding sufficient

7 Virginia’s requirements that the execution team undergo eight hours of training per month and

8 that at least two team members “have received training as military corpsmen, cardiac emergency

9 technicians, or should receive on-the-job training from a physician in receiving and dispensing

10 medications, to include starting and administering IV fluids”); Hamilton v. Jones, 472 F.3d 814,

11 816 (10th Cir. 2007) (rejecting a similar challenge to Oklahoma’s protocol, which requires that

12 “an EMT-P or person with similar qualifications and expertise in IV insertion” establish the IV

13 drips).

14

Plaintiffs have failed to allege that the requirements found in California’s written

15 regulations for the training, screening, qualifications, and evaluations, of Intravenous Sub-Team

16 members violate the Eighth Amendment, and their claims must be dismissed.

17

3. California’s Requirements for Mixing Sodium Thiopental and Training

in This Regard Comport With Baze. 18

19

Plaintiffs have also failed to state a claim that California’s regulations violate the Eighth

20 Amendment because the regulations allegedly do not establish requirements for the knowledge

21 and training team members must have to mix sodium thiopental. California, like Kentucky,

22 requires that the team mix this drug according to the manufacturer’s instructions, and therefore

23 California does not differ from the Kentucky protocol approved by the U.S. Supreme Court in this

24 regard. Cal. Code Regs. tit. 15 § 3349.4.3(b); Baze, 553 U.S. at 54. Further, California’s

25 regulations specify that team members must participate in at least 12 full eight hour training

26 sessions per year in the entire execution procedure. Cal. Code Regs. tit. 15 § 3349.1.4(c).

27 Therefore, California requires training in, among other parts of the execution process, the mixing

28 of this chemical. California’s regulations exceed those of Kentucky in this regard. Plaintiffs’ 15
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1 attack against California’s regulations pertaining to the mixing of sodium thiopental must be

2 dismissed.

3

4. California’s Regulations Regarding a Check for Inmate Consciousness

Exceed the Kentucky Protocol Approved In Baze. 4

5

Plaintiffs have also failed to state a claim that California’s regulations, as written, lack

6 constitutionally sufficient qualification and training requirements for Intravenous Sub-Team

7 members regarding the need to check for an inmate’s unconsciousness during the execution

8 procedure. Plaintiffs’ allegations simply ignore Baze and disregard California’s written

9 requirements in this regard.

10

Plaintiffs assert in a conclusory manner that California’s regulations as written violate the

11 Eighth Amendment because they do not require that a person with unspecified “relevant” medical

12 experience check for consciousness after administration of sodium thiopental. They further

13 contend that California’s regulations lack specific criteria for training on this subject, or criteria

14 for screening of potential Intravenous Sub-Team members for expertise in this task. (Am. Compl.

15 at 31:21-25, 32:1-3, 45:7-8, 50:16-18, 51:14-16, and 51:11.) Plaintiffs also allege that the

16 regulations lack requirements for equipment, and qualified personnel to use such unspecified

17 equipment, to ensure unconsciousness. (Id. 39:1-5.) And Plaintiffs allege the regulations do not

18 require team members to check for whether an inmate is unconscious throughout the procedure.

19 (Id. 46:1-2.) Also, Plaintiffs allege that the regulations do not provide for what team members

20 should do if an inmate becomes conscious during the administration of the second or third drugs.

21 (Id. 51:15-16.)

22

But the Kentucky protocol approved by the Supreme Court simply required that a warden

23 and deputy warden observe the inmate for consciousness during an execution, and did not require

24 any specialized procedures, training or equipment in this regard. Baze, 553 U.S. at 58-60. By

25 contrast, as was noted by Justice Ginsberg in her dissent in Baze, California’s measures to check

26 for inmate consciousness go beyond Kentucky’s. See id. at 553 U.S. 120-21. California requires

27 two consciousness checks before the second and third drugs are administered. An inmate is given

28 only half of the sodium thiopental, 1.5 grams, before the first consciousness assessment. Cal. 16
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1 Code Regs. tit. 15 § 3349.4.5(g)(5)(A). The Intravenous Sub-Team member located in the

2 execution room is then required to brush the back of a hand over the inmate’s eyelashes, speak to

3 and gently shake the inmate. Id. Observations must be documented. Id. Thereafter, if the inmate

4 is unresponsive, the remaining 1.5 grams of sodium thiopental shall be administered, and a

5 second consciousness check performed. Id. § 3349.4.5(g)(5)(C). If the inmate is unconscious,

6 the remaining syringes are administered. Id. § 3349.4.5(g)(5)(C)-(H). If he is not unconscious, a

7 full set of chemicals from a second tray will be administered through a backup IV catheter, with

8 two additional consciousness checks performed before the second and third drugs can be

9 administered. Id. § 3349.4.5(g)(6).

10

In addition, Plaintiffs attempt to allege that California’s regulations bar the Warden from

11 the execution room, and that the inmate will not be closely monitored during an execution. But

12 these allegations, once again, simply ignore California regulations to the contrary. California’s

13 regulations require that the Warden, as well as one of the licensed medical professionals on the

14 Intravenous Sub-Team, must be present in the execution room and in close proximity to the

15 inmate during the execution. Id. at §§ 3349.4.5(f), 3349.4.5((d)(8).

16

5. California’s Required Dosage of Sodium Thiopental Is Identical to

Kentucky’s—Three Grams. 17

18

Further, Plaintiffs attempt to facially attack California’s regulations as written by

19 vaguely alleging that there is something wrong with the dosage level of sodium thiopental

20 required by California’s regulations. However, the dosage of this chemical required by California

21 is identical to that required by Kentucky’s protocol—three grams. Id. § 3349.4.5 (g)(5)(A) and

22 (B); Baze, 553 U.S. at 45. Plaintiffs have also failed to state a claim in this regard.

23

6. Additional Inaccurate and Implausible Attacks on the Regulations As

Written Fail to State a Facial Challenge. 24

25

Plaintiffs’ remaining attacks against California’s regulations, as they are written, are simply

26 implausible, or make incorrect assertions about the terms of California’s written regulations, and

27 do not rise to the level of an alleged Eighth Amendment violation. For example, Plaintiffs allege

28 that the regulations do not sufficiently govern the selection of the veins to be used for an 17
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Case3:06-cv-00219-RS Document430 Filed10/25/10 Page24 of 27

1 execution. (Am. Compl. 39:23-40:2.) But that is false. Cal. Code Regs. tit. 15 § 3349.3(c)(3) &

2 (4). Plaintiffs admit that California constructed a new execution facility, yet implausibly assert

3 that the Eighth Amendment is somehow violated unless California adopts a written prohibition

4 against conducting executions in the dark. (Am. Compl. 44:24-25 ) Plaintiffs’ allege that the

5 Warden of San Quentin is excluded from the execution room, but this is false. Id. § 3349.4.5(f).

6 Plaintiffs allege that the regulations exclude doctors from the execution process, but this is also

7 false. Id. §§ 3349.4.5(g)(7) and (8). Plaintiffs allege that the use of the three chemicals in

8 question violate FDA recommended uses for these drugs, but this does not state a plausible or

9 coherent Eighth Amendment claim. Examples of other irrelevant allegations which cannot be

10 considered Eighth Amendment violations include claims that the regulations are defective

11 because they do not require approval of executions by a court appointed receiver overseeing

12 medical care for California inmates (Am. Compl. 41:1-4), an alleged failure to exclude from the

13 execution teams all medical personnel currently employed by CDCR (id. at 41:6-11), and the

14 alleged use of IV lines for a procedure for which they were not intended (id. at 38:27-28).

15

In summary, although Plaintiffs, in their 57 page complaint, have in a repetitious manner

16 attempted to allege every possible alleged “best practice” and permutation of such practices that

17 they claim are not found in California’s regulations, they have not stated facts sufficient to allege

18 a claim that California’s execution regulations, as they are written, will result in substantial pain

19 to a condemned inmate in violation of the Eighth Amendment.

20

Plaintiffs have not stated facts sufficient to allege a facial challenge to California’s

21 execution regulations as they are written, and as a result their facial challenge must be dismissed.

22

C. Plaintiffs Have Failed to State a Claim That an Alternative to California’s

Regulations Will Eliminate a Substantial Risk of Severe Pain. 23

24

In Baze, the Supreme Court noted that a condemned prisoner cannot successfully challenge

25 a State’s execution method merely by demonstrating a slightly or marginally safer alternative.

26 According to the Court, “permitting an Eighth Amendment violation to be established on such a

27 showing would threaten to transform courts into boards of inquiry charged with determining ‘best

28 practices’ for executions, with each ruling supplanted by another round of litigation touting a new 18
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Case3:06-cv-00219-RS Document430 Filed10/25/10 Page25 of 27

1 and improved methodology.” Baze, 553 U.S. at 51. Alternatives proffered by a condemned

2 prisoner must instead effectively address a “substantial risk of serious harm.” Id. at 52 (quoting

3 Farmer v. Brennan, 511 U.S. 825, 842 (1994)). To qualify, the alternative procedure must be

4 “feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.”

5 Id.

6

In their fourth amended complaint, Plaintiffs fail to describe such an alternative procedure.

7 At various points in the complaint, Plaintiffs make vague references to alternatives to Defendants’

8 three-drug combination.4 However, they strain to avoid identifying any particular lethal-injection

9 method that would satisfy the Eighth Amendment. While they briefly acknowledge the single-

10 drug protocols adopted by Ohio and Washington, they never specifically state that those protocols

11 are constitutional or allege how they meet the Baze test by eliminating a substantial risk of severe

12 pain when compared to California’s regulations as written. Plaintiffs assert that the “three drug

13 procedure . . . creates a present risk of severe pain and suffering,” but fail to specify an alternative

14 procedure that would effectively address the “substantial risk of serious harm” to an inmate that

15 would allegedly occur if Defendants conducted an execution with the new regulations. Baze, 553

16 U.S. at 52.

17

Plaintiffs’ complaint fails to set forth an alternative procedure that is feasible, readily

18 implemented, and will significantly reduce a substantial risk of severe pain. Under Baze, a

19 condemned inmate must present such a procedure in challenging a State’s method of execution.

20 Accordingly, because Plaintiffs fail to allege a claim that Defendants’ regulations should be

21 displaced by an alternative protocol, this claim in the complaint should be dismissed.

22

23 4 For example, they contend that “Defendants’ continued use of their three-drug procedure
24 when tested, available alternatives exist establishes that the demonstrated risk of severe pain by Defendants’ process is substantial when compared to the known available alternatives.” (Am.
25 Compl. at 2:20-23.) They note that Ohio and Washington employ a method that uses solely thiopental, thereby avoiding the second and third drugs, pancuronium and potassium chloride. (Id.
26 at 47:18-20.) Near the end of the complaint, Plaintiffs assert that “feasible, readily implemented alternative procedures exist that would significantly reduce the substantial risk of excruciating
27 pain created by the . . . deficient protocol. These alternative procedures include, but are not limited to, a protocol that remedies the deficiencies” described in the complaint. (Id. at 59:9-13.)
28 19
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1

2

CONCLUSION

3

Plaintiffs fail to state a claim consisting of a facial attack against California’s regulations.

4 Nor have they stated a claim for the invalidation of California’s lethal injection regulations on the

5 basis that there exists an alternative that would significantly reduce a risk of severe pain when

6 compared to California’s execution method. These facial attacks against California’s execution

7 regulations claims must be dismissed pursuant to Rule 12(b)(6).

8

Plaintiffs’ only claim which ought to remain at this point, simply because it has yet to be

9 challenged by Defendants, is Plaintiffs’ dubious claim that, because CDCR allegedly did not

10 comply with a defunct execution protocol four or more years ago, it should be assumed that

11 CDCR is not now in compliance with current regulations that went into effect on August 29,

12 2010. All other claims should be dismissed.

13

14 Dated: October 25, 2010 15 16 17

Respectfully Submitted, EDMUND G. BROWN JR. Attorney General of California THOMAS S. PATTERSON Supervising Deputy Attorney General

18

19
20
21
22 SF2007200210 23 20360111.docx

s/ Jay M. Goldman JAY M. GOLDMAN Deputy Attorney General Attorneys for Defendants Schwarzenegger, Cate, and Cullen

24

25

26

27

28 20
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CERTIFICATE OF SERVICE

Case Name: Michael Angelo Morales v. James Tilton, et al.

No. C 06-0219 JF

I hereby certify that on October 25, 2010, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:

1. DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

2. [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FOURTH AMENDED COMPLAINT’S FACIAL CHALLENGES TO CALIFORNIA’S LETHAL-INJECTION-EXECUTION REGULATIONS, CAL. CODE REGS. TIT. 15 §§ 3349, ET SEQ., UNDER FRCP 12(b)(6) FOR FAILURE TO STATE A CLAIM

3. DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE (EXHIBIT A)

Participants in the case who are registered CM/ECF users will be served by the CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. On October 25, 2010, I will mail the foregoing document(s) by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within three (3) calendar days to the following non-CM/ECF participants:

Habeas Corpus Resource Center 303 Second Street, Suite 400 South San Francisco, CA 94107

Janice H. Lam Jenner & Block One IBM Plaza Chicago, IL 60611

Michael G. Millman California Appellate Project 101 Second St., Suite 600 San Francisco, CA 94105

Office of the Inspector General P.O. Box 348780 Sacramento, CA 95834

Stephanie L. Reinhart Jenner & Block One IBM Plaza Chicago, IL 60611

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on October 25, 2010, at San Francisco, California.

D. Criswell
Declarant 20361923.doc

s/ D. Criswell Signature

 
 Case3:06-cv-00219-RS Document428 Filed10/08/10 Page1 of 57

1

David A. Senior (# 108579) MCBREEN & SENIOR

2

2029 Century Park East, Third Floor Los Angeles, CA 90067

3

Phone: (310) 552-5300 Fax: (310) 552-1205

4 dsenior@mcbreensenior.com

5 John R. Grele (# 167080) LAW OFFICES OF JOHN R. GRELE
6 149 Natoma Street, Third Floor San Francisco, CA 94105
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken (admitted pro hac vice)

JENNER & BLOCK LLP 10 353 N. Clark Street

11

Chicago, IL 60654-3456 Phone: 312-222-9350

12

Fax: 312-527-0484 rsteinken@jenner.com

13 Attorneys for Plaintiffs

14

MICHAEL A. MORALES and ALBERT G. BROWN

15 IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SAN JOSE DIVISION

18 MICHAEL ANGELO MORALES, ALBERT G. BROWN,

) CASE NO. C 06 0219 (JF) (RS)

)

C 06-0926 (JF) (RS)

19

)

20 Plaintiffs,

) ) FOURTH AMENDED COMPLAINT FOR

21 v.

) EQUITABLE AND INJUNCTIVE RELIEF ) [42 U.S.C. § 1983]

22 Matthew CATE, Secretary of the California )

23

Department of Corrections and Rehabilitation, )

et al.,

)

24 _____________________________________ )

25 26 27 1.

NATURE OF ACTION This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened

28 violations of the rights of Plaintiffs to be free from cruel and unusual punishment under the

1 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

Case3:06-cv-00219-RS Document428 Filed10/08/10 Page2 of 57

MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1 Eighth and Fourteenth Amendments of the United States Constitution and for violations

2 and threatened violations of Plaintiffs‘ rights to be free from arbitrary and capricious

3 protocols and procedures under the Fifth and Fourteenth Amendments to the United States

4 Constitution..

5

2. 6

Plaintiffs contend that lethal injection, as performed in California, will subject

7 them to present demonstrated substantial risks of inflicting tortuous pain and suffering

8 under the Eighth Amendment.

9 3.

Plaintiffs additionally contend that Defendants, as a result of their deliberate

10 failure to use medically-approved procedures and properly-trained personnel, have inflicted
11 pain and torture on over 60% of the inmates who they have executed in the past, making it
12

13 certain that a presently existing demonstrated risk exists that they will suffer the same fate

14 unless Defendants adopt and employ a humane and safe execution protocol.

15 4.

Plaintiffs further contend that the continued use of the three-drug procedure after

16 already having been found to employ similar, if not identical, procedures in violation of the
17 Eighth Amendment is an intentional and willful disregard of a known and substantial risk
18

19 of inflicting severe pain and suffering.

20 5.

Plaintiffs additionally contend that Defendants‘ continued use of their three-drug

21 procedure when tested, available alternatives exist establishes that the demonstrated risk of
22 severe pain by Defendants‘ process is substantial when compared to the known and
23 available alternatives. Defendants have refused to adopt such alternatives in the face of
24
25 these documented advantages, without any legitimate penological justification for their

26 continued retention of the three-drug protocol.

27

28

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1 6.

Plaintiffs further contend that the use of pancuronium bromide, a paralytic agent

2 that acts as a chemical veil over the lethal injection process, disguises the excruciating pain

3 and suffering to which they will be subjected. Plaintiffs also contend that the use of

4 potassium chloride, as administered by the Defendants in the lethal injection process, will
5 subject them to excruciating pain and suffering.
6

7 7.

Plaintiffs seek temporary, preliminary, and permanent injunctive relief to prevent

8 the Defendants from executing Plaintiffs by means of lethal injection, as that method of

9 execution is currently preformed in California under the current protocol or any similar
10 protocol. Plaintiffs request that Defendants be restrained from carrying out any executions,
11 and from any preparatory measures to effectuate executions, until such time as this Court
12
13 has ruled that they have eliminated the substantial risk of serious pain and suffering under

14 the Constitution.

15

JURISDICTION AND VENUE

16 8.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question),

17

§ 1343 (civil rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This 18

19 action arises under the Fifth, Eighth and Fourteenth Amendments to the United States

20 Constitution and under 42 U.S.C. § 1983.

21 9.

Venue is proper pursuant to 28 U.S.C. § 1391(b) in that Plaintiffs are currently

22 incarcerated at San Quentin State Prison (―San Quentin‖) in San Quentin, California,
23 located in this District. All executions conducted by the State of California (―State‖) occur
24

25 at San Quentin. The events giving rise to this complaint will occur in this District.

26

27

28

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1

THE PARTIES

2 10. Plaintiffs Albert Brown and Michael Morales are United States citizens and

3 residents of the State. They currently are death-sentenced prisoners under the supervision

4 of the California Department of Corrections and Rehabilitation (CDCR). They are held at
5 San Quentin State Prison, San Quentin, California, 94974.
6

7 11.

Defendant Matthew Cade is the Secretary of the CDCR.

8 12. Defendant Vincent Cullen is the Warden of San Quentin State Prison, where the

9 Plaintiffs are incarcerated and where the Plaintiffs‘ executions will occur.

10 13.
11 14.
12

Defendant Arnold Schwarzenegger is the Governor of the State of California. Plaintiffs do not know the true names of Does 1-50 but allege that they have or

13 will participate in Plaintiffs‘ executions by virtue of their roles in designing, implementing,

14 and/or carrying out the lethal injection process. When Plaintiffs discover the Doe

15 Defendants‘ true identities, they will amend this complaint accordingly.

16
17 15.
18

GENERAL ALLEGATIONS All prior allegations set forth above are re-alleged as if set forth entirely herein.

19 16.

On January 6, 2006, the clerk of the Superior Court of Ventura County issued a

20 Notice of Public Session in the case of People v. Morales, No. CR 17960, scheduling a

21 public session on January 18, 2006 for the purpose of the setting of the date of execution of
22 judgment of death of February 21, 2006. On September 2, 2010, the clerk of the Superior
23 Court of Ventura County issued a Notice of Public Session in the case of People v.
24
25 Morales, No. CR 17960, scheduling a public session on September 14, 2010 for the

26 purpose of the setting of the date of execution of judgment of death.

27

28

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1 17.

On August 30, 2010, the Superior Court of Riverside County held a Public

2 Session in the case of People v. Brown, No. CR 18104, for the purpose of the setting of the

3 date of execution of judgment of death on September 29, 2010.

4 18.

Without conceding that the provisions for exhaustion of administrative remedies

5

are applicable to their claims, Plaintiffs have effectively exhausted all administrative 6

7 remedies for the issues contained in this Complaint to the extent that they were available

8 and have satisfied the Prison Litigation Reform Act‘s exhaustion requirements pursuant to

9 42 U.S.C. § 1997e(a).

10 19.

Plaintiffs are not required to exhaust administrative remedies before bringing this

11

claim because resolution of the grievance seeking modification of Regs./OP 770 is not 12

13 possible through the appeal process and exhaustion is futile. See also Beardslee v.

14 Woodford, 395 F.3d 1064, 1069 (9th Cir. 2005).

15 20.

Both Plaintiffs‘ executions have been stayed pending resolution of this matter.

16 21.

Plaintiffs are death row inmates and the Defendants intend to carry out their

17

execution by means of lethal injection. Under California law, death sentences shall be 18

19 carried out by ―administration of a lethal gas or by an intravenous injection of a substance

20 or substances in a lethal quantity sufficient to cause death, by standards established under

21 the direction of the Department of Corrections.‖ Cal. Penal Code § 3604(a). The statute
22 prescribes no specific drugs, dosages, drug combinations, or the manner of intravenous line
23 access to be used in the execution process; nor does the statute prescribe any certification,
24
25 training, or licensure required of those who participate in the execution process. All of the

26 details of the execution process are to be determined by the CDCR.

27

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1 22.

The CDCR has decided to execute Plaintiffs by poisoning them with a lethal

2 combination of three chemical substances: sodium thiopental, an ultra short-acting

3 barbiturate; pancuronium bromide, an excruciatingly painful and tortuous chemical which
4 paralyzes all muscles; and potassium chloride, an excruciatingly painful chemical which
5 activates the nerve fibers lining the prisoner‘s veins and interferes with the heart‘s
6
7 contractions, causing cardiac arrest.

8 23. In performing Plaintiffs‘ executions by lethal injection, the CDCR contends it will

9 follow the protocol established in California Code of Regulations title 15, sections 3349 et
10 seq. (2010), which is nearly identical to San Quentin Operational Procedure No. 770, May
11 15, 2007, (―Regs./OP 770‖), as well as certain practices not delineated in the protocol. The
12
13 protocol and actual practice by which lethal injection executions will be performed under

14 Regs./OP 770 violate constitutional and statutory provisions enacted to prevent cruelty,

15 pain, and torture. It creates a substantial risk that condemned inmates will experience

16 severe pain and suffering during executions.

17

24. 18

The remote administration of the chemical substances, the absence of

19 standardized procedures for administration of the chemicals, the lack of adequate training,

20 screening and qualifications of the personnel involved in the process, and the combination

21 and amounts of the three particular chemicals used in Regs./OP 770 create a present, grave,
22 substantial and demonstrated risk that Plaintiffs will not be adequately unconscious during
23 the execution process and, as a result, will experience an excruciatingly painful and
24
25 protracted death. Use of similar procedures has resulted in such suffering in over 60 % of

26 the lethal injection executions carried out in California to date.

27

28

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1 25.

Regs./OP 770 lacks medically necessary safeguards, thus making it a present

2 certainty that Plaintiffs will suffer a demonstrated risk of unconstitutional pain during the

3 lethal injection process. The protocol identifies no procedures for ensuring that the
4 anesthetic agent is properly flowing into the prisoner after either pancuronium bromide or
5 potassium chloride are administered to avoid the excruciatingly painful effects of either
6
7 drug in the event Plaintiffs regain consciousness, a safeguard required by the Eighth

8 Amendment that is already required in any medical or veterinary procedure after

9 administration of a sedative and before the administration of an excruciatingly painful

10 overdose of a neuromuscular blocking agent, such as pancuronium bromide, or the
11 administration of an excruciatingly painful potassium chloride overdose.
12

13 26.

The protocol established in Regs./OP 770 does not require the minimum expertise

14 of the execution team personnel that would be necessary to ensure their proper performance

15 of the tasks in the lethal injection procedure. There are no guidelines or customary
16 procedures upon which these personnel can rely if they are required to exercise their
17 discretion during the process. There is no plan in place if the Plaintiffs require medical
18
19 assistance during the execution. And, in the event that the procedure described in Regs./OP

20 770 becomes difficult or impossible to accomplish, there is no alternative procedure,

21 personnel or equipment available for obtaining access to Plaintiffs‘ veins, a problem that

22 has occurred in several recent executions.

23

27. 24

Two of the substances used in previous executions and continued in Regs./OP

25 770, pancuronium bromide and potassium chloride, will cause excruciating pain or

26 suffering if administered to a condemned inmate who is not sufficiently anesthetized.

27

28

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1 28.

The proposed anesthetic agent, sodium thiopental (―thiopental‖) was invented in

2 the early 1930s, and is an ultra short-acting barbiturate currently used only infrequently in

3 clinical settings and in typical surgical doses produces only transient anesthesia.
4 Historically, it was administered only during the preliminary phase of anesthesia
5 administration, and never administered remotely in the manner proposed. In the lethal
6
7 injection process, thiopental is intended to anesthetize the condemned inmate, but if it is

8 not successfully delivered into the condemned inmate‘s blood stream, thiopental will not

9 provide a sufficient sedative effect for the duration of the execution process. Failure to
10 deliver the entire dose of thiopental is a foreseeable occurrence given the inadequacy of the
11 procedures, selection and training as contained in Regs/OP 700 and as demonstrated in
12
13 practice by Defendants. And, as a result of a failed delivery, the condemned inmate will

14 remain conscious or regain consciousness and experience both conscious paralysis and

15 asphyxiation induced by pancuronium bromide and the excruciatingly painful burning

16 induced by potassium chloride as it courses through the prisoner‘s veins, ultimately leading
17 to cardiac arrest.
18

19 29.

Thiopental is sold in powder form and must be mixed into a solution to be

20 injectable. It must be mixed and administered by a qualified individual. To deliver a five-

21 gram dose of thiopental into an inmate‘s vein successfully, the Defendants must prepare a
22 solution that will deliver the dose in the proper concentration, a process that requires
23 mixing multiple vials of thiopental powder with the correct quantity of dilutent, combining
24
25 multiple vials into two larger syringes, and ensuring that the entire amount of properly

26 mixed powder is drawn into the syringes. If this process is not performed accurately, as it

27 has not been in past executions, it will result in an incorrect concentration of thiopental, 28

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1 which will prevent delivery of a reliable dose of anesthetic. Regs./OP 770 as written and

2 in practice does not reasonably assure that the personnel who will mix the thiopental,

3 prepare the syringes, and deliver the drugs have adequate and appropriate training and
4 experience to perform the tasks properly. On information and belief, other states use
5 licensed pharmacists or physicians to mix the drugs, including thiopental, for lethal
6
7 injections. Defendants have ignored the advice of their expert to engage such qualified

8 personnel in this mixing process and have continued the use of unqualified personnel

9 despite repeated inability by such personnel to mix thiopental properly.

10 30.

Thiopental is an effervescent drug that, if improperly administered, will not

11

achieve or maintain adequate sedation over time. Regs./OP 770, as written and in practice, 12

13 contains no provision for the proper rate of infusion so as to achieve or maintain adequate

14 anesthetic depth during an execution. As written and in practice, it contains inadequate

15 qualifications, selection, and training for the individuals involved in the infusion.

16 31.

There is a present substantial risk that sodium thiopental will be ineffectively

17

delivered, given the inadequacy of the administration procedures and the personnel 18

19 involved, and as a result will not provide a sufficient sedative effect for the duration of the

20 execution process. This has actually occurred in over 60% of California‘s lethal injections

21 executions, as well as in executions in other states. With this inadequate sedation,
22 Plaintiffs will experience the conscious asphyxiation caused by pancuronium bromide and
23 the excruciatingly painful internal burning sensation and cardiac arrest caused by a
24
25 potassium chloride overdose.

26 32. The American Veterinary Medical Association (AVMA) states that when

27 potassium chloride is used for euthanasia, it is extremely important that the personnel who 28

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1 perform euthanasia are trained and knowledgeable in anesthetic techniques and competent

2 in assessing the anesthetic depth appropriate for potassium chloride administration, a depth

3 at which animals are in a surgical plane of anesthesia characterized by loss of
4 consciousness, loss of reflex muscle response, and loss of response to noxious stimuli.
5 California law requires non-veterinary personnel who perform animal euthanasia to
6
7 undergo strict training by a veterinarian and/or a registered veterinary technician who

8 specializes in anesthesia. California law does not permit non-veterinary personnel to

9 perform euthanasia using potassium chloride or neuromuscular blockers; rather, such
10 personnel are limited to using a lethal overdose of barbiturates such as pentobarbital.
11 Regs./OP 770 does not include comparable protections or require comparable training, and
12
13 thus a procedure under that protocol would be illegal if performed on animals.

14 33. The AVMA also employs a longer-lasting and more stable barbiturate, sodium

15 pentobarbital, for animal euthanasia. The CDCR‘s use of sodium thiopental under
16 Regs./OP 770 knowingly exacerbates the substantial demonstrated present risk of error
17 created by its deficient protocol because sodium thiopental is extremely volatile, short-
18
19 acting, and sensitive to human error, and because CDCR makes no determination of a

20 suitable level for any particular inmate, despite this being a required procedure for

21 administration of a sedative to all humans and animals for any purpose.

22 34.

Pancuronium bromide, the second chemical administered in the lethal injection

23

process, paralyzes muscles, including the diaphragm, but it does not affect consciousness or 24

25 the perception of pain. A similar paralytic agent has been used by CDCR in the past to

26 torture prisoners as part of its behavioral modification programs. Pancuronium bromide,

27 administered by itself as a ―lethal dose,‖ would not result in a quick death; instead, it would 28

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1 cause someone to suffocate to death while still conscious in an agonizing and tortuous

2 death.

3 35.

The use of pancuronium bromide as administered under Regs./OP 770 in

4 combination with the initial dose of sodium thiopental, creates a present demonstrated risk
5 of substantial pain because Plaintiffs will become paralyzed while still aware of pain and
6

7 suffering death from suffocation induced by pancuronium bromide and the burning veins

8 and heart failure caused by the administration of the potassium chloride. Pancuronium

9 bromide creates a present significant, present and demonstrated risk that a prisoner will be
10 paralyzed during the injection of an extremely painful drug, aware of this pain, yet be
11 entirely unable to inform the attendants of his condition. Without the use of pancuronium
12
13 bromide, a prisoner would be able to indicate that he was still conscious or had regained

14 consciousness or awareness prior to the administration of potassium chloride. Properly

15 trained and qualified personnel would be able to assess unconsciousness, which CDCR
16 personnel at present cannot and do not do and thus are unable to determine whether an
17 inmate is aware of or feeling pain at the time the pancuronium bromide or the potassium
18
19 chloride is administered, or if the administration causes the prisoner to become able enough

20 to sense the excruciating pain from pancuronium bromide and, then, potassium chloride.

21 36.

When pancuronium bromide is administered after an initial dose of thiopental, as

22 is called for in the protocol for executions by lethal injection and as has been applied in
23 past executions, it creates a substantial and unacceptable risk of serious harm. As such, the
24

25 combination of thiopental and pancuronium bromide creates the unconscionable possibility

26 that a condemned inmate will be placed in a state of ―chemical entombment‖ while he

27 consciously experiences the agony of suffocation, the intense burning from potassium 28

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1 chloride as the chemical courses through his veins, and the substantial pain of having a

2 cardiac arrest.

3 37.

Because Regs./OP 770 calls for the potassium chloride to be administered in a

4 lethal dose, the use of pancuronium bromide will serve no purpose in the execution
5 process. It is completely unnecessary in the lethal injection process and will only serve to
6

7 mask any pain or suffering that the Plaintiffs may experience. Rather, the chemical is used

8 to prevent the executioners and witnesses from knowing whether the condemned inmate is

9 inadequately anesthetized. In cases where the thiopental is not successfully delivered to the
10 inmate‘s circulation and/or the condemned inmate is not adequately anesthetized,
11 pancuronium bromide will create the appearance of a serene death while masking the fact
12
13 that the inmate is experiencing conscious paralysis, suffocation, and the agony of cardiac

14 arrest from the administration of potassium chloride. The use of pancuronium bromide is

15 unnecessary to bring about the inmate‘s death. Absent the use of pancuronium bromide, an
16 inmate undergoing execution would be able to indicate that he was still conscious or had
17 regained consciousness prior to the excruciatingly painful lethal dose of potassium
18
19 chloride.

20 38. Pancuronium bromide could not lawfully be used alone as the fatal agent because

21 causing death by suffocation violates the Eighth Amendment‘s prohibition against cruel

22 and unusual punishment.

23

39. 24

The third and final chemical Defendants intend to administer to Plaintiffs during

25 the lethal injection process is potassium chloride, an extremely painful chemical which

26 causes the inmate‘s death by disrupting the heart‘s contractions, ultimately leading to

27 cardiac arrest. It is indisputable and undisputed that an inadequately anesthetized inmate 28

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1 injected with potassium chloride will experience torturous pain. As potassium chloride

2 travels through the bloodstream from the site of injection towards the heart, the chemical

3 activates sensory nerve fibers inside the veins, causing a prolonged and intense burning
4 sensation. In the foreseeable event that the condemned inmate is not adequately
5 anesthetized throughout the execution procedure, the potassium chloride will cause the
6
7 inmate to consciously experience the agonizing pain of this excruciatingly painful chemical

8 coursing through his veins and of cardiac arrest, while being incapable of expressing his

9 suffering due to the paralytic effects of the pancuronium bromide.

10 40.

Death by potassium chloride poisoning is viewed as being so inhumane that the

11

AVMA prohibits its use as the sole agent for animal euthanasia. If potassium chloride is to 12

13 be used at all, the AVMA requires the practitioner administering the potassium chloride to

14 have the proper training and knowledge to ensure that the euthanized animal has reached a

15 surgical plane of anesthesia. The appropriate anesthetic depth for the use of a potassium
16 chloride execution is ―characterized by loss of consciousness, loss of reflex muscle
17 response, and loss of response to noxious stimuli.‖ Conversely, the Reg./OP 770 as written
18
19 and applied lacks even the most basic protections or training regimen—safeguards that

20 California requires for non-veterinary personnel who perform animal euthanasia.

21 Accordingly, the lethal injection procedures intended to be employed on Plaintiffs would

22 be illegal if performed on household pets.
23 THE DEVELOPMENT OF REGS./OP 770
24

25 41.

The version of Procedure No. 770, under which Defendants originally intended to

26 execute Plaintiff Morales, and which is contained substantially verbatim in the Regulations,

27 was adopted without any medical research or review to ensure that a prisoner would not 28

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1 suffer a painful death. No member of the medical community was involved in its adoption.

2 The procedure was adopted by the former Warden of San Quentin, Daniel Vasquez, after

3 observing two executions in Texas, without any further input from or consultation with
4 medical personnel. The procedure was not subsequently subjected to any review by
5 medical professionals or other qualified persons to assess if it was an appropriate procedure
6
7 or if it was being administered in a manner that either caused or prevented unnecessary

8 infliction of pain and suffering. In fact, evidence collected from executions conducted

9 under Procedure No. 770 demonstrated that the protocol as administered was not properly
10 sedating executed inmates, as a result of which they were aware of and suffering from pain.
11 Defendants knew this, yet undertook no appropriate review or revisions of their procedures.
12
13 This continued use of the same failed procedures without any adequate safeguards to

14 ensure those failings are not addressed and rectified both as written and in practice itself

15 creates a present substantial risk of severe and unnecessary pain and tortuous death.

16 42.

On February 14, 2006, the District Court for the Northern District of California

17

found that Plaintiff had raised ―substantial questions‖ that the 2003 protocol ―rceates an 18

19 undue risk that Plaintiff will suffer excessive pain when he is executed.‖ Morales v.

20 Hickman, 415 F.Supp.2d 1037, 1047 (N.D.Cal. 2006) (Order Denying Conditionally

21 Plaintiff‘s Motion for Preliminary Injunction). The District Court therefore suggested that
22 Defendants ―ocnduct a thorough review of the lethal-injection protocol, including, inter
23 alia, the manner in which the drugs are injected, the means used to determine when the
24
25 person being executed has lost consciousness, and the quality of contemporaneous records

26 of executions, such as execution logs and electrocardiograms. . . . A proactive approach by

27

28

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1 Defendants would go a long way towards maintaining judicial and public confidence in the

2 integrity and effectiveness of the protocol.‖ Id. at 1046-47.

3 43.

In light of the substantial possibility that Plaintiff Morales would suffer

4 excruciating pain as he was executed, the District Court held that Defendants could proceed
5 to execute him only if they implemented one of two proposed modifications of the
6

7 execution procedure. Id. at 1046-48. Defendants could either certify that they would

8 execute Plaintiff Morales using only sodium thiopental or another barbiturate; or procure

9 the assistance of ―qualified individual or individuals‖ to provide ―independent verification‖

10 that he was in fact unconscious prior to the administration of the pancuronium bromide and
11 potassium chloride. Id.
12

13 44.

Defendants determined in February, 2006 that satisfactorily ―qualified

14 individuals‖ would in fact be medical doctors, and in particular board certified

15 anesthesiologists, to allow Defendants to ―ensure that [Plaintiff] [was] unconscious at all

16 times following the administration of sodium thiopental.‖ Nonetheless, Defendants did not
17 go forward with the scheduled 12:01 a.m. execution on February 21, 2006.
18

19 45.

Later that day, Defendants returned to the District Court and advised that they

20 then believed that the most suitable manner to execute Plaintiff was by administering only

21 a single lethal dose of sodium thiopental or other barbiturate, and they sought permission to
22 perform the execution at 7:30 p.m. on February 21, 2006 in this manner. The District
23 Court issued an order allowing the execution to proceed so long as ―sodium thiopental
24
25 [was] injected in the execution chamber directly into the intravenous cannula by a person

26 or persons licensed by the State of California to inject medications intravenously.‖ Order

27 on Defendants‘ Motion to Proceed with Execution, at 3 (Feb. 21, 2006). Defendants 28

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1 initially agreed but then declined to comply with the District Court‘s order, and the

2 execution did not go forward.

3 46.

Because Defendants did not comply with the District Court‘s Orders, by the terms

4 of the February 14, 2006 Order, a stay of execution automatically was entered on February
5 21, 2006. See 415 F. Supp. 2d at 1049.
6

7 47.

Following the events of February 21, 2006, Defendants modified the execution

8 protocol, and these modifications were incorporated in a new version of Procedure No.

9 770, dated March 6, 2006. According to Defendants, the changes to the protocol were
10 made after consultation with unidentified ―court experts,‖ and in part reflected deviations 11
from the 2003 version of the protocol that had been sanctioned by Defendants but had not 12
13 previously been formally adopted as revisions to the protocol, or recorded in the

14 contemporaneous records of executions. Defendants, however, rejected their own expert‘s

15 recommendation to use a single barbiturate as the sole lethal agent, relying on two blatantly
16 invalid considerations: no other state uses a barbiturate as the sole lethal agent; and the use
17 of pancuronium prevents the ability to determine whether an inmate is inadequately
18
19 anesthetized. Instead, Defendants followed the direction of Defendant Schwarzenegger

20 that CDCR merely ―tweak‖ the previous versions of OP 770 and provide for less sedative.

21 48.

The March 6, 2006 version of Procedure No. 770, as well as Defendants‘ stated

22 intention to follow the new version, was substantially similar to the 2003 version in all
23 material respects relating to the manner in which the chemicals are administered. The
24

25 March 6, 2006 version employed the same three chemicals, injected in the same sequence,

26 and using the same remote administration, but Defendants – after purported consultation

27 with ―xeperts‖ – determined to use a lower initial dose of sodium thiopental, a lower dose 28

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1 of pancuronium bromide, and a higher dose of potassium chloride. The only material

2 difference between the 2003 version of the protocol and the March 6, 2006 version is that,

3 in addition to an initial bolus dose of 1.5 grams of sodium thiopental, the March 6 version
4 provided that a continuous drip of five grams of sodium thiopental would be started in a
5 second IV line after the initial dose of sodium thiopental is administered. Shortly after the
6
7 drip is started, a saline flush was to be sent through the first IV line and the pancuronium

8 and potassium were to be injected.

9 49.

The March 6, 2006 version of Procedure No. 770 utterly failed to address the

10 ―substantial questions‖ raised by Plaintiff, and recognized by the District Court, regarding
11 the significant risk that Plaintiff will suffer excruciating pain during the execution. Among
12

13 other things, the March 6, 2006 version of Procedure No. 770, like the 2003 version, failed

14 to provide any procedure for ensuring that the inmate is in an appropriate surgical plane of

15 anesthesia prior to the administration of the pancuronium bromide and throughout an
16 execution; failed to provide for any training to be given to the injection personnel; failed to
17 require any level of experience or other qualifications for such personnel; failed to ensure
18
19 that an adequate dose of anesthesia is able to reach the prisoner; and failed to provide

20 procedures for obtaining IV access should the inmate have unusable peripheral veins.

21 Moreover, because the design of the execution chamber remained the same, and the March
22 6, 2006 version of the protocol made no material changes in the equipment used to
23 administer the drugs, it did not alleviate the need to use multiple IV extensions and other
24
25 conditions that have caused the drug administration problems that plagued the previous

26 executions.

27

28

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1 50.

The decision to lower the dose of anesthetic was based on the belief of

2 Defendants and their selected expert that the previously used five-gram dose of sodium

3 thiopental rendered inmates ―too unconscious‖ for the potassium chloride to cause death as
4 quickly as it would otherwise. Moreover, by their own admission, Defendants deliberately
5 increased the risk of excessive suffering in order to ensure that executions are carried out as
6
7 quickly as possible.

8 51. Defendants‘ failure to address the substantial questions regarding the significant

9 risk of excruciating pain created by the original version of Procedure No. 770, even after
10 the experience of recent executions wherein inadequate sedation was present, and even
11 after the District Court recognized the seriousness and substantial nature of the risk,
12
13 amounted to conscious disregard of Plaintiffs‘ constitutional right to be free from cruel and

14 unusual punishment. Indeed, on March 6, 2006, after obtaining the advice of, inter alia,

15 Robert Singler, M.D. and at the direction of Andrea Hoch, Legal Affairs Secretary of

16 Governor Arnold Schwarzenegger, Defendants purposefully rendered the execution
17 procedure more dangerous without any rational reason for doing so.
18

19 52.

Defendants‘ creation of the March 6, 2006 version of Procedure No. 770 in the

20 space of a mere thirteen days, without consultation with any members of the medical

21 community or other experts – besides the unnamed ―court experts‖ and/or Robert Singler,

22 M.D. – further evidenced Defendants‘ deliberate disregard of Plaintiff‘s Eighth
23 Amendment rights.
24

25 53.

Defendants flagrantly ignored the District Court‘s suggestion that they conduct a

26 ―thorough‖ review of the execution procedures and instead advanced a marginally different

27 version of Procedure No. 770 that simply perpetuated the deficiencies in the previous 28

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1 version and exacerbated the already-significant risk of inadequate anesthesia. Thereafter,

2 the District Court undertook a comprehensive review of the execution protocol, including

3 the composition and training of the execution team, the equipment and apparatus used in
4 executions, the pharmacology and pharmacokinetics of the drugs involved, and the
5 available documentary and anecdotal evidence concerning executions in California, and
6
7 concluded that Defendants‘ Procedure 770 as actually administered in practice violated the

8 Eighth Amendment. Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006).

9 54.

The District Court based its finding on the entire record; on the largely undisputed

10 evidence presented at the hearing; on Defendants‘ stipulation that injection of the second
11 and third drugs in the three-drug protocol (pancuronium bromide and potassium chloride)
12

13 without adequate anesthesia will cause an unconstitutional level of pain; on the fact that

14 data in Defendants‘ execution logs indicate that sodium thiopental did not have its expected

15 effect or function as expected in at least 64% of lethal-injection executions; and in
16 particular on the testimony of Defendants‘ own medical expert, Dr. Singler, that in at least
17 one execution the inmate likely was awake when the second and third drugs were injected,
18
19 and that the only reason that the anesthesiologist could not render a definitive opinion was

20 the apparent unreliability of Defendants‘ records. (The District Court thereafter amended

21 this finding, holding that Procedure 770 as implemented in practice through and including

22 the date of the evidentiary hearing in the 2006 Morales litigation created a ―demonstrated
23 risk of severe pain.‖ Order, Sept. 28, 2010.)
24

25 55.

On December 15, 2006, the District Court respectfully requested the state

26 undertake a ―meaningful‖ review of its processes, which ―must be undertaken with an

27 openness to the idea of making significant improvements in the ‗infrastructure‘ of 28

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1 executions.‖ Morales v. Tilton, 465 F. Supp. 2d at 983 (emphasis added). In response to

2 the District Court‘s clear directive in this regard, Defendant Governor Schwarzenegger

3 announced via a press release on December 18, 2006, that he was ―committed to doing
4 whatever it takes . . . to ensure that the lethal injection process is constitutional . . . .‖ 5
Response by the Governor‘s Office to the Court‘s Memorandum of Intended Decision 6
7 Dated December 15, 2006, Docket 291, Ex. A. The Governor added that his

8 ―administration will take immediate action to resolve [the] court[‘s] concerns . . . .‖ Id.

9 56.

To this end, in late December 2006, Kingston ―Bud‖ Prunty, Undersecretary of

10 CDCR, was appointed to be the lead person to see that the Department addressed the
11 Court‘s concerns. Prunty revised OP 770 which was published on May 15, 2007, and then
12

13 facially was turned into the current execution protocol regulations. Compare Cal. Code

14 Regs. tit. 15, § 3349, et seq. with OP 770, May 15, 2007, Docket No. 318.

15 57.

In order to address the State‘s execution implementation shortcomings, Bud

16 Prunty created a ―work group‖ to undertake the review of OP 770. Prunty expressed a
17 belief that using a panel to interview and screen ―work group‖ or committee candidates
18

19 would be beneficial to insure consistency in screening, to make sure Defendants‘

20 expectations for selection were met, and to provide the input of more than one person.

21 However, Prunty then disregarded his own principles, and instead, personally handpicked
22 the work group charged with reviewing the protocol – to wit, a homogenous group of five
23 CDCR employees. In doing so, Prunty never considered including any people who were
24
25 not CDCR employees or retirees. As a result, the execution protocol review exercise

26 mimicked the inadequate self-evaluations previously conducted by CDCR‘s execution team

27 regarding its own bona fides. See Morales v. Tilton, 465 F. Supp. 2d at 979. 28

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1 58.

Prunty‘s protocol review cadre consisted of Darc Keller, Steve Cambra, Carl

2 Larson, John McAuliffe, and Tony Newland. Keller, the Assistant Secretary for Health

3 Care Services, was fired by CDCR for fraud shortly after Prunty tapped him as ―work
4 group‖ material. Keller‘s termination occurred after the receiver had raised issues that 5
there were some contracts for medical services that were not properly let and other 6
7 conflicts of interest. CDCR Secretary James Tilton personally requested Keller to submit

8 his resignation.

9 59.

Tilton and Warden Robert Ayers have verified under oath that John McAuliffe

10 was selected to be on the protocol review team because of his ―medical background,‖ and
11 therefore he ―was responsible for reviewing the drug mixtures used by other states, and
12

13 developing the drug mixture set forth in the revised version of O.P. 770. By contrast,

14 Prunty – who unilaterally selected McAuliffe to be on the protocol revision team, testified

15 that McAuliffe has never done any medical research for OP 770 and that he doesn‘t think

16 the revision team was qualified to do that.

17

60. 18

Prunty maintained he was largely unsupervised in revising OP 770: he reported to

19 Tilton and Andrea Hoch, the Governor‘s Legal Affairs Advisor, but he didn‘t consult

20 Tilton for permission to do anything and doesn‘t recall what he may have asked Hoch for

21 permission to do. In an effort to avoid reliability and transparency, Prunty made no record
22 of his revision activities, thoughts, considerations, and/or recollections. While he estimates
23 that he attended over 50 meetings regarding the revision of OP 770, he never took a note on
24
25 a single instance.

26 61. Prunty‘s work group was uninformed and similarly unsupervised. Team members

27 were kept in the dark as to the chain of command, and/or who was on the team. It was 28

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1 never explained to McAuliffe who Prunty reported to on this project, and McAuliffe

2 erroneously believed that Denise Dull, Max Lemon, and John McNitt were also on the

3 protocol review team. Prunty does not recall giving specific assignments to anyone in the

4 work group. Indeed, McAuliffe reported to multiple individuals and ―just did it‖ on his
5 own since nobody told him to whom he should report.
6

7 62.

McAuliffe reported his findings to either Cambra, Larson, or Prunty, and stated

8 that others providing input in the revision process, including John McNitt, reported to ―any

9 one of‖ the other seven members on the team.

10 63.

The initial action plan to revise OP 770 was scheduled with dates as best as they

11

could have estimated at that time, and listed the date of completion for June 30 or July 1, 12

13 2007. Notwithstanding this best estimate of Prunty, ultimately a May 15 completion date

14 was set instead, eliminating 20 percent of the estimated time necessary to complete the

15 project. Prunty claims he does not know who selected the May 15 date or why it was
16 selected. Thereafter, Defendant Governor rebuffed Prunty‘s request for a little bit longer
17 time to do that. As a result, when the deadline was set, Prunty and his work group simply
18
19 set about making sure he met it, irrespective of the time required to undertake a review and

20 revision of the protocol consistent with the District Court‘s directions.

21 64.

The arbitrary selection of a completion date resulted in a substandard review of

22 OP 770, performed without order or context, and rendered much of it meaningless. CDCR
23 Undersecretary and OP 770 revision leader Prunty thought it was important in his
24

25 preparation of OP 770 to witness an execution. However, Prunty did not attend his first

26 execution until August 2007 – months after the protocol was reviewed, analyzed, redrafted,

27

28

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1 and published. Similarly, McAuliffe also had never witnessed the performance of an

2 execution before OP 770 was finalized on May 15.

3 65.

The combined execution experience of Prunty and McAuliffe when revising OP

4 770 was nil. To this day, neither Prunty nor McAuliffe has ever observed the
5 administration of the lethal chemicals by the execution team members. When they
6

7 observed the August 2007 execution in Oklahoma, Prunty and McAuliffe were in the

8 witness area, with no ability to see the execution team in a room behind the gurney on

9 which the condemned was confined. They were limited to observing only the inmate
10 tethered to a gurney, and their observations were made through a window from an adjacent
11 room. This is the same observation vantage point that witnesses were afforded in
12
13 California – which allowed California to conceal its Constitutional infirmities for many

14 years. See Morales v. Tilton, 465 F. Supp. 2d at 978-80. Even Prunty‘s Oklahoma

15 execution window peeping was substandard – he didn‘t get to see all the events of that
16 execution from his limited vantage point because his attention was directed intermittently
17 to the condemned‘s brother, who was on the floor nearby after becoming ill from watching
18
19 the spectacle.

20 66. Former San Quentin Warden Vasquez believes that ―m[ ]aking a execution seem

21 humane and dignified is up to the people that carry it out. You can‘t legislate it or write it
22 down.‖ Stipulated Fact (―SF‖) 263. McAuliffe agrees in that he would have to be there to 23
see the entire procedure to judge whether an execution was humane. In this regard, the 24
25 utility of California‘s Regs./OP 770 is no better than the written protocols employed by

26 California in the past, and Prunty‘s expedited protocol drafting exercise was largely

27 meaningless. 28

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1 67.

Neither Prunty nor McAuliffe made any contemporaneous notes while present at

2 the execution facilities in Virginia, Oklahoma, Indiana, and the federal Board of Prisons in

3 Indiana. In fact, Prunty never recorded any of his recollections regarding these visits.
4 There was ―n[]othing in particular‖ that made an impression on Prunty during his visits to 5
either Virginia or Oklahoma. Prunty neither inquired nor learned whether Indiana, 6
7 Virginia, or Oklahoma ever sought medical expert opinions in designing their lethal

8 injection protocol; he has no knowledge whether Oklahoma, Indiana, or Virginia have ever

9 had an unsuccessful execution procedure; and he never learned of any emergency
10 procedures to be employed in any of these states in the event of a mishap during an
11 execution. Prunty is aware of an emergency procedure to be utilized in Oklahoma in the
12
13 event a stay is issued; however, he did not include this or any similar procedure in

14 Regs./OP 770.

15 68.

Prunty does not know what type of execution training takes place in Oklahoma.

16 He has no information regarding the difficulties encountered in Oklahoma during its
17 executions, the reasons for the difficulties, or its attempted solutions to the problems – he
18
19 simply does not ―recall the specifics . . .‖ While Prunty is aware that Oklahoma‘s

20 executioners believe that the most difficult part of the execution process is always ensuring

21 that there is proper IV access, Prunty is not sure whether he attended that discussion.

22 69.

After Prunty and McAuliffe visited execution facilities in Virginia, Oklahoma,

23

Indiana, and at the federal Board of Prisons in Indiana, California did not adopt any 24

25 particular practice from any of those four places into Regs./OP 770.

26 70. Prunty appointed George Sifuentes, the Director of the Office of Facilities

27 Management, to evaluate the existing chamber, and to evaluate possibilities of modifying 28

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1 another building to meet that need. Sifuentes did not visit execution sites in other states,

2 nor attend the work group‘s site check of the San Quentin facilities.

3 71.

Sifuentes was involved in overseeing the costs of the new execution chamber.

4 Prunty supervised Sifuentes. Sifuentes fraudulently advised that a new chamber ―could be
5 done as a minor capital outlay project for under $400,000.‖ This was done to avoid
6

7 legislative oversight and to allow CDCR to ―do iqt uietly‖ – ―low profile.‖ After the

8 Prunty-Sifuentes bid team was replaced by legislative oversight, $800,000 was found to be

9 a more ―reliable and transparent‖ (Morales, 465 F. Supp. 2d at 981) cost for the new
10 chamber. Sifuentes ultimately was disciplined by CDCR for ―a pattern‖of fraudulent 11
government building cost estimates; i.e., it was ―theway he had done business for a while.‖ 12
13 Prunty, however, took no disciplinary action against Sifuentes or anyone else in the Office

14 of Facilities Management.

15 72.

Prunty‘s work group was told early on in the process to maintain all

16 documentation for discovery. The entire work group reported to Prunty. Correctional
17 Captain John McNitt, a duly sworn peace officer who was sworn to uphold the law, was a
18

19 representative from the Office of Facilities Management who worked with Prunty‘s work

20 group. McNitt reported to Cambra, Larson, and McAuliffe that he intended to destroy

21 documents gathered in the course of reviewing OP 770. Neither Cambra, Larson, nor

22 McAuliffe reported this to Prunty, and Prunty never took corrective or disciplinary action
23 against McAuliffe, Cambra, Larson, or McNitt.
24

25 73.

While McAuliffe was the point man for the Defendants to undertake its review of

26 the drug mixtures used by other states, and to develop the drug mixture set forth in the

27 revised version of Regs./OP 770, he is wholly unqualified to perform this function. The 28

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1 first time he ever studied or researched thiopental was not until December 2006.

2 McAuliffe blithely explains his lack of knowledge about the effects of protocol drugs,

3 saying, ―I just started this in December.‖ McAuliffe testified that ―1.5grams [of
4 thiopental] is the optimal dosage for lethal injection based on your expert witnesses, so I
5 took their advice.‖ McAuliffe actually prescribed three grams total of sodium thiopental
6
7 for the protocol, ―1.5 grams in each syringe, two syringes.‖ McAuliffe said that he picked

8 three grams because he ―was looking for a mean‖ of the other states‘ data, a method he

9 chose because of ―basic scientific study.‖

10 74.

McAuliffe had completed his home schooling in execution pharmacology in 90

11

days or less when he issued ―a recommendation‖ to Cambra, Larson, and Prunty in around 12

13 March of 2007 that ―asingle drug be used [for the execution protocol] and it be thiopental.‖

14 Prunty does not remember McAuliffe recommending a one-drug protocol to him. Prunty

15 testified that, McAuliffe has ―nveer done any [medical] research‖ for OP 770 and that he

16 doesn‘t think the revision team was ―qaulified to do that.‖

17

75. 18

McAuliffe says he was informed by Prunty that they would be using a ―three-drug

19 protocol in the execution protocol‖ on May 14th, just one day before OP 770 was

20 published. By contrast, Prunty claims this decision was made by Defendant Governor

21 Schwarzenegger, despite the fact that Prunty had only ―talked to Governor Schwarzenegger
22 about OP 770‖ twice. Prunty claims he was informed of this decision ―sometime in late 23
April, early May.‖ Neither story is true, but instead is consistent with past CDCR double 24
25 talk. On January 31, 2007, Denise Dull made contemporaneously prepared notes wherein

26 she reported that the Governor, as early as a few weeks after the Court‘s December 15

27 order (and well before McAuliffe perhaps started, and certainly completed, his self-taught 28

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1 90-day crash course in pharmacology), had instructed Prunty that the ―1 drug protocol is

2 now off the table, stick with 3 drugs.‖

3 76.

In this regard, California never undertook a ―meaningful‖ review of the drugs

4 used or delivered ―with an openness to the idea of making significant improvements in the
5 ‗infrastructure‘ of executions.‖ Morales v. Tilton, 465 F. Supp. 2d at 983.
6

7 77.

In creating a selection process for the execution team, the goal was to correct the

8 deficiencies of the previous process which was not formalized and ―all verbal or word of

9 mouth.‖ Nothing, however, has changed. CDCR has ―ntoified some of the employees‖

10 about the opportunity to apply for membership on the execution team, but even Prunty is
11 ―not sure exactly how the notice was made to them.‖
12

13 78.

Carl Larson was the team member responsible for drafting the protocol that

14 addresses ―selection, recruitment, and retention‖ of the execution team. Regs./OP 770

15 states that the lethal injection team members can come from San Quentin or from other
16 departmental locations. However, Larson testified that ―as long as the warden at San
17 Quentin could get a team that meets that criteria, they‘re going to use San Quentin people,‖
18
19 even if there were people ―who were better and brighter and cleaner outside of San

20 Quentin.‖ In this regard, Defendant CDCR has every intention of drawing from the same

21 San Quentin ―old boy‖ network as before, regardless of the quality of the candidate pool.

22 79.

While Regs./OP 770 states that team members can have no prior stress claims

23

(Cal. Code Regs. tit. 15, § 3349.1.2(e)(3)), it does not require any psychological tests or 24

25 evaluations of the team members. It does not require screening for any psychiatric

26 diagnosis or review of files that may disclose such a disability.

27

28

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1 80.

Prunty acknowledges that employees who have been assigned to any condemned

2 housing unit should be prohibited from being a part of the lethal injection team, in order to

3 provide as much insulation between the employee and the condemned inmate as possible
4 since they may have some feelings about the condemned and it may -- it may impact their
5 ability to do the job that they‘re selected to do. Under the Regs./OP 770, employees who
6
7 have served in the condemned housing unit still are permitted to be on lethal injection

8 teams. See Cal. Code Regs. tit 15, § 3349.1.2(e)(8).

9 81.

The execution team selection panel was tasked by Regs./OP 770 with ―r[]eview of

10 all the available candidate‘s performance evaluations,‖ ―[r]eview of the candidate‘s 11
Personnel, Supervisory, and Training files,‖ and ―[r]eview of the candidates [sic] current 12
13 CI&I Report from the California Department of Justice.‖ OP 770 at 8; Cal. Code Regs. tit

14 15, § 3349.1.2(b). Although Prunty believes that a panel is important to ―make sure we

15 meet our expectations for selection,‖ he and the rest of the selection panel disregarded these
16 principles and the screening process of the protocol. While Prunty claims to have reviewed
17 performance evaluations and CI&I reports, he testified that he failed to review supervisory
18
19 files, training files, and personnel files.

20 82. CDCR‘s failure to follow the revised procedures in the protocol‘s execution team

21 member selection process was best explained by the testimony of McAuliffe, who stated

22 that the team members would be chosen by ―Warden Ayers.‖

23

83. 24

CDCR‘s execution ―team members almost uniformly have no knowledge of the

25 nature or properties of the drugs that are used or the risks or potential problems associated

26 with the procedure.‖ Morales v. Tilton, 465 F. Supp. 2d at 979. Now CDCR has enlisted a

27 person to train execution team members on these subjects who has no knowledge, 28

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1 experience, education, or training on these topics. McAuliffe blithely testified that he is

2 ―not a pharmacist‖ when asked about the ―pharmacological effects of thiopental.‖ He

3 similarly does not ―know the interaction between the use of a benzodiazepine and
4 thiopental‖ – two drugs that he has authorized for administration to the inmate during an 5
execution. OP 770 at 43, 44, 92; Cal. Code Regs. tit. 15, §§ 3349.1.1, 3349.4.3, 6
7 3349.4.4(a)(2)(B) & 3349.4.5.

8 84. McAuliffe‘s testimony in this regard is in stark contrast to the sworn contentions

9 of Defendants who claimed that McAuliffe ―was responsible for . . . developing the drug

10 mixture set forth in the revised version of O.P. 770‖ due to ―his medical background.‖

11

85. 12

The instruction given in Regs./OP 770 to prepare the sodium thiopental is simply

13 to ―f[]ollow the manufacturer‘s directions as stated on the kit to prepare the chemical

14 properly.‖ OP 770, Ex. A, at 43; Cal. Code Regs. tit. 15, § 3349.1.3(c)(3) (―The Infusion

15 Sub-Team shall . . . Mix the Lethal Injection Chemicals in accordance with the
16 manufacturer‘s instructions . . .‖). This is, of course, is what they said they used to do, but 17
the evidence shows they were unable to do. See Morales v. Tilton, 465 F. Supp. 2d 972, 18
19 979 & n.7 (N.D. Cal. 2006) (―One member of the execution team, a registered nurse who

20 was responsible for mixing and preparing the sodium thiopental at many executions,

21 testified that ‗[w]e don't have training, really.‘‖) Directing unqualified and untrained
22 execution team members to simply follow manufacturer‘s instructions – without more –
23 resulted in the substantial risks from the execution team practices and failures of the past.
24
25 The package states, ―Use reconstituted solution only if it is clear, free from precipitate and

26 is not discolored.‖ SF 34a at 14. Witness #4, who was in Defendants last published

27 version of the infusion team designated with mixing thiopental, claimed that he prepared 28

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1 the drugs ―by following the instructions‖ (SF 34b at 14), yet obtained a mixed Thiopental

2 solution that was a ―yellowish, brownish tan color.‖ SF 34 at 14. At a minimum,

3 professional knowledge and training is required in order to understand and follow the
4 manufacturer‘s directions, and to train others as to how to do so. Even then, professionals
5 can have differences of opinion and make errors which must be sorted out and corrected.
6
7 For example, the State‘s expert pharmacist and anesthesiologist testified that correctly

8 prepared thiopental should be ―basically clear‖ (Doc. 259, Transcript of Proceedings, Sept.

9 28, 2006, Vol. 4, RT 889), and that it should be ―a very pale green‖ (Doc. 260, Transcript

10 of Proceedings, Sept. 29, 2006, Vol. 5, RT 1121), respectively. The training provides no
11 such illumination, and are clearly lacking in this regard.
12

13 86.

The training of lethal injection team members will be conducted by people who

14 are untrained themselves and therefore unqualified to instruct others. All training sessions

15 are to be conducted by the team leader, in conjunction with the associate warden in the case
16 of the intravenous team, and with the warden or administrative staff for the general lethal
17 injection team training. However, there are no specific requirements that the team leader
18
19 has ever participated in an execution or has mastered any specific task such as how to insert

20 catheter, or prepare or infuse the chemicals. See OP 770 at 8; Cal. Code Regs. tit 15, §

21 3349.1.2(f)(1).

22 87.

Remarkably, there are no specific training or lesson plans for the team leader. As

23

in the past (see SF 129 at 39-40), the team leader position does not require prior team 24

25 membership, execution training or experience (see OP 770 at 8; Cal. Code Regs. tit. 15, §

26 3349.1.2(a)). With untrained instructors and vague and ambiguous lesson plans, the

27

28

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1 training of the lethal injection team will result in team members who are similarly as

2 unqualified as those of the past.

3 88.

CDCR‘s entire post-December 15, 2006 ―‗review of the lethal-injection protocol .

4 . .‘‖ (Morales v. Tilton, 465 F. Supp. 2d 972, 983 (N.D. Cal. 2006) (quoting Morales v.
5 Hickman, 415 F. Supp. 2d 1037, 1046 (N.D. Cal. 2006))) was a ruse, conducted grudgingly
6

7 and in the shadows of fraud, incompetence, and deceit. The decisions made throughout the

8 process of writing of the Regs./OP 770 were made by an unqualified team who failed to

9 communicate with each other or the Defendant Governor and failed to do the necessary

10 research.

11

89. 12

While on February 16, 2006, Defendants unilaterally determined that the most

13 ―qualified individuals‖ to ―nesure that [Plaintiff] [was] unconscious at all times following

14 the administration of sodium thiopental‖ would in fact be medical doctors, and in particular

15 board certified anesthesiologists, and in the space of two days did obtain two such medical
16 professionals to attend an execution, Defendants now have reversed field and eliminated
17 physician participation from executions. Defendants‘ Regs./OP 770 do not provide for
18
19 qualified medical doctors to perform the complex task of assessing unconsciousness, or to

20 perform or monitor any other tasks associated with planning for or conducting executions.

21 The Regs./OP 770 sets forth a demonstrated present unconstitutional risk by requiring that
22 the consciousness assessment be conducted not by someone with relevant medical
23 experience, but rather by a person certified to insert intravenous catheters into peripheral
24
25 veins and to place electrocardiogram leads. Cal. Code Regs. tit. 15, 3349.1.2(f)(4). An

26 assessment conducted under these conditions does not constitute effective monitoring of

27 anesthetic depth, and presently is insufficient to ascertain whether the inmate is placed into, 28

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
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1 and remains in, a surgical plane of anesthesia. Regs./OP 770 mandate no rank requirement,

2 no relevant experience requirement, no germane consciousness assessment training, and/or

3 no other safeguards which will modify its 64% rate of performing executions with a present

4 demonstrated risk of severe pain.

5

90. 6

Defendants‘ Regs./OP 770 have no provisions for a doctor to perform a central

7 line catheterization if necessary, despite Defendants‘ knowledge that some inmates will

8 require a central line to avoid unsuccessful drug administration, and that central line

9 placement requires extensive medical training.

10 91.

On February 21, 2006, Defendants unilaterally determined that, because

11

Procedure 770 prevented them from ensuring that inmates will be unconscious at all times 12

13 following the administration of sodium thiopental, a preferred method of execution would

14 be to use only sodium thiopental during Plaintiff's execution. Morales v. Tilton, 465 F.

15 Supp. 2d at 976. During Plaintiff Brown‘s pending execution, Defendants represented that

16 they were able to and could effectively execute him with a single-drug option, and were
17 prepared to do so.
18

19 92.

Subsequent to February 21, 2006, Dr. Mark Dershwitz, one of the medical experts

20 retained by Defendants to defend their protocol in this action and in previous lethal-

21 injection challenges, has advised several states, including those with which Defendants
22 have exchanged execution-related information, and, on information and belief, Defendants
23 as well, that using a single barbiturate as the sole lethal agent would be an easier, less
24
25 complex, and less dangerous means of accomplishing executions. Despite their knowledge

26 of this advice, and despite Defendants‘ endorsement on February 21, 2006, of the single-

27 drug protocol, Defendants failed to give serious consideration to the use of a single-drug 28

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1 protocol, even though they still have no reliable method to ensure that Plaintiff will be

2 unconscious at all times following the administration of sodium thiopental. Instead,

3 Defendants‘ Regs./OP 770 intends to continue to make use of the same complicated three

4 drug protocol involving the use of two drugs which indisputably cause excruciatingly pain
5 when improper sedation occurs.
6

7 93.

Before reviewing, evaluating, and/or revising its March 6, 2006 execution

8 Procedure, Defendants decided in January 2007 to build a new execution facility. The

9 design and construction of the new facility was derived from the March 6, 2006 execution
10 Procedure, in that the subsequently announced May 15, 2007 version of OP 770 had not yet
11 been created, reviewed, evaluated, and/or revised. While certain CDCR executives were
12
13 tasked with examining other states‘ execution chambers for enlightenment to purportedly

14 improve CDCR‘s execution facility and/or its use thereof, they did so only after Defendants

15 designed and began construction of CDCR‘s new execution facility. CDCRs‘ review of
16 other execution facilities was a ruse, simply undertaken to provide the District Court with
17 the appearance that Defendants conducted the ―thorough review‖ of the matter that was
18
19 respectfully suggested by the Court.

20 94. Defendants‘ new execution facility was designed and built without any

21 assessment or evaluation of: the design of other facilities; problems encountered during
22 executions in California and in other states; and/or the particulars of the protocol or
23 execution procedures to be employed, including the public‘s input via the Administrative
24
25 Procedures Act proceedings.

26 95. Defendants fraudulently claimed that the execution chamber could be designed

27 and constructed from discretionary budgeting, that a new execution chamber had been 28

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
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1 ordered to be built by the District Court, and that the District Court ordered that

2 construction be completed by May 15, 2007. Defendants‘ tactics were an effort to avoid

3 transparency and mandatory state legislative oversight and to obtain a permanent lethal
4 injection facility so as to justify a multi-million dollar expansion of death row at San
5 Quentin. The then CDCR Secretary later claimed he was not advised of this decision to
6
7 build a new chamber, or of the commencement of the construction of this facility.

8 96. On April 13, 2007, when Defendants‘ fraudulent budgeting activities came to

9 light, Defendants backdated a budgeting request to January, 2007, and submitted the same

10 for legislative consideration. On or about April 21, 2007, Defendant Schwarzenegger
11 ordered that the construction be stopped.
12

13 97.

The Regs./OP 770 are substantially similar to the 2003 version in all material

14 respects regarding the manner in which the chemicals are administered. The Regs./OP 770

15 employs the same three chemicals, injected in the same sequence, but Defendants
16 determined to use a greater initial dose of sodium thiopental than the March 6, 2006
17 Procedure, but a smaller dose than was used in the 2003 version, a greater dose of
18
19 pancuronium bromide, and a lower dose of potassium chloride.

20 98. Regs./OP 770 utterly fails to even examine the many ―substantial questions‖

21 raised by Plaintiff Morales, and recognized by the District Court, regarding the significant
22 risk that Plaintiffs will suffer excruciating pain during the execution. Among other things,
23 Regs./OP 770, like its predecessor March 6, 2006 and 2003 versions, fails to provide any
24
25 adequate procedure and personnel for ensuring that the inmate is in an appropriate surgical

26 plane of anesthesia prior to the administration of the pancuronium bromide and remains in

27 a surgical plane of anesthesia for the duration of the execution; fails to provide for any 28

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1 meaningful training to be given to the personnel involved; fails to require any level of

2 relevant experience or other relevant qualifications for such personnel; fails to provide for

3 any mechanism to ensure that an adequate dose of anesthesia is able to reach the prisoner;
4 fails to provide guidelines for detecting and remedying the foreseeable problems that could
5 occur and that have recently caused botched executions in several other states, or to ensure
6
7 that personnel are sufficiently trained and qualified to exercise their judgment in such

8 situations; fails to ensure an appropriate delivery mechanism for any of the three chemicals,

9 and fails to provide procedures for obtaining IV access should the inmate have unusable

10 peripheral veins.

11

99. 12

Indeed, the Regs./OP 770 is even more ill-conceived and deficient than the older

13 versions. The additional deficiencies include, but are not limited to, the fact that

14 Defendants determined that much less sodium thiopental should be administered to the

15 inmate than that which was supposed to have been administered to inmates in all past
16 executions, even assuming proper administration by the execution team resulting in the full
17 dose of thiopental reaching the prisoner. This significantly decreased dose of sodium
18
19 thiopental drastically lowers the margin for error in administering the anesthesia and

20 increases the probability that the inmate will not be placed in an appropriate surgical plane

21 of anesthesia.
22 100. Defendants – in conjunction with the advice of their selected experts –
23 deliberately chose to lower the dose of anesthetic in the belief that the previously used five-
24
25 gram dose of sodium thiopental rendered inmates ―too unconscious‖ for the potassium

26 chloride to cause death as quickly as it would otherwise. Defendants were aware that such

27 a theory was ill-conceived, medically unsound and unsupported by the records in previous 28

35 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

MCBREEN & SENIOR 2029 Century Park East, Third Floor
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Case3:06-cv-00219-RS Document428 Filed10/08/10 Page36 of 57
1 executions. Moreover, by their own admission, Defendants deliberately increased the risk
2 of excessive suffering in order to ensure that executions are carried out as quickly as
3 possible. 4
101. Defendants‘ failure to address the substantial questions regarding the significant 5
risk of excruciating pain created by the original version of Procedure No. 770, even after 6 7 Defendants‘ execution logs indicate that sodium thiopental did not have its expected effect
8 or function as expected in 64% of lethal-injection executions pursuant to the protocol , and
9 even after the District Court recognized the seriousness and substantial nature of the risk, 10
amounts to a present substantial risk of a violation of Plaintiffs‘ constitutional right to be 11
free from cruel and unusual punishment. Defendants have flagrantly disregarded their prior 12 13 representations to the District Court that they intended to conduct a careful review,
14 revision, and implementation of their execution procedures. As a result, Defendants
15 substituted a different version of Procedure No. 770 – Regs./OP 770 – that simply 16
perpetuated the deficiencies in the previous version and exacerbates the already present and 17
substantial risk of inadequate anesthesia. 18 19 102. Defendants have taken no actions to improve any aspect of their lethal injection
20 protocol other than their minimal efforts to address the five examples of deficiencies that
21 were articulated by the District Court in its December 15, 2006 order. However, 22
Defendants have given far too narrow a reading to the District Court‘s order, and far too 23
favorable an assessment of the adequacy of their entire execution protocol and 24 25 performance. The Order makes plain that far broader and meaningful remedial efforts by
26 Defendants were necessary before their proposed execution protocol could pass
27 constitutional muster. 28
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MCBREEN & SENIOR 2029 Century Park East, Third Floor
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1 103. The District Court stated that ―[t]he evidence shows that the protocol and

2 Defendants‘ implementation of it suffer from a number of critical deficiencies, including . .

3 . .‖ Morales v. Tilton, 465 F. Supp. 2d at 979 (emphasis added). The District Court did not
4 state that there were only five deficiencies, or suggest in any way that the examples given
5 were an exhaustive list of Defendants‘ failures. Defendants‘ failure to read this guidance
6
7 correctly, or at all, before commencing their review of their protocol gravely undermines

8 their claims that a ―thoughtful‖ or ―meaningful‖ review of its processes was ―undertaken

9 with an openness to the idea of making significant improvements in the ‗infrastructure‘ of
10 executions‖ (Morales, 465 F. Supp. 2d at 983(emphasis added)), or that they were in fact 11
―committed to doing whatever it takes . . . to ensure that the lethal injection process is 12
13 constitutional . . . .‖ Response by the Governor‘s Office to the Court‘s Memorandum of

14 Intended Decision Dated December 15, 2006, Docket 291, Ex. A.

15 104. Indeed, the record since the District Court gave clear notice that ―Defendants‘
16 implementation of California‘s lethal-injection protocol lacks both reliability and
17 transparency‖ (Morales, 465 F. Supp. 2d at 981) is that Defendants have not even read the
18
19 order. See, e.g., Order, Sept. 28, 2010 at 4 n.3 (―The person then serving as the warden at

20 San Quentin, who later admitted that he had not read the Court‘s memorandum in Morales

21 v. Tilton, apparently believed that such an order had been made. Findings of S. Public

22 Safety Comm. Informational Hr’g on San Quentin Death Chamber, 2007–08 Sess. (Cal.
23 2007).‖)
24

25

DEFICIENCIES IN THE PROCEDURES CREATE A CONTINUED

SUBSTANTIAL RISK OF CONSCIOUS AND AGONIZING SUFFERING

26

27 105. Central features of the Defendants‘ lethal injection procedures create a

28 substantial risk of serious harm in violation of the Eighth Amendment. Defendants

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1 have not improved upon or effectuated any meaningful changes identified as

2 necessary by the District Court. In fact, they have made their procedures worse in
3 many ways. In addition, there is an unconstitutional and present substantial risk that
4 5 the protocol will not be administered as written. Such deviations create a present

6 substantial risk of severe pain due to, for example, improper placement of the IV

7 and/or inadequately administered anesthesia, inadequate mixing of the drugs, 8
insufficient administration of the chemicals, and insufficient monitoring of the 9
10 inmate. This failure to include adequate safeguards, failure to address the known

11 deficiencies in the procedures and the failure to remedy the procedures that has 12
produced unconstitutional executions creates a substantial and present risk of severe 13 14 pain and suffering. The deficiencies include but are not limited to:

15

a. The failure to employ trained medical professionals with a

16 sufficient degree of relevant experience to ensure that intravenous lines are properly
17
18 placed; that inadequate lines can be identified promptly; that Plaintiffs are

19 adequately anesthetized initially and throughout the procedure; and, to monitor vital

20 signs. 21
22

b. The continued use of remote administration, which increases

23 the risk of failed delivery, already having occurred in past executions, and despite

24 the advice of their own expert that during routine administration of anesthesia, the 25
anesthesiologist stands at the bedside while administering anesthesia and remains 26 27 attending throughout the procedure. This includes the use of intravenous lines in a

28 manner for which they are not designed or used in any clinical practice.

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1

c. The absence of specified medical equipment, employed in

2 other states, to monitor vital signs that would ensure unconsciousness and the
3 absence of qualified personnel, who could use, operate and make findings from this
4 5 equipment. Previously, Defendants were willing to and able to provide trained

6 anesthesiologists with a variety of monitoring equipment available to them that is

7 not specific or required in the procedures. 8
d. The absence of a procedure to revive an inmate should one or 9
10 more chemicals be administered before a last-minute stay.

11

e. The failure to consider or effectuate a change in the chemicals

12 used when the state of the science is that the chemicals designated in the procedures
13

14 are out-dated, irregularly utilized and that safer, well-tested and studied, and more

15 effective chemicals exist to induce and maintain anesthesia, and to rapidly stop the

16 heart.
17
18

f. The failure to consider any one-drug alternative other than to

19 immediately reject the notion of using one drug.

20

g. The failure to articulate, prepare for, or train under any

21

contingency plan should both intravenous lines fail. 22

23

h. The failure to articulate sufficiently what venous access will

24 be used. Although the Regs./OP 770 refers to the ability to access peripheral veins, 25
the actual access is not so clearly limited. Rather, it is to an ―aprpopriate vein‖, 26 27 which may include such veins. Thus, it is not clear whether additional venous

28 access is contemplated, such as a percutaneous central line placement which

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
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1 requires highly trained and experienced medical personnel, or the barbaric cutdown

2 procedure done by unqualified and untrained personnel.
3 i. The failure to provide any requirement for intravenous team
4 5 members to have any requisite length of experience in inserting intravenous

6 catheters, or to have any actual experience inserting intravenous catheters for

7 inmates or any other population, one of the ―most significant‖ safeguards identified 8
by the Supreme Court in Baze v. Rees, 553 U.S. 35 (2008). Regs./OP 770 only 9
10 requires experience in ―setting pu intravenous lines‖, which is distinguished from

11 actually inserting catheters. The Supreme Court noted that Kentucky had personnel

12 whose daily assignment was inserting intravenous lines in inmates.
13

14

j. The failure to specify the categories of personnel certification

15 deemed qualified to insert intravenous catheters during an execution, another

16 ―signifcant‖ safeguard identified by the Supreme Court in Baze v. Rees, 553 U.S.
17
18 35 (2008).

19

k. The failure to require the use of medical personnel who are

20 qualified to insert intravenous catheters under current CDCR rules and regulations, 21
and state law, and the failure to ensure the use of methods of insertion of 22
23 intravenous catheters required by CDCR rules and regulation, and state law. The

24 procedures permit Defendants to use persons who are not permitted to engage in the 25
insertion of intravenous lines at CDCR without additional safeguards not present 26 27 here. The prohibited persons include Licensed Vocational Nurses and some

28 categories of Registered Nurses.

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
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1

l. The failure to require the approval of and the assignment by

2 the court-appointed receiver, who has sole authority to determine medical personnel
3 assignments, mandated as a remedial measure for decades of medical malpractice in
4 5 California prisons.

6

m. The failure to ensure that CDCR medical personnel are not on

7 the team in any fashion is itself a violation of the Eighth Amendment as CDCR 8
medical care delivery has been found to be in violation of the Eighth Amendment 9
10 because of unnecessary deaths, maimings, and severe medical mistreatment of

11 inmates. 12
n. The failure to include any persons with sufficient experience, 13 14 expertise, or medical competency on the selection panel so as to evaluate the

15 qualifications of medical personnel assigned to the team.

16 o. The failure to provide for any persons with qualifications,
17
18 training and experience necessary to identify and remedy training errors to oversee

19 the training of team members.

20

p. The exclusion of medical personnel from the regular training

21

of team members. Another ―signifcant‖ safeguard identified by the Supreme Court 22

23 in Baze v. Rees, 553 U.S. 35 (2008), was the 10 session a year requirement for

24 medical personnel in Kentucky. There is no such requirement in Defendants‘

25 procedures.
26

27

q. The removal of a recordation requirement that documents

28 who is attending training sessions, which was present for the previous alleged

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1 training, and which established a high rate of absenteeism from training sessions,

2 particularly by the medical personnel.
3 r. The failure to provide evaluation of team member
4 5 performance during training. The procedure fails to specify the type of training that

6 the selected personnel must undergo and the proficiency level that the personnel

7 must reach though that training. 8
s. The failure to provide oversight of training and selection of 9
10 team members and the failure to provide for anyone with adequate medical training

11 or expertise, or qualifications, to perform, oversee or review the training. 12
t. The failure to provide training that includes the setting of 13 14 intravenous lines on volunteers or otherwise practice setting intravenous lines on a

15 live subject, another ―sginificant‖ safeguard identified by the Supreme Court in

16 Baze v. Rees, 553 U.S. 35 (2008).

17

18

u. The removal of the Warden, over his objection, from the

19 infusion location where he or she can observe, monitor and direct the lethal injection

20 process, confer with the medical personnel who are monitoring the infusion, and 21
take appropriate action, including ordering use of a backup or halting the execution 22
23 because of infusion errors, as is required.

24

v. The removal of a provision requiring the inspection of the

25 expiration dates on the drugs to ensure that outdated drugs are not used. This has
26

27 resulted in the attempt to set execution dates, including that of Plaintiff Morales, that

28 would have required the use of expired drugs.

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1

w. The failure to provide that the drugs obtained comply with the

2 requirements of the Food and Drug Administration prohibitions on illegal and

3 unapproved substitutes manufactured in foreign locations.
4

5

x. The failure to provide that the drugs obtained comply with

6 use restrictions contained in federal and state laws.

7

y. The Regs./OP 770 permit the same unqualified and

8

incompetent persons to continue mixing thiopental. The execution protocol fails to 9

10 set forth sufficient details regarding the credentials, certification, licensure,

11 experience, or proficiency of the personnel entrusted to prepare the drugs despite 12
their own expert‘s advice that ―[h]opefully, a pharmacist oversees them to make 13 14 sure it was done properly.‖ Preparation of drugs, particularly for intravenous use, is

15 a technical undertaking which requires training in pharmaceutical methods and

16 calculations and which previously supposedly ―qualifed‖ persons were unable to
17
18 effectuate. The protocol‘s failure to require that the execution personnel possess

19 such certification, licensure, or experience, as well as its failure to require and

20 effectuate such training, greatly exacerbates the substantial risk that drugs will be 21
improperly administered and condemned inmates will consciously experience 22
23 excruciating pain during the lethal injection process.

24

z. The failure to ensure that the infusion process does not occur

25 in the dark, as it did previously.
26

27

aa. The failure to follow their own procedures on selection of

28 team members, and for complete transparency in the process.

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1

bb. The failure to follow their own procedures on training of team

2 members, and for complete transparency in the process. This includes the failure to
3 actually train on procedures such as mixing the drugs and putting the correct
4 5 quantities and concentrations in the syringes.

6

cc. The failure to ensure proper infusion of the chemicals.

7

dd. The failure to ensure the adequate selection and training

8

regarding infusion, and ignoring their own expert advice that while ―s[]omeone non9

10 medically could do it [inject the drugs],‖ it ―would . . . certainly be ideal to at least

11 have a nurse do that,‖ because ―t[]hey are trained. It's common. They are used to

12 what it feels like to push an IV through a small tube. They are familiar with it.‖
13

14

ee. Use of a chamber that was designed and built prior to the

15 adoption of any revised procedures and that contains continued remote

16 administration and inadequate sight lines from the infusion room to the execution
17
18 chamber itself.

19

ff. Elimination of the trained medical observations and

20 documentations of inmates, including respirations, that have existed in all other 21
California protocols. These records were eliminated solely for the purpose of 22
23 disguising any present substantial risks and/or continued errors.

24

gg. The reduction in performance evaluations reviewed in order

25 to qualify as a team member to only the most recent evaluation. A CDCR employee
26

27 with an extensive history of poor performance evaluations could nevertheless be

28 selected for the lethal injection team if he or she garners just one satisfactory

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1 evaluation. Similarly, a brand new employee who had received just one

2 performance evaluation could be selected for the lethal injection team, provided that

3 the evaluation met expectations.
4

5

hh. The lack of any experience and stated qualifications in

6 monitoring intravenous lines for intravenous team members.

7

ii. The failure to provide that the personnel charged with

8

performing the consciousness check are qualified and trained to do so. The 9

10 procedure makes no provision for qualified personnel to monitor the anesthetic

11 depth of the condemned inmate during the execution. Typically, anesthetic care is 12
performed by individuals who have received advanced training in the medical 13 14 subspecialty of anesthesiology, such as physicians who have already completed their

15 residency in the specialty of anesthesiology or nurses who have trained to become

16 Certified Registered Nurse Anesthetists. Yet there is no provision that such persons,
17
18 or persons even remotely similarly qualified, will be either selected or trained to

19 monitor anesthetic depth, undermining any effort to reasonably ensure that the

20 Plaintiffs are fully anesthetized prior to the administration of the pancuronium
21 bromide and potassium chloride.
22

23

jj. There are no appropriate procedures for assessing whether, or

24 ensuring that, the prisoner is properly and adequately anesthetized prior to the 25
administration of the pancuronium bromide and potassium chloride, as would be 26 27 required in any medical or veterinary procedure after administration of a sedative

28 and before the administration of a neuromuscular blocking agent or a painful

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1 potassium chloride overdose. There is no requirement that the personnel ensure

2 unconsciousness throughout the procedure until the inmate is dead. This is in

3 violation of previous court orders.
4

5

kk. The failure to include a proper and effective mechanism for

6 chain of custody over the chemicals, and for complete transparency in the process.

7 No procedures exist for recording the lot numbers of the drugs not used in
8 executions, rendering them susceptible to diversion by team members.
9

10

ll. The failure to establish procedures for ensuring that the IV

11 lines are flowing throughout the execution. The only procedure identified is a saline 12
drip, which is turned off prior to the beginning of the administration of the 13 14 chemicals. In the past executions, that mechanism has not been sufficient and has

15 not been adequately monitored by qualified and trained personnel.

16 mm. The procedure also does not adequately ensure appropriate
17
18 monitoring of either the lethal injection apparatuses or the condemned inmate by

19 qualified and properly trained personnel. It does not make appropriate provision for

20 what the team member inside the chamber will be monitoring. Because of the lack 21
of sufficient qualifications, inadequate training and insufficient direction, the 22
23 procedure to be employed is exactly like that previously employed, with the same

24 unqualified persons permitted to undertake this effort who demonstrated a complete 25
inability to properly discern or describe any difficulties that may arise with regards 26 27 to the delivery of the chemicals.

28

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
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1

FAILURE TO CONSIDER AND ADOPT VIABLE ALTERNATIVES

2 106. Defendants have repeatedly and deliberately ignored much more viable, safe and

3 effective alternatives to the three-drug lethal injection procedure that have been ―tried and 4
tested.‖ The demonstrated risk of severe pain created by Defendants‘ process is substantial 5 6 when compared to the known and available alternatives. Veternarians have eliminated the
7 use of pancuronium and potassium chloride in euthanasia of animals, and have substituted

8 painless chemicals. Other and more stable barbiturates and drug combinations that do not

9 utilize either a paralytic or a pain-inducing chemical to stop heart activity are available and 10
are regularly used to euthanize animals by veterinarians and their trained assistants. Many 11 12 states have adopted procedures that in fact employ physicians and/or highly qualified
13 personnel in critical steps in the process such as securing intravenous access, mixing and

14 administering the drugs, and monitoring the inmate. The Regs./OP 770 fail to mandate

15 these current best practices, despite the fact that Defendants previously were able to secure 16
physician services on very short notice whom they could not use solely because of their 17 18 own misconduct. Moreover, Ohio and Washington employ a method that uses solely
19 thiopental, thereby avoiding the dangerous and tortuous paralytic pancuronium, and

20 excruciatingly painful potassium chloride. Defendants themselves have twice represented

21 they are able to and can effectively execute using physicians and/or a single drug method.

22 107.
23

Defendants have ignored their own experts‘ advice in retaining the three-drug

24 procedure. Dr. Singler advised them that it would be equally viable to use a single-drug

25 procedure and at one time referred to the application of other drugs as the ―cosmetic‖

26 portion of the process. Dr. Dershwitz has advocated this procedure. The analyst employed

27

28

47 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

Case3:06-cv-00219-RS Document428 Filed10/08/10 Page48 of 57
1 by Defendant CDCR to research and revise the procedure in light of the Court‘s 2006
2 Memorandum of Intended Decision recommended a thiopental-only procedure.
3 108. The three-drug procedure without trained physicians was retained pursuant to a 4
directive from Defendant Schwarzenegger, before any assessment could be done – or was 5
done – by the other Defendants. It was retained because the Defendants‘ lengthy history of 6 7 mishaps in the lethal injection process required application of a paralytic so that such
8 mishaps were not easily discernable, and potassium chloride to ensure death because
9 thiopental was being insufficiently administered. Its retention by Defendants with a long 10
history of inability and unwillingness to properly administer their lethal injection 11
procedures, and continued failure to address known deficiencies, creates a present 12 13 substantial risk that condemned inmates will experience severe pain and suffering during
14 executions.
15 109. The proffered alternatives effectively mollify the substantial risk of serious harm 16
contained in the procedures that California seeks to employ. They are feasible, readily 17
implemented and they significantly reduce the substantial risk of severe pain. The 18 19 comparative efficacy of a one-drug method of execution is well established such that
20 Defendants‘ failure to adopt it constitutes a violation of the Eighth Amendment.
21 Defendants have refused to adopt such alternatives in the face of these documented 22
advantages, without any legitimate penological justification for their continued retention of 23
the three-drug protocol. Their refusal to change their method, particularly in light of the 24 25 established Eighth Amendment violation, is cruel and unusual under the Eighth
26 Amendment.
27
28
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Case3:06-cv-00219-RS Document428 Filed10/08/10 Page49 of 57

MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1

COUNT I

2

VIOLATION OF RIGHT TO BE FREE FROM CRUEL AND UNUSUAL

PUNISHMENT AND TO BE FREE FROM ARBITRARY AND CAPRICIOUS

3

PROCESSES PURSUANT TO THE FIFTH, EIGHTH, AND FOURTEENTH

4

AMENDMENTS TO THE UNITED STATES CONSTITUTION

(42 U.S.C. § 1983)

5

110. Plaintiff realleges and incorporates by reference the allegations contained in 6

7 paragraphs 1 through 109.

8 111. Defendants are acting under color of California law in subjecting Plaintiffs to an

9 arbitrary and capricious method of execution causing to be administered to Plaintiffs
10 chemicals that will cause a wanton exposure to objectively intolerable, present, and
11 substantial risk of inflicting unconstitutional severe, excruciating, and prolonged pain in the
12
13 execution of a sentence of death, and by designing and continuing to administer a process

14 under which they will inject Plaintiffs with chemicals in amounts, combinations, and by a

15 procedure that will cause a wanton exposure to objectively intolerable, present, and
16 substantial risk of conscious suffering and extreme pain in the execution of a sentence of
17 death, thereby depriving Plaintiffs of their rights under the Fifth, Eighth, and Fourteenth
18
19 Amendments to the United States Constitution to be free from cruel and unusual

20 punishment and to be free from arbitrary and capricious procedures, in violation of 42

21 U.S.C. § 1983.
22 112. Regs./OP 770, which specifies the State‘s lethal injection protocol, and the
23 Defendants‘ actual practice of implementing the protocol violates Plaintiffs‘ rights under
24
25 the cruel and unusual punishment clause of the Eighth Amendment because (a) the protocol

26 creates a present and substantial risk of excruciating physical and psychological pain; (b)

27

28

49 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

Case3:06-cv-00219-RS Document428 Filed10/08/10 Page50 of 57
1 the protocol does not comport with contemporary norms and standards of society; and (c)
2 the protocol offends the dignity of the person and society.
3 113. Regs./OP 770 requires utilization of three dangerous chemicals but does not 4
ensure that the personnel entrusted with the lethal injection procedure possess the proper 5
and necessary training, experience, or expertise to administer those drugs. Moreover, the 6 7 protocol fails to provide specific guidelines for the administration of the three separate
8 chemicals, which is an essential requirement for their proper administration.
9 114. Regs./OP 770 contains little or no description of the training, credentials, 10
certifications, experience, or proficiency required of any personnel involved in the 11
administration of the lethal injection procedure, notwithstanding the fact that it is a 12 13 complex medical procedure requiring a great deal of expertise in order to be performed
14 correctly. Regs./OP 770 does not require at the execution the presence of any personnel
15 who possess sufficient expertise to insert an intravenous line properly in all situations, 16
determine if there is a blockage in the intravenous line, or evaluate whether a prisoner is 17
properly sedated before and after proceeding with the unconstitutionally painful parts of the 18 19 execution process. Nor is it Defendants‘ actual practice to require the participation of such
20 personnel.
21 115. The absence of such trained personnel creates a present and substantial risk that a 22
prisoner would not receive the necessary amount of anesthetic prior to being paralyzed by 23
the pancuronium bromide and then experience the severe unconstitutional pain of the 24 25 potassium chloride. The execution logs of California prisoners, and the recent experiences
26 in other states which utilize similar protocols, establish that many executed prisoners did
27 not receive enough sedative prior to the administration of pancuronium bromide. 28
50 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

Case3:06-cv-00219-RS Document428 Filed10/08/10 Page51 of 57
1 Moreover, toxicology reports from prisoners executed by other states suggest that some
2 prisoners likely remained conscious during the administration of lethal drugs, which could
3 have occurred because of improper insertion of the intravenous line, an unrecognized 4
blockage in the line, or various other reasons. The factors contributing to the likelihood 5
that prisoners in other states were executed while conscious are present in Regs./OP770 6 7 and the actual practice of CDCR in implementing it.
8 116. Inducing and maintaining a sufficient level of unconsciousness by correctly
9 administering sodium thiopental is indispensable to preventing the wanton infliction of 10
severe pain when the potassium chloride overdose is administered. Regs./OP 770, 11
however, does nothing to ensure such a level of unconsciousness. Nor does the protocol 12 13 provide guidelines for ensuring that an inmate is deeply anesthetized prior to injecting the
14 second two drugs, or establish procedures for determining if or when an additional dose of
15 sodium thiopental should be administered, and/or what to do in the event an inmate 16
becomes conscious during the administration of the second or third drugs. 17
117. Defendants‘ decision to reject their own experts‘ opinion that a single sedative 18 19 should be employed, and their decision to maintain the remote administration of the three
20 drugs without anesthetic monitoring despite evidence that such administration was not
21 effectively sedating inmates, and Defendants‘ blind adherence to a procedure that lacks 22
necessary medical safeguards and personnel, despite evidence that such a process has 23
resulted in a substantial and unnecessary risk of undue pain and suffering in past executions 24 25 and in the executions undertaken by other jurisdictions, constitutes a deliberate decision to
26 disregard the present and substantial risk of undue pain and suffering in the procedure as
27 outlined and as employed. 28
51 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

Case3:06-cv-00219-RS Document428 Filed10/08/10 Page52 of 57
1 118. The CDCR‘s lethal injection protocol and practices fail to address any reasonably
2 foreseeable complications with any appropriate medical response, such as difficulty
3 obtaining access to a peripheral vein, or damage to such veins as a result of repeated failed 4
attempts to insert the catheter. Moreover, the protocol and practices include no safeguards 5
that would protect the prisoner in the event a stay of execution is entered or a reprieve 6 7 granted immediately before or after the lethal injection process has begun. Thus, the
8 protocol and actual practices fail to provide any protections to prevent a prisoner from
9 being wrongly executed should a reprieve or stay be granted after the process has begun but 10
before death has occurred. 11
119. At any time before the potassium chloride is administered, the prisoner could be 12 13 readily resuscitated if trained personnel and routine resuscitation medication and equipment
14 were present at the execution site. Even after the potassium chloride is administered,
15 resuscitation would still be possible, although admittedly it would be more challenging. 16
Any resuscitation, however, would require the close proximity of the necessary equipment, 17
medication, and properly trained personnel. The omission of such personnel and 18 19 equipment under the protocol set forth in the Regs./OP 770 further undermines the
20 constitutionality of the procedure.
21 120. Although it is possible to conduct executions in a constitutionally compliant 22
manner, the Defendants have deliberately chosen not to do so. The CDCR could choose to 23
use different chemicals that do not cause excruciating pain and therefore do not carry 24 25 extraordinarily grave and present consequences to a condemned inmate if not properly
26 administered, as all veterinary euthanasia does. Instead, the CDCR has knowingly and
27 recklessly chosen to use chemicals that will subject the inmate to excruciating pain in the 28
52 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

Case3:06-cv-00219-RS Document428 Filed10/08/10 Page53 of 57
1 likely event of administration error. Moreover, it has not taken precautions to ensure that
2 the personnel who are involved in the process, including the preparation and administration
3 of the lethal injection chemicals, possess the training, experience, and expertise needed to 4
administer those chemicals properly. Thus, while it is possible for the CDCR to choose 5
different lethal injection chemicals and/or retain qualified personnel to administer its 6 7 chosen chemicals in order to ensure the constitutionality of its lethal injection procedure,
8 the CDCR purposefully has not done so.
9 121. Feasible, readily implemented alternative procedures exist that would 10
significantlyreduce the substantial risk of excruciating pain created by the ADC‘s deficient 11
protocol. These alternative procedures include, but are not limited to, a protocol that 12 13 remedies the deficiencies set forth herein.
14 122. These numerous deficiencies in the CDCR‘s lethal injection protocol are the
15 direct result of Defendants‘ conscious disregard of the present substantial risk that the 16
execution procedure will result in the wanton and unnecessary infliction of extreme pain. 17
The failure of the Defendants to take sufficient measures to minimize the risk of 18 19 substantial, extreme and excruciating pain and mutilation, when such risk could readily be
20 prevented by adopting an alternative procedure to remove the risks in their procedures
21 violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. 22
123. The use of pancuronium bromide under the protocol established in Regs./OP 770 23
to paralyze Plaintiffs creates a present substantial risk that an inadequately sedated prisoner 24 25 will be subjected to a severely painful and protracted death. Moreover, it serves no
26 legitimate penological purpose.
27
28
53 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

Case3:06-cv-00219-RS Document428 Filed10/08/10 Page54 of 57
1 124. Pancuronium bromide does not play a legitimate role in killing the condemned
2 person. The administration of pancuronium bromide cannot be justified on the grounds
3 that the drug paralyzes the breathing muscles because death by asphyxiation is itself a form 4
of cruel and unusual punishment under the Eighth Amendment. 5
125. Enjoining the administration of pancuronium bromide will have no appreciable 6 7 impact on California correctional institution procedures. If anything, it will simplify the
8 execution process by eliminating one step in the process.
9 126. The question of whether there exist readily available alternatives to pancuronium 10
bromide is not an issue in this case because paralyzing a condemned inmate in the 11
execution process is not a legitimate penological goal. 12 13 127. The Ninth Circuit and this Court have previously held that Defendants and their
14 predecessors, in order to forestall discussion and criticism of California‘s lethal injection
15 procedure, have implemented restrictions on the execution process in order to prevent 16
witnesses from being aware of complications experienced during the procedure. 17
128. The CDCR‘s failure to require sufficient training, credentials, certification, 18 19 experience, or proficiency of the personnel involved in the administration of the lethal
20 injection procedure greatly increases the present and substantial risk that a prisoner will
21 experience excruciating pain as a result of the suffocation caused by the pancuronium 22
bromide and the severely painful internal burn and cardiac arrest caused by a potassium 23
chloride overdose. Employing untrained personnel to perform executions exacerbates the 24 25 present and substantial risks created by the deficiencies in the protocol and the methods and
26 circumstances of drug administration, because untrained personnel will be unable to react
27 to and remedy problems that arise during an execution. Allowing untrained personnel to 28
54 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

Case3:06-cv-00219-RS Document428 Filed10/08/10 Page55 of 57
1 develop deviations from the protocol that become customary practices also increases the
2 risk of inhumane executions due to the lack of vetting by qualified experts and the danger
3 that execution team turnover will lead to confusion as to how to perform the execution. 4
129. Allowing personnel who lack sufficient training, credentials, certification, 5
experience, or proficiency to conduct the lethal injection procedure violates the rights of 6 7 the condemned person. Suffocation while inadequately sedated or otherwise aware, as
8 caused by the administration of pancuronium bromide, violates the Eighth Amendment
9 because death by asphyxiation is itself a form of cruel and unusual punishment. Similarly, 10
internal burning and cardiac arrest while insufficiently sedated or otherwise aware, as 11
caused by a potassium chloride overdose, constitute unnecessary severe physical and 12 13 psychological pain in violation of the Eighth Amendment.
14 130. If Plaintiffs suffer unnecessary pain, they will have no alternative ―reasonable and
15 effective means of communication‖ to communicate the fact that they were not properly 16
anesthetized because they will be unable to do so and the pancuronium bromide will 17
paralyze them and they will be dead at the conclusion of the procedure. 18 19 131. Enjoining the administration of the lethal injection procedure by personnel who
20 lack sufficient training, credentials, certification, experience, or proficiency will have no
21 appreciable impact on the correctional institution. 22
132. The question of whether there exist readily available alternatives to requiring 23
personnel who possess sufficient training, credentials, certification, experience, or 24 25 proficiency to conduct the lethal injection procedure is not an issue in this case because
26 causing a prisoner who has not been properly anaesthetized as a result of administration
27 error to experience excruciating pain from the conscious suffocation caused by 28
55 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

Case3:06-cv-00219-RS Document428 Filed10/08/10 Page56 of 57

MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1 pancuronium bromide and the painful internal burn and cardiac arrest caused by a

2 potassium chloride overdose is not a legitimate penological goal.

3 133. CDCR‘s continued use of remote administration of three-drugs without sufficient
4 means of ensuring adequate sedation throughout the procedure greatly increases the risk
5 that a prisoner will experience excruciating pain as a result of the suffocation caused by the
6
7 pancuronium bromide and the painful internal burn and cardiac arrest caused by a

8 potassium chloride overdose. Enjoining the use of remote administration of the three-drugs

9 without sufficient safeguards will have no appreciable impact on the correctional
10 institution. The question of whether there exist readily-available alternatives to employing
11 remote administration of the three-drugs without sufficient safeguards because needlessly
12
13 exposing inmates to an unreasonable risk of excruciating pain is not a legitimate

14 penological goal.

15

PRAYER FOR RELIEF

16
17 1.
18

WHEREFORE, Plaintiffs Albert G. Brown and Michael A. Morales pray for: Temporary, preliminary, and permanent injunctive relief to enjoin the Defendants,

19 their officers, agents, servants, employees, and all persons acting in concert with them from

20 executing Plaintiffs by lethal injection using Regs./OP 770, or any similar practices or

21 protocol;

22 2.

In the event that Regs./OP 770, or any similar protocol, is not enjoined in its

23

entirety as violating the Fifth, Eighth, and Fourteenth Amendments, temporary, 24

25 preliminary, and permanent injunctive relief to enjoin Defendants, their officers, agents,

26 servants, employees, and all persons acting in concert with them from administering

27 unnecessary drugs that cause excruciating and prolonged pain during the execution process; 28

56 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

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MCBREEN & SENIOR 2029 Century Park East, Third Floor
Los Angeles, California 90067 Telephone: (310) 552-5300

1 3.

In the event that Regs./OP 770, or any similar protocol, is not enjoined in its

2 entirety as violating the Fifth, Eighth, and Fourteenth Amendments, temporary,

3 preliminary, and permanent injunctive relief to enjoin Defendants, their officers, agents,
4 servants, employees, and all persons acting in concert with them from allowing personnel
5 who lack sufficient training, credentials, certification, experience, or proficiency to conduct
6
7 the lethal injection procedure;

8 4.

That the Court conduct appropriate and necessary evidentiary hearings and

9 discovery to permit Plaintiffs to prove their constitutional claims;

10 5.

Reasonable attorneys‘ fees pursuant to 42 U.S.C. § 1983 and the laws of the

11

United States; 12

13 6.

Costs of suit; and

14 7.

Any such other relief as the Court deems just and proper.

15 DATED: October 8, 2010 16 17 18 19 20 21 22

By:

/s/

David A. Senior

McBREEN &SENIOR

Richard P. Steinken JENNER & BLOCK

John R. Grele LAW OFFICE OF JOHN R. GRELE Attorneys for Plaintiffs ALBERT G. BROWN MICHAEL A. MORALES

23

24

25

26

27

28

57 FOURTH AMENDED COMPLAINT Case Nos. C 06 219 JF RS, C 06 926 JF RS

 
 Case3:06-cv-00219-RS Document440 Filed11/08/10 Page1 of 22

1

David A. Senior (# 108579) MCBREEN & SENIOR

2

2029 Century Park East, Third Floor Los Angeles, CA 90067

3

Phone: (310) 552-5300 Fax: (310) 552-1205

4 dsenior@mcbreensenior.com

5 John R. Grele (# 167080) LAW OFFICES OF JOHN R. GRELE
6 149 Natoma Street, Third Floor San Francisco, CA 94105
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken (admitted pro hac vice)

JENNER & BLOCK LLP 10 353 N. Clark Street

Chicago, IL 60654-3456 11 Phone: 312-222-9350

12

Fax: 312-527-0484 rsteinken@jenner.com

13 Attorneys for Plaintiffs

14

MICHAEL A. MORALES and ALBERT G. BROWN

15 IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SAN JOSE DIVISION

18 MICHAEL ANGELO MORALES, ALBERT G. BROWN,

) CASE NO. C 06 0219 (JF) (RS)

)

C 06-0926 (JF) (RS)

19

)

20 Plaintiffs,

) ) OPPOSITION OF PLAINTIFFS MICHAEL

21 v.

) A. MORALES AND ALBERT G. BROWN ) TO DEFENDANTS’ MOTION TO DISMISS

22 MATTHEW CATE, Secretary of the California )

23

Department of Corrections and Rehabilitation, )

et al.,

)

24 Defendants.

) Date: December 2, 2010 ) Time: 1:30 pm

25 _____________________________________ ) Place: Courtroom 3

26

27

28

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 1

Case3:06-cv-00219-RS Document440 Filed11/08/10 Page2 of 22

1

TABLE OF CONTENTS

2

TABLE OF CONTENTS..................................................................................................... i

3

TABLE OF AUTHORITIES .............................................................................................. ii

4

MEMORANDUM OF POINTS AND AUTHORITIES .................................................... 2

5

STATEMENT OF THE ISSUES TO BE DECIDED................................................... 2

6

SUCCINCT STATEMENT OF RELEVANT FACTS ................................................ 2

7

SUMMARY OF ARGUMENT .................................................................................... 4

1. The Fourth Amended Complaint Sets Forth Sufficient Facts to Support a 8

Cognizable Legal Theory That is Plausible on Its Face. ............................... 6

9 A. California’s Regulations Do Not Require Experience Inserting Intravenous

10

Catheters. ....................................................................................................... 9

11

B. California’s Consciousness Check Provisions Do Not Cure Any

12

Deficiencies.................................................................................................. 11

13

C. Plaintiffs’ Claims Are Plausible Based upon California’s Record Which Is

14

Starkly Different Than the Record in Kentucky. ......................................... 12

15

1. Intravenous Sub-Team Members Are Inadequately Trained to Place

16

Intravenous Lines and Mix Sodium Thiopental........................................... 13

2. The Infusion Sub-Team’s Experience and Training Are Deficient. ....... 15 17

3. California’s Failure to Employ an Equally Effective Alternative

18 Protocol Creates a Facially Plausible Eighth Amendment Violation. ......... 17

19

4. None of the Allegations are False or Implausible. .................................. 19

20

2. Plaintiffs Should be Granted Leave to Amend in the Event There Is a Pleading

21

Deficiency. ................................................................................................... 19

22 CONCLUSION................................................................................................................. 20

23

24

25

26

27

28

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS i

Case3:06-cv-00219-RS Document440 Filed11/08/10 Page3 of 22

1

TABLE OF AUTHORITIES

2

Cases

3

Baze v. Rees, 553 U.S. 35 (2008)............................................................................... passim

4

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................... 6

Chester v. Beard, 657 F. Supp. 2d 534 (M.D. Pa. 2009) .................................................... 7 5

Cooey v. Strickland, 610 F. Supp. 2d 853 (S.D. Ohio Apr. 21, 2009).......................... 8, 10 6
Dickens v. Napolitano, No. 07-1770-PHX-NVW (D. Ariz. Aug. 29, 2008) ...................... 8

7

Emmett v. Johnson, 532 F.3d 291 (4th Cir. 2008) ............................................................ 14

8

In re Facebook PPC Adver. Litig., 709 F. Supp. 2d 762 (N.D. Cal. 2010) .................. 6, 19

9

Jackson v. Danberg, 594 F.3d 210 (3d Cir. 2010)............................................................ 10

10 Jackson v. Danberg, No. 06-300-SLR, 2009 WL 612469 (D. Del. Mar. 11, 2009)........... 8

11 Lucas v. Dep’t of Corrs., 66 F.3d 245 (9th Cir. 1995)...................................................... 19

12 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008) ......................... 6

13 Morales v. Hickman, 438 F.3d 926 (9th Cir. 2006) .......................................................... 12

Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006) ............................................ 5, 16 14
Nooner v. Norris, 594 F.3d 592 (8th Cir. 2010) ............................................................... 10 15
Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010)............................................................. 10

16

Thorson v. Epps, 2009 WL 1766806 (N.D. Miss. 2009) ................................................... 7

17 Statutes
18 Fed. R. Civ. P. 8(a)(2)......................................................................................................... 4

19

Other Authorities 20

Cal. Code Regs tit. 15, § 3349.1.3(c)(2) ........................................................................... 11

21

Cal. Code Regs. tit 15, § 3349 et seq. ........................................................................... 2, 14

22 Cal. Code Regs. tit. 15 § 3349.1.2(f)(4)...................................................................... 10, 11

23 Cal. Code Regs. tit. 15, § 3349.1.2(f)(5)........................................................................... 16

24 Cal. Code Regs. tit. 15, § 3349.1.4. .................................................................................. 16

25 Cal. Code Regs. tit. 15, § 3349.4.5(g)(5) .......................................................................... 11

26

27

28

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS ii

Case3:06-cv-00219-RS Document440 Filed11/08/10 Page4 of 22

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

3

STATEMENT OF THE ISSUES TO BE DECIDED

4

[L.R. 7-4(a)(3)]

5

1. Whether plaintiffs’ challenges to California’s lethal injection protocol in their

6 Fourth Amended Complaint state claims for relief that are plausible on their face, in light

7 of the legal standard set forth in Baze v. Rees, 553 U.S. 35 (2008).
8 2. Whether plaintiffs have plausibly alleged that California’s continued use of a
9 three-drug lethal injection protocol after a finding of a constitutional violation violates the
10
11 Fifth, Eighth, and Fourteenth Amendments.

12

SUCCINCT STATEMENT OF RELEVANT FACTS

13

[L.R. 7-4(a)(4)]

14 On July 30, 2010, the state of California promulgated its Lethal Injection
15

16 Regulations, effective August 29, 2010. No. 432; Cal. Code Regs. tit 15, § 3349 et seq.

17 The Lethal Injection Regulations superseded California’s previous lethal injection protocol,

18 OP 770, which “as implemented in practice through and including the date of the

19 evidentiary hearing in the 2006 Morales litigation created a ‘demonstrated risk of severe 20
pain’” under Baze v. Rees, 553 U.S. 35 (2008). Order Following Remand, Sept. 28, 2010, 21 22 at 4, No. 424. Defendants’ various versions of OP 770 and the Lethal Injection Regulations
23 “are remarkably similar.” Id. at 5.

24

On October 8, 2010, plaintiffs Michael A. Morales and Albert G. Brown,

25 condemned inmates in the custody of defendant California Department of Corrections and
26 Rehabilitation (“CDCR”), filed their Fourth Amended Complaint alleging that the Lethal
27 28 Injection Regulations, on their face and as applied, violate the Fifth, Eighth, and Fourteenth

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 2

Case3:06-cv-00219-RS Document440 Filed11/08/10 Page5 of 22

1 Amendments.1 No. 428. As this Court is aware, the amended complaint, prompted by

2 defendants’ repeated requests, merely was “a technical matter” to help the “Court to

3 understand exactly what it is about these regulations that is constitutionally deficient.” RT
4 23-24, Sept. 21, 2010. It was not “an amendment that would take a lot of time do.” Id. at
5 24. It now is clear that the amendment was prompted by defendants as a pretext to make
6
7 the instant ill-founded motion and to avoid responding to discovery.

8

Defendants move to dismiss only the facial challenge, arguing that the Supreme

9 Court’s holding in Baze v. Rees, 553 U.S. 35 (2008) (“Baze”) foreclosed plaintiffs’ claims
10 regarding the regulation itself, as if that separation between a regulation that resembles the
11 method of execution for the past 12 years is easily accomplished or appropriate given the
12
13 record in this case and the stage of the litigation. Mot. to Dismiss at 1, No. 430. Even

14 under defendants’ own construct, they have failed to timely respond to the other

15 allegations in the Fourth Amended Complaint (Scheduling Order, Oct. 5, 2010, at 1, No.
16 425), and plaintiffs have filed a Request to Enter Default as to these claims.
17 Defendants appear to have forgotten their own pronouncement when seeking to
18
19 move forward that “[r]egardless of how the Supreme Court rules in Baze, this

20 Court will almost certainly need to consider specific features of the new protocol to

21 determine whether it and the new chamber address the Court's concerns in light of the
22 Supreme Court's ruling. Because this Court has indicated that it has ‘no intention of
23 interfering with or delaying California’s implementation of a constitutional execution
24

25

1

Plaintiffs’ Fourth Amended Complaint is not the result of any prior pleading

26 deficiencies by plaintiffs, but instead has been brought about by defendants’ execution protocol deficiencies which have led defendants to author three remarkably similar
27 versions of the protocol since 2006. Under such circumstances, the opportunity to amend

28 in response to a motion to dismiss, if required, is more pronounced.

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 3

Case3:06-cv-00219-RS Document440 Filed11/08/10 Page6 of 22

1 protocol,’ and because an evidentiary showing will be required in any event, the current

2 schedule should be maintained to create an appropriate and adequate record.” No. 338, at 2

3 (emphasis added). As defendants noted then “[t]he questions regarding (1) the screening of
4 execution team members, (2) the training, supervision and oversight of the execution team,
5 (3) the recordkeeping in connection with executions, (4) the mixing, preparation, and
6
7 administration of the sodium thiopental by the execution team, and (5) the facility in which

8 the execution team must work, will almost certainly remain relevant regardless of how the

9 Supreme Court rules in Baze.” Id. Defendants’ position that fact development is necessary
10 because of the record here – regardless of the Baze opinion – is as true today as it was then.
11

12

SUMMARY OF ARGUMENT

13

[L.R. 7-4(a)(5)]

14

This Court should deny defendants’ motion to dismiss plaintiffs’ facial claims.

15 Plaintiffs’ complaint sets forth the requisite “short and plain statement” (Fed. R. Civ. P.

16 8(a)(2)) alleging plausible Fifth, Eighth, and Fourteenth Amendment violations that satisfy
17
their pleading obligations. 18

19

Defendants misconstrue and misapply Baze. The test to determine whether a

20 challenge to an execution method is a sufficient claim for relief is not whether the written

21 protocol is itself like the written protocol examined in Baze. In Baze itself and nearly every
22 case after it, the courts examined the record of how the protocols work in practice and who
23 is responsible for what. Nor is the test for pleading alternatives to the method approved in
24
25 Baze one that requires a plaintiff to pronounce a certain method Eighth Amendment

26 challenge proof. And, it defies logic and reason for a court to examine a written protocol to

27 determine its validity without examining the previous constitutional error in the procedures 28

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 4

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1 and whether plaintiffs have sufficiently pled that those errors continue and have not been

2 addressed and rectified by the new protocol. Given the posture of this case, it is defendants

3 who should bear the burden of establishing that the protocol cures the violations.
4 Examined in this fashion, defendants’ motion is really an effort to avoid establishing
5 constitutional viability or having to undertake any fact development in that regard; to wit,
6
7 to avoid implementing a protocol with both “reliability and transparency.” Morales v.

8 Tilton, 465 F. Supp. 2d 972, 981 (N.D. Cal. 2006).

9

In any event, even if the sole role of the Court in response to a motion to dismiss

10 was to examine whether a plaintiff has pled that a protocol appears dissimilar to
11 Kentucky’s as discussed in Baze, such that a substantial risk of harm results (or continues),
12

13 plaintiff has done so here. California’s Lethal Injection Regulations are the same as its

14 predecessor protocol, OP 770, and are not substantially similar to Kentucky’s protocol that

15 was reviewed, not on the pleadings, but after “extensive hearings.” Baze, 553 U.S. at 40,
16 46 (“After a 7-day bench trial during which the trial court received the testimony of
17 approximately 20 witnesses, including numerous experts . . .”). The one large difference
18
19 being that unlike Kentucky, California had a very problematic record of executions.

20

The differences between the procedures are core features of the previously-

21 established violations. For example, unlike in Kentucky, but as was the case under OP 770,
22 the members of California’s Intravenous Sub-Team are not required to have any experience
23 setting intravenous catheters, and the Intravenous Sub-Team and the Infusion Sub-Team
24
25 are inadequately trained. 4th Am. Compl. at 40, 43, No. 428. Another example is that

26 unlike in Kentucky, the protocol here permits the same persons to undertake the same tasks

27 that they have already proven incapable of accomplishing, permits the same degree of 28

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 5

Case3:06-cv-00219-RS Document440 Filed11/08/10 Page8 of 22

1 supervision and training that has already been found deficient, and permits the same

2 manner of effectuating executions (with one exception, discussed below) already found to

3 be too unreliable and risk-prone to survive constitutional challenge.
4 Moreover, defendants have not adopted or even seriously considered a known and
5 available alternative, the one-drug protocol and/or appropriate physician participation and
6
7 monitoring, despite the fact that such methods are used in other states, their use is

8 supported by defendants’ own experts, and defendants themselves have twice represented

9 when they sought to execute plaintiffs that a single drug protocol is a viable, safe and
10 reliable method of execution. 4th Am. Compl. at 47, No. 428. To the extent that
11 defendants claim such references to alternatives are “vague”, that is a matter particularly
12
13 susceptible to fact development and/or amendment.

14

1. The Fourth Amended Complaint Sets Forth Sufficient Facts to

15

Support a Cognizable Legal Theory That is Plausible on Its Face.

16 Dismissal under Federal Rule of Civil Procedure 12(b)(6) “is appropriate only
17
where the complaint lacks a cognizable legal theory or sufficient facts to support a 18

19 cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104

20 (9th Cir. 2008). “For purposes of a motion to dismiss, the plaintiff’s allegations are taken

21 as true, and the court must construe the complaint in the light most favorable to the
22 plaintiff.” In re Facebook PPC Adver. Litig., 709 F. Supp. 2d 762, 768 (N.D. Cal. 2010)
23 (citing Jenkins v. McKeithen, 395 U.S. 411, 421 (1969)). To survive a motion to dismiss,
24
25 plaintiffs must plead “enough facts to state a claim to relief that is plausible on its face.”

26 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

27

28

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1

Leave to amend must be granted unless it is clear that the complaint’s deficiencies

2 cannot be cured by amendment. Lucas v. Dep’t of Corrs., 66 F.3d 245, 248 (9th Cir. 1995).

3

The facts and legal theories set forth in the complaint are cognizable and

4 plausible. The best evidence of this is that they were cognizable and plausible, and
5 provable, in 2006 as found by this Court on more than one occasion, and continued to be
6

7 cognizable and plausible in 2010, when the Court again found a constitutional violation

8 under Baze. At the least, the issues raised by defendants are questions of fact to be

9 determined, as in Baze, after “extensive hearings.” Baze, 533 U.S. at 40. The three-justice
10 plurality in Baze, assuming it announced the operative standard, engaged in fact-specific
11 inquiry concerning a number of features: the experience of IV team members; the fact that
12
13 practice sessions require 10 sessions per year with a complete walk through, including

14 setting catheters; and, the current personnel qualifications (EMT with daily experience

15 setting catheters). The citations to the record and findings after the hearing in Baze appear
16 throughout the plurality opinion. Id. at 49, 54-57 and 60. Justices Stevens and Breyer were
17 explicit in their holding that the constitutionality of the procedure depends on the facts. Id.
18
19 at 71; Id. at 108. Justices Souter and Ginsberg were of the opinion that further factual

20 development was required in Baze itself. Id. at 114. Thus, a full seven justices endorsed a

21 fact-specific inquiry, with four of them specifically requiring it.
22 It is for this reason that other courts have required the very fact development
23 regarding a protocol that is sought here, even in the face of the state’s insistence that Baze
24
25 obviates such an inquiry. See Chester v. Beard, 657 F. Supp. 2d 534 (M.D. Pa. 2009);

26 Thorson v. Epps, 2009 WL 1766806 (N.D. Miss. 2009); Cooey v. Strickland, No. 2:04-cv-

27 1156, at *1 (S.D. Ohio Aug. 26, 2008); Cooey v. Strickland, 610 F. Supp. 2d 853, 855-918 28

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 7

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1 (S.D. Ohio Apr. 21, 2009); Jackson v. Danberg, No. 06-300-SLR, 2009 WL 612469 (D.

2 Del. Mar. 11, 2009); Dickens v. Napolitano, No. 07-1770-PHX-NVW (D. Ariz. Aug. 29,

3 2008) (granting plaintiffs’ motion for leave to depose execution personnel after Baze was
4 decided). These cases need to be distinguished from those involving a grant of summary
5 judgment or one in which the protocol has already been found to be constitutional. And,
6
7 frequently lost among the discussion of Baze is that the substantially similar language by

8 Chief Justice Roberts was on the context of obtaining a stay of execution. Id. at 61.

9

Perhaps most significant here, Chief Justice Roberts noted the lack of any record

10 regarding a single-drug procedure because it was “not proposed to the state courts below.
11 As a result, we are left without any findings on the effectiveness” of such a procedure. Id.
12

13 at 56. Thus, the need for such a record is evident according to Baze itself. It is even more

14 evident now that two states have formally adopted the single-drug procedure, as noted in

15 the Complaint (4th Am. Compl. at 47, No. 428), and California has affirmed that it may
16 execute under such a procedure with only three days’ training. And, of all the cases
17 involving lethal injection, this one is perhaps the most developed record on the substantial
18
19 risks that are established by the continued use of remote administration of the three-drug

20 procedure and using and continuing to permit the use of unqualified and untrained

21 personnel. It is, therefore, appropriate and required that fact development as to this
22 question occur here.
23 Notwithstanding the above, and even assuming the defendants’ argument
24
25 regarding the context in which the allegations must be viewed, plaintiffs allege – and the

26 allegations must be taken as true under Rule 12(b)(6) – that California’s Lethal Injection

27 Regulations are not “substantially similar” to Kentucky’s protocol, nor is the scientific or 28

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 8

Case3:06-cv-00219-RS Document440 Filed11/08/10 Page11 of 22

1 factual landscape, and as a result, there is a demonstrated risk of severe pain when

2 compared to known, viable alternatives. These claims are plausible on their face.

3

It should also be noted that defendants fail to address much of the Fourth

4 Amended Complaint in their motion, focusing only on qualifications, training, mixing,
5 consciousness checking, and the dosages. As is evident in a review of the Fourth Amended
6

7 Complaint, there is much more at issue here, including inadequate selection and failure to

8 provide for back up procedures if venous access is limited or improbable as has occurred in

9 several states and in California. Plaintiff will address only those issues raised by
10 defendants’ motion and simply note that the defective nature of the motion makes relief for
11 failure to state a claim entirely inappropriate at the pleading stage.
12

13

A. California’s Regulations Do Not Require Experience

14

Inserting Intravenous Catheters.

15

Chief among the complaints based on the evidence before the Court was the

16 defendant CDCR’s failure to provide personnel who could adequately insert catheters. If
17
the Court will recall, the IV personnel had great difficulty accessing veins and blew veins 18

19 in several executions, and were unaware of the failure to obtain adequate IV access in at

20 least one execution. The evidence was further that the IV team was not permitted to insert

21 IVs at San Quentin without physician approval and supervision, yet were undertaking the
22 task during executions. This has continued under the Regulations.
23 California’s Lethal Injection Regulations fail “to provide any requirement for
24
25 intravenous team members to have any requisite length of experience in inserting

26 intravenous catheters, or to have any actual experience inserting intravenous catheters for

27 inmates or any other population. . . .” 4th Am. Compl. at 40, 50, No. 428. It is plausible 28

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1 that this protocol deficiency could cause a failure in the setting and inhibit or prevent the

2 delivery of sodium thiopental to the inmate during the execution as California “execution

3 logs indicate that sodium thiopental did not have its expected effect or function as expected

4 in 64% of lethal-injection executions . . .” Order Following Remand, Sept. 28, 2010, at 4,
5 No. 424.
6

7

In Baze, however, the Supreme Court noted that:

8

Kentucky has put in place several important safeguards to

ensure that an adequate dose of sodium thiopental has

9

been delivered to the condemned prisoner. The most

10

significant of these is the written protocol’s requirement

that members of the IV team must have at least one year

11

of professional experience as a certified medical assistant,

phlebotomist, EMT, paramedic, or military corpsman. 12

13 Baze, 553 U.S. at 55 (emphasis added).

14

Defendants concede in their motion that California’s Lethal Injection Regulations

15 do not require that Intravenous Sub-Team members have any prior professional experience.
16 Mot. to Dismiss at 13, No. 430. Cal. Code Regs. tit. 15 § 3349.1.2(f)(4). By comparison,
17 the execution protocols in Arkansas, Delaware, Ohio, and Texas, which have been upheld
18
19 by other Courts of Appeals, all require execution team members to have at least one year

20 professional experience. Nooner v. Norris, 594 F.3d 592, 605 (8th Cir. 2010) (Arkansas -

21 two years); Jackson v. Danberg, 594 F.3d 210, 213 (3d Cir. 2010) (Delaware - one year);

22 Cooey v. Strickland, 589 F.3d 210, 219 (6th Cir. 2009) (Ohio - one year); Raby v.
23 Livingston, 600 F.3d 552, 555 (5th Cir. 2010) (Texas - one year).
24

25

Further, the Intravenous Sub-Team only must have current experience “setting up

26 intravenous lines,” “which is distinguished from actually inserting catheters” and need not

27 have any experience inserting catheters in inmates. 4th Am. Compl. at 40, No. 428. Cal. 28

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Case3:06-cv-00219-RS Document440 Filed11/08/10 Page13 of 22

1 Code Regs., tit. 15, § 3349.1.2(f)(4). Since the Intravenous Sub-Team must “[i]nsert the

2 intravenous catheters into appropriate veins” and “[m]onitor the intravenous lines to ensure

3 patency of the lines,” and the same personnel as previously employed are permitted to do
4 so under the Regulations, it is plausible that this lack of experience creates “a substantial
5 and present risk of severe pain and suffering” in violation of the Eighth Amendment. 4th
6
7 Am. Compl. at 38, No. 428. Cal. Code Regs tit. 15, § 3349.1.3(c)(2).

8

Defendants’ attempt to obscure this deficiency by claiming the IV team must

9 “regularly provide IV services.” Mot. to Dismiss at 13. Whatever this means, it is not in
10 the Regulations. If read carefully, the Regulations do not include any required experience
11 inserting IVs or checking lines for deficiencies.
12

13

B. California’s Consciousness Check Provisions Do Not Cure Any

14

Deficiencies.

15

California’s Lethal Injection Regulations require a member of the Intravenous

16 Sub-Team to assess consciousness of the condemned inmate. Cal. Code Regs. tit. 15, §
17
3349.4.5(g)(5). The Kentucky protocol requires the warden and deputy warden to 18

19 determine if the inmate is unconscious. Baze, 553 U.S. at 43.

20

Although the defendants tout this as an “improvement” over the previous

21 procedure and one that is better than Kentucky’s, this is not so, at least without any fact
22 development. As noted in the Complaint, the Intravenous Sub-Team has no experience
23 and inadequate training to assess consciousness. The deficiency is important because
24
25 California, unlike Kentucky, has not taken adequate steps “to ensure the proper

26 administration of the first drug” (discussed infra). Id. at 60. In California, the Intravenous

27 Sub-Team is “unable to determine whether an inmate is aware of or feeling pain at the time 28

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1 the pancuronium bromide or the potassium chloride is administered, or if the administration

2 causes the prisoner to become able enough to sense the excruciating pain from

3 pancuronium bromide and, then, potassium chloride.” 4th Am. Compl. at 11; No. 428.
4 This is a plausible claim because the California execution team members are not required
5 to have experience or undertake meaningful training to do so. See, e.g., No. 281 [Heath
6
7 Decl.], at 5, 13-18 (discussing experience and training necessary to assess anesthetic depth

8 prior to and during administration of all drugs). Indeed, under the Regulation, Witnesses 3,

9 4 and 6 would be undertaking this effort. Further, the Regulation stops the inadequate and
10 inexperienced assessment after the first drug. Thus, the question of adequate anesthetic
11 during the administration of pancuronium bromide and potassium chloride remains
12
13 unaddressed. The plausibility of this allegation and the risk to plaintiffs is underscored by

14 defendants’ decision to retain and use licensed anesthesiologists to undertake this task

15 during plaintiff Morales’ February 21, 2006 scheduled execution. See Morales v. Hickman,
16 438 F.3d 926, 929 (9th Cir. 2006).
17

18

C. Plaintiffs’ Claims Are Plausible Based upon California’s Record

19

Which Is Starkly Different Than the Record in Kentucky.

20

The Supreme Court’s holding in Baze was based in large part on the trial court’s

21 interpretation of the record. See, e.g., Baze, 335 U.S. at 54 (“we cannot say [the trial
22 court’s finding] is clearly erroneous . . . particularly when that finding is substantiated by
23 expert testimony.”). Here, however, the record is substantially different. Based upon the
24
25 record, defendants’ execution practices to date have been declared unconstitutional under

26 Baze. Order Following Remand, Sept. 28, 2010, at 4, No. 424. Currently, there exist

27 “substantial questions of fact as to whether at least some of the deficiencies of [the previous 28

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 12

Case3:06-cv-00219-RS Document440 Filed11/08/10 Page15 of 22

1 protocol] have been addressed in actual practice.” Id. at 7. As alleged in the Fourth

2 Amended Complaint, the record here provides sufficient facts to show a facially plausible

3 Eighth Amendment violation.

4

5

1. Intravenous Sub-Team Members Are Inadequately Trained

to Place Intravenous Lines and Mix Sodium Thiopental.

6

7

The Fourth Amended Complaint is replete with allegations based on the record

8 and the Regulations themselves that the Intravenous Sub-Team’s training is deficient. The

9 Team Administrator has no qualification or training: “there are no specific requirements
10 that the team leader has ever participated in an execution or has mastered any specific task
11 such as how to insert catheter, or prepare or infuse the chemicals. . . . [T]he team leader
12
13 position does not require prior team membership, execution training or experience.” 4th

14 Am. Compl. at 30, No. 428. The “failure to provide for anyone with adequate medical

15 training or expertise, or qualifications, to perform, oversee or review the training” “creates
16 a present and substantial risk that a prisoner would not receive the necessary amount of
17 anesthetic prior to being paralyzed by the pancuronium bromide and then experience the
18
19 severe unconstitutional pain of the potassium chloride.” 4th Am. Compl. at 42, 50, No.

20 428. When “the persons charged with administering the drugs and overseeing the process

21 are inadequately trained to do so and, due to this lack of training and the dangers presented
22 by improper administration of the drugs used to ensure death, Plaintiffs face the risk of
23 suffering ‘the agony of asphyxiation’ and ‘tremendous burning in their veins and painful
24
25 heart attacks,’ while being unable to express the pain experienced or convey their suffering

26 because of the paralysis induced by pancuronium bromide.” Chester v. Beard, 657 F.

27 Supp. 2d 534, 544 (M.D. Pa. 2009). Such “allegations are sufficient to state a claim under 28

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 13

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1 the Eighth and Fourteenth Amendments, notwithstanding the outcome in Baze.” Id. The

2 allegations in the Fourth Amended Complaint are almost identical to those in Chester.

3

Moreover, defendants incorrectly contend that other Courts of Appeals have

4 upheld execution protocols that have training and team-member qualifications requirements
5 which are similar, if not less stringent, than those found in defendants’ regulations. The
6

7 Fourth Circuit is the only Court of Appeals that has specifically addressed the

8 qualifications of the person training the intravenous team. It noted that Virginia’s

9 intravenous team “receives training in the insertion and maintenance of IV lines from a
10 physician licensed to practice medicine by the Virginia Board of Medicine.” Emmett v.
11 Johnson, 532 F.3d 291, 295 (4th Cir. 2008). California’s Team Administrator, in contrast,
12
13 is the least experienced of all the team members. Cal. Code Regs., tit. 15 §§ 3349.1.2,

14 3349.1.4(a). “The training of lethal injection team members will be conducted by people

15 who are untrained themselves and therefore unqualified to instruct others.” 4th Am.
16 Compl. at 30, No. 428.
17 It should be noted that defendants’ records are such that training of core medical
18
19 personnel does not occur. This is consistent with the medical personnel non-CDCR

20 personnel opt-out provision from the training requirements. See 4th Am. Compl. at 41, No.

21 428. It also is contrary to defendants’ assertions in their motion.
22 Even assuming the Regulations require some level of experience in inserting IVs,
23 another core factual dispute is whether it is true that medical personnel on the IV team at
24
25 CDCR are permitted to insert catheters without a doctor’s supervision. Mot. to Dismiss at

26 4 n.1. The record before this Court is to the contrary, as are the allegations. See 4th Am.

27 Compl. at 40, No. 428. 28

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1

Further, the medical personnel exemption from most of the training assures

2 continued inadequate training as was described under OP 770. 4th Am. Compl. at 41, No.

3 428. In addition, as defendants note, it is only CDCR personnel who must train. Here, the
4 Warden can employ others, who apparently have no such requirements. And, as noted, the
5 defendants have already failed to follow their own training requirements for executions.
6
7 4th Am. Compl. at 43, No. 428.

8

Defendants argue the training file assures that training will occur. Mot. to

9 Dismiss at 14. But the question is not whether there is a file; it is what is in that file. 4th
10 Am. Compl. at 40-41, No. 428 (eliminating recording requirement as to who actually
11 attends training). Defendants do not and cannot point to a single provision wherein it is
12
13 noted who attended and what they did. No such Regulation exists. In fact, these records

14 were eliminated specifically because they were used previously to demonstrate the lack of

15 training of core medical personnel, a fact which one medical professional admitted.

16

17

2. The Infusion Sub-Team’s Experience and Training Are Deficient.

18

California’s Lethal Injection Regulations “permit the same unqualified and

19 incompetent persons to continue mixing sodium thiopental.” 4th Am. Compl. at 43, No.
20
428. The regulations “failure to require [training in mixing sodium thiopental] greatly 21

22 exacerbates the substantial risk that drugs will be improperly administered and condemned

23 inmates will consciously experience excruciating pain during lethal injection.” 4th Am.

24 Compl. at 43, No. 428.
25 The Infusion Sub-Team, which is responsible for mixing the sodium thiopental,
26 only needs to “(A) Be able to follow the directions provided by the manufacturer in mixing
27
28 the lethal injection chemicals. (B) Possess the organizational skills necessary to

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 15

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1 appropriately label and color code the chemicals used during the lethal injection process.”

2 Cal. Code Regs. tit. 15, § 3349.1.2(f)(5). The Infusion Sub-Team is trained by the Team

3 Administrator, who does not have any relevant qualifications. Cal. Code Regs. tit. 15, §
4 3349.1.4.
5 Based upon the record in Baze, the Court upheld the Kentucky trial court’s
6
7 conclusion that there was a “minimal risk of improper mixing” of sodium thiopental in part

8 because of expert testimony describing the mixing of sodium thiopental as “not difficult at

9 all.” Baze, 553 U.S. at 54. In California, however, the record is quite different. “Among
10 other things, team members’ admitted failure to follow the simple directions provided by
11 the manufacturer of sodium thiopental further complicates the inquiry as to whether
12
13 inmates being executed have been sufficiently anesthetized.” Morales v. Tilton, 465 F.

14 Supp. 2d 972, 980 (N. D. Cal. 2006). Defendants’ witnesses and experts could not agree

15 whether sodium thiopental in solution should be a “yellow, brownish tan color,” “basically
16 clear,” or “a very pale green.” 4th Am. Compl. at 29-30, No. 428. The record reviewed by
17 Dr. Heath and undisputed by defendants was that Witness No. 6 improperly mixed the
18
19 chemicals. No. 281, at 3; 4th Am. Compl. at 29-30, No. 428.

20

Although defendants assert they now train in mixing the chemicals, the allegation

21 is that they do not. 4th Am. Compl. at 44, No. 428.2
22 Another allegation, supported by recent events, concerns the use of foreign
23 thiopental manufactured in an unknown country. 4th Am. Compl. at 43, No. 428.
24
25 Defendants do not even respond to this allegation. It is submitted that fact development

26 2 Defendants do not contend this is implausible, mainly because it is supported by the
27 fact that defendants ran out of thiopental some time ago and that their own training logs
28 contained no notations of any mixing in the forms designated for such notations.

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1 will demonstrate that this is a particularly viable area of inquiry as to substantial risk

2 because it can be demonstrated that different countries use different properties in their

3 drugs, have different requirements as to shelf life, and even have different packaging and
4 mixing instructions.
5 An improper dose of sodium thiopental would not render the condemned inmate
6
7 unconscious during the execution, opening the door to the “unacceptable risk of suffocation

8 from the administration of pancuronium bromide and pain from the injection of potassium

9 chloride.” Baze, 553 U.S. at 53. It is plausible in California, now as before, that the

10 Infusion Sub-Team’s complete lack of experience and training is sufficient to create a
11 “substantial and present risk of severe pain and suffering.” 4th Am. Compl. at 38, No. 428.
12

13

Defendants do not address the allegations concerning the infusion of the drugs

14 themselves and the lack of training for that process.

15

16

3. California’s Failure to Employ an Equally Effective Alternative Protocol Creates a Facially Plausible Eighth Amendment Violation.

17

No matter how much defendants argue that plaintiffs have not articulated an 18

19 alternative under Baze, any fair reading of the Fourth Amended Complaint demonstrates

20 that this assertion is simply unfounded. See 4th Am. Compl. at 47-48, 51-53, No. 428.

21

In Baze, the plurality noted, “the Commonwealth’s continued use of the three-

22 drug protocol cannot be viewed as posing an ‘objectively intolerable risk’ when no other
23
State has adopted the one-drug method and petitioners proffered no study showing that it is 24

25 an equally effective manner of imposing a death sentence.” Baze v. Rees, 553 U.S. 35, 57

26 (2008). Since Baze, the historical record is now more complete. Plaintiffs’ proposed one-

27 drug protocol is a known and available alternative, which will eliminate the risk of severe 28

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 17

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1 pain. Other states have adopted the one-drug method. “Since Baze was decided, two

2 states–Ohio and Washington–have carried out a total of nine successful and problem-free

3 executions using only sodium thiopental.” Order Granting Motion For Leave to Intervene;
4 and Denying Conditionally Intervenor’s Motion for a Stay of Execution, Sept. 24, 2010, at
5 5, No. 401; 4th Am. Compl. at 47, No. 428. Further, defendants’ own experts have
6
7 indicated that the one-drug protocol is an equally effective manner of imposing the death

8 sentence:

9

Defendants have ignored their own experts’ advice in

10

retaining the three-drug procedure. Dr. Singler advised

them that it would be equally viable to use a single-drug

11

procedure and at one time referred to the application of

other drugs as the ‘cosmetic portion of the process.’ Dr.

12

Dershwitz has advocated this procedure. The analyst

13

employed by Defendant CDCR to research and revise the

procedure in light of the Court’s 2006 Memorandum of

14

Intended Decision recommended a thiopental-only

procedure. 15

16 4th Am. Compl. at 47-48, No. 428.

17

As noted in the Fourth Amended Complaint, defendants themselves have twice

18 represented to this Court that a single-drug protocol is equally viable and feasible, and one

19 that has already been found to alleviate the substantial risk of pain demonstrated by the
20 record here. 4th Am. Compl. at 47, No. 428.
21

22

Defendants’ continued use of the three-drug protocol when an equally effective

23 alternative exists and is being used by other states creates a facially plausible Eighth

24 Amendment violation. Baze, at 52 (when a state “refuses to adopt such an alternative in the
25 face of these documented advantages, without a legitimate penological justification for
26 adhering to its current method of execution, then a State's refusal to change its method can
27
28 be viewed as ‘cruel and unusual’ under the Eighth Amendment.”)

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 18

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1

Defendants insist that plaintiffs must allege that any alternative is Eighth

2 Amendment compliant. No such requirement appears in Baze or anywhere else.

3

4

4. None of the Allegations are False or Implausible.

5

Defendants claim only a few portions of the Fourth Amended Complaint are

6 inaccurate. Mot. to Dismiss at 17-18. For the most part, this results from Defendants
7 inaccurate reading of the Fourth Amended Complaint. For instance, it is not the Warden’s 8
absence from the execution room that is in issue; it is his absence from the infusion room. 9 10 4th Am. Compl. at 42, No. 428. In other parts, defendants attempt to twist the Regulations

11 into something they are not. For instance, doctors are included in the process, but only to

12 monitor the EEG and declare death. And, the fact that defendants have devised a procedure

13 that does not follow their own regulations and procedures is certainly strong support for

14 allegations that they are ill-equipped to carry out the task at hand.
15

16

In any event, for purposes of a motion under Rule 12(b)(6), the allegations are

17 taken as true, and defendants cannot quibble at this stage of the proceedings about whether

18 they are accurate or can be proved by a preponderance of the evidence. In re Facebook
19 PPC Adver. Litig., 709 F. Supp. 2d 762, 768 (N.D. Cal. 2010). 20

21

2. Plaintiffs Should be Granted Leave to Amend in the Event There Is a

22

Pleading Deficiency.

23

Leave to amend must be granted unless it is clear that the complaint’s deficiencies

24 cannot be cured by amendment. Lucas v. Dep’t of Corrs., 66 F.3d 245, 248 (9th Cir. 1995).
25 To the extent that plaintiffs’ allegations fail to allege enough facts to state a plausible claim
26 for relief, such a deficiency can be cured by amendment.
27
28 / /

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 19

Case3:06-cv-00219-RS Document440 Filed11/08/10 Page22 of 22

1

CONCLUSION

2

For the foregoing reasons, plaintiffs Michael A. Morales and Albert G. Brown

3 request that this Court deny defendants’ motion to dismiss, or, in the alternative, grant
4 plaintiffs leave to amend their Fourth Amended Complaint.
5

6 DATED: November 8, 2010 7 8 9 10 11 12 13

By:

/s/

David A. Senior

McBREEN &SENIOR

Richard P. Steinken JENNER & BLOCK

John R. Grele LAW OFFICE OF JOHN R. GRELE Attorneys for Plaintiffs ALBERT G. BROWN MICHAEL A. MORALES

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS 20

 
 Case3:06-cv-00219-RS Document461 Filed12/10/10 Page1 of 15

1

**E-Filed 12/10/2010**

2

3

DESIGNATED FOR PUBLICATION

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

12 Michael Angelo MORALES and Albert Greenwood Brown,
13 Plaintiffs,
14 v.
15 Matthew CATE, Secretary of the California
16 Department of Corrections and Rehabilitation, et al.,
17 Defendants.
18

Case Number 5-6-cv-219-JF-HRL Case Number 5-6-cv-926-JF-HRL DEATH-PENALTY CASE ORDER RE PARTIAL MOTION TO DISMISS
[Doc. No. 430]

19

Plaintiffs are condemned prisoners whom Defendants seek to execute pursuant to

20 California’s operative lethal-injection protocol, California Code of Regulations, title 15, sections

21 3349 et seq. (2010), which took effect on August 29, 2010. (See Doc. No. 432-1.) On December

22 15, 2006, this Court found that an earlier version of the protocol, then officially designated as

23 San Quentin Operational Procedure No. 0-770, or OP 770, as actually applied in practice violated

24 the Eighth Amendment’s prohibition against “cruel and unusual punishments,” U.S. Const.

25 amend. VIII. Morales v. Tilton (Morales 290), 465 F. Supp. 2d 972 (N.D. Cal. 2006). The

26 principal issue in the current proceedings is whether the new protocol is constitutional.

27

Like its several predecessors, the new protocol provides for “the injection of three drugs

28 into a person being executed: sodium thiopental, a barbiturate sedative, to induce

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1 unconsciousness; pancuronium bromide, a neuromuscular blocking agent, to induce paralysis;

2 and potassium chloride, to induce cardiac arrest.” Id. at 975; Cal. Code Regs., tit. 15,

3 §3349.4.5(g). Defendants have stipulated throughout these proceedings that “injection of the

4 second and third drugs . . . without adequate anesthesia will cause an unconstitutional level of

5 pain,” Morales v. Cate (Morales 424), No. 5-6-cv-219-JF-HRL, 2010 WL 3835655, at *3 (N.D.

6 Cal. Sept. 28, 2010); thus, the ultimate merit of Plaintiffs’ case turns, as it has from the outset, on

7 a factual determination as to the degree of risk that a condemned inmate will not be or remain

8 sufficiently anesthetized by the first drug when the second and third drugs are administered.

9

Pursuant to Court order, Plaintiffs recently have amended their complaint to “set[] forth

10 their claims with respect to California’s new lethal-injection regulations.” (Doc. No. 425 at 1.)

11 In response, and as permitted by Federal Rule of Civil Procedure 12(b)(6), Defendants now move

12 to dismiss portions of Plaintiffs’ amended pleading, (Doc. No. 428), for failure to state a claim

13 upon which relief can be granted:

14

(1) Plaintiffs’ facial challenge to the State of California’s written

regulations governing the administration of the death penalty by

15

use of lethal injection; and (2) Plaintiffs’ attempt to allege a claim

that, under the standard for adopting an alternative execution

16

protocol set forth in Baze v. Rees, 553 U.S. 35, 61 (2008), there

exists a known and available alternative to California’s regulations

17

as written which, in comparison to California’s regulations,

significantly reduces a substantial risk of severe pain.1

18

(Doc. No. 430 at 7.) The Court has read the moving and responding briefs and has considered

19

the oral arguments of counsel presented on December 2, 2010. For the reasons set forth herein,

20

the partial motion to dismiss will be denied. At the same time, the Court will exercise its

21

supervisory powers to limit the scope of the instant proceedings—and particularly the scope of

22 discovery—so that the merits of Plaintiffs’ claims may be resolved as expeditiously as possible.2

23

24
1 Defendants do not seek dismissal to the extent that Plaintiffs assert an as-applied challenge to
25 the new protocol.

26

2 Plaintiffs’ complaint contains only a single count of an alleged violation of the Constitution.

27 (Doc. No. 428 at 49–56.) Although the instant motion parses this count into three separate claims, the
Supreme Court recently has observed that “the distinction between facial and as-applied challenges is not

28 so well defined . . . that it must always control the pleadings and disposition in every case involving a

2
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1

I

2

A

3

As the Court has noted repeatedly throughout the instant litigation, neither the

4 constitutionality of the death penalty, nor the constitutionality of lethal injection per se as a

5 method of execution, is at issue in the present action. The action does not present the question of

6 “whether the death penalty makes sense morally or as a matter of policy,” Morales 290 at 973, or

7 of whether Plaintiffs’ convictions and death sentences are just and appropriate, see, e.g., id. at

8 974. Both Plaintiffs have been convicted of and sentenced to death for truly heinous crimes.

9 Their convictions and sentences have been affirmed on appeal and have survived literally

10 decades of both state and federal collateral review. Morales v. Woodford, 388 F.3d 1159 (9th

11 Cir. 2004); Brown v. Ornoski, 503 F.3d 1006 (9th Cir. 2007). The present action involves only

12 the means by which Plaintiffs will be executed.

13

B

14

It also must be emphasized at the outset that the specific issue raised by a motion to

15 dismiss is not whether a claim ultimately has merit. Rather, the only determination that the Court

16 is permitted to make at this point is procedural: whether Defendants have shown beyond doubt

17 that the Court could not grant any relief no matter what Plaintiffs are able to prove. See Conley

18 v. Gibson, 355 U.S. 41, 45–46 (1957); Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439

19 (9th Cir. 1987); Rodriguez v. Cal. Hwy. Patrol, 89 F. Supp. 2d 1131, 1134–35 (N.D. Cal. 2000).

20 The Court may dismiss a claim for failure to state a claim upon which relief can be granted for

21
22 constitutional challenge.” Although in some ways “[t]he distinction is both instructive and necessary,”
this is because “it goes to the breadth of the remedy employed by the Court, not what must be pleaded in
23 a complaint.” Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 893 (2010). Even if the Court
were to dismiss Plaintiffs’ facial challenge, “that would not prevent the Court from . . . addressing the
24 facial validity,” id. at 892, of the lethal-injection protocol. Accordingly, the dismissal of a facial
challenge while retaining an as-applied challenge would be a meaningless exercise. Similarly, as
25 explained below, Plaintiffs’ argument regarding the availability of alternative lethal-injection procedures 26 is not properly characterized as a separate claim. “Rather, it is—at most—a new argument to support
what has been a consistent claim,” id. at 893 (internal quotation marks and brackets omitted), to wit, that
27 California’s lethal-injection protocol violates Plaintiffs’ right “to be free from cruel and unusual
punishment and to be free from arbitrary and capricious procedures,” (Doc. No. 428 at 49; see id. at 51,
28 53).

3
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1 only two reasons: (1) lack of a cognizable legal theory; or (2) failure to allege sufficient facts

2 under a cognizable legal theory. See Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530,

3 533–34 (9th Cir. 1984). Moreover, even if the Court were to grant the instant motion, Plaintiffs’

4 claim that the new regulations are unconstitutional as applied, the sufficiency of which is not

5 challenged by Defendants, would proceed.

6

For present purposes, the Court is required to assume, without deciding, the truth of all of

7 the factual allegations in Plaintiffs’ complaint, and to construe those allegations in the light most

8 favorable to Plaintiffs. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Sun Sav. & Loan

9 Ass’n v. Dierdorff, 825 F.2d 187, 191 (9th Cir. 1987). In particular, “[c]ivil rights complaints are

10 to be liberally construed,” and need only comply with Federal Rule of Civil Procedure 8(a),

11 Buckey v. Cnty. of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992), which provides that a

12 complaint “must contain . . . a short and plain statement of the claim showing the pleader is

13 entitled to relief,” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must

14 contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

15 face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted)

16 (construing Fed. R. Civ. P. 8(a)); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)

17 (same). The Court need not accept as true conclusory allegations, unreasonable inferences, legal

18 characterizations, or unwarranted deductions of fact contained in a complaint. Clegg v. Cult

19 Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

20

In light of this standard, motions to dismiss are viewed with disfavor and rarely are

21 granted. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). Moreover, when

22 a claim is dismissed, leave to amend must be granted unless it is clear that amendment cannot

23 cure the complaint’s deficiencies. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995).

24

II

25

A

26

Kevin Cooper was the first condemned prisoner to challenge the constitutionality of

27 California’s lethal-injection protocol in this Court . Cooper v. Rimmer, No. 5-4-cv-436-JF, 2004

28 WL 231325 (ND. Cal. Feb. 6), aff’d, 379 F.3d 1029 (9th Cir. 2004). Cooper filed his action a

4
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1 mere eight days before he was scheduled to be executed, which left no time before his execution

2 to develop a factual record with respect to the eight lethal-injection executions that California

3 had conducted previously. The Court found that Cooper had “done no more than raise the

4 possibility that California’s lethal-injection protocol unnecessarily risks an unconstitutional level

5 of pain and suffering.” 2004 WL 231325, at *4. Accordingly, the Court concluded that Cooper

6 had “not met his burden of demonstrating” his entitlement to a stay of his execution. Id., at *3.

7

The United States Court of Appeals for the Ninth Circuit affirmed, holding that Cooper

8 had fallen “far short of showing that he is subject to an unnecessary risk of unconstitutional pain

9 or suffering. . . .” 379 F.3d at 1033. Judge Browning concurred, noting that the circuit panel had

10 determined “only that the district court did not abuse its discretion in applying the law to the

11 factual record before it.” Id. at 1034 (Browning, J., concurring). Judge Browning observed that

12 the ultimate outcome of the case might well be different were the case to proceed to trial, in part

13 “‘because the fully developed factual record may be materially different from that initially before

14 the district court.’” Id. (quoting Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 753 15 (9th Cir. 1982)).3

16

The next prisoner scheduled for execution in California, Donald J. Beardslee, also filed a

17 challenge to California’s lethal-injection protocol. Beardslee v. Woodford, No. 5-4-cv-5381-JF,

18 2005 WL 40073 (N.D. Cal. Jan. 7), aff’d, 395 F.3d 1064 (9th Cir. 2005). Beardslee initiated his

19 action thirty days before his scheduled execution. Although Beardslee had “been somewhat

20 more diligent” than Cooper and had submitted additional evidence, the Court found once again

21 that there was insufficient time to develop a complete factual record prior to the execution. 2005

22 WL 40073, at *2. It concluded that, like Cooper, Beardslee had “done no more than raise a

23 concern that errors may be made during his execution that could expose him to a risk of

24 unnecessary pain. Based upon the . . . record” then before it, the Court determined that “a

25

26

3 For reasons unrelated to his lethal-injection challenge, Cooper was not executed as scheduled,

27 and the Court ultimately dismissed his complaint without prejudice for failure to exhaust administrative
remedies. Cooper v. Woodford, No. 5-4-cv-436-JF (N.D. Cal. Oct. 14, 2004) (Doc. No. 33), aff’d, No.

28 04-99001 (9th Cir. Aug. 11, 2005).

5
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1 finding that there is a reasonable possibility that such errors will occur would not be supported by

2 the evidence.” The Court concluded that Beardslee’s action thus was “materially

3 indistinguishable from Cooper,” and it declined to issue a stay of execution. Id., at *3.

4

The Court of Appeals again affirmed, noting that “the question before us is not the

5 ultimate resolution of the merits of this issue. That will have to await another day, based on a

6 full record.” 395 F.3d at 1076. Although in the panel’s view the evidence submitted by

7 Beardslee “raise[d] extremely troubling questions about the protocol,” id. at 1075, the

8 determinative question was “whether, in this specific challenge, [Beardslee] has shown enough

9 of a likelihood that he will be conscious during the administration of pancuronium bromide and

10 potassium chloride to experience pain,” id. at 1076. The court concluded that, “[o]n this limited

11 record, he has not made that showing,” id., pointedly observing that it “express[ed] no opinion on 12 the ultimate merits of the claims,” id. at 1077.4

13

Plaintiff Michael Angelo Morales initiated the present action, which is the third challenge

14 to California’s lethal-injection protocol, on January 13, 2006,5 shortly before the scheduling of

15 his execution (which thereafter was scheduled for February 21, 2006), and accordingly there was 16 sufficient time for at least some discovery.6 For this reason, “the record in the present action

17 [was] substantially more developed than the record in Cooper or Beardslee.” Morales v.

18 Hickman (Morales 62), 415 F. Supp. 2d 1037, 1043 (N.D. Cal.), aff’d, 438 F.3d 926 (9th Cir.

19 2006). The record evidence at the time of the hearing on Morales’s motion for a preliminary

20 injunction supported a finding that “inmates’ breathing may not have ceased as expected in at

21 least six [lethal-injection] executions.” As a result, and for the first time, the Court had “at least

22 some doubt as to whether the protocol actually is functioning as intended.” 415 F. Supp. 2d at

23 1045. However, though it found that Morales had “raised more substantial questions than his

24

25

4 Beardslee subsequently was executed as provided in OP 770. The next two prisoners executed,

26 Stanley “Tookie” Williams and Clarence Ray Allen, did not file challenges to the protocol.

27

5 The first document he filed was his original complaint. (Doc. No. 1.)

28

6 Morales thereafter amended his complaint. (Doc. No. 51.)

6
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1 counterparts in Cooper and Beardslee,” id. at 1046, the Court nonetheless denied Morales a stay

2 of execution, on the condition that Defendants conduct the execution either using “only sodium

3 thiopental or another barbiturate or combination of barbiturates” or with the involvement of an

4 anesthetist or an anesthesiologist, id. at 1047.

5

Once again, the Court of Appeals affirmed. 438 F.3d 926. The court observed that

6 “[u]nlike the earlier challenges to [OP] 770, in this case the district court had a more developed

7 record, including evidence from executions subsequent to and including Beardslee’s.” Id. at 930.

8 That record supported the finding that Morales, unlike Cooper and Beardslee, had “shown

9 sufficient likelihood that the administration of the sodium thiopental will be improper in his

10 case. . . .’” Id. (quoting Beardslee, 395 F.3d at 1076) (internal brackets omitted).

11

As recounted in Morales 290, Morales was not executed, and a stay of execution issued.

12 465 F. Supp. 2d at 976–77.7 Shortly thereafter, Defendants revised OP 770.8 Id. at 977. Over

13 the next several months, the parties engaged in substantial fact discovery, and the Court

14 “conducted five days of formal hearings, including a day at San Quentin State Prison that

15 involved a detailed examination of the execution chamber and related facilities.” Id. at 974.

16 These proceedings yielded “a mountain of documents, including hundreds of pages of legal

17 briefs, expert declarations, and deposition testimony.” Id. This Court found that the factual

18 record, “particularly as it has been developed through discovery and the evidentiary hearing,

19 [was] replete with evidence that in actual practice OP 770 [did] not function as intended. The

20 evidence show[ed] that the protocol and Defendants’ implementation of it suffer[ed] from a

21 number of critical deficiencies,” id. at 979, several of which the Court discussed at some length,

22 id. at 979–81. The Court found that there was a “pervasive lack of professionalism in the

23 implementation of OP 770” as well as “systemic flaws in the implementation of the protocol.”

24

25

7 Defendants initially retained two anesthesiologists to be present at the execution. After the

26 anesthesiologists declined to go forward at the eleventh hour, Defendants sought and obtained an order
permitting them to execute Morales using only sodium thiopental, but they were unable or chose not to

27 comply with certain terms of that order.

28

8 Consequently, Mr. Morales filed his second amended complaint. (Doc. No. 131.)

7
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1 Id. at 980. It noted that “[w]hatever the merits of the protocol in the abstract, there can be no real

2 doubt that Defendants’ implementation of OP 770 has major flaws.” Id. at 981. The Court

3 concluded that

4

Defendants’ implementation of California’s lethal-injection

protocol lacks both reliability and transparency. In light of the

5

substantial questions raised by the records of previous executions,

Defendants’ actions and failures to act have resulted in an undue

6

and unnecessary risk of an Eighth Amendment violation. This is

intolerable under the Constitution.

7

Id.

8

At the same time, the Court found that “the deficiencies in the protocol appear to be

9

correctable.” Id. at 982; see also id. at 974 (“Defendants’ implementation of lethal injection is

10

broken, but it can be fixed.”). Rather than simply enter judgment for Plaintiffs, the Court

11

therefore “respectfully . . . urge[d] the Governor’s Office to take this opportunity to address

12

seriously now, rather than later, the significant problems with OP 770 and its implementation.”

13

The Governor’s Office accepted the Court’s invitation, and on May 15, 2007, Defendants

14 issued a new version of OP 770.9 (Docs. Nos. 317–18.) Discovery then resumed, and the Court

15

scheduled an evidentiary hearing for December of that year. (See Doc. No. 319.) However, on

16

October 31, 2007, a state trial court imposed a moratorium on executions in California “based on

17

its conclusions that Defendants were required to and did not comply with California’s

18

Administrative Procedures Act when they promulgated the protocol.” (Doc. No. 370 at 1 (citing

19

Morales v. Cal. Dep’t of Corr. & Rehab., No. CV061436 (Cal. Super. Ct. Marin Cnty. Oct 31,

20

2007) (internal citation omitted)).) Because California no longer had an operative protocol for

21

this Court to review, “all parties filed a statement with this Court whereby they jointly

22

request[ed] that discovery be stayed and that the present case-management schedule be vacated.”

23

(Doc. No. 370 at 1–2.) The Court responded that “[w]ithout making any findings or reaching any

24

conclusions as to the appropriateness of or need for any changes to the schedule in this action, the

25

Court will defer to the request made by the parties.” (Id. at 2.) The state-court litigation

26

27
9 Morales filed his third amended complaint to reflect the new version of the protocol. (Doc. No.
28 323.)

8
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1 ultimately led to the promulgation of the regulations now at issue. Active litigation in the present 2 action then resumed.10

3

B

4

While the state-court moratorium on executions was in effect, the Supreme Court decided

5 Baze v. Rees, 553 U.S. 35 (2008). Baze involved a constitutional challenge to Kentucky’s lethal-

6 injection protocol, which uses the same three drugs used in California, id. at 44 (plurality op.),

7 and the case clarified the standard that federal courts must apply to a constitutional challenge to

8 an execution protocol. Prior to Baze, courts in the Ninth Circuit were required to determine

9 whether an execution protocol subjected a prisoner to an “unnecessary risk of unconstitutional

10 pain.” Cooper, 379 F.3d at 1033. This Court was obligated to apply that standard in Morales

11 290 in determining whether Morales had carried his burden of proof. However, Chief Justice

12 Roberts, writing for the plurality in Baze, explicitly rejected an “unnecessary risk” standard. 553

13 U.S. at 51 (plurality op.). Plaintiffs now must establish that California’s lethal-injection protocol

14 “creates a demonstrated risk of severe pain. [They] must show that the risk is substantial when

15 compared to the known and available alternatives.” Id. at 61. The plurality also observed that “a

16 lethal injection protocol substantially similar to the protocol we uphold today would not create a

17 risk that meets this standard.” Id.

18

Although “[t]he trial court held extensive hearings and entered detailed” factual findings,

19 id. at 41, the record in Baze included evidence only with respect to the one lethal-injection

20 execution that Kentucky had conducted, in which there had been “no reported problems,” id. at

21 46. As this Court has noted elsewhere, “the factual record before the Supreme Court [in Baze]

22 was virtually nonexistent.” Morales 424, 2010 WL 3835655, at *3. Indeed, that record plainly

23 was less developed even than the records in Cooper and Beardslee. Like this Court in Cooper

24 and Beardslee, the Supreme Court held that, on the facts before it, the prisoners had “not carried

25
10 This included Albert Greenwood Brown’s intervention in the present action and the
26
conditional denial of a stay of his execution, Morales v. Cate (Morales 401), No. 5-6-cv-219-JF-HRL,
27 2010 WL 3751757 (N.D. Cal. Sept. 24, 2010); the subsequent issuance of a stay of Brown’s execution,
Morales 424, 2010 WL 3835655; and the filing of Plaintiffs’ fourth amended complaint to reflect the
28 current version of the protocol, (Doc. No. 428).

9
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1 their burden of showing that the risk of pain from maladministration of a concededly humane

2 lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute

3 cruel and unusual punishment.” Id. at 41; see also id. at 53–54 (prisoners “have not shown” a

4 substantial risk of serious problems).

5

The Baze plurality also commented explicitly on the difference that a developed record

6 could make. It observed that, in a case with a slight record, “an isolated mishap alone does not

7 give rise to an Eighth Amendment violation, precisely because such an event, while regrettable,

8 does not suggest cruelty, or that the procedure at issue gives rise to a substantial risk of serious

9 harm.” Id. at 50. But it also recognized that a pattern of serious problems during executions

10 “—unlike an innocent misadventure—would demonstrate an objectively intolerable risk of harm

11 that officials may not ignore.” Id.

12

Because the Baze petitioners could not identify even “an isolated mishap” during

13 Kentucky’s only lethal-injection execution, it is not surprising that they were unable to “show[]

14 that the risk of an inadequate dose of [sodium thiopental] is substantial.” Id. at 54. The plurality

15 accepted the Kentucky trial court’s finding, based solely on expert testimony, that the risk of

16 improper preparation of sodium thiopental was minimal, in part because such preparation is not

17 particularly difficult. Id. at 54. Similarly, the plurality rejected concerns related to the

18 intravenous lines used to administer the drugs in light of “several important safeguards to ensure

19 that an adequate dose of sodium thiopental is delivered to the condemned prisoner.” These

20 safeguards include requirements that members of the IV team have sufficient qualifications, id. at

21 45, 55–56, and at least one year of relevant medical professional experience (the plurality

22 described this as the “most significant” safeguard), id. at 45, 55; that the entire execution team

23 participate in at least ten practice sessions per year, each encompassing “a complete walk-

24 through of the execution procedures,” id.; that the IV team have ample time to establish primary

25 and backup lines, and to prepare two sets of the drugs, id.; and that the warden and deputy

26 warden be present in the execution chamber both to observe the prisoner and to watch for signs

27 of the proper administration of the sodium thiopental along with any IV problems, id. at 45–46,

28 56. The plurality concluded that “[i]n light of these safeguards, we cannot say that the risks

10
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1 identified by [the petitioners] are so substantial or imminent as to amount to an Eighth

2 Amendment violation.” Id. In short, the plurality assumed that the sodium thiopental would

3 function as intended, as there was no evidence to the contrary.

4

The Kentucky trial court’s factual findings, based on this limited record, stand in sharp

5 contrast to this Court’s factual findings in Morales 290, which were based on a voluminous

6 record that included evidence with respect to eleven lethal-injection executions, the majority of

7 which appeared to have had significant problems. Among other deficiencies in OP 770, the

8 Court found, in large part on the basis of undisputed evidence, that the execution team

9 improperly mixed, prepared, and administered sodium thiopental during executions, 465 F. Supp.

10 2d at 980; that members of California’s execution team were insufficiently qualified, id. at 979;

11 that the IV team members were “not adequately prepared to deal with any complications that may

12 arise,” id.; that the walk-throughs in which the execution team participated were incomplete, and

13 the team did not receive meaningful training, id.; that the IV team did not always prepare a

14 backup line, id.; and that the physical conditions in which executions were carried out did not

15 permit effective observation of the condemned inmate, id. at 980.

16

Accordingly, when it recently was directed by the Court of Appeals to apply the Baze

17 standard to the record developed in Morales 290, the Court found that Morales had shown that

18 California’s former lethal-injection protocol created a substantial risk of severe pain.

19

This finding [was] based on the entire record, see Morales [290],

465 F. Supp. 2d 972; on the largely undisputed evidence presented

20

at the hearing; on Defendants’ stipulation that injection of the

second and third drugs in the three-drug protocol (pancuronium

21

bromide and potassium chloride) without adequate anesthesia will

cause an unconstitutional level of pain; on the fact that data in

22

Defendants’ execution logs indicate that sodium thiopental did not

have its expected effect or function as expected in 64% of lethal-

23

injection executions pursuant to the protocol; and in particular on

the testimony of Defendants’ own medical expert, Dr. Singler, that

24

in at least one execution the inmate likely was awake when the

second and third drugs were injected, and that the only reason that

25

the anesthesiologist could not render a definitive opinion was the

apparent unreliability of Defendants’ records, id. at 980.

26

Morales 424, 2010 WL 3835655, at *2.

27

28

11
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1

III

2

A

3

Defendants’ arguments with respect to Plaintiffs’ facial challenge essentially are the same

4 as they asserted in opposition to Brown’s application for a stay of execution. See Morales v.

5 Cate (Morales 401), No. 5-6-cv-219-JF-HRL, 2010 WL 3751757, at *4 (N.D. Cal. Sept. 24,

6 2010); Morales 424, 2010 WL 3835655, at *3. Defendants contend that a facial challenge to the

7 new regulations is not cognizable because the regulations “are substantially similar to or exceed

8 comparable aspects of the Kentucky protocol upheld in Baze.” (Doc. No. 430 at 18.) The bulk

9 of Defendants’ briefing is a side-by-side comparison of written provisions of the two protocols

10 that demonstrates substantial similarity. (Id. at 4–14, 19–24.) Defendants argue that this

11 comparison should be both the beginning and the end of the present inquiry in light of the

12 statement by the Baze plurality that “a lethal injection protocol substantially similar” to

13 Kentucky’s “would not create” “a demonstrated risk of severe pain.” 535 U.S. at 61 (plurality

14 op.).

15

Indeed, standing alone, this statement would appear to obviate the need for any factual

16 development with respect to a protocol that on paper is “substantially similar” to Kentucky’s.

17 However, the remainder of the plurality opinion does not support that reading. In its actual

18 context, the statement simply stands for the unremarkable proposition that a protocol

19 substantially similar to Kentucky’s cannot in and of itself give rise to an Eighth Amendment

20 claim. Nothing in Baze evidences the plurality’s intent to foreclose all future facial challenges to

21 protocols that appear substantially similar to Kentucky’s, even if they are fact-based and even

22 where as here there is substantial evidence that similar prior protocols have been deficient in

23 actual practice.

24

Defendants also contend that the new protocol has remedied any deficiencies in OP 770

25 by adding significant new safeguards. That well may be true, as Defendants have undertaken a

26 major upgrade of their execution-related facilities and there are a number of important

27 differences between the current and former versions of the protocol. (See Doc. No. 449 at 7–12

28 (comparing and contrasting versions of the protocol).) But, as the Court previously has noted,

12
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1 Plaintiffs have raised “substantial questions” of fact concerning the efficacy of these changes,

2 Morales 424, 2010 WL 3835655, at *4, and at the pleading stage Plaintiffs’ detailed factual

3 allegations as to the various ways in which the new regulations allegedly have failed to remedy

4 the deficiencies of OP 770, (e.g., Doc. No. 428 at 38–46), cannot simply be dismissed as

5 implausible. While Defendants very well may prevail on the merits, particularly given the high

6 legal threshold for lethal-injection claims established by Baze, the Court must accept the

7 allegations as true for purposes of a motion to dismiss.

8

B

9

Defendants also seek dismissal of Plaintiffs’ “claim that, under the standard for adopting

10 an alternative execution protocol set forth in Baze v. Rees, 553 U.S. 35, 61 (2008), there exists a

11 known and available alternative to California’s regulations as written which, in comparison to

12 California’s regulations, significantly reduces a substantial risk of severe pain.” (Doc. No. 430 at

13 7.) As Chief Justice Roberts wrote for the plurality,

14

[A] condemned prisoner cannot successfully challenge a State’s

method of execution merely by showing a slightly or marginally

15

safer alternative. . . . [¶] Instead, the proffered alternatives must

effectively address a substantial risk of harm. To qualify, the

16

alternative procedure must be feasible, readily implemented, and in

fact significantly reduce a substantial risk of severe pain. If a State

17

refuses to adopt such an alternative in the face of these documented

advantages, without a legitimate penological justification for

18

adhering to its current method of execution, then a State’s refusal

to change its method can be viewed as cruel and unusual under the

19

Eighth Amendment.

20 553 U.S. at 51–52 (plurality op.) (internal quotation marks and citation omitted).

21

The Baze petitioners claimed conclusorily that “Kentucky could switch from a three-drug

22 protocol to a one-drug protocol by using a single dose of sodium thiopental or other barbiturate.”

23 Id. at 56. However, this alternative was suggested for the first time in briefing before the

24 Supreme Court, and thus the trial court made no factual findings regarding its effectiveness. Id.

25 at 56–57. The plurality found it significant that “no other State has adopted the one-drug 26 method11 and [the prisoners] proffered no study showing that it is an equally effective manner of

27

28

11 Subsequent to Baze, both Ohio and Washington formally adopted a single-drug protocol.

13
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1 imposing a death sentence.” Id. at 57. For these reasons, the plurality concluded that “the

2 comparative efficacy of a one-drug method of execution is not so well established that

3 Kentucky’s failure to adopt it constitutes a violation of the Eighth Amendment.” Id. The Baze

4 petitioners also suggested various steps that could be taken to ensure proper delivery of the

5 sodium thiopental prior to and during the administration of the other two drugs, including a

6 consciousness check. Id. at 58–60. However, the plurality already had determined that the

7 prisoners had “not shown that the risk of an inadequate dose of the first drug is substantial,” id. at

8 54, and it held that “an inmate cannot succeed on an Eighth Amendment claim simply by

9 showing one more step the State could take as a failsafe for other, independently adequate

10 measures,” id. at 60–61.

11

Contrary to Defendants’ contentions, (Doc. No. 430 at 24–25), Plaintiffs’ amended

12 complaint is sufficiently specific with respect to available alternative procedures to address the

13 concerns articulated by the Chief Justice and thus to survive a motion to dismiss. In particular,

14 Plaintiffs note that twice in the course of the instant proceedings Defendants themselves have

15 agreed that a single-drug protocol using only sodium thiopental is feasible and readily 16 implemented,12 (Doc. No. 428 at 47); Plaintiffs also allege (and it is the case) that such a protocol

17 has been successfully implemented in Ohio and Washington since Baze was decided, (id.). Such

18 allegations are not merely “vague references” to alternative procedures. (Doc. No. 430 at 25.)

19 Again, given the minimal showing Plaintiffs are required to make in opposition to a motion to 20 dismiss, they are sufficient for present purposes.13

21

IV

22

Good cause appearing therefor, Defendants’ requests for judicial notice are granted,

23 Plaintiffs’ objections thereto are overruled, Defendants’ partial motion to dismiss is denied, and

24
12 Defendants agreed to use only sodium thiopental to execute both Morales, (Doc. No. 73), and
25 Brown, (Docs. Nos. 394, 404).

26

13 In Morales 290, the Court observed, inter alia, that a one-drug “lethal-injection protocol, with

27 the execution accomplished solely by an anesthetic, such as sodium pentobarbital, would eliminate any
constitutional concerns, subject only to the implementation of adequate, verifiable procedures to ensure

28 that the inmate actually receives a fatal dose of the anesthetic.” 465 F. Supp. 2d at 983.

14
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1 the stay of discovery previously entered is lifted. However, for the very reason that it concludes

2 that Plaintiffs are entitled to pursue the two aspects of their claims that are the subject of the

3 instant motion—the existence of an extensive, well-developed factual record—the Court intends

4 to monitor closely the scope and pace of any additional discovery so that the merits of Plaintiffs’

5 claims can be adjudicated promptly. The Court will hold a status conference for that purpose on

6 December 17, 2010, at 10:30 a.m.

7

IT IS SO ORDERED.

8

9 DATED: December 10, 2010 10

______________________________ JEREMY FOGEL United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15
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 Case3:06-cv-00219-RS Document564 Filed04/05/13 Page1 of 26

1 NORMAN C. HILE (STATE BAR NO. 57299) nhile@orrick.com
2 KATIE C. DEWITT (STATE BAR NO. 244673) kdewitt@orrick.com
3 LEO MONIZ (STATE BAR NO. 285571) lmoniz@orrick.com
4 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000
5 Sacramento, California 95814-4497 Telephone: 916-447-9200
6 Facsimile: 916-329-4900

7 Attorneys for Intervenor KEVIN COOPER
8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 MICHAEL ANGELO MORALES, et al.,

14

Plaintiffs,

15

v.

16 MATTHEW CATE,1 Secretary of the California Department of Corrections and
17 Rehabilitation, et al.,

Case No 3:06-cv-219-RS Case No. 3:06-cv-926-RS
NOTICE OF MOTION AND MOTION TO INTERVENE AND TO STAY EXECUTION BY KEVIN COOPER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

18

Defendants.

Date:

7/25/2013

Time:

1:30 p.m.

19

Dept:

3

Judge: Seeborg

20

Trial Date: None Set

Date Action Filed: 1/5/2006

21

22

23

24

25

26

27

28

1 Matthew Cate resigned on November 11, 2012. Jeffrey A. Beard was appointed as Secretary on December 27, 2012.

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1

TABLE OF CONTENTS

2 Page(s)

3

4 NOTICE OF MOTION AND MOTION TO INTERVENE AND TO STAY EXECUTION BY KEVIN COOPER...................................................................... 2

5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION TO INTERVENE AND TO STAY EXECUTION

6

BY KEVIN COOPER ......................................................................................................... 4

7 I. II.
8 III.
9

ISSUES TO BE DECIDED ................................................................................................ 4 SUMMARY OF RELEVANT FACTS .............................................................................. 4 ARGUMENT .................................................................................................................... 12 A. Mr. Cooper’s Motion To Intervene Should Be Granted ....................................... 12

10

1. Mr. Cooper’s Motion To Intervene Is Timely .......................................... 13

a. An Analysis Of The Stage Of The Proceedings Favors

11

Mr. Cooper’s Intervention Request............................................... 13

12

b. Mr. Cooper’s Intervention Will Not Prejudice The Existing

Parties............................................................................................ 13

13

c. Mr. Cooper Did Not Unreasonably Delay In Bringing His

Intervention Motion ...................................................................... 14 14
2. This Court Must Grant Intervention To Mr. Cooper As Of Right ............ 16

15

a. Mr. Cooper’s Interests In This Matter Are Identical To

Those Of Plaintiffs Morales, Brown, Sims, Fields, Raley,

16

Cox, And Fairbank ........................................................................ 16

17

b. Without Intervention, Mr. Cooper Is Practically Impaired

And Impeded From Protecting His Fifth, Eighth, And

18

Fourteenth Amendment Interests In Avoiding Execution By

An Unconstitutional And Arbitrary Procedure ............................. 17

19

3. Mr. Cooper Meets The Standards For Permissive Intervention................ 18

20 21 22 23 24 25 26
IV. 27

a. This Court Has Independent Grounds For Jurisdiction................. 18
b. Mr. Cooper’s Motion Is Timely.................................................... 18
c. Mr. Cooper’s Claims Have Common Questions Of Law Or Fact With Those Of The Main Action .......................................... 18
B. Mr. Cooper’s Motion To Stay His Execution Should Be Granted ....................... 20
1. Mr. Cooper Is Likely To Succeed On The Merits .................................... 20
2. Absent A Stay Of Execution, Mr. Cooper Will Suffer Irreparable Harm.......................................................................................................... 21
3. The Equities Are In Mr. Cooper’s Favor And Granting The Stay Furthers The Public’s Interest In Orderly Review .................................... 21
CONCLUSION ................................................................................................................. 22

28

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1

TABLE OF AUTHORITIES

2

Page(s)

3

FEDERAL CASES

4 Beaty v. Food & Drug Admin.,

5

853 F. Supp. 2d 30 (D.D.C. 2012) ............................................................................................ 9

6 Cate v. United States District Court (Morales & Brown), Case No. 10-72977.................................................................................................................. 12
7

8

Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893 (9th Cir. 2011)................................................................................................... 17

9 Cooper v. Brown,

10

565 F.3d 581 (9th Cir. 2009)..................................................................................................... 5

11 Hill v. W. Elec. Co., Inc.,

672 F.2d 381 (4th Cir. 1982)................................................................................................... 19 12

League of United Latin Am. Citizens v. Wilson,

13

131 F.3d 1297 (9th Cir. 1997)................................................................................................. 13

14 Martinez v. City of Oxnard,

15

229 F.R.D. 159 (C.D. Cal. 2005) ............................................................................................ 13

16 Morales v. Cate,

623 F.3d 828 (9th Cir. 2010)................................................................................................... 22 17

Morales v. Tilton,

18

465 F. Supp. 2d 972 (N.D. Cal. 2006) ...................................................................................... 6

19 Nw. Forest Res. Council v. Glickman,

20

82 F.3d 825 (9th Cir. 1996)............................................................................................... 12, 18

21 United States v. Oregon,

745 F.2d 550 (9th Cir. 1984)................................................................................................... 13

22

United States v. Oregon,

23

839 F.2d 635 (9th Cir. 1988)................................................................................................... 17

24 Winter v. Natural Res. Defense Council,

25

555 U.S. 7 (2008) .................................................................................................................... 20

26

STATE CASES

27 Morales v. Cal. Dep’t of Corr. & Rehab.,

No. CV 061436 (Super. Ct. Marin Cnty., Cal. Nov. 29, 2007), aff’d, Morales v. Cal.

28

Dep’t of Corr. & Rehab., 85 Cal. Rptr. 3d 724 (Cal. Ct. App. 2008)....................................... 6

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Case3:06-cv-00219-RS Document564 Filed04/05/13 Page4 of 26

1

TABLE OF AUTHORITIES

2

(cont’d)

3

Page(s)

4

People v. Brown,

5

No. CR18104 (Super. Ct. Riverside Cnty., Cal. Aug. 30, 2010) .............................................. 7

6

FEDERAL STATUTES, RULES, REGULATIONS

7 28 U.S.C.

8

§ 1331...................................................................................................................................... 18

9

§ 1343...................................................................................................................................... 18

10 42 U.S.C.

11 § 1983.............................................................................................................................. 2, 7, 18
12
Fed. R. Civ. P. 13

24............................................................................................................................................... 2 14

15

24(a)(2).................................................................................................................... 4, 12, 16, 17

16

24(b) ...................................................................................................................... 12, 18, 19, 20

17

24(b)(1)(B) ................................................................................................................................ 4

18

24(b)(3) ................................................................................................................................... 13

19

STATE STATUTES, RULES, REGULATIONS

20 Cal. Code Regs.

21

tit.15, § 3349 ................................................................................................................... 4, 6, 14

22

tit. 15, §§ 3349 et seq. ............................................................................................................... 9

23

24

25

26

27

28

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KEVIN COOPER’S NOT. MOT.; MOT. INTERVENE & MOT. STAY EXECUTION; MEMORANDUM P’S & A’S
3:06-CV-219-RS; 3:06-CV-926-RS

Case3:06-cv-00219-RS Document564 Filed04/05/13 Page5 of 26

1

TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that on May 9, 2013, at 1:30 p.m., or as soon thereafter as

3 counsel may be heard, before the Honorable Richard Seeborg in Courtroom 3 of the United States

4 District Court for the Northern District of California, located at 450 Golden Gate Avenue, San

5 Francisco, California, Intervenor Kevin Cooper (“Mr. Cooper”) will and hereby does move this

6 Court, under Federal Rule of Civil Procedure 24, for an order granting him leave to intervene in

7 the present matter. Because he is a condemned prisoner on death row at San Quentin who has

8 exhausted his available appeals, Mr. Cooper claims an interest relating to the transaction that is

9 the subject of the action. Similar to intervenors Mitchell Carlton Sims, Stevie Lamar Fields,

10 David A. Raley, Tiequon A. Cox, and Robert Green Fairbank, Jr., Mr. Cooper is so situated that

11 disposing of the action may as a practical matter impair or impede his ability to protect that

12 interest. Furthermore, Mr. Cooper’s interests and claims share with the main action common

13 questions of law or fact.

14

Mr. Cooper also moves the Court for an order staying his execution and all preparations

15 relating thereto. There is a strong likelihood that the present matter will succeed on the merits,

16 the relative harm to the parties weighs in favor of Mr. Cooper, the equities weigh in Mr. Cooper’s

17 favor, and granting the stay will further the public’s interest in orderly review.

18

Mr. Cooper brings these motions pursuant to the United States Constitution, and all other

19 applicable statutes, case law and local rules. The motions are based on Plaintiff Morales’ and

20 Brown’s Fourth Amended Complaint for Equitable and Injunctive Relief Pursuant to 42 U.S.C.

21 § 1983, this Notice, this Memorandum of Points and Authorities, the Declaration of Norman C.

22 Hile and attached exhibits, the Request for Judicial Notice and attached exhibits, the Complaint in

23 Intervention filed in conjunction with this motion, and the Proposed Order, along with all exhibits

24 and papers filed in this action and any evidence received at the hearing.

25 / / /

26 / / /

27 / / /

28 / / /

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1 Dated: April 5, 2013 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
OHSUSA:752635794.5

Respectfully submitted,
NORMAN C. HILE KATIE C. DEWITT LEO MONIZ Orrick, Herrington & Sutcliffe LLP
By: /s/ Norman C. Hile NORMAN C. HILE
Attorneys for Intervenor KEVIN COOPER

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

Kevin Cooper (“Mr. Cooper”), a condemned inmate on San Quentin’s death row who has

3 exhausted his current appeals, seeks to intervene in this action pursuant to Rule 24(a) of the

4 Federal Rules of Civil Procedure, because he “claims an interest relating to the . . . transaction

5 that is the subject of the action, and is so situated that disposing of the action may as a practical

6 matter impair or impede” his ability to protect that interest. Fed. R. Civ. P. 24(a)(2).

7 Alternatively, Mr. Cooper seeks to intervene pursuant to Rule 24(b) of the Federal Rules of Civil

8 Procedure, because he “has a claim or defense that shares with the main action a common

9 question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).

10

Mr. Cooper further seeks temporary, preliminary, and permanent injunctive relief to

11 enjoin the Defendants, their officers, agents, servants, and employees, and all persons acting in

12 concert with them, from preparing to set or setting Mr. Cooper’s execution date or executing him

13 by lethal injection using the lethal injection regulations promulgated as California Code of

14 Regulations, Title 15, § 3349 and following, or any similar practices or protocol.

15 I. 16

ISSUES TO BE DECIDED 1. Whether Mr. Cooper, like other condemned prisoners who have recently been

17 granted leave to intervene in this action, may intervene as a plaintiff pursuant to Rule 24 of the

18 Federal Rules of Civil Procedure, as a matter of right or permissively.

19

2. Whether Mr. Cooper should be granted a stay of execution on the same basis and

20 to the same extent2 as Plaintiffs Michael Angelo Morales, Albert Greenwood Brown, Mitchell

21 Carlton Sims, Stevie Lamar Fields, David A. Raley, Tiequon A. Cox, and Robert Green Fairbank,

22 Jr. (“Plaintiffs”), including, but not limited to, a stay of any preparations for the setting of an

23 execution date for Mr. Cooper.

24 II. SUMMARY OF RELEVANT FACTS

25

Mr. Cooper is a condemned inmate in the custody of the California Department of

26 Corrections and Rehabilitation (“CDCR”) as a result of a sentence of death recommended by a

27 jury on March 1, 1985 and imposed by the San Diego Superior Court on May 15, 1985.

28 2 Mr. Cooper seeks the stay as described by the Court as applying to all Plaintiffs in its November 21, 2012 order.

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1 (Declaration of Norman C. Hile (“Hile Decl.”) ¶ 2.) He is held on death row at San Quentin State

2 Prison, San Quentin, California, 94974. (Id.)

3

Mr. Cooper has filed numerous appeals with both the state and federal courts concerning

4 his capital conviction. (Hile Decl. ¶ 3.) His direct appeals and petitions for writ of habeas corpus

5 in state court were unsuccessful. (Id.) Likewise, Mr. Cooper’s federal habeas corpus petitions

6 have also failed. (Id.) Mr. Cooper’s last successive federal habeas petition was filed on April 1,

7 2004. The United States District Court for the Southern District of California denied Mr.

8 Cooper’s petition for writ of habeas corpus and reaffirmed the capital case judgment on May 27,

9 2005. (Id.) The Ninth Circuit Court of Appeals affirmed the district court’s denial of

10 Mr. Cooper’s habeas petition on December 4, 2007 and denied Mr. Cooper’s petition for 11 rehearing and petition for rehearing en banc on May 11, 2009.3 (Id.) In response, Mr. Cooper

12 filed a petition for writ of certiorari with the Supreme Court of the United States, which was

13 denied on November 30, 2009. (Id.) Therefore, Mr. Cooper has exhausted all of his state and

14 federal appeals barring any new factual developments that would allow Mr. Cooper to seek

15 another successive federal habeas petition. (Id.)

16

Mr. Cooper’s stance as a late stage death row inmate is evidenced by the notice received

17 from the California Governor’s Office on August 4, 2010, warning that the San Diego County

18 Superior Court would “soon schedule a date for Mr. Cooper’s execution” and requesting

19 notification of plans for a renewed application for clemency. (Hile Decl. Ex. A.) Mr. Cooper

20 filed a renewed request for clemency with then-Governor Arnold Schwarzenegger in December

21 of 2010, who passed the request to the incoming administration of Governor Edmund G. Brown,

22 Jr. (Hile Decl. ¶ 4.) Mr. Cooper then requested a stay of consideration to allow compilation of

23 further materials for Governor Brown, the process of which is still ongoing. (Id.) There are no

24

25

3

Dissenting from the Ninth Circuit’s denial of rehearing en banc, Judge William Fletcher declared, “[t]he State of California may be about to execute an innocent man.” Cooper v.

26

Brown, 565 F.3d 581, 581 (9th Cir. 2009) (Fletcher, J., dissenting from denial of reh’g en banc, joined by Pregerson, Reinhardt, Paez, and Rawlinson, JJ.). Eleven Ninth Circuit judges

27

dissented in various ways from the denial of rehearing en banc. See id.; id. at 635 (Wardlaw, J., dissenting from denial of reh’g en banc, joined by Pregerson, Reinhardt, Thomas, and

28

Berzon, JJ.); id. (Fisher, J., dissenting from denial of reh’g en banc, joined by Kozinski, C.J., and Pregerson, Graber, and Berzon, JJ.).

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1 other actions currently pending in any court attacking Mr. Cooper’s judgment and death sentence,

2 and Mr. Cooper currently does not have a stay of his execution from any court. (Id.)

3

On December 15, 2006, this Court issued an order finding that the “implementation of

4 California’s lethal-injection protocol lacks both reliability and transparency.” Morales v. Tilton,

5 465 F. Supp. 2d 972, 981 (N.D. Cal. 2006). The Court further determined that California’s

6 actions and failures to act with respect to the implementation of its lethal-injection protocol have

7 resulted in an intolerable risk of a Constitutional violation. Id. To remedy this situation,

8 California would have to undergo a “meaningful” review of its processes, which “must be

9 undertaken with an openness to the idea of making significant improvements in the

10 ‘infrastructure’ of executions.” Id. at 983.

11

Thereafter, former Governor Arnold Schwarzenegger announced via a press release on

12 December 18, 2006 that he was “committed to doing whatever it takes to ensure that the lethal

13 injection process is constitutional.” (ECF No. 291 Ex. A, at 1.) Mr. Schwarzenegger added that

14 his “administration [would] take immediate action to resolve [the] court[’s] concerns.” (Id.)

15

Then-Governor Schwarzenegger and the CDCR issued a revised Operational Procedure

16 770 (“2007 Lethal Injection Protocol”) on May 15, 2007. On November 29, 2007, the Marin

17 County Superior Court declared invalid and enjoined the enforcement of California’s 2007 Lethal

18 Injection Protocol. Morales v. Cal. Dep’t of Corr. & Rehab., No. CV 061436 (Super. Ct. Marin

19 Cnty., Cal. Nov. 29, 2007), aff’d, Morales v. Cal. Dep’t of Corr. & Rehab., 85 Cal. Rptr. 3d 724,

20 741 (Cal. Ct. App. 2008).

21

On July 30, 2010, the California Office of Administrative Law (“OAL”) promulgated

22 regulations of the Lethal Injection Protocol (“2010 Lethal Injection Protocol”), effective

23 August 29, 2010. Cal. Code Regs. tit. 15, § 3349. With the exception of a few additional

24 deficiencies, the 2010 Lethal Injection Protocol is substantially identical to the 2007 Lethal

25 Injection Protocol. The issuance of these new regulations was what triggered notice to

26 Mr. Cooper from the Governor’s Office on August 4, 2010 referenced above. (Hile Decl. ¶ 4.)

27 / / /

28 / / /

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1

On August 30, 2010, the day after the 2010 Lethal Injection Protocol took effect, the

2 Riverside County Superior Court issued an execution warrant for Albert Brown. People v.

3 Brown, No. CR18104 (Super. Ct. Riverside Cnty., Cal. Aug. 30, 2010).

4

After litigation involving five different courts over a six-week period, the Ninth Circuit

5 directed this Court to reconsider its previous denial of Mr. Brown’s motion to stay his execution

6 (ECF No. 420), and this Court then issued a stay (ECF No. 424). “Of particular importance” to

7 the Ninth Circuit was the fact that Mr. Brown’s claims were “virtually identical” to the claims

8 that Plaintiff Morales had brought – claims that were already pending before this Court. (ECF

9 No. 420, at 8.)

10

On September 28, 2010, this Court found that the Lethal Injection Protocol “as

11 implemented in practice through and including the date of the evidentiary hearing in the 2006

12 Morales litigation created a ‘demonstrated risk of severe pain.’” (ECF No. 424, at 4.) Based on

13 its limited opportunity to compare the 2007 Lethal Injection Protocol and the 2010 Lethal

14 Injection Protocol, the Court also found “a significant dispute” as to whether there was a

15 meaningful difference between the two protocols other than as to the physical facility in which

16 executions are to take place. (Id. at 5.) This Court further indicated that it “intend[ed] to

17 undertake . . . review . . . as quickly as is reasonably possible” of the claims raised by Mr.

18 Morales and Mr. Brown. (Id. at 8.)

19

On October 8, 2010, Mr. Morales and Mr. Brown filed a Fourth Amended Complaint for

20 Equitable and Injunctive Relief (“Fourth Amended Complaint”) pursuant to 42 U.S.C. § 1983 in

21 this matter. (ECF No. 428.) On October 25, 2010, Defendants moved to dismiss the Fourth

22 Amended Complaint. (ECF No. 430.) The Court denied the motion to dismiss on December 10,

23 2010. (ECF No. 461.)

24

On November 16, 2010, in response to an inquiry by the Court and after the Court

25 expressed concerns that the setting of future executions across California would result in

26 disorderly litigation such as occurred with Albert Brown, Defendants’ counsel, the chief law

27 enforcement officer of the State of California, assured the Court that no execution dates would be

28 / / /

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1 set in California until the litigation of this matter was concluded. (ECF No. 556 Ex. C, at 3-10.)4

2 In a discussion with respect to whether other death row inmates who have exhausted their appeals

3 but who are not plaintiffs to this action were protected by this promise, Defendants’ counsel

4 affirmed that such interested parties could rely on these assurances. (Id. at 9-10.)

5

At a March 4, 2011 hearing, and in response to a stipulated intervention sought by David

6 Raley (ECF No. 511), this Court reiterated that there is “an agreement which has been made by

7 the state in this case that they will not attempt to execute anyone until after this case is concluded

8 at the district court level. And I think that’s an agreement that can be relied upon by anyone who

9 is an interested party.” (ECF No. 556 Ex. D, at 60-61.)

10

On November 22, 2010, Defendants filed a notice informing the Court and the parties,

11 pursuant to this Court’s order of October 5, 2010, that the CDCR had ordered 521 grams of

12 sodium thiopental that would expire in 2014. (ECF No. 455.) Defendants thereafter filed another

13 notice stating that the shipment had been delayed, and Defendants finally received the sodium

14 thiopental on January 20, 2011. (ECF No. 474.) Defendants secured an execution team on or

15 about October 17, 2011. (ECF No. 531.)

16

In response to this illicit importation, several death row inmates brought an action in

17 United States District Court for the District of Columbia challenging the Food and Drug

18 Administrations’ (“FDA”) non-regulation of the importation of sodium thiopental described

19 above. (Hile Decl. ¶ 5.) Mr. Cooper eventually joined this case as a plaintiff, and on March 27,

20 2012, the United States District Court for the District of Columbia declared that the Food and

21 4 Defendants’ counsel had previously filed a written statement on November 10, 2010, specifying
22 the following:

23

Defendants address Plaintiffs’ request that any stay address the possibility of execution dates being sought during the course of a stay. Under California law, the named Defendants in this

24

matter are not legally responsible for setting execution dates. Rather, an execution date is set by a superior court following a request and appropriate showing by a district attorney.

25

Nevertheless, the Office of the Attorney General, in its role as counsel for the People of the State of California and apart from its representation of the Defendants here, does coordinate the

26

setting of execution dates and exercises a supervisory role over the district attorneys. The Attorney General, in his capacity as counsel for the People and because of this pending

27

litigation, can represent that he will not advise the district attorneys to request execution dates until the earlier of either: (1) thirty days after the conclusion of any further evidentiary hearing

28

in this present action, or (2) a judgment is entered by this Court in this matter. (ECF No. 446, at 4.)

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1 Drug Administration (“FDA”) had acted improperly in permitting the importation of thiopental

2 for the purposes of executions, and it ordered the FDA to retrieve all imported thiopental. See

3 Beaty v. Food & Drug Admin., 853 F. Supp. 2d 30, 43 (D.D.C. 2012). Pursuant to the district

4 court’s order, the FDA asked the CDCR in a letter dated April 6, 2012 to send any foreign-

5 manufactured thiopental in its possession to the FDA. (ECF No. 557 Ex. J.) To Mr. Cooper’s

6 knowledge, the CDCR has not returned the thiopental to the FDA, and the FDA and Department

7 of Health and Human Services are appealing the decision in the United States Court of Appeals

8 for the District of Columbia Circuit. (See ECF No. 558 Ex. K.)

9

In early 2011, Mr. Cooper filed a motion to intervene in litigation brought by Albert Sims

10 in Marin County Superior Court challenging California’s execution protocol, Cal. Code Regs.

11 tit. 15, §§ 3349 et seq. (Hile Decl. ¶ 6.) The Marin County Superior Court granted Mr. Cooper’s

12 motion to intervene on July 29, 2011. (Id.) On December 19, 2011, the Marin County Superior

13 Court held that the CDCR’s execution protocol was improperly enacted under California’s

14 Administrative Procedures Act (“APA”). (Id.) The Superior Court entered a judgment with an

15 injunction on February 21, 2012, permanently enjoining the CDCR “from carrying out the

16 execution of any condemned inmate by lethal injection unless and until new regulations

17 governing lethal injection executions are promulgated in compliance with the Administrative

18 Procedures Act.” (Hile Decl. Ex. C.) The CDCR appealed that judgment and in papers filed with

19 the 1st Appellate District stated that it would be reviewing the possibility of a single-drug

20 execution protocol during the appeal. (Hile Decl. Ex. D, at 2.)

21

On December 29, 2010, Plaintiffs Sims and Fields moved to intervene and for stays of

22 executions in the instant action. (ECF No. 467.) The Court found that “Sims and Fields are

23 similarly situated to Morales and Brown in that they are condemned prisoners whose executions

24 are not otherwise stayed and whose claims in their complaint in intervention are virtually

25 identical to those asserted by Morales and Brown.” (ECF No. 473, at 1-2.) The Court

26 accordingly granted their motions to intervene on January 19, 2011. (Id. at 2.)

27

On March 4, 2011, a stipulation allowing the intervention and stay of execution in the

28 instant action for Plaintiff Raley was filed with this Court. (ECF No. 511.)

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1

On May 1, 2012, the District Attorney for the County of Los Angeles (“L.A. County

2 District Attorney”) moved the Los Angeles County Superior Court for an order requiring the

3 CDCR to develop a single-drug execution protocol without APA approval and to set execution

4 dates for Mitchell Sims and Tiequon Cox under a one-drug method, notwithstanding this Court’s

5 prior stay as to Mr. Sims. (ECF No. 559 Ex. L.)

6

On May 16, 2012, Mr. Cox moved to intervene in the instant litigation and requested that

7 this Court stay his execution. (ECF No. 535.)

8

On July 6, 2012, the San Mateo County District Attorney filed a motion in San Mateo

9 County Superior Court seeking to compel the CDCR to execute Plaintiff Fairbank by a one-drug 10 lethal injection or show cause why such execution cannot be performed.5 (ECF No. 556 Ex. A.)

11

On August 23, 2012, Mr. Fairbank moved to intervene and sought a stay of execution in

12 the instant action. (ECF No. 555.) Defendants opposed Mr. Fairbank’s motion. (ECF No. 561.)

13

On August 10, 2012, this Court adopted the parties’ joint proposed schedule, vacating the

14 stipulated schedule and ordering that “[t]he parties shall submit a new proposed schedule within

15 thirty days after (1) viable lethal-injection regulations are in place or (2) the Marin Superior

16 Court’s decision invalidating the regulations, Sims v. Cal. Dep’t of Corr. & Rehab, No.

17 CIV 1004019 (Cal. Super. Ct. Marin Cnty. Feb. 21, 2012), is overturned on appellate review,

18 whichever occurs first.” (ECF No. 554.)

19

On November 6, 2012, the voters of California rejected Proposition 34, a ballot initiative

20 that would have repealed the death penalty in California and replaced it with life without the

21 possibility of parole. (See Cooper’s RJN, Ex. B [California Secretary of State Debra Bowen,

22 Statement of Vote Summary Pages 13 (2012), available at

23 http://www.sos.ca.gov/elections/sov/2012-general/06-sov-summary.pdf].)

24

On November 21, 2012, this Court issued an order approving the stipulation to intervene

25 and for a stay by Plaintiff Raley, and granting the motions of Plaintiffs Cox, and Fairbank to

26 5 The San Mateo County Superior Court denied the motion on November 19, 2012. (See

27

Cooper’s Request for Judicial Notice (“Cooper’s RJN”), Ex. A [Howard Mintz, San Mateo judge refuses to set execution date for condemned killer, MercuryNews.com (Nov. 19, 2012,

28

12:39 p.m.), http://www.mercurynews.com/crime-courts/ci_22026806/san-mateo-judgerefuses-set-execution-date-condemned].)

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1 intervene in this action and staying their executions. (ECF No. 563.) With respect to Mr. Raley,

2 the Court noted that it had deferred ruling on his stipulated intervention because judicial action

3 “appeared unnecessary in light of Defendants’ representations that they would not schedule

4 executions until the Court has had the opportunity to conduct an evidentiary hearing and to

5 review an operative revised lethal-injection regulation.” (Id. at 4.) However, recognizing that

6 county district attorneys are not bound by Defendants’ representations and could seek orders

7 allowing them to conduct executions, the Court deemed it appropriate to act on the pending

8 motions. (See id.) The Court concluded that Mr. Raley, Mr. Cox, and Mr. Fairbank were, “for

9 purposes of the present litigation, identically situated” to Plaintiffs Morales, Brown, Sims, and

10 Fields, and therefore granted their motions to intervene and stayed their executions. (Id.)

11

In its ruling, the Court observed that although Defendants had stipulated to Mr. Raley’s

12 intervention and stay of execution, Defendants nevertheless opposed the motions of the

13 “identically situated” Mr. Cox and Mr. Fairbank. (Id.) The Court was unimpressed by

14 Defendants’ assertions that Mr. Cox and Mr. Fairbank were adequately represented by the

15 existing Plaintiffs and that their motions were premature, noting that “Defendants could have

16 made these arguments in connection with Sims, Fields, and Raley, and there is no explanation for

17 Defendants’ shift to this seemingly inconsistent position.” (Id. at 5.) Furthermore, in light of “the

18 course of the present litigation—particularly in regards to Brown nearly being executed,” the

19 Court concluded that Defendants’ position was “wrong on the merits.” (Id.)

20

Following the Court’s ruling and given the failure of Proposition 34 and the reactivation

21 of this case, Mr. Cooper decided it was necessary for him to seek intervention in the instant

22 action. (Hile Decl. ¶ 8.) Thereafter, counsel for Mr. Cooper sought a stipulation from counsel for

23 Defendants in this case to intervene and for a stay of execution identical to that which Defendants

24 stipulated to and submitted to this Court for Mr. Raley. (Hile Decl. ¶ 8; see ECF No. 511.) On

25 December 11, 2012, Deputy Attorney General Michael J. Quinn notified Mr. Cooper’s counsel

26 that Defendants refused to so stipulate. (Hile Decl. ¶ 8.)

27

Since nothing now prevents the San Bernardino County District Attorney from seeking a

28 date of execution for Mr. Cooper, as the L.A. County District Attorney has done with respect to

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1 Plaintiffs Sims and Cox, and as the San Mateo County District Attorney has done with respect to

2 Plaintiff Fairbank, Mr. Cooper seeks permission to intervene in this case and a stay of execution.

3 Mr. Cooper is intimately aware of the importance of obtaining this relief, as he came within hours

4 of execution on February 10, 2004, before the Ninth Circuit Court of Appeals, acting en banc,

5 granting his relief for an emergency stay. (Hile Decl. ¶ 11.) By this motion, Mr. Cooper also

6 seeks to preclude any future objection by Defendants that Mr. Cooper is not entitled to intervene 7 or to a stay of execution due to “inexcusable delay.”6

8 III. 9 10

ARGUMENT A. Mr. Cooper’s Motion To Intervene Should Be Granted. Plaintiffs Morales and Brown’s Fourth Amended Complaint for Equitable and Injunctive

11 Relief is incorporated herein by reference. (See Hile Decl. Ex. E.) Mr. Cooper joins in the Fourth

12 Amended Complaint in all its particulars as it currently is set forth.

13

A federal court must permit intervention as of right by anyone who files a timely motion

14 and who “claims an interest relating to the . . . transaction that is the subject of the action, and is

15 so situated that disposing of the action may as a practical matter impair or impede the movant’s

16 ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R.

17 Civ. P. 24(a)(2). Alternatively, “a court may grant permissive intervention where the applicant

18 for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and

19 (3) the applicant’s claim or defense, and the main action, have a question of law or a question of

20 fact in common.” Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996); see

21 also Fed. R. Civ. P. 24(b).

22

Here, Mr. Cooper satisfies the standards both for intervention as of right and for

23 permissive intervention.

24 / / /

25 / / /

26

27

6 Although Defendants did not raise this objection to Mr. Brown’s motion for intervention and for a stay of execution in this Court, Defendants did untimely raise it in their later-withdrawn

28

Petition for Writ of Mandamus to the Ninth Circuit in Cate v. United States District Court (Morales & Brown), Case No. 10-72977.

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1

1. Mr. Cooper’s Motion To Intervene Is Timely.

2

Mr. Cooper’s motion to intervene is timely under the standards applicable to intervention

3 as of right and to permissive intervention. In determining whether a motion to intervene is

4 timely, courts consider three factors: “the stage of the proceedings, the prejudice to existing

5 parties, and the length of and reason for the delay.” League of United Latin Am. Citizens v.

6 Wilson, 131 F.3d 1297, 1308 (9th Cir. 1997); see also Fed. R. Civ. P. 24(b)(3). All three factors

7 weigh in favor of granting Mr. Cooper’s motion to intervene.

8

a. An Analysis Of The Stage Of The Proceedings Favors

Mr. Cooper’s Intervention Request.

9

10

First, despite the passage of time since the origination of this action, this matter is still in

11 its initial stages of review, as evidenced by numerous court orders. For example, on August 10,

12 2012, the Court adopted the parties’ request that the then-current scheduling order be vacated and

13 that a new scheduling order not be proposed until thirty days after either viable lethal-injection

14 regulations are in place or the Marin County Superior Court’s decision invalidating the

15 regulations is overturned on appeal. (ECF No. 554.) Discovery, too, remains stayed. (ECF No.

16 534.) Moreover, the propriety of allowing intervention at this procedural junction is further

17 demonstrated by the Court’s recent grant of the motions to intervene of three other inmates,

18 David A. Raley, Tiequon A. Cox, and Robert Green Fairbank, Jr. (ECF No. 563.) Given the

19 stage of this litigation, there will be no additional delay to existing parties as a result of

20 Mr. Cooper’s intervention. See Martinez v. City of Oxnard, 229 F.R.D. 159, 163 (C.D. Cal.

21 2005) (permitting intervention while discovery was ongoing).

22

b. Mr. Cooper’s Intervention Will Not Prejudice The Existing

Parties.

23

24

Further, allowing Mr. Cooper’s intervention at this time is appropriate as the existing

25 parties will not otherwise be prejudiced by Mr. Cooper’s intervention, because Mr. Cooper does

26 not seek to “relitigate matters which have previously been litigated,” raise any claims other than

27 those raised by existing Plaintiffs, or assert any claims against them. United States v. Oregon,

28 745 F.2d 550, 553 (9th Cir. 1984) (holding that the state of Idaho could intervene in litigation

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1 concerning fishing on the Columbia River when “Idaho has disclaimed any intent to relitigate

2 matters which have previously been litigated, to raise any claims unrelated to the Tribes’ treaty

3 fishing rights, or to assert any claims against the other states”). Moreover, Mr. Cooper’s claims

4 are identical in all material aspects to those claims already asserted in the Fourth Amended

5 Complaint, and Mr. Cooper intends to work cooperatively with counsel for the existing Plaintiffs

6 in prosecuting the instant action. (Hile Decl. ¶¶ 9-10.) This intended cooperation with existing

7 Plaintiffs further prevents any prejudice to the existing parties.

8

c. Mr. Cooper Did Not Unreasonably Delay In Bringing His

Intervention Motion. 9

10

Finally, Mr. Cooper has not unreasonably delayed in bringing his motion to intervene. On

11 the contrary, a brief review of Mr. Cooper’s litigation history makes clear that, far from sitting on

12 his rights, Mr. Cooper has been actively engaging in litigation to protect those rights. As such,

13 Mr. Cooper’s motion to intervene in the instant action once it was determined that the California

14 public would not invalidate the death penalty under Proposition 34 and that intervention in the

15 case would be possible due to the reactivation of the case pursuant to the Court’s November 21,

16 2012 order, is timely.

17

First, the State of California’s current execution protocol that is the subject of the instant

18 litigation did not become effective until August 29, 2010. Cal. Code Regs. tit. 15, § 3349. In

19 response, Mr. Cooper subsequently intervened in a state case in Marin County Superior Court

20 challenging the execution protocol under the state Administrative Procedures Act. (Hile Decl.

21 ¶ 6.) This Court has recognized that the validity of the promulgation of the execution protocol is

22 a prerequisite to its evaluation of the constitutionality of the implementation of that protocol, such

23 that Mr. Cooper should not be penalized for first pursuing the Administrative Procedures Act

24 litigation. (See ECF No. 554.) The Marin County Superior Court declared the state’s failure to

25 comply with the Administrative Procedure Act in promulgating its execution protocol on

26 February 21, 2012, a judgment which the Attorney General is in the process of appealing. (See

27 Hile Decl. Exs. C, D.)

28 / / /

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1

Mr. Cooper has also sought to challenge the legality and efficacy of the sodium thiopental

2 imported by the CDCR in a lawsuit against the FDA filed in the District of Columbia. (Hile Decl.

3 ¶ 5.) This lawsuit, likewise, resulted in a grant of summary judgment for those challenging the

4 illicit importation, a decision that is undergoing the appellate process in the D.C. Circuit. (ECF

5 No. 558 Ex. K.)

6

Moreover, Mr. Cooper should not be punished for his reliance on Defendants’

7 representations that the Attorney General would not advise district attorneys to request execution

8 dates until the earlier of thirty days after any evidentiary hearing in this matter had concluded or a

9 judgment had been entered by the Court. (ECF No. 446 at 4; see also ECF No. 556 Ex. C, at 3-

10 10.) Defendants’ counsel in the past gave verbal assurances that no execution dates would be set

11 in California until this litigation was concluded and specifically affirmed that other death row

12 inmates who have exhausted their appeals, but who are not plaintiffs to this action, could rely on

13 these assurances. (ECF No. 556 Ex. C, at 3-10.) The propriety of relying on these assurances has

14 been recognized by this Court. (See ECF No. 556 Ex. D, at 60-61 [the Court noting in response

15 to the stipulation to intervene by Mr. Raley that there was “an agreement which has been made by

16 the state in this case that they will not attempt to execute anyone until after this case is concluded

17 at the district court level and I think that’s an agreement that can be relied upon by anyone who is

18 an interested party.”].)

19

Therefore, although Mr. Cox, Mr. Fairbank, and Mr. Raley all filed prior papers to

20 intervene, the Court deferred ruling on these motions as unnecessary, until the immediacy of the

21 need to rule on the motions became apparent as evidenced in the Court’s November 21, 2012

22 order. (See ECF No. 563.) Moreover, prior to the failure of Proposition 34, it was not clear that

23 the Court would ever need to rule on the proposed interventions and/or reactivate the litigation, as

24 passage of Proposition 34 would have mooted the underlying litigation. (See Cooper’s RJN Ex. B

25 [California Secretary of State Debra Bowen, Statement of Vote Summary Pages 13 (2012),

26 available at http://www.sos.ca.gov/elections/sov/2012-general/06-sov-summary.pdf].)

27

However, as this Court recognized in its recent order, “Defendants’ representations do not

28 provide a sufficient basis for the Court to continue to defer action,” since county district attorneys

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1 are not bound by these statements and may seek to conduct executions of condemned inmates

2 who are not parties to this litigation and thus lack stays of execution. (See ECF No. 563, at 4.)

3 Accordingly, Mr. Cooper now promptly seeks intervention, prior to the setting of any execution

4 date, in order to avoid putting this Court in the position in which it was placed by Mr. Brown’s

5 scheduled execution in 2010.

6

2. This Court Must Grant Intervention To Mr. Cooper As Of Right.

7

As set forth above, a federal court must permit intervention as of right by anyone who

8 files a timely motion and “claims an interest relating to the . . . transaction that is the subject of

9 the action, and is so situated that disposing of the action may as a practical matter impair or

10 impede the movant’s ability to protect its interest, unless existing parties adequately represent that

11 interest.” Fed. R. Civ. P. 24(a)(2).

12

a. Mr. Cooper’s Interests In This Matter Are Identical To Those

Of Plaintiffs Morales, Brown, Sims, Fields, Raley, Cox, And

13

Fairbank.

14

Mr. Cooper joins in the Fourth Amended Complaint filed on behalf of Mr. Morales and

15 Mr. Brown on October 8, 2010 and notes that all questions of law and fact related to Mr.

16 Cooper’s claims are identical in all material aspects to those in the Fourth Amended Complaint.

17 Like Morales, Brown, Sims, Fields, Raley, Cox, and Fairbank, Mr. Cooper is a late stage inmate

18 sentenced to death who has exhausted all his appeals. Further, like Morales, Brown, Sims, Fields,

19 Raley, Cox, and Fairbank, Mr. Cooper is at risk of being subjected to the unconstitutional

20 application of the execution protocols as described within the Fourth Amended Complaint and

21 Mr. Cooper’s Complaint in Intervention. Therefore, Mr. Cooper’s interests in the instant

22 litigation are identical in all material aspects to those of Plaintiffs Morales, Brown, Sims, Fields,

23 Raley, Cox, and Fairbank, such that Mr. Cooper is properly subject to intervention as a matter of

24 right.

25 / / /

26 / / /

27 / / /

28 / / /

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1

b. Without Intervention, Mr. Cooper Is Practically Impaired And

Impeded From Protecting His Fifth, Eighth, And Fourteenth

2

Amendment Interests In Avoiding Execution By An

Unconstitutional And Arbitrary Procedure.

3

4

Mr. Cooper must be allowed to intervene in order to protect his interests. Intervention as

5 of right must be granted where, as here, the disposition of the action would put the movant at a

6 practical disadvantage in protecting the movant’s interest. See United States v. Oregon, 839 F.2d

7 635, 638 (9th Cir. 1988) (intervention as of right is proper when factual determinations in lawsuit

8 challenging conditions of state mental health facility would have persuasive stare decisis effect in

9 subsequent litigation by residents of facility); Citizens for Balanced Use v. Mont. Wilderness

10 Ass’n, 647 F.3d 893, 900-01 (9th Cir. 2011) (intervention mandated when the existing parties do

11 not adequately represent the movant’s interests); see also Fed. R. Civ. P. 24(a)(2).

12

Here, although Mr. Cooper shares identical interests in the legal claims propounded by

13 Plaintiffs Morales, Brown, Sims, Fields, Raley, Cox, and Fairbank, his specific interest in

14 avoiding execution by an unconstitutional protocol – a protocol involving a demonstrated risk of

15 severe pain – remains inadequately represented by the existing plaintiffs. See Citizens for

16 Balanced Use, 647 F.3d at 900-01; Fed. R. Civ. P. 24(a)(2). As is clear from the treatment of the

17 various Plaintiffs already admitted to this action, Mr. Cooper must be allowed to intervene in

18 order to assure that his individual challenge to the lethal injection regulations will be heard and

19 that he individually will not be subjected to the unconstitutional application of the challenged

20 regulations. (See ECF No. 563, at 5:7-9.)

21

Unless Mr. Cooper is permitted to intervene, the State of California may well set an

22 execution date and may execute him while this lawsuit is pending. The likelihood that the State

23 of California will take such an action is demonstrated by similar actions it has undertaken in the

24 past with regard to Mr. Brown, Mr. Fairbanks, and Mr. Cox, all of whom were subject to attempts

25 to execute them prior to this Court’s order allowing their intervention and staying their individual

26 executions. Therefore, Mr. Cooper has demonstrated that he meets the requirements for

27 intervention as a matter of right and this Court should grant his request accordingly.

28 / / /

OHSUSA:752635794.5

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Case3:06-cv-00219-RS Document564 Filed04/05/13 Page21 of 26

1

3. Mr. Cooper Meets The Standards For Permissive Intervention.

2

“[A] court may grant permissive intervention where the applicant for intervention shows

3 (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or

4 defense, and the main action, have a question of law or a question of fact in common.” Glickman,

5 82 F.3d at 839; see also Fed. R. Civ. P. 24(b).

6

a. This Court Has Independent Grounds For Jurisdiction.

7

Mr. Cooper’s claims arise under the Eighth and Fourteenth Amendments to the United

8 States Constitution and 42 U.S.C. § 1983. This Court has independent grounds for jurisdiction

9 pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (civil rights).

10

b. Mr. Cooper’s Motion Is Timely.

11

As explained above, Mr. Cooper’s motion to intervene is timely.

12

c. Mr. Cooper’s Claims Have Common Questions Of Law Or Fact

With Those Of The Main Action.

13

14

Mr. Cooper’s claims and those of Plaintiffs in the Fourth Amended Complaint have the

15 requisite common questions of law and/or fact needed for this Court to properly grant permissive

16 intervention. In fact, Mr. Cooper’s Claims and those set forth in the Fourth Amended Complaint

17 are identical in all material aspects and share the following common questions of law and fact:

18

 Whether the lethal injection regulations violate the Eighth and Fourteenth

19

Amendments to the United States Constitution by creating a substantial risk that

20

condemned inmates will experience severe pain and suffering during executions.

21

(Hile Decl. Ex. E [Fourth Amended Complaint], at ¶¶ 22-23.)

22

 Whether the procedure for the remote administration of chemical substances, the

23

absence of standardized procedures for administration of the chemicals, the lack of

24

adequate training, screening and qualifications of the personnel on the execution

25

team, and the combination and amounts of the chemicals used in executions create

26

a grave, substantial and demonstrated risk that condemned prisoners will be

27

conscious during the execution process and, as a result, experience an

28

excruciatingly painful and protracted death. (Id. at ¶¶ 24-25, 27-31, 33-40.)

OHSUSA:752635794.5

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Case3:06-cv-00219-RS Document564 Filed04/05/13 Page22 of 26

1

 Whether the lethal injection regulations fail to require the minimum expertise of

2

the execution team personnel necessary to ensure their proper performance. (Id. at

3

¶¶ 26, 32.)

4

 Whether Defendants have deliberately chosen to conduct executions in a manner

5

that is not constitutionally compliant by selecting chemicals that cause

6

excruciating pain and therefore carry a substantial risk of serious harm to a

7

condemned inmate and by failing to take precautions to ensure that the personnel

8

involved in the execution process possess the training, experience, and expertise

9

necessary to administer the chemicals properly. (Id. at ¶ 120.)

10

 Whether Defendants have deliberately chosen to conduct executions by a

11

combination of chemicals and a procedure that carries a substantial risk of serious

12

harm when a feasible, readily implemented alternative method of execution is

13

available. (Id. at ¶¶ 5, 105(f), 106-109.)

14

 Whether the Lethal Injection Protocol provides “specific guidelines for the

15

administration of the three separate chemicals.” (Id. at ¶ 113.)

16

 Whether the Protocol contains adequate guidelines to ensure that the inmate is

17

“deeply anesthetized prior to injecting the second two drugs, or establish

18

procedures for determining if or when an additional dose of sodium pentothal

19

should be administered.” (Id. at ¶ 116.)

20

 Whether Mr. Cooper, like Plaintiffs Morales, Brown, Sims, Fields, Raley, Cox,

21

and Fairbank, is entitled to injunctive relief. (Id. at ¶ 7.)

22

If Mr. Cooper is not permitted to intervene in this action, an execution date could be set

23 for him and carried out pursuant to the current, flawed lethal injection protocol. Federal Rule of

24 Civil Procedure 24(b) permits this Court to grant a motion for intervention to avoid such an

25 unconstitutional state action. See Hill v. W. Elec. Co., Inc., 672 F.2d 381, 390-92 (4th Cir. 1982)

26 (permitting intervention where the interests of the unnamed class members would no longer be

27 protected by the named class representatives). Therefore, having demonstrated compliance with

28 / / /

OHSUSA:752635794.5

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Case3:06-cv-00219-RS Document564 Filed04/05/13 Page23 of 26

1 the rule 24(b) requirements for permissive intervention, it is appropriate for this Court to grant

2 Mr. Cooper’s request for permissive intervention.

3

B. Mr. Cooper’s Motion To Stay His Execution Should Be Granted.

4

This Court should stay Mr. Cooper’s execution and all preparations relating thereto by

5 extending to him the exact stay already in place for Plaintiffs Morales, Brown, Sims, Fields,

6 Raley, Cox, and Fairbank as evidenced by the Court’s November 21, 2012 Order. Such a stay

7 will secure the orderly review in this Court that was ordered by the Ninth Circuit Court of

8 Appeals and will ensure that other state actors not bound by the representations made to the Court

9 by the California Attorney General’s Office cannot seek Mr. Cooper’s execution prior to the

10 completion of this litigation.

11

A plaintiff seeking a preliminary injunction must establish: (1) that he is likely to succeed

12 on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief;

13 (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest.

14 Winter v. Natural Res. Defense Council, 555 U.S. 7, 21 (2008). Mr. Cooper meets these

15 standards to the same extent that Plaintiffs Morales, Brown, Sims, Fields, Raley, Cox, and

16 Fairbank did.

17

1. Mr. Cooper Is Likely To Succeed On The Merits.

18

Mr. Cooper’s request for injunctive relief is likely to succeed on the merits. In its Order

19 staying Mr. Brown’s execution after remand from the Ninth Circuit, this Court noted that the

20 State’s prior execution protocol created a “demonstrated risk of severe pain.” (See ECF No. 424,

21 at 4, 9.) Further, the Court found that the arguments of existing Plaintiffs as to Defendants’

22 revised protocol presented “substantial questions of fact as to whether at least some of the

23 deficiencies of O.P. 770 have been addressed in actual practice.” (Id. at 7.)

24

Much like the attempt to execute Plaintiff Brown, which substantially deviated from

25 compliance with state law (see generally Exhibits to ECF No. 423.),7 Mr. Cooper faces the risk

26 7 As noted during the Brown litigation, the few documents produced indicated numerous

27

deficiencies, including the complete lack of training in the mixing of the chemicals. Defendants have never produced numerous training documents required to be maintained by the

28

regulations, such as chain of custody and sign in sheets, and have not produced any additional training materials since January of 2011.

OHSUSA:752635794.5

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Case3:06-cv-00219-RS Document564 Filed04/05/13 Page24 of 26

1 that the CDCR will again deviate from their ad hoc procedure in order to execute Mr. Cooper.

2 The regulations suffer the deficiencies noted above and in the Complaint. Further, Mr. Cooper’s

3 claims are identical in all material aspects to the claims of Plaintiffs Morales, Brown, Sims,

4 Fields, Raley, Cox, and Fairbanks, who have already been granted stays of execution. Therefore,

5 it is appropriate that this Court determine that Mr. Cooper has adequately shown that he is likely

6 to succeed on the merits.

7

2. Absent A Stay Of Execution, Mr. Cooper Will Suffer Irreparable

Harm. 8

9

Mr. Cooper faces execution pursuant to the same – or worse – Lethal Injection Protocol

10 that already has required constitutional review by this Court sufficient to grant stays of execution

11 for Plaintiffs Morales, Brown, Sims, Fields, Raley, Cox, and Fairbank. Nothing has changed in

12 this regard, and without a stay, Mr. Cooper faces the real possibility of cruel and unusual capital

13 punishment.

14

3. The Equities Are In Mr. Cooper’s Favor And Granting The Stay

Furthers The Public’s Interest In Orderly Review. 15

16

As discussed above, Mr. Cooper brings this request for a stay promptly after this Court

17 determined that Defendants’ representations that an execution would not be sought were

18 insufficient in light of the actions of county district attorneys in seeking to execute Mr. Sims,

19 Mr. Cox, and Mr. Fairbank.

20

This Court granted intervention and a stay of execution for Plaintiffs Sims and Fields,

21 stating in relevant part:

22

Both Sims and Fields are similarly situated to Morales and Brown

in that they are condemned prisoners whose executions are not

23

otherwise stayed and whose claims in their complaint in

intervention are virtually identical to those asserted by Morales and

24

Brown. Accordingly, Sims and Fields are entitled to intervene and,

like Morales and Brown, to have their executions stayed until the

25

present litigation is concluded.

26 (ECF No. 473 at 1-2 (emphasis added).) Like the other Plaintiffs already admitted to the instant

27 action, Mr. Cooper also currently has no stay of execution in any court.

28

OHSUSA:752635794.5

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Case3:06-cv-00219-RS Document564 Filed04/05/13 Page25 of 26

1

Furthermore, Mr. Cooper requests that this stay be entered shortly in order to prevent the

2 State of California from seeking to execute him before this Court has the opportunity to conduct

3 an orderly review of any proposed protocol. In 2006, this Court stated that a thorough review of

4 the process of executions was necessary and strongly suggested that the Governor take the lead in

5 conducting this review. In 2010, the Ninth Circuit and this Court both ruled that the review

6 process also requires independent and orderly judicial review. See Morales v. Cate, 623 F.3d 828,

7 829 (9th Cir. 2010) (“Timing is everything and the district court should take the time necessary to

8 address the State’s newly revised protocol in accord with Supreme Court authority.”). State

9 courts have ruled twice that the review of such protocol requires compliance with the state APA.

10

The California Attorney General has expressed twice in this Court that executions will not

11 be set until the Court’s review is completed. However, as this Court has determined, these

12 assurances are meaningless in light of the actions of individual district attorneys who are not

13 parties to these actions and not bound by Defendants’ representations. (See ECF No. 563 at 4.)

14 Individual district attorneys should not be permitted to circumvent the process of review that this

15 Court has determined must be conducted in order to comport with state law and the Constitution.

16 A stay of execution here will prevent such circumvention. There is no equity that favors the type

17 of “fire drill” approach to litigation that the Court saw in February 2006 and again in September

18 2010 during attempts to execute individuals who clearly have an interest in the outcome of the

19 instant litigation.

20 IV. 21

CONCLUSION For the foregoing reasons, Mr. Cooper respectfully requests that this Court grant his

22 motion to intervene and his motion to stay his execution and all preparations relating thereto.

23

24

25

26

27

28

OHSUSA:752635794.5

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KEVIN COOPER’S NOT. MOT.& MOT. TO INTERVENE & TO STAY EXECUTION; MEMORANDUM P’S & A’S 3:06-CV-219-RS; 3:06-CV-926-RS

Case3:06-cv-00219-RS Document564 Filed04/05/13 Page26 of 26

1 Dated: April 5, 2013 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
OHSUSA:752635794.5

Respectfully submitted,
NORMAN C. HILE KATIE C. DEWITT LEO MONIZ Orrick, Herrington & Sutcliffe LLP
By:/s/ Norman C. Hile NORMAN C. HILE
Attorneys for Intervenor KEVIN COOPER

- 23 -

KEVIN COOPER’S NOT. MOT.& MOT. TO INTERVENE & TO STAY EXECUTION; MEMORANDUM P’S & A’S 3:06-CV-219-RS; 3:06-CV-926-RS

Case3:06-cv-00219-RS Document567 Filed04/05/13 Page1 of 2

1 NORMAN C. HILE (STATE BAR NO. 57299) nhile@orrick.com
2 KATIE C. DEWITT (STATE BAR NO. 244673) kdewitt@orrick.com
3 LEO MONIZ (STATE BAR NO. 285571) lmoniz@orrick.com
4 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000
5 Sacramento, California 95814-4497 Telephone: 916-447-9200
6 Facsimile: 916-329-4900

7 Attorneys for Intervenor KEVIN COOPER
8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 MICHAEL ANGELO MORALES, et al.,

14

Plaintiffs,

15

v.

16 MATTHEW CATE,1 Secretary of the California Department of Corrections and
17 Rehabilitation, et al.,

18

Defendants.

19

20

Case No 3:06-cv-219-RS Case No. 3:06-cv-926-RS

[PROPOSED] ORDER GRANTING KEVIN COOPER’S MOTION TO INTERVENE AND MOTION FOR STAY OF EXECUTION

Date:

7/25/2013

Time:

1:30 p.m.

Dept:

3

Judge: Seeborg

Trial Date: None Set

Date Action Filed: 1/5/2006

21

22

23

24

25

26

27 1 Matthew Cate resigned on November 11, 2012. Jeffrey A. Beard was appointed as Secretary

28

on December 27, 2012.

OHSUSA:752621637.1

[PROPOSED] ORDER GRANTING KEVIN COOPER’S MOTION TO INTERVENE AND MOTION FOR STAY
OF EXECUTION 3:06-CV-219-RS; 3:06-CV-926-RS

Case3:06-cv-00219-RS Document567 Filed04/05/13 Page2 of 2

1

On July 25, 2013, the motion of Kevin Cooper to intervene in the present action and for

2 stay of execution was heard before this Court.

3

Having considered all evidence and arguments in support of and in opposition to the

4 motion, and GOOD CAUSE APPEARING THEREFORE, IT IS HEREBY ORDERED,

5 ADJUDGED, AND DECREED that Kevin Cooper may intervene in this action and join as co-

6 plaintiff with Michael Angelo Morales and Albert Greenwood Brown in the Fourth Amended

7 Complaint for Equitable and Injunctive Relief.

8

It is further ORDERED, ADJUDGED, AND DECREED that all proceedings related to

9 the execution of Kevin Cooper’s sentence of death, including the setting of an execution date and

10 the preparations for execution, are stayed pending final disposition of this matter.

11

IT IS SO ORDERED.

12

13 Dated: July ___, 2013 14 15 16

By: Hon. Judge Seeborg

17

18

19

20

21

22

23

24

25

26

27

28
OHSUSA:752621637.1

-2-

[PROPOSED] ORDER GRANTING KEVIN COOPER’S MOTION TO INTERVENE AND MOTION FOR STAY
OF EXECUTION 3:06-CV-219-RS; 3:06-CV-926-RS

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11

12 Michael Angelo MORALES et al.,

13

Plaintiffs,

14

v.

15 Jeffrey A. BEARD, Secretary of the California Department of Corrections and Rehabilitation,
16 et al.,1

Case Number 5-6-cv-219-RS-HRL Case Number 5-6-cv-926-RS-HRL
DEATH-PENALTY CASE
ORDER GRANTING KEVIN COOPER’S MOTION TO INTERVENE AND TO STAY EXECUTION

17

Defendants.

[Doc. No. 564]

18

19

Kevin Cooper is a condemned inmate at San Quentin State Prison whose direct and

20 collateral attacks on his conviction and sentence have concluded. He moves to intervene in the

21 instant actions, which involve challenges to the constitutionality of California’s protocol for

22 executions by lethal injection, and to have his execution stayed pending the conclusion of this

23 litigation. (Doc. No. 564.) The Court discussed the relevant issues in detail in the last order it

24 issued, in which it permitted intervention by and granted stays of execution to three other

25 prisoners who are, for relevant purposes, identically situated to Cooper. (Doc. No. 563.) The

26

27 1 Jeffrey A. Beard is automatically substituted for his predecessor pursuant to Federal
28 Rule of Civil Procedure 25(d).

Case Nos. 5-6-cv-219-RS-HRL & 5-6-cv-926-RS-HRL ORDER GRANTING KEVIN COOPER’S MOTION TO INTERVENE AND TO STAY EXECUTION (DPSAGOK)

1 present order therefore contains only a limited discussion of the issues to the extent necessary to

2 resolve Cooper’s motion.

3

When condemned prisoner Michael Angelo Morales initiated this litigation, the Court

4 conditionally denied his request to stay his execution. Morales v. Hickman, 415 F. Supp. 2d

5 1037 (N.D. Cal. 2006). Defendants did not execute Morales as scheduled, and a stay of

6 execution issued pursuant to the Court’s conditional order. Discovery and an evidentiary

7 hearing followed, after which the Court concluded that the lethal-injection protocol, as

8 implemented, violated the Eighth Amendment. Morales v. Tilton, 465 F. Supp. 2d 972 (N.D.

9 Cal. 2006). The Court then acceded to a joint request by Morales and Defendants to refrain from

10 proceeding further with the present litigation until related state-court and administrative

11 processes were completed.

12

Following certain state proceedings, Defendants scheduled Albert Greenwood Brown’s

13 execution. Brown moved to intervene and for a stay of execution. Recognizing that “Brown’s

14 federal claims are virtually identical to those asserted by . . . Morales,” (Doc. No. 401 at 1), the

15 Court permitted Brown to intervene, but conditionally denied the stay application. Brown

16 appealed to the Court of Appeals for the Ninth Circuit. Morales v. Cate, 623 F.3d 828, 829 (9th

17 Cir. 2010). On remand, pursuant to guidance from the Ninth Circuit, this Court stayed Brown’s

18 execution.

19

Condemned prisoners Mitchell Carlton Sims and Stevie Lamar Fields subsequently

20 moved to intervene as Plaintiffs in these actions, and requested that their executions be stayed.

21 Significantly, “Defendants acknowledge[d] that the intervenors have a ‘claim or defense that

22 shares with the main action a common question of law or fact,’” (Doc. No. 472 at 2 (quoting

23 Fed. R. Civ. P. 24(b)(1)(B))), and they did not oppose permitting intervention and staying Sims’s

24 and Fields’s executions. The Court found that “Sims and Fields are similarly situated to Morales

25 and Brown in that they are condemned prisoners whose executions are not otherwise stayed and

26 whose claims in their complaint in intervention are virtually identical to those asserted by

27 Morales and Brown.” (Doc. No. 473 at 1–2.) Accordingly, the Court concluded that “Sims and

28 Fields are entitled to intervene and, like Morales and Brown, to have their executions stayed

2
Case Nos. 5-6-cv-219-RS-HRL & 5-6-cv-926-RS-HRL ORDER GRANTING KEVIN COOPER’S MOTION TO INTERVENE AND TO STAY EXECUTION (DPSAGOK)

1 until the present litigation is concluded.” (Id. at 2.)

2

In regards to the next prisoner whose execution was to be scheduled, David A. Raley, the

3 parties jointly stated that,

4

Raley is similarly situated to Fields, Sims, Morales, and Brown in

that he is a condemned prisoner whose execution is not otherwise

5

stayed. He will join in the Fourth Amended Complaint, thereby

presenting identical claims to those asserted by Morales and

6

Brown. Accordingly, Raley is entitled to intervene and, like

Morales, Brown, Fields, and Sims, to have his execution stayed

7

until the present litigation is concluded.

8 (Doc. No. 511 at 2.) The parties therefore stipulated and asked the Court to order that,

9

Raley may intervene as a Plaintiff in this litigation as to the Fourth

Amended Complaint, and that all proceedings related to the

10

execution of his sentence of death, including but not limited to

preparations for an execution and the setting of an execution date

11

for Mr. Raley, are hereby stayed on the same basis and to the same

extent as in the case of Plaintiffs Morales, Brown, Fields, and

12

Sims.

13 (Id. at 2–3.)

14

The Court initially did not act on the stipulation, as it appeared unnecessary to do so.

15 However, when there was no longer a sufficient basis for the Court to continue to defer action,

16 the Court granted the parties’ joint request, noting that “the parties are correct that Raley is

17 similarly situated to the present Plaintiffs and therefore entitled to intervene and to have his

18 execution stayed.” (Doc. No. 563 at 4.)

19

Tiequon A. Cox and Robert Green Fairbank Jr. were the next prisoners to move to

20 intervene in the instant actions and to request stays of execution. Even though Defendants did

21 not oppose intervention by and stays of execution for Sims and Fields, and they stipulated to

22 intervention by and a stay of execution for Raley, Defendants opposed Cox’s and Fairbank’s

23 motions. However, as the Court recognized, Cox and Fairbank were, “for purposes of the

24 present litigation, identically situated to Morales, Brown, Sims, and Fields, as well as Raley.”

25 Accordingly, the Court held that Cox and Fairbank were “entitled . . . to intervene and to have

26 their executions stayed until this litigation is concluded.” (Id.)

27

Defendants oppose Cooper’s motion to intervene and for a stay of execution, arguing that

28 the motion is premature and Cooper’s interests are adequately represented by the current

3
Case Nos. 5-6-cv-219-RS-HRL & 5-6-cv-926-RS-HRL ORDER GRANTING KEVIN COOPER’S MOTION TO INTERVENE AND TO STAY EXECUTION (DPSAGOK)

1 Plaintiffs. (Doc. No. 576.) Defendants raised these same arguments in opposing intervention by

2 and stays of execution for Cox and Fairbank. The Court rejected Defendants’ assertions, noting

3 that “Defendants could have made these arguments in connection with Sims, Fields, and Raley,

4 and there is no explanation for Defendants’ shift to this seemingly inconsistent position.

5 Moreover, the course of the present litigation—particularly in regards to Brown nearly being

6 executed—demonstrates that these arguments are wrong on the merits.” (Doc. No. 563 at 5.) In

7 their current brief, Defendants again make no attempt to explain their shift in position, nor do

8 they make any showing that the Court should reconsider its prior conclusions.

9

For purposes of the present litigation, Cooper is identically situated to Morales, Brown,

10 Sims, Fields, Raley, Cox, and Fairbank. The Court must treat identically situated persons the

11 same. Accordingly, the Court must permit Cooper to intervene and must stay his execution until

12 the present litigation is concluded.

13

* * *

14

Good cause appearing therefor, the Court grants Kevin Cooper’s request to intervene and

15 to have his execution stayed, (Doc. No. 564). As is the case for Plaintiffs Michael Angelo

16 Morales, Albert Greenwood Brown, Mitchell Carlton Sims, Stevie Lamar Fields, David A.

17 Raley, Tiequon A. Cox, and Robert Green Fairbank Jr., all proceedings related to the execution

18 of Cooper’s sentence of death, including but not limited to preparations for an execution and the

19 setting of an execution date, are hereby stayed until the conclusion of this litigation.

20

The hearing on Cooper’s application that is set for July 25, 2013, is vacated.

21

The Clerk shall update the docket to reflect the automatic substitution of Jeffrey A. Beard

22 as the lead Defendant.

23

IT IS SO ORDERED.

24

25 DATED: 6/19/13 26

__________________________________ RICHARD SEEBORG United States District Judge

27

28

4
Case Nos. 5-6-cv-219-RS-HRL & 5-6-cv-926-RS-HRL ORDER GRANTING KEVIN COOPER’S MOTION TO INTERVENE AND TO STAY EXECUTION (DPSAGOK)

 
 1

Case3:06-cv-00219-RS Document586 Filed09/17/13 Page1 of 5

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTIIERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11

12 Michael Angelo MORALES et al.,
13 Plaintiffs,
14
v.
15 Jeffrey A. BEARD, Secretary of the California
16 Department of Corrections and Rehabilitation, et al.,
17 Defendants.
18

Case Number 5-6-cv-219-RS-HRL Case Number 5-6-cv-926-RS-HRL
DEATH-PENALTY CASE
ORDER GRANTING SCOTT PINHOLSTER AND WILLIAM PAYTON'S MOTION TO INTERVENE AND TO STAY EXECUTION

19

20

Scott Pinholster and William Payton are condemned inmates at San Quentin State Prison

21 whose direct and collateral attacks on their respective convictions and sentences have concluded.

22 They move to intervene in the instant actions, which involve challenges to the constitutionality of

23 California's protocol for executions by lethal injection, and to have their executions stayed

24 pending the conclusion of this litigation. The Court discussed the relevant issues in detail in its

25 Order ofNovember 21, 2012, in which it permitted intervention by and granted stays of

26 execution to three other prisoners who are, for relevant purposes, identically situated to

27 Pinholster and Payton. (Doc. No. 563.) The present order therefore contains only a limited

28 discussion of the issues to the extent necessary to resolve Pinholster and Payton's motion.

Case Nos. 5-6-cv-219-RS-HRL & 5-6-cv-926-RS-HRL ORDER GRANTING KEVIN COOPER'S MOTION TO INTERVENE AND TO STAY EXECUTION

Case3:06-cv-00219-RS Document586 Filed09/17/13 Page2 of 5

When condemned prisoner Michael Angelo Morales initiated this litigation, the Court 2 conditionally denied his request to stay his exe~ution. Morales v. Hickman, 415 F. Supp. 2d

3 1037 (N.D. Cal. 2006). Defendants did not execute Morales as scheduled, and a stay of

. 4 execution issued pursuant to the Court's conditional order. Discovery and an evidentiary hearing 5 followed, ~fter which the Court concluded that the lethal-injection protocol, as implemented,

6 violated the Eighth Amendment. Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006). The

7 Court then acceded to a joint request by Morales and Defendants to refrain from proceeding

8 further with the present litigation until related state-court and administrative processes were

9 completed.

10

Following certain state proceedings, Defendants scheduled Albert Greenwood Brown's

11 execution. Brown moved to intervene and for a stay of execution. Recognizing that "Brown's

12 federal claims are virtually identical to those asserted by ... Morales," (Doc. No. 401 at 1), the

13 Court permitted Brown to intervene, but conditionally denied the stay application. Brown

14 appealed to the Court of Appeals for the Ninth Circuit. Morales v. Cate, 623 F.3d 828, 829 (9th

15 Cir. 2010). On remand, pursuant to guidance from the Ninth Circuit, this Court stayed Brown's

16 execution.

17

Condemned prisoners Mitchell Carlton Sims and Stevie Lamar Fields subsequently

18 moved to intervene as Plaintiffs in these actions, and requested that their executions be stayed.

19 Significantly, "Defendants acknowledge[d) that the intervenors have a 'claim or defense that

20 shares with the main action a common question of law or fact,"' (Doc. No. 472 at 2 (quoting Fed.

21 R. Civ. P. 24(b)(1)(B))), and they did not oppose permitting intervention and staying Sims's and

22 Fields's executions. The Court found that "Sims and Fields are similarly situated to Morales and

23 Brown in that they are condemned prisoners whose executions are not otherwise stayed and

24 whose claims in their complaint in intervention are virtually identical to those asserted by

25 Morales and Brown." (Doc. No. 473 at 1-2.) Accordingly, the Court concluded that "Sims and

26 Fields are entitled to intervene and, like Morales and Brown, to have their executions stayed until

27 the present litigation is concluded." (!d. at 2.)

28

In regards to the next prisoner whose execution was to be scheduled, David A. Raley, the

2 Case Nos. 5-6-cv-219-RS-HRL & 5-6-cv-926-RS-HRL
ORDER GRANTING MOTION TO INTERVENE AND TO STAY EXECUTION

Case3:06-cv-00219-RS Document586 Filed09/17/13 Page3 of 5

parties jointly stated that,

2

Raley is similarly situated to Fields, Sims, Morales, and Brown in

that he is a condemned prisoner whose execution is not otherwise

3

stayed. He will join in the Fourth Amended Complaint, thereby

presenting identical claims to those asserted by Morales and

4

Brown. Accordingly, Raley is entitled to intervene and, like

Morales, Brown, Fields, and Sims, to have his execution stayed

5

until the present litigation is concluded.

6 (Doc. No. 511 at 2.) The parties therefore stipulated and asked the Court to order that,

7

Raley may intervene as a Plaintiff in this litigation as to the Fourth

Amended Complaint, and that all proceedings related to the

8

execution of his sentence of death, including but not limited to

preparations for an execution and the setting of an execution date

9

for Mr. Raley, are hereby stayed on the same basis and to the same

extent as in the case of Plaintiffs Morales, Brown, Fields, and

10

Sims.

11 (/d. at 2-3.)

12

The Court initially did not act on the stipulation, as it appeared unnecessary to do so.

13 However, when there was no longer a sufficient basis for the Court to continue to defer action,

14 the Court granted the parties' joint request, noting that "the parties are correct that Raley is

15 similarly situated to the present Plaintiffs and therefore entitled to intervene and to have his

16 execution stayed." (Doc. No. 563 at 4.)

17

Tiequon A. Cox and Robert Green Fairbank Jr. were the next prisoners to move to

18 ·intervene in the instant actions and to request stays of execution. Even though Defendants did

19 not oppose intervention by and stays of execution for Sims and Fields, and they stipulated to

20 intervention by and a stay of execution for Raley, Defendants opposed Cox's and Fairbank's

21 motions. However, as the Court recognized, Cox and Fairbank were, "for purposes of the present

22 litigation, identically situated to Morales, Brown, Sims, and Fields, as well as Raley."

23 Accordingly, the Court held that Cox and Fairbank were "entitled ... to intervene and to have

24 their executions stayed until this litigation is concluded." (Id)

25

The next prisoner to move to intervene was Kevin Cooper. (Doc. No. 564.) The Court

26 found Cooper to be identically situated to Morales, Brown, Sims, Fields, Raley, Cox, and

27 Fairbank. (Doc. 581 at 4.) Because identically situated persons must be treated the same way,

28 the Court permitted Cooper to intervene and stayed his execution until the present litigation is

3
Case Nos. 5-6-cv-219-RS-HRL & 5-6-cv-926-RS-HRL ORDER GRANTING MOTION TO INTERVENE AND TO STAY EXECUTION

Case3:06-cv-00219-RS Document586 Filed09/17/13 Page4 of 5

concluded. (!d.)

2

Pinholster and Payton are the most recent prisoners to move to intervene. Defendants

3 oppose their motion, arguing that recent developments- namely the state's announcement that it

4 is developing a single-drug regulation and is abandoning the three-drug protocol - have rendered

5 the constitutional claims in this case moot and have eliminated any basis for intervention. (Doc.

6 584 at 1.) They argue that Pinholster and Payton do not have a claim or defense that shares with

7 the main action a common question of law or fact. (!d.)

8

The proposed development of a single-drug regulation does not defeat Pinholster and

9 Payton's ability to intervene in this case, nor has it rendered the constitutional claims in this case

10 moot. Pinholster and Payton share a host of common questions of law and fact with Morales,

11 Brown, et al., as outlined in their Motion. (Doc. 583 at 15-16) (e.g. questions pertaining to the

12 remote administration of chemicals, the training of the execution team, etc.) Defendants do not

13 explain how a single-drug protocol would resolve these issues. The proposed development of a

14 single-drug protocol does not significantly distinguish Pinholster and Payton from prior

15 intervenors.

16

For purposes of the present litigation, Pinholster and Payton are identically situated to

17 Morales, Brown, Sims, Fields, Raley, Cox, Fairbank and Cooper. The Court must treat

18 identically situated persons the same. Accordingly, the Court must permit Pinholster and Payton

19 to intervene and must stay their execution until the present litigation is concluded.

20

* * *

21

Good cause appearing therefor, the Court grants Pinholster and Payton's request to

22 intervene and to have their executions stayed, (Doc. No. 583). As is the case for Plaintiffs

23 Michael Angelo Morales, Albert Greenwood Brown, Mitchell Carlton Sims, Stevie Lamar

24 Fields, David A. Raley, Tiequon A. Cox, Robert Green Fairbank Jr. and Kevin Cooper, all

25 proceedings related to the execution ofPinholster and Payton's sentences of death, including but

26

27

28

4
Case Nos. 5-6-cv-219-RS-HRL & 5-6-cv-926-RS-HRL ORDER GRANTING MOTION TO INTERVENE AND TO STAY EXECUTION

Case3:06-cv-00219-RS Document586 Filed09/17/13 Page5 of 5

not limited to preparations for executions and the setting of execution dates, are hereby stayed

2 until the conclusion of this li tigation.

3

IT IS SO ORDERED.

4

5 DATED:
(I
6

rud£:=
United States District Judge

7

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II

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5
Case Nos. 5-6-cv-2 19-RS-HRL & 5-6-cv-926-RS-H RL ORDER GRANTING MOTION TO INTERVENE AN D TO STAY EXECUTION

 
 Case 3:06-cv-00219-RS Document 727 Filed 09/17/19 Page 1 of 5

1 XAVIER BECERRA Attorney General of California
2 JAY M. GOLDMAN Supervising Deputy Attorney General
3 R. LAWRENCE BRAGG Supervising Deputy Attorney General
4 State Bar No. 119194 JOANNA B. HOOD
5 Deputy Attorney General MICHAEL J. QUINN
6 Deputy Attorney General 1300 I St., Suite 125
7 Sacramento, CA 94244-2550 Telephone: (916) 210-7334
8 Fax: (916) 324-5205 E-mail: Lawrence.Bragg@doj.ca.gov
9 Attorneys for Defendants Gavin Newsom, Ron Davis, and Ralph Diaz
10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14

15

MICHAEL ANGELO MORALES,

3:06-cv-00219-RS

16

Plaintiffs, STIPULATION TO SETTLEMENT

17

CONFERENCE AND PROPOSED

v.

ORDER

18

Judge:

The Honorable Richard G.

19 RALPH DIAZ, Secretary of the California

Seeborg

Department of Corrections and

Trial Date: None set

20 Rehabilitation, et al.,

Action Filed: January 5, 2006

21

Defendants.

22

23

The named parties in this matter hereby stipulate as follows:

24

1. The parties previously stipulated to the following (ECF No. 716): Plaintiffs’ Fifth

25 Amended Complaint, which is the operative pleading in this case, was filed on February 27, 2019.

26 (ECF No. 710.) On March 13, 2019, Governor Gavin Newsom issued Executive Order N-09-19,

27 in which he declared an executive moratorium on the death penalty and ordered that the lethal

28 injection regulations be repealed, and that execution facilities at San Quentin State Prison be
1 Stipulation for Settlement Conf. and [Proposed] Order (3:06-cv-00219-RS)

Case 3:06-cv-00219-RS Document 727 Filed 09/17/19 Page 2 of 5

1 immediately closed. (See also ECF No. 720-1, Ex. A., Defs.’ Request for Judicial Notice (RJN), 2 Ex. A.) The Governor also ordered an indefinite “reprieve for all people sentenced to death in 3 California.” (See also id.) In the Executive Order, the Governor stated that he “will not oversee 4 execution of any person while Governor.” (See also id.)

5

2. The lethal injection regulations were formally repealed on March 18, 2019. (See also

6 ECF No. 720-1, Ex. B.)

7

3. On June 28, 2019, Defendants filed a motion to dismiss, asserting this Court lacks

8 jurisdiction over this case. (ECF No. 720.)

9

4. On August 13, 2019, the parties stipulated to extend the time for Plaintiffs to file an

10 opposition to Defendants’ motion to dismiss to allow time for the parties to discuss a resolution of

11 this case. (ECF No. 721.) The Court granted this stipulation, setting the new opposition deadline

12 for October 14, 2019, a reply deadline for November 4, 2019, and stated it will set a hearing date

13 after briefing is completed. (ECF No. 722.)

14

5. On September 11, 2019, Plaintiffs filed a motion for summary judgment. (ECF No.

15 723.) Defendants’ current date to oppose the motion is September 25, 2019, and the hearing date

16 is set for November 7, 2019.

17

6. On September 13, 2019, Defendants agreed to participate in a settlement conference

18 before a federal magistrate, but only on two preconditions: (1) that the briefing schedules and 19 hearing date for the parties’ respective motions were temporarily vacated, and (2) the parties

20 would meet and confer and propose new briefing schedules and hearing dates in the event the

21 case was not resolved at the settlement conference.

22

7. On September 13, 2019, Plaintiffs filed an administrative motion requesting the Court

23 set a settlement conference, but made no mention of vacating or postponing briefing deadlines or

24 a hearing date for the parties pending dispositive motions. (ECF No. 725.)

25

THEREFORE, the parties stipulate that this Court refer this matter to a settlement

26 conference before a magistrate judge, that it temporarily vacate the briefing and hearing dates for

27 their respective dispositive motions, and that the parties will meet and confer, and submit a

28
2 Stipulation for Settlement Conf. and [Proposed] Order (3:06-cv-00219-RS)

Case 3:06-cv-00219-RS Document 727 Filed 09/17/19 Page 3 of 5

1 proposed new schedule for briefing and hearing dates for their respective motions, should this

2 matter not be resolved at a settlement conference.

3

SO STIPULATED AND AGREED.

4

5 Dated: September 17, 2019 6 7 8

By: s/ R. Lawrence Bragg R. LAWRENCE BRAGG Supervising Deputy Attorney General Attorneys for Defendants Gavin Newsom, Ronald Davis, and Ralph Diaz

9 10 Dated: September 17, 2019 11 12 13 14 15

By: s/ David A. Senior DAVID A. SENIOR SARA M. COHBRA ANN K. TRIA
Richard P. Steinken JENNER & BLOCK
John R. Grele LAW OFFICE OF JOHN R. GRELE

16

Attorneys for Plaintiffs

Hector Ayala, Ron Aldo Ayala,

17

Albert Brown, Richard Boyer,

18

Tiequon Cox, Albert Cunningham,

Ronald Deere, Harvey Heishman,

19

Douglas Mickey, Michael Morales,

David Raley, Guy Rowland, Richard

20

Samayoa, Ricardo Sanders, Anthony

Sully, and Conrad Zapien 21

22 Dated: September 17, 2019 23 24 25

By: s/ Susan Elizabeth Garvey Susan Elizabeth Garvey HABEAS CORPUS RESOURCE CENTER Attorneys for Plaintiff Mitchell Sims

26

27

28
3 Stipulation for Settlement Conf. and [Proposed] Order (3:06-cv-00219-RS)

Case 3:06-cv-00219-RS Document 727 Filed 09/17/19 Page 4 of 5

1 Dated: September 17, 2019 2 3 4 5

By: s/ Margo Ann Rocconi Margo Ann Rocconi DEPUTY FEDERAL PUBLIC DEFENDER Attorneys for Plaintiffs Tracy Cain, Raynard Cummings, Robert Fairbank, William Payton, Scott Pinholster, and John Visciotti

6 Dated: September 17, 2019 7 8 9

By: s/ Norm C. Hile Norm C. Hile ORRICK HERRINGTON & SUTCLIFFE LLP Attorneys for Plaintiff Kevin Cooper

10 CIVIL LOCAL RULE 5-1(A) ATTESTATION

11

As required by Local Rule 5-1, I, R. Lawrence Bragg, attest that I obtained

12 concurrence in the filing of this document from all signatories and that I have maintained

13 records to support this concurrence.

14

15 Dated: September 17, 2019 16

s/ R. Lawrence Bragg R. Lawrence Bragg

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4 Stipulation for Settlement Conf. and [Proposed] Order (3:06-cv-00219-RS)

Case 3:06-cv-00219-RS Document 727 Filed 09/17/19 Page 5 of 5

1

[PROPOSED] ORDER

2

Pursuant to the parties’ stipulation, it is hereby ORDERED that this matter is referred to a

3 settlement conference before a magistrate judge, that all pending briefing and hearing dates 4 regarding the parties’ respective dispositive motions (ECF Nos. 720 and 723) are temporarily

5 vacated, and that, if this case is not resolved at a settlement conference, the parties will meet and

6 confer, and then propose to the Court new briefing and hearing dates for their responsive motions.

7

IT IS SO ORDERED.

8

9

DATED: September _1_7_, 2019

10

____________________________ Hon. Richard Seeborg United States District Court Judge

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5 Stipulation for Settlement Conf. and [Proposed] Order (3:06-cv-00219-RS)

 
 Case 3:06-cv-00219-RS Document 705 Filed 11/30/18 Page 1 of 4

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
MICHAEL ANGELO MORALES, et al., 7
Plaintiffs, 8
v. 9
RALPH DIAZ, Acting Secretary of the 10 California Department of Corrections and
Rehabilitation, et. al., 11
Defendants. 12

Case No. 06-cv-0219 RS 06-cv-0926 RS
DEATH PENALTY CASE
ORDER DENYING MOTION TO FILE AMICUS BRIEF AND DENYING WITHOUT PREJUDICE MOTIONS TO INTERVENE
Re: Doc. No. 689, 693, 695, 702

13

14

INTRODUCTION

15

Guy Rowland, Tracy D. Cain, and Ricky Lee Earp are condemned inmates at San Quentin

16 State Prison whose direct and collateral attacks on their convictions and sentences have concluded.

17 All move to intervene in the instant actions, which involve challenges to the constitutionality of

18 California’s protocol for executions by lethal injection, and to have their executions stayed

19 pending the conclusion of this litigation. (Doc. Nos. 689, 693, 702.) Kermit Alexander and

20 Bradley Winchell, family members of victims of two death row prisoners already plaintiffs in the

21 suit, filed an administrative motion to file an amici curiae brief opposing would-be intervenor

22 Rowland’s motion to intervene. (Doc. No. 695). For the foregoing reasons, the motion to file an

23 amici curiae brief is denied and the motions to intervene and stay would-be intervenors’

24 executions are denied without prejudice to renewal.

25

MOTION TO FILE AN AMICI CURIAE BRIEF

26

Kermit Alexander and Bradley Winchell are family members of victims of plaintiffs

27 Tiequon Cox and Michael Morales, respectively. Administrative Motion for Leave to File Amici

28 Curiae Brief at 3. They seek to file a brief as amici curiae opposing only Guy Rowland’s motion

Case 3:06-cv-00219-RS Document 705 Filed 11/30/18 Page 2 of 4

United States District Court Northern District of California

1 to intervene. Proposed amici’s brief makes three major arguments: (1) that all stays of execution

2 entered in this case have expired under the Prison Litigation Reform Act, (2) prior orders granting

3 stays exceeded the Court’s authority by requiring defendants to refrain from making execution

4 preparations for the prisoner granted intervention, and (3) Rowland failed to meet the pleading

5 requirements set out by the United States Supreme Court in Baze v. Rees, 553 U.S. 35, 61 (2008)

6 and Glossip v. Gross, 135 S.Ct. 2726, 2737 (2015). Proposed Amici Brief at 2, 4, 7. Plaintiffs

7 oppose the filing of an amici brief arguing both that the form of the motion is procedurally

8 improper and that the scope of the proposed amici brief exceeds Rowland’s motion to intervene.

9 Opp. at 2-3.

10

The Court has broad discretion in deciding whether to allow a non-party to participate as

11 an amicus curiae. See Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir.1982), abrogated on other

12 grounds by Sandin v. Conner, 515 U.S. 472; In re Roxford Foods Litig., 790 F.Supp. 987, 997

13 (E.D. Cal.1991). “An amicus brief may be unhelpful for many reasons, including because it is

14 untimely or does not provide information relevant to a pending decision.” Jamul Action Comm. v.

15 Chaudhuri, 2015 WL 1802813 *2 (E.D. Cal. April 17, 2015), citing Cmty. Ass’n for Restoration

16 of Env’t (CARE) v. DeRuyter Bros. Dairy, 54 F.Supp.2d 974, 975 (E.D.Wash. 1999).

17

Two of proposed amici’s arguments pertain to prior orders issued in this case. The third

18 argument, again, seeks an order declaring expired all stays of execution in this case on the ground

19 that they issued prior to the defendants’ inception of the new one-drug lethal injection protocol.

20 Proposed Amici Brief at 10. An amicus may not assume the functions of a party, nor may it

21 initiate, create, extend, or enlarge the issues. United States v. Alkaabi, 223 F.Supp.2d 583, 593

22 (D.N.J. 2002).

23

Most of the information contained within proposed amici’s brief is not germane to the

24 pending determination of whether Rowland should be allowed to intervene and whether a stay of

25 execution specific to Rowland should issue. The limited information that is relevant has been

26 covered amply by defendants. Accordingly, the brief is not useful and, in many instances, exceeds

27 the scope of a proper amici brief. The administrative motion to file it is denied.

28 // 2

Case 3:06-cv-00219-RS Document 705 Filed 11/30/18 Page 3 of 4

United States District Court Northern District of California

1

MOTIONS TO INTERVENE

2

Guy Rowland, Tracy D. Cain, and Ricky Lee Earp seek intervention and stays of execution

3 based on the fourth amended complaint. See Doc. Nos. 689, Ex. A; 693, Ex. B; 702, Ex. B.

4 Intervention exists as a matter of right when a federal statute confers the right to intervene or the

5 applicant has a legally protected interest that may be impaired by disposition of the pending action

6 and existing parties do not adequately represent that interest. Fed. R. Civ. P. 24(a). A court must

7 permit an applicant to intervene as a matter of right when: “(1) it has a significant protectable

8 interest relating to the property or transaction that is the subject of the action; (2) the disposition of

9 the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest;

10 (3) the application is timely; and (4) the existing parties may not adequately represent the

11 applicant’s interest.” Chamness v. Bowen, 722 F.3d 1110, 1121 (9th Cir. 2013) (citation and

12 internal quotation omitted). “Each of these four requirements must be satisfied to support a right

13 to intervene.” Id. (internal citation, quotation, and alterations omitted). Failure to satisfy any one

14 of the requirements is fatal to the application. Perry v. Proposition 8 Official Proponents, 587

15 F.3d 947, 950 (9th Cir. 2009).

16

“Timeliness is ‘the threshold requirement’ for intervention as of right.” League of United

17 Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir.1997) (quoting United States v.

18 Oregon, 913 F.2d 576, 588 (9th Cir.1990)). Courts consider three factors when evaluating the

19 timeliness of a motion to intervene: “(1) the stage of the proceeding at which an applicant seeks to

20 intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay.” United

21 States ex rel. McGough v. Covington Technologies Co., 967 F.2d 1391, 1394 (9th Cir.1992)

22 (quotations omitted).

23 //

24 //

25 //

26 //

27 //

28 // 3

Case 3:06-cv-00219-RS Document 705 Filed 11/30/18 Page 4 of 4

United States District Court Northern District of California

1

As noted, all three intervenors seek intervention based on the fourth amended complaint.

2 However, plaintiffs have been ordered to file a fifth amended complaint due to changed

3 circumstances. See Doc. No. 688. In light of the case’s procedural posture and the need for an

4 amended operative complaint, the motions to intervene based on the prior complaint are not

5 timely. Thus, they are denied without prejudice to renewal upon filing of the fifth amended

6 complaint. The concurrent motions to stay executions also are denied without prejudice.

7

CONCLUSION

8

For the foregoing reasons, the administrative motion to file an amici curiae brief is denied.

9 The motions to intervene and to stay the executions of Guy Rowland, Tracy D. Cain, and Ricky

10 Lee Earp are denied without prejudice. The hearings currently scheduled for December 6, 2018

11 and December 13, 2018 will be taken off calendar.

12

IT IS SO ORDERED.

13 14 Dated: November 30, 2018 15

________________________________ RICHARD SEEBORG United States District Judge

16

17

18

19

20

21

22

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24

25

26

27

28 4

 
 Case 3:06-cv-00219-RS Document 676 Filed 07/18/18 Page 1 of 11

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
MICHAEL ANGELO MORALES, et al., 7
Plaintiffs, 8
v. 9
SCOTT KERNAN, Secretary of the 10 California Department of Corrections and
Rehabilitation, et. al., 11
Defendants. 12

Case No. 06-cv-0219 RS 06-cv-0926 RS
DEATH PENALTY CASE
ORDER DENYING MOTIONS TO INTERVENE AND DENYING REQUEST FOR JUDICIAL NOTICE
Re: Doc. No. 660, 663, 671

13

14

INTRODUCTION

15

The District Attorneys from San Bernardino, San Mateo, and Riverside Counties seek to

16 intervene in the pending action, arguing that the current defendants do not adequately represent the

17 would-be intervenors’ interests. The would-be intervenors also seek a lift of the stays of execution

18 issued for each plaintiff, or in the alternative, specifically for plaintiffs Kevin Cooper, Albert

19 Greenwood Brown, Ronald Lee Deere, Robert Fairbank, Jr., and Anthony John Sully. Plaintiffs

20 and defendants oppose intervention and plaintiffs oppose a lift of the stays of execution. Plaintiff

21 Kevin Cooper filed a separate opposition, to which he attached a request for judicial notice of

22 approximately eighty pages of media articles and government web site pages regarding the recent

23 San Bernardino County election in which voters elected a new district attorney.

24

The motions are appropriate for decision without oral argument, as permitted by Civil

25 Local Rule 7-1(b) and Federal Rule of Civil Procedure 78. See also Lake at Las Vegas Investors

26 Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir.1991) (court’s consideration

27 of moving and opposition papers is deemed adequate substitute for formal hearing), cert. denied,

28 503 U.S. 920 (1992). For the following reasons, all three motions are denied.

Case 3:06-cv-00219-RS Document 676 Filed 07/18/18 Page 2 of 11

United States District Court Northern District of California

1

BACKGROUND

2

When condemned prisoner Michael Angelo Morales initiated this litigation, the prior

3 assigned district judge conditionally denied his request to stay his execution. Morales v. Hickman,

4 415 F. Supp. 2d 1037 (N.D. Cal. 2006). Defendants did not execute Morales as scheduled, and a

5 stay of execution issued pursuant to a conditional order. Discovery and an evidentiary hearing

6 followed, after which an order issued concluding that the lethal-injection protocol, as

7 implemented, violated the Eighth Amendment. Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal.

8 2006). The Court then acceded to a joint request by Morales and defendants to stay the present
litigation until related state-court and administrative processes were completed. 9
Following certain state proceedings, defendants scheduled Albert Greenwood Brown’s 10
execution. Brown moved to intervene and for a stay of execution. Recognizing that “Brown’s 11
federal claims are virtually identical to those asserted by . . . Morales,” (Doc. No. 401 at 1), Brown 12
was permitted to intervene, but his stay application was conditionally denied. Brown appealed to 13
the Court of Appeals for the Ninth Circuit. Morales v. Cate, 623 F.3d 828, 829 (9th Cir. 2010).
14 On remand, pursuant to guidance from the Ninth Circuit, this Court stayed Brown’s execution. In
15 the years following, an additional twenty-two plaintiffs sought and obtained intervention.

16

In November 2016, California voters passed Proposition 66 (“Prop 66”). One of the major

17 functions of Prop 66 was to exempt certain portions of the lethal injection protocol from the state’s

18 Administrative Procedures Act (“APA”). Defendants’ failure to comply with the APA had been

19 the subject of prior state litigation that resulted in the stay entered in this case. The State of

20 California finalized and filed defendants’ new lethal injection protocol on March 1, 2018. See

21 Doc. No. 635. On March 12, plaintiffs filed an update on pending state challenges to the lethal

22 injection protocol. On March 28, the Marin County Superior Court lifted its injunction of

23 defendants’ protocol and defendants filed a proposed litigation schedule two days later. Plaintiffs

24 opposed defendants’ proposed schedule and the parties were ordered to meet and confer on a

25 litigation schedule. On June 11, the parties submitted a joint case statement and a case 26 management conference was scheduled for October 15.

27

28 2

Case 3:06-cv-00219-RS Document 676 Filed 07/18/18 Page 3 of 11

United States District Court Northern District of California

1

Prior to the scheduled case management conference, the District Attorneys office from San

2 Bernardino County filed a motion to intervene as a defendant. Nine days later, the District

3 Attorneys Offices from San Mateo and Riverside Counties filed a substantively identical motion.

4

DISCUSSION

5

The District Attorneys offices from San Bernardino, San Mateo, and Riverside Counties

6 seek intervention as a matter of right or, in the alternative, permissive intervention. Additionally,

7 the would-be intervenors seek an order vacating the stays of execution either for all prisoners or

8 for the prisoners whose convictions occurred in their counties and for whom they intend to seek
death warrants. Alternatively, they seek a statement confirming that the stays of execution expired 9
ninety days after entry pursuant to the Prison Litigation Reform Act, 18 U.S.C. section 3626(a)(2). 10
Finally, in the event the above requests for relief are not granted, they ask for an order that would 11
enjoin only the use of the three-drug protocol that was found previously to meet the requirements 12
for a stay pursuant to Baze v. Rees, 553 U.S. 35 (2008). 13
I. Intervention
14 Intervention is a procedure by which a nonparty can gain party status without the consent
15 of the original parties. United States ex rel. Eisenstein v. City of N.Y., 556 U.S. 928, 933 (2009)

16 (“Intervention is the requisite method for a nonparty to become a party to a lawsuit.” (citation

17 omitted). There are two types of intervention: (1) intervention of right, and (2) permissive

18 intervention. See Fed. R. Civ. P. 24(a)-(b).

19

The District Attorneys argue they have the right to intervene pursuant to Federal Rule of

20 Civil Procedure (“FRCP”) 24(a)(2). In the alternative, they seek permissive intervention under

21 FRCP 24(b)(2). Plaintiffs oppose this motion, insisting the District Attorneys are not entitled to

22 intervene either as a matter of right or permissively because their motion is untimely, they fail to

23 present a significantly protectable interest, and the defendants sufficiently represent their interests

24 in this matter. Defendants oppose intervention because they argue they can adequately represent

25 would-be intervenors’ interests.

26 // 27 // 28 //

3

Case 3:06-cv-00219-RS Document 676 Filed 07/18/18 Page 4 of 11

United States District Court Northern District of California

1

a. Intervention as a Matter of Right

2

Intervention exists as a matter of right when a federal statute confers the right to intervene

3 or the applicant has a legally protected interest that may be impaired by disposition of the pending

4 action and existing parties do not adequately represent that interest. Fed. R. Civ. P. 24(a). A court

5 must permit an applicant to intervene as a matter of right when: “(1) it has a significant protectable
6 interest relating to the property or transaction that is the subject of the action; (2) the disposition of
7 the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest;
8 (3) the application is timely; and (4) the existing parties may not adequately represent the applicant’s interest.” Chamness v. Bowen, 722 F.3d 1110, 1121 (9th Cir. 2013) (citation and
9 internal quotation omitted). “Each of these four requirements must be satisfied to support a right
10 to intervene. While FRCP 24 traditionally receives liberal construction in favor of applicants for
11 intervention, it is incumbent on the party seeking to intervene to show that all the requirements for
12 intervention have been met.” Id. (internal citation, quotation, and alterations omitted). Failure to
13 satisfy any one of the requirements is fatal to the application. Perry v. Proposition 8 Official
14 Proponents, 587 F.3d 947, 950 (9th Cir. 2009).
15 Plaintiffs argue that the motions are untimely and that they come at a late stage in the
16 litigation. Defendants agree with would-be intervenors that the motions are timely in light of
17 changed circumstances. In light of the recent developments in this protracted controversy, the
18 motions to intervene are timely. Therefore, only the remaining factors need be addressed.

19

1. “Significantly protectable” interest

20

To determine whether an applicant has a “significantly protectable” interest necessary for

21 intervention, the Court must consider (a) whether the interest is protectable under some law, and

22 (b) whether there is a relationship between the legally protected interest and the claims at issue.

23 Wilderness Soc. v. United States Forest Service, 630 F.3d 1173, 1179 (9th Cir.2011). A would-be

24 intervenor will generally demonstrate it “has a sufficient interest for intervention purposes if it will

25 suffer a practical impairment of its interests as a result of the pending litigation.” California ex

26 rel. Lockyer v. United States, 450 F.3d 436, 441 (9th Cir.2006). “Although the intervenor cannot 27 rely on an interest that is wholly remote and speculative, the intervention may be based on an 28 interest that is contingent upon the outcome of the litigation.” United States v. Union Elec. Co.,

4

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United States District Court Northern District of California

1 64 F.3d 1152, 1162 (8th Cir.1995) (cited in United States v. Aerojet General Corp., 606 F.3d

2 1142, 1150 (9th Cir.2010)). When “the injunctive relief sought by plaintiffs will have direct,

3 immediate, and harmful effects upon a third party’s legally protectable interests, that party

4 satisfies the ‘interest’ test.” Forest Conservation Council v. United States Forest Service, 66 F.3d

5 1489, 1494 (9th Cir.1995) abrogated by Wilderness Soc., supra, 630 F.3d 1173.

6

Would-be intervenors argue that their duties as district attorneys in enforcing the judgment

7 obtained in capital convictions constitutes a “significantly protectable” interest. San Bernardino

8 County District Attorney’s Motion to Intervene (“Mot. to Intervene I”) at 15, Riverside and San
Mateo Counties District Attorneys’ Motion to Intervene (“Mot. to Intervene II”) at 18. Would-be 9
intervenors say that they are tasked with vindicating the “interests of the state and victims,” that 10
the District Attorneys and not the Attorney General “hold the interest in the judgment in the final 11
stage of a capital case,” and that the stays of execution entered in this case prevent them from 12
fulfilling their duties. Mot. to Intervene I at 15; Mot. to Intervene II at 18. The San Bernardino 13
County District Attorney makes a stronger declaration in his reply claiming that the interest in
14 Plaintiff Kevin Cooper’s death judgment is ascribable only to the District Attorney. Reply at 1.
15 Plaintiffs argue that would-be intervenors do not have a protectable interest “under some

16 law” because California law prohibits district attorneys from engaging in civil litigation absent

17 express statutory authority. Opp. at 8. Even if would-be intervenors were permitted to enter the

18 suit, plaintiffs argue, the enforcement of a capital judgment is not related sufficiently to the

19 method of execution to warrant intervention as a matter of right. Id. at 9. Defendants do not

20 address this factor.

21

The United States Supreme Court repeatedly has addressed the importance of a “State’s

22 significant interest in enforcing its criminal judgments.” Nelson v. Campbell, 541 U.S. at 637, 650

23 (2004). See also In re Blodgett, 502 U.S. 236, 239 (1992) (“None of the reasons offered in

24 response dispels our concern that the State of Washington has sustained severe prejudice by the 25 21/2-year stay of execution. The stay has prevented Washington from exercising its sovereign

26 power to enforce criminal law . . . .”); Gomez v. United States Dist. Court for Northern Dist. of 27 Cal., 503 U.S. 653, 654 (1992) (“Equity must take into consideration the State’s strong interest in 28 proceeding with its judgment . . . .”); McCleskey v. Zant, 499 U.S. 467, 491 (1991) (“Our federal

5

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United States District Court Northern District of California

1 system recognizes the independent power of a State to articulate societal norms through criminal

2 law; but the power of a State to pass laws means little if the State cannot enforce them.”); Engle v.

3 Isaac, 456 U.S. 107, 128 (“The States possess primary authority for defining and enforcing the
4 criminal law. . . . Federal intrusions into state criminal trials frustrate both the States’ sovereign
5 power to punish offenders and their good-faith attempts to honor constitutional rights.”). There is
6 no doubt that the interest is “protectable under some law.” Wilderness Soc., 630 F.3d at 1179.
7 Would-be intervenors, however, have failed to show that the State’s interest belongs to them or 8 that their role in filing for a death warrant rises above a ministerial action in service to the State’s
interest. 9
The United States Supreme Court determined based on California law that the Attorney 10
General is the “highest non-judicial legal officer of California, and is particularly charged with the 11
duty of supervising administration of the criminal laws.” Phyle v. Duffy, 334 U.S. 431, 441 12
(1948). The California Constitution provides that the Attorney General shall “see that the laws of 13
the State are uniformly and adequately enforced.” Cal. Const. Art. V, § 13. To that end, the 14
Attorney General maintains “direct supervision over every district attorney” and whenever 15
deemed necessary by the Attorney General or, “when directed to do so by the Governor,” that 16 officer may step in and assist district attorneys in the discharge of their duties or “take full charge
17 of any investigation or prosecution of violations of law of which the superior court has
18 jurisdiction.” Cal. Gov’t Code § 12550. While, as noted by would-be intervenors, the Attorney
19 General has not been named as a party to this lawsuit, his supervisor, the Governor has been. See
20 Cal. Const. Art. V, § 1 (“The supreme executive power of this State is vested in the Governor.

21 The Governor shall see that the law is faithfully executed.”); Cal. Const. Art. V, § 13 (“Subject to

22 the powers of the Governor, the Attorney General shall be the chief law officer of the State.”

23 (emphasis added)). The “State’s interest,” therefore, lies with the highest officials in the State’s

24 executive branch.

25

The state law provision on which would-be intervenors rely to support their interest in the

26 final stage of a capital judgment does not contradict this interpretation, as it explicitly does not 27 designate would-be intervenors exclusively. It also invests the trial court with the same interest. 28 California Penal Code section 1227(a) provides that “the court in which the conviction was had

6

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United States District Court Northern District of California

1 shall, on application of the district attorney, or may upon its own motion, make and cause to be

2 entered an order specifying a period of 10 days during which the judgment shall be executed”

3 (emphasis added).

4

The District Attorneys play a vital role in assisting the State in enforcing its criminal law,

5 but that role is a subsidiary one. They act as representatives of the State when initiating a
6 prosecution, Weiner v. County of San Diego, 210 F.3d 1025, 1031 (2000). However, they are not
7 State officers for all purposes. Id. Given the subordinate and mixed nature of their roles, the
8 District Attorneys cannot be the sole or primary holders of the State’s interest in seeing a criminal sentence implemented.
9 The District Attorneys’ arguments that they are the sole representatives of victims also fail.
10 They rely on Blake v. Pallen, 554 F.2d 947 (9th Cir. 1977), for the proposition that an official has
11 a sufficient “interest in adjudications that will directly affect his own duties and powers under state
12 laws.” Mot. to Intervene I at 13, Mot. to Intervene II at 16, both citing Blake, 554 F.2d at 953.
13 Blake, however, holds that the “public interest” is not enough to warrant intervention as a matter
14 of right.
15 In Blake, the California Commissioner of Corporations sought intervention in a class-
16 action suit alleging “causes of action grounded on Federal Securities Law violations and three
17 pendent counts based on California State Securities and Civil Fraud Laws.” 554 F.2d at 950. The
18 Commissioner alleged a right to intervention on the grounds that the court may interpret federal

19 securities law in a way that impacted California securities law, the action in which he sought to

20 intervene contained three claims based on state securities law, California statutes authorized him

21 in his official capacity to seek economic redress for securities fraud violations, and the court

22 should allow government intervention to “represent the public interest.” Id. at 952-953. The

23 Ninth Circuit ultimately upheld the district court’s determination that the commissioner was not

24 entitled to intervention as a matter of right, finding that California and federal securities law

25 schemes were separate autonomous systems; the commissioner did not have an interest in every 26 case arising under securities laws; and the commissioner had other means by which he could 27 vindicate consumers’ rights. Id. The court specifically noted that “it would be impractical to base

28 7

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United States District Court Northern District of California

1 a finding of sufficient interest for purposes of establishing intervention of right solely on public

2 interest grounds.” Id. at 953.

3

Under the California Constitution, the State’s interest in enforcing its own laws lies with

4 the Governor, which is then delegated to the Attorney General, and through the Attorney General,

5 down to county District Attorneys. Would-be intervenors have failed to substantiate their

6 assertion that the interest is theirs alone. That basis by itself, therefore, warrants denial of

7 intervention. Perry, 587 F.3d at 950.

8

2. Adequacy of Representation by Current Defendants

Would-be intervenors also have failed to show that the current defendants do not 9

adequately represent their interests. “Where the party and the proposed intervenor share the same 10

‘ultimate objective,’ a presumption of adequacy of representation applies.” Perry, 587 F.3d at 951 11
(quoting Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.2003)). As noted above, both the
12 Governor, who is a current defendant, and the would-be intervenors share an interest in the

13 resolution of criminal sentences, though the current defendant possesses the greater interest.

14 Moreover, the would-be intervenors’ primary objection is to the current defendants’ failure

15 to seek reconsideration or interlocutory appeals for orders that rejected defendants’ arguments.

16 Mot. to Intervene I at 17, Mot. to Intervene II at 20. As defendants note, “mere [ ] differences in

17 [litigation] strategy . . . are not enough to justify intervention as a matter of right.” Perry, 587

18 F.3d at 954, quoting United States v. City of Los Angeles, 288 F.3d 391, 402–403 (9th Cir. 2002).

19 The would-be intervenors do suggest that current defendants have not made all arguments

20 available; however, they concede that defendants have raised arguments about the stays of

21 execution pursuant to the Prison Litigation Reform Act and have made arguments that the

22 complaint is both moot and fails to meet current pleading standards under the most recent 23 Supreme Court cases addressing the issue.1 Mot. to Intervene I at 17, Mot. to Intervene II at 19.

24

25

1 In his reply, the San Bernardino County District Attorney argues that current defendants failed to make any arguments that the stays of execution have expired pursuant to the PLRA. Reply at 6.

26

As part of the adequacy of representation evaluation, a court must consider the extent to which the interest of the current parties to the suit are such that those parties will make all of the would-be

27

intervenors’ arguments and the extent to which said parties are willing and able to make such arguments. Arakaki, 324 F.3d at 1086. However, the most important factor to evaluate is the

28

nature of the would-be intervenor’s interest as compared to the existing parties’ interests, which is discussed in great detail below. The Court finds that the current defendants have made nearly

8

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United States District Court Northern District of California

1

Because a dispute about trial tactics is an insufficient basis on which to support a finding

2 that the current defendants cannot adequately represent the interests of the would-be intervenors

3 and because the law presumes that the current defendant provides adequate representation, the

4 District Attorneys also have not met their burden under this prong of the evaluation.

5

b. Permissive Intervention

6

If a would-be intervenor cannot show a right to intervene, under FRCP 24(b), a court may

7 also permit anyone to intervene who “has a claim or defense that shares with the main action a

8 common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Unlike intervention as of right,
permissive intervention focuses on possible prejudice to the original parties to the litigation, not 9
the intervenor. Donnelly v. Glickman, 159 F.3d 405, 411 (9th Cir. 1998). Thus, “in exercising its 10
discretion, the court is to consider ‘whether the intervention will unduly delay or prejudice the 11
adjudication of the rights of the original parties.’” Kootenai Tribe of Idaho v. Veneman, 313 F.3d 12
1094, 1128 n.10 (9th Cir. 2002), abrogated on other grounds by Wilderness Soc. v. U.S. Forest 13
Serv., 630 F.3d 1173 (9th Cir. 2011) (quoting Fed. R. Civ. P. 24(b)(2)). “[P]ermissive
14 intervention ‘requires (1) an independent ground for jurisdiction; (2) a timely motion; and (3) a
15 common question of law and fact between the movant’s claim or defense and the main action.’”

16 Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011) (quoting

17 Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992)). “Even if an applicant

18 satisfies those threshold requirements, the district court has discretion to deny permissive

19 intervention.” Donnelly, 159 F.3d at 412. In ruling on a motion to intervene, the Court must

20 accept as true the nonconclusory allegations of the motion and proposed pleading. Sw. Ctr. for

21 Biological Diversity v. Berg, 268 F.3d 810, 819 (9th Cir. 2001).

22

Allowing the District Attorneys to intervene in this case would exacerbate the delay about

23 which they complain. The would-be intervenors noted their disagreement with defendants’

24 litigation tactics, believing instead that defendants should have pursued motions for

25 reconsideration or interlocutory appeals, which could delay matters up to several months.

26

27

every argument the would-be intervenors raise. Current defendants repeatedly have argued against the stays under multiple legal theories. This difference between would-be intervenors’

28

position and the arguments made by current defendants amounts to trial strategy. There is no reason the would-be intervenors could not have raised this issue in an amicus curiae brief.

9

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United States District Court Northern District of California

1

Moreover, California has fifty-eight counties. Should permissive intervention be granted

2 here, the prospect arises that an additional fifty-five District Attorney offices would seek to

3 intervene. Requiring the plaintiffs and primary defendants to confer with so many intervenors,

4 each of whom is under the supervision of one current defendant, and whose interest is marginal to

5 the subject matter of the complaint would be unwieldy and prejudicial. That is to say nothing of

6 the detrimental impact of litigating such complex and wide-reaching issues on a plaintiff-by-

7 plaintiff basis, as counties seek to lift the stays of the execution for plaintiffs for whom they seek a

8 death warrant.
Finally, as this Court has noted before, this case focuses solely on the method and 9
implementation of the death penalty. It does not concern whether California should maintain 10
capital punishment or the wisdom of the death penalty in the first instance. (Doc. No. 424 at 8.) 11
The District Attorneys have no involvement in the drafting or implementation of any method-of12
execution protocol and are not entitled to an unconstitutional resolution of any case that their 13
office prosecuted. As such, they have failed to show “a common question of law and fact between
14 the movant’s claim or defense and the main action.” Freedom from Religion Found., Inc., 644
15 F.3d at 843. Accordingly, permissive intervention is denied.

16

II. Stays of Execution

17

Because the District Attorneys have been denied intervention, they lack standing to

18 challenge the orders previously issued in this case. Accordingly, their arguments regarding the

19 expiration or lifting of the stays of execution will not be addressed.

20

III. Plaintiff Cooper’s Request for Judicial Notice

21

Plaintiff Kevin Cooper filed a separate opposition to the San Bernardino County District

22 Attorney’s motion to intervene to “provide the Court [with] pertinent additional information

23 concerning DA Ramos’ motive to seek to intervene . . . .” Cooper Opp. at 1. Cooper’s opposition

24 focuses on the fact that that District Attorney Ramos was voted out of office in June by San

25 Bernardino County voters. Cooper attached to his opposition a request for judicial notice of eight

26 exhibits totaling approximately eighty pages of news articles and government web site documents

27 concerning the recent San Bernardino County election.

28

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United States District Court Northern District of California

1

While in the right circumstances a court may take judicial notice of both publicly available

2 media articles, Ritter v. Hughes Aircraft, Co., 58 F.3d 454, 458-59, and government web site

3 documents, Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010), it is not

4 appropriate to do so in this instance. Whatever motivation District Attorney Ramos may have in

5 filing a motion to intervene is irrelevant to the legal standard that must be considered in

6 determining whether to grant his motion. Accordingly, the request for judicial notice is denied.

7

CONCLUSION

8

For the foregoing reasons, both of the motions to intervene and Plaintiff Cooper’s request

9 for judicial notice are denied. The scheduled hearing date of August 9, 2018, shall be taken off

10 calendar.

11

12

IT IS SO ORDERED.

13 14 Dated: July 18, 2018 15

________________________________ RICHARD SEEBORG United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

28 11

 
 Case 3:06-cv-00219-RS Document 655 Filed 05/14/18 Page 1 of 5

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
MICHAEL ANGELO MORALES, et al., 7
Plaintiffs, 8
v. 9
SCOTT KERNAN, Secretary of the 10 California Department of Corrections and
Rehabilitation, et. al., 11
Defendants. 12

Case No. 06-cv-0219 RS 06-cv-0926 RS
DEATH PENALTY CASE
ORDER GRANTING MOTIONS TO INTERVENE AND TO STAY EXECUTION AND GRANTING MOTION FOR JUDICIAL NOTICE
Re: Doc. No. 642, 652

13

14

INTRODUCTION

15

John Louis Visciotti is a condemned inmate at San Quentin State Prison whose direct and

16 collateral attacks on his conviction and sentence have concluded. He moves to intervene in the

17 instant actions, which involve challenges to the constitutionality of California’s protocol for

18 executions by lethal injection, and to have his execution stayed pending the conclusion of this

19 litigation. (Doc. No. 642.) The relevant issues are discussed in detail in a prior order permitting

20 intervention by, and granting stays of execution to, three other prisoners who are, for relevant

21 purposes, identically situated to the current would-be intervenor. (Doc. No. 563.) The present

22 order therefore contains only a limited discussion of the issues to the extent necessary to resolve

23 the instant motion.

24

BACKGROUND

25

When condemned prisoner Michael Angelo Morales initiated this litigation, the prior

26 assigned district judge conditionally denied his request to stay his execution. Morales v. Hickman,

27 415 F. Supp. 2d 1037 (N.D. Cal. 2006). Defendants did not execute Morales as scheduled, and a

28 stay of execution issued pursuant to the Court’s conditional order. Discovery and an evidentiary

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United States District Court Northern District of California

1 hearing followed, after which the Court concluded that the lethal-injection protocol, as

2 implemented, violated the Eighth Amendment. Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal.

3 2006). The Court then acceded to a joint request by Morales and Defendants to refrain from

4 proceeding further with the present litigation until related state-court and administrative processes

5 were completed. Those administrative processes remain active.

6

Following certain state proceedings, Defendants scheduled Albert Greenwood Brown’s

7 execution. Brown moved to intervene and for a stay of execution. Recognizing that “Brown’s

8 federal claims are virtually identical to those asserted by . . . Morales,” (Doc. No. 401 at 1), the
Court permitted Brown to intervene, but conditionally denied the stay application. Brown 9
appealed to the Court of Appeals for the Ninth Circuit. Morales v. Cate, 623 F.3d 828, 829 (9th 10
Cir. 2010). On remand, pursuant to guidance from the Ninth Circuit, this Court stayed Brown’s 11
execution. 12
Condemned prisoners Mitchell Carlton Sims and Stevie Lamar Fields subsequently moved 13
to intervene as Plaintiffs in these actions, and requested that their executions be stayed.
14 Significantly, “Defendants acknowledge[d] that the intervenors have a ‘claim or defense that
15 shares with the main action a common question of law or fact,’” (Doc. No. 472 at 2 (quoting Fed.

16 R. Civ. P. 24(b)(1)(B))), and they did not oppose permitting intervention and staying the

17 executions scheduled for Sims and Fields. The Court found that “Sims and Fields are similarly

18 situated to Morales and Brown in that they are condemned prisoners whose executions are not

19 otherwise stayed and whose claims in their complaint in intervention are virtually identical to

20 those asserted by Morales and Brown.” (Doc. No. 473 at 1–2.) Accordingly, the Court concluded

21 that “Sims and Fields are entitled to intervene and, like Morales and Brown, to have their

22 executions stayed until the present litigation is concluded.” (Id. at 2.)

23

In regards to the next prisoner whose execution was to be scheduled, David A. Raley, the

24 parties jointly stated that,

25

Raley is similarly situated to Fields, Sims, Morales, and Brown in

that he is a condemned prisoner whose execution is not otherwise

26

stayed. He will join in the Fourth Amended Complaint, thereby

presenting identical claims to those asserted by Morales and Brown.

27

Accordingly, Raley is entitled to intervene and, like Morales,

Brown, Fields, and Sims, to have his execution stayed until the

28

present litigation is concluded.

2

Case 3:06-cv-00219-RS Document 655 Filed 05/14/18 Page 3 of 5

United States District Court Northern District of California

1 (Doc. No. 511 at 2.) The parties therefore stipulated and asked the Court to order that,

2

Raley may intervene as a Plaintiff in this litigation as to the Fourth

Amended Complaint, and that all proceedings related to the

3

execution of his sentence of death, including but not limited to

preparations for an execution and the setting of an execution date for

4

Mr. Raley, are hereby stayed on the same basis and to the same

extent as in the case of Plaintiffs Morales, Brown, Fields, and Sims.

5

(Id. at 2–3.)

6 The Court initially did not act on the stipulation, as it appeared unnecessary to do so.

7 However, when there was no longer a sufficient basis to defer action, the Court granted the

8 parties’ joint request, noting that “the parties are correct that Raley is similarly situated to the

9 present Plaintiffs and therefore entitled to intervene and to have his execution stayed.” (Doc. No.

10 563 at 4.)

11

Tiequon A. Cox and Robert Green Fairbank, Jr., were the next prisoners to move to

12 intervene in the instant actions and to request stays of execution. Even though Defendants did not

13 oppose intervention by, and stays of execution for, Sims and Fields, and had stipulated to

14 intervention by, and a stay of execution for, Raley, Defendants opposed the motions filed by Cox

15 and Fairbank. However, as the Court recognized, Cox and Fairbank were, “for purposes of the

16 present litigation, identically situated to Morales, Brown, Sims, and Fields, as well as Raley.”

17 Accordingly, the Court held that Cox and Fairbank were “entitled . . . to intervene and to have

18 their executions stayed until this litigation is concluded.” (Id.)

19

Subsequently, Kevin Cooper, Scott Pinholster, William Payton, Fernando Belmontes, Jr.,

20 Royal Kenneth Hayes, Richard Delmer Boyer, Ron Deere, Harvey Lee Heishman, Anthony Jack

21 Sully, Albert Cunningham, Douglas Mickey, Hector Ayala, Richard Samayoa, Raynard Paul

22 Cummings, Conrad Jess Zapien, and Ronaldo Medrano Ayala were allowed to intervene and were
23 issued stays of their executions over Defendants’ objections. (Doc. Nos. 581, 586, 606, 620, 631.)
DISCUSSION 24
Defendants oppose the current motion to intervene and stay of execution for four reasons: 25
(1) the motion does not comply with the requirements of Federal Rule of Civil Procedure 24 26
because Visciotti has failed to allege a constitutional deficiency with the state’s one-drug protocol, 27
which was adopted on March 1, 2018, by Defendants; (2) Visciotti has not met the pleading 28

3

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United States District Court Northern District of California

1 burdens required of condemned-inmate plaintiffs by the United States Supreme Court in Glossip v.

2 Gross, __ U.S. __, 135 S.Ct. 2726 (2015), and Baze v. Rees, 553 U.S. 35 (2009), in that he has

3 failed to allege that the new protocol poses an imminent risk of serious harm and needless

4 suffering and that a readily available alternative to the new protocol exists; (3) Visciotti has not

5 exhausted his administrative remedies; and (4) Visciotti has not satisfied the evidentiary burden

6 required to obtain a stay of execution. Opp. at 1. Defendants argue that to the extent Visciotti

7 relies on prior Orders in this case, those Orders are moot because they were predicated on the

8 “prior, now-defunct, three-drug protocol.” Id.
While Defendants have reframed their prior objections against would-be intervenors in 9
light of the adopted protocol, the substance of their arguments remains largely the same. Prior 10
similar arguments based on mootness have been rejected, in part because “one-drug executions 11
have been at issue in this litigation since it commenced.” (Doc. No. 563 at 4.) Moreover, “‘a 12
number of critical deficiencies,’. . . in Defendants’ prior protocol [existed] that were not related to 13
the number of drugs used.” (Id. at 4-5, quoting Morales v. Tilton, 4654 F. Supp. 2d at 979.) Thus,
14 some specific relief is still obtainable and the current complaint is not moot despite the adoption of
15 a new protocol. See West v. Sec’y of Dept. of Transp., 206 F.3d 920, 924 (9th Cir. 2000). As with

16 prior motions to intervene following those of Cox and Fairbank, Defendants have not met their

17 burden in showing that the Court should reconsider its prior conclusions.

18

Moreover, Visciotti cannot seek intervention by pleading additional claims or facts. “[A]n

19 intervenor is admitted to the proceeding as it stands, and in respect of the pending issues, but is not

20 permitted to enlarge those issues or compel an alteration of the nature of the proceeding.” Vinson

21 v. Washington Gas Light Co., 321 U.S. 489, 498 (1944). The parties have recognized the need for

22 an amended complaint and are engaged in a meet-and-confer process regarding resumption of

23 litigation in this matter. Accordingly, Visciotti can join in the forthcoming amended complaint

24 and all Plaintiffs collectively can address the pleading deficiencies Defendants cite, if warranted.

25

Defendants also challenge Visciotti’s intervention based on a purported failure to exhaust

26 administrative remedies. Like Visciotti, prior intervenors cited Beardslee v. Woodford, 395 F.3d 27 1064 (9th Cir. 2005), for the proposition that they were not required to exhaust administrative 28 remedies. Most alleged that they had filed an administrative grievance or appeal, which Visciotti

4

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United States District Court Northern District of California

1 has, but did not allege that they completed the process. The would-be intervenors’ arguments both

2 past and present regarding not being required to exhaust administrative remedies under Beardslee

3 are well-taken.

4

For purposes of the present litigation, Visciotti is identically situated to Morales, Brown,

5 Sims, Raley, Cox, Cooper, Fairbank, Pinholster, Payton, Hayes, Boyer, Deere, Heishman, Sully,

6 Cunningham, Mickey, Ayala, Samayoa, Cummings, Zapien, and Ayala. Identically situated

7 persons are to be treated the same. Accordingly, Visciotti must be permitted to intervene and his

8 execution must be stayed until the present litigation is concluded.
Good cause appearing therefor, John Louis Visciotti’s motions to intervene and to have his 9
execution stayed will be granted (Doc. No. 642). As is the case for Plaintiffs Michael Angelo 10
Morales, Albert Greenwood Brown, Mitchell Carlton Sims, David A. Raley, Tiequon A. Cox, 11
Robert Green Fairbank Jr., Kevin Cooper, Scott Pinholster, William Payton, Royal Kenneth 12
Hayes, Richard Delmer Boyer, Ron Deere, Harvey Lee Heishman, Anthony Jack Sully, Albert 13
Cunningham, Douglas Mickey, Hector Ayala, Richard Samayoa, Raynard Paul Cummings,
14 Conrad Jess Zapien, and Ronaldo Medrano Ayala all proceedings related to the execution of John
15 Louis Visciotti’s death sentence, including but not limited to preparations for any execution and

16 the setting of an execution date, are hereby stayed until the conclusion of this litigation.

17

Defendants’ motion for judicial notice of the Marin County Superior Court Order dated

18 February 21, 2012, attached to Defendants’ motion as Exhibit A, is granted.

19

20

IT IS SO ORDERED.

21

22 Dated: May 14, 2018 23 24

________________________________ RICHARD SEEBORG United States District Judge

25

26

27

28 5

 
 Case 3:06-cv-00219-RS Document 647 Filed 04/20/18 Page 1 of 2

United States District Court Northern District of California

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
MICHAEL ANGELO MORALES, et al., 4
Plaintiffs, 5
v. 6
SCOTT KERNAN, Secretary of the 7 California Department of Corrections and
Rehabilitation, et. al., 8
Defendants. 9

Case No. 06-cv-0219 RS 06-cv-0926 RS
DEATH PENALTY CASE
ORDER GRANTING ADMINISTRATIVE MOTION AND DENYING MOTION TO RECONSIDER

10

Defendants have filed an administrative motion seeking leave to file a motion for

11 reconsideration of the Court’s April 18, 2018 Order relating case no. 18-cv-02146, Los Angeles

12 Times Communications, LLC v. Kernan, to the present case. They also have filed a substantive

13 motion to reconsider that Order.

14

Defendants are correct that time remained for them to oppose the motion to relate the two

15 cases. As such, the administrative motion for leave to file the motion to reconsider is GRANTED.

16

In their substantive motion for reconsideration, Defendants argue that judicial resources

17 will not be economized by relating the cases and that there is no risk of inconsistent results

18 because Morales does not involve a “physical barrier that obstructs the view of the media as to

19 certain activities.” Mot. to Reconsider at 4. This position oversimplifies the issues in Morales.

20

This Court previously has noted the problematic nature of the death chamber at San

21 Quentin State Prison, including the fact even lethal injection team members are unable to view

22 adequately the administration of intraveneous drugs. See Morales v. Tilton, 465 F.Supp.2d 972,

23 980 (N.D. Cal. 2006). Thus, both Morales and LA Times concern the same defendants and include

24 issues regarding the structural design of the San Quentin death chamber. Additionally, both

25 obviously address what happens at the time of an execution.

26

Requiring another judge to become educated on the specific architecture of the death

27 chamber and to address concerns about the administration of the death penalty while Morales

28 remains active would result in an “unduly burdensome duplication of labor” and expense. Civil

Case 3:06-cv-00219-RS Document 647 Filed 04/20/18 Page 2 of 2

United States District Court Northern District of California

1 Local Rule 3-12. Accordingly, the motion for reconsideration is DENIED.

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IT IS SO ORDERED.

4 5 Dated: April 20, 2018 6

________________________________ RICHARD SEEBORG United States District Judge

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 Case 3:06-cv-00219-RS Document 645 Filed 04/18/18 Page 1 of 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER

A Motion for Administrative Relief to Consider Whether Cases Should be Related or a Sua Sponte Judicial Referral for Purpose of Determining Relationship (Civil L.R. 3-12) has been filed. The time for filing an opposition or statement of support has passed. As the judge assigned to case
06-cv-00219-RS Morales v. Beard
I find that the more recently filed case(s) that I have initialed below are related to the case assigned to me, and such case(s) shall be reassigned to me. Any cases listed below that are not related to the case assigned to me are referred to the judge assigned to the next-earliest filed case for a related case determination.

Case

Title

Related Not Related

18-cv-02146-LB Los Angeles Times Communications LLC v. Kernan X

ORDER

The parties are instructed that all future filings in any reassigned case are to bear the initials of the newly assigned judge immediately after the case number. Any case management conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be renoticed by the moving party before the newly assigned judge; any deadlines set by the ADR Local Rules remain in effect; and any deadlines established in a case management order continue to govern, except dates for appearance in court, which will be rescheduled by the newly assigned judge.

Dated: 4/18/18

By: Richard Seeborg United States District Judge

1

 
 C.A. NO. 06-99002 UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL ANGELO MORALES, Peti tioner-Appellant,

D.C. Nos. C 06 0219 (JF), C 06 0926 (JF)
DEATH PENALTY CASE

v.

ROD ERlCK Q. HICKMAN, Secretary of EXECUTION IMMINENT:

the Cali fomia Department of

Execution Date February 21, 2006

Corrections; STEVEN ORNOSKI,

Warden, San Quentin State Prison, San

Quentin, CA; and DOES I-50,

Respondents-Appellees.

APPLICATION OF STAY OF EXECUTION

Emergencv Motion Under Circuit Rule 27-3

David A. Senior McBreen & Senior 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 dsenior@mcbreensenior.com

Richard P. Steinken Janice H. Lam Stephanie L. Reinhart Jenner & Block LLP One IBM Plaza Chicago,IL 60611-7603 Phone: (312) 923 -2938 Fax: (312) 840-7338 rsteinken@jenner.com

John R. Grele Law Offices of John R. Grele 703 Market Street, Suite 550 San Franci sco, CA 94103 Phone: (415) 348-9300 Fax: (415) 348-0364 jgrele@earthlink.net

Ginger D. Anders Jenner & Block LLP 60 I Thirteenth Street, NW Suite 1200 South Washington DC 20005-3823 Phone: (202) 639-6000 Fax: (202) 639-6066 gand ers@ ienner.com

Attorneys For Petitioner-Appellant Michael Angelo Morales

CIRCUIT RULE 27-3 CERTIFICATE I hereby certify that the following are counsel of record for Plaintiff:

David A. Senior McBreen & Senior 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 dsenior@mcbreensenior.com
John R. Grele Law Offices of John R. Grele 703 Market Street, Suite 550 San Francisco, CA 94103 Phone: (415) 348-9300 Fax: (415) 348-0364 jgrele@earthlink.net

Richard P. Steinken Janice H. Lam Stephanie L. Reinhart Jenner & Block LLP One IBM Plaza Chicago, IL 606\1-7603 Phone: (312) 923-293 8 Fax: (312) 840-7338 rsteinken @j enner.com
Ginger D. Anders Jenner & Block LLP 60 I Thirteenth Street, NW Suite 1200 South Washington DC 20005-3823 Phone: (202) 639-6000 Fax: (202) 639-6066 gan ders@ien ner.com

Counsel of record for Defendants is:
Dane Gillette (#65925) Senior Assistant Attorney General 450 Golden Gate Avenue, suite 1100 San Francisco, CA 94102 Tel: (415) 703-5866 Fax: (415) 703-1234
AppellantIPlaintiff Michael Morales challenged his execution under
California' s Procedure 770, the method oflethal injection, in the District Court.
II

His complaint was filed on February 13, 2006 and a Motion for a Temporary

Restraining Order was filed on February 20, 2006. The nature of the need for

emergency review is that the District Court issued its final order after the close of

business yesterday, February 16,2005, approving a last-minute modification of the

procedure for execution. Mr. Morales' execution is set for February 21, 2006 at

12:0 I am. Unless a stay of execution is issued, he will not have an opportunity for

review of the procedure by which he is to be executed, despite a sufficient showing

that the new procedure does nothing to alleviate the substantial likelihood he will

suffer unnecessary and excruciating pain.

Counsel for the Defendant!Appellee was notified ofthis application by

electronic mail today, February 17, 2006. He was advised we would file our

appeal shortly after the final order was issued. He has been served with this

Motion today electronically pursuant to the agreement of the parties.

All grounds for relief sought in this Court were advanced in the District

Court.

Dated:

February 17, 2006

JOHNRGRELE One of the Attorneys for PetitionerAppellant Michael Angelo Morales
III

TABLE OF CONTENTS

I.

INTRODUCTION............................................................................................................ I

II. PROCEDURAL HISTORY ............................................................................................ 2 III. STATEMENT OF FACTS.............................................................................................. 4

IV. ARGUMENT .................................................................................................................. 12

V. CONCLUSION ............. .• ..................•••. ...............••..... ........ ..••.............20

IV

TABLE OF AUTHORITIES CASES
Barefoot v. Estelle, 463 U.S. 880 (1983) ................................................................ II Beardslee v. Woodford, 395 F.3d 1064, 1073 & n.9 (9·h Cir 2005) ............ ........ 8,20 Malone v. Calderon, 167 F.3d 1221 (9th Cir. 1999)................................................. I Martinez- Villareal v. Stewart, 118 F.3d 625 (9th Cir. 1997).. .... .. .. ........................ II Taylorv. Crawford, No. 05-4 173-CV-C-FJG (W.O. Mis.) .................................... 19 Taylor v. Crawford, No. 06- 1397 (8th Cir.) ........................................................ 1,19
STATUTES 42 U.S.C. § 1983 ................................................................................................... 2,4 42 U.S.c. section 1983 ................................................................ .............................. I 28 U.S.C. § 1292 .............................................................................................. .... ..... 4 28 U.S.C. § 1331 .................... .......... .... .... ............ ................ .. .... .... .. ......................... 4
15 Cal. Code Regs. § 3380(c) & (d) ........................................................................ 19 Cal. Gov. Code § 11349 et seq ........................................ ........................................ 19
v

I. INTRODUCTION Appellant Michael Morales is scheduled to be executed by lethal injection at midnight on the night of February 20, 2006 (12:0 I am on February 21 , 2006). He applies to this Court for a Stay of Execution because he has established that California's lethal injection procedures are sufficiently questionable to constitute a likelihood of success on the merits of his Eighth Amendment challenge, yet the District Court denied a stay and has prevented adequate review both below and in this Court. See Malolle v. Calderoll, 167 F.3d 1221 (9'h Cir. 1999); Taylor v. Crawford, No. 06-1397 (8th Cir.). Mr. Morales brought an action under 42 U.S.c. section 1983 and requested a Temporary Restraining Order. ER 1-29. The District Court ordered a series of at least four briefings, requesting further submissions each time Appellee, the California Department of Corrections and Rehabilitation (COCR), submitted an inadequate response. ER 346-49 (docket). Finally, after having considered the request for over a month, and on the eve of execution, the District Court allowed the execution to go forward so long as the lethal injection procedure was modified, a finding that the procedure was so defective as to require judicial intervention. See ER 301-15 ("Conditional Order"). Now, at the last minute, a new procedure has been crafted. Two anesthesiologists will be present, one in the chamber. ER 336-37. But, in response

Morales alleged that CDCR 's administration of Procedure No. 770, the lethal injection protocol, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments because it created a substantial risk that Mr. Morales will be fully conscious and in agonizing pain for the duration of the execution process. ER 256-67 (Amended Complaint).
Mr. Morales filed a Motion for Temporary Restraining Order on January 20, 2006. ER 1-29. Briefing by both parties ensued. ER 346 (pacer # 17, 21 ). At an initial hearing on January 26, 2006 (ER 391-456), the District Court announced that it would construe the TRO motion as a motion for a preliminary injunction, ordered supplemental briefing on the motion for preliminary injunction, and scheduled further oral argument. ER 451 -52. On February I, 2006, the District Court denied all but the most limited expedited discovery, ordering production of a previously confidential version of Califomia's lethal-injection protocol and information about the three most recent executions that Defendants have conducted -- those of Donald Beardslee on January 19, 2005; Stanley "Tookie" Williams on December 13, 2005 ; and Clarence Ray Allen on January 17, 2006. ER 229-231. On February 9, 2006, after further briefing, the District Court heard argument on the motion for a preliminary injunction where both sides offered what was to be presented at a hearing to be held in 60 to 90 days. ER 457-533. Still further supplemental briefing was requested by the Court. Then, on February 13, 2006,
3

the District Court requested a fourth round of supplemental briefing to address whether it would be feasible for Plaintiffs execution to proceed either using only sodium thiopental or utilizing an independent means to insure that Plaintiff will be unconscious before pancuronium bromide and potassium chloride are injected. ER 348. After the briefing on that issue, in which CDCR proposed to have the Warden poke Mr. Morales to see ifhe moved (ER 274), the District Court issued its Conditional Order on February 14,2006. ER 301-15 . That Conditional Order required yet further submissions: by the State of Califomi a as to what procedure it was going to employ, and by Mr. Morales as to the adequacy of that procedure. Those submissions were completed on February 16, 2006 and the Final Order was issued upholding the State's modified procedure later that evening.
A Notice of Appeal followed. ER 386. This Court has jurisdiction pursuant to 28 U.S.C. § 1292 , 28 U.S.C. § 1331 (federal question jurisdiction) and § 1343 (civil rights violation). This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983.
m. STATEMENT OF FACTS
Procedure No. 770 calls for the use of three drugs in succession: first , sodium pentothal, an ultrashort-acting barbiturate intended to cause the inmate to lose consciousness, but that can wear off quickly; pancuronium bromide, a neuromuscular blocking agent that paralyzes the muscles, making the execution
4

appear peaceful to witnesses; and finally, potassium chloride, which induces cardiac arrest. ER 30-73 . Procedure No. 770 allows for the remote administration of the drugs, from another room, by untrained personnel, using 50 feet ofIV tubing and a modified junction for the injection. The process does not comport with accepted medical standards and is entirely error-prone. ER 79- 103.
There is no dispute that if the inmate is not properly sedated by the sodium pentothal, the administration of the second and third drugs will result in an excruciatingly painful execution. And, there is no dispute that the inmate, because he will be paralyzed, will not be able to alert witnesses and personnel that he is conscious, and that it is nearly impossible for the untrained to detect this.
After only a fraction of the discovery requested (ER 221 -27), the following was recognized as new and critically different infonnation by the District Court: • in 6 of the past 13 executions, and in 4 of the past 6, inmates have been
breathing much longer than would occur if they were properly sedated. ER 309- 10. One inmate was breathing up until the third chemical was administered, although the execution log was altered to obscure this. ER 243-47. The state's expert says breathing would stop in a minute. ER 115; • in at least three of the past executions (Anderson, Babbit and Rich), inmates have manifested clear indications they were not properly sedated before the administration of the pancuronium, see ER 110- 12; ER 309-10;
5

• in 3 of the previous executions, a second dose of the heart-stopping agent, potassium chloride, was administered. See id. at II. There is no plausible explanation for this other than improper administration of all three drugs;
• in one previous execution (Bonin), a second dose of the paralyzing agent was required. ER 106. There is no plausible reason why this should be required other than improper administration of the drugs;
• The Procedure 770 that was in effect until less than a day ago had no provisions for monitoring consciousness. The modified provisions are undisclosed. All that is known is that two doctors will be present and will conduct observation and examination;
• Procedure No. 770 is rife with error, not the least of which are contradictory indications of how much of each chemicals is to be used, an array of alternative procedures without any indication of what is to be done under what circumstances, a jury-rigged 50-foot mechanism to deliver the drugs that does not comport with standard medical procedure, and admission that the sedative may adhere to the line and not reach the inmate. Further deficiencies include the lack of provisions for training of staff, a failure to require medically appropriate training, and the absence of provisions for verifying that the inmate is unconscious. ER 79-103. There is a frightening
6

inconsistency in the amount of sedative to be administered, increasing the likelihood it will not reach Mr. Morales. ER 303 n. 3; • the execution logs produced by COCR in discovery have been altered with respect to several inmates, and one is altered to give the appearance he was not breathing when he was (as disclosed in the hand-written notes). These logs are woefully deficient and highly suspect, with indications that sometimes the essential saline flush is noted, while other times it is not (the flush is required not so the sedative adhering to the line will reach the inmate, but so that the paralyzing agent will not be blocked). The logs indicate line failures during executions. ER 95; ER 105-109; ER 178-80; • the logs themselves indicate increased heart rates even after the lethal dose of sedative has supposedly taken effect and the heart rate should be diminishing. These rates are inconsistent with proper drug administration. ER 100 (Babbit); ER 106 (Bonin); ER 179 (S. Williams); ER 180 (Allen); • the ethical standard for critical care decisions concerning end of life situations in hospitals strongly discourages the use of the paralytic agent because of its likelihood for error and painful tennination oflife, see ER 188,197-204; • veterinarians throughout the country are prohibited from employing this procedure by veterinary standards, and by state law, for the same reasons,
7

see Beardslee v. Woodford, 395 F.3d 1064, 1073 & n.9 (9" Cir. 2005); ER
100- 102; ER 120-121;
• Dr. Dershwitz's statement that 99.999999% of inmates should be fully
sedated by the sodium pentothal has been credibly questioned in other cases. ER 236-39. Mr. Morales requested to review his underlying data and examine his opinions. ER 472. It was never permitted.
In light of the above, the District Court found that Mr. Morales "raised
substantial questions" as to whether California's lethal-injection protocol creates an undue risk that [Appellant] will suffer excessive pain" and went on to note:
[T]he Court respectfully suggests that Defendants conduct a thorough review of the lethal -injection protocol, including, inter alia, the manner in which the drugs are injected, the means used to determine when the person being executed has lost consciousness, and the quality of contemporaneous records of executions, such as execution logs and electrocardiograms.... Because California's next execution is unlikely to occur until the latter part of this year, the State presently is in a particularly good position to address these issues and put them to rest. [d. at 312- 13.
Although the District Court held that the deficiencies in the protocol necessitated corrective action, it declined to issue a stay and hold a hearing.
Instead, it attempted to craft its own lethal injection procedure by giving the State
of California two options - either eliminating the second and third chemicals (the humane approach), or having a medically-trained individual monitor whether the
inmate was unconscious (the monitor approach). The second option allowed
8

COCR to "agree to independent verification, through direct observation and examination by a qualified individual...in a manner comparable to that normally used in medical settings where a combination of (unknown) sedative and (unknown) paralytic medications is administered, that Plaintiff is in fact unconscious before either pancuronium bromide or potassium chloride is injected ... [T]he presence of such person(s) shall be continuous until Plaintiff is pronounced dead." ER 313 - 15.
The next day, February 15,2006, COCR's counsel said the prison would have two anesthesiologists "present" for "monitoring" of the process, and would verify this to the court. There was no proposed change in the protocol. ER 31624. Mr. Morales then pointed out the difficulties with that non-description of the process, including that it did not even require the doctor' s presence in the chamber and did not describe anything other than a vague monitoring process, without any examina6on, when in the execution process monitoring would occur or what equipment would be used. Nor was there any requirement that the doctor could stop the execution or administer additional sedative. Mr. Morales requested that the procedures be disclosed, as well as the identities of the doctors (under a protective order) so that he could research their credibility or bias. ER 325 -30. He also requested a stay of execution and a hearing so as to permit orderly review. ER 329.
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Yesterday, CDCR submitted its lawyer's hearsay declaration that he had talked to the anesthesiologists and the Warden, one of whom stated one doctor would be present in the chamber to "monitor consciousness...using whatever equipment or other techniques he deems medically appropriate." ER 335. The remainder of Procedure 770 would remain in effect. ER 335.
Then, after the close of business on February 16,2006, the District Court issued its Final Order. ER 336-41. It charitably construed CDCR's response to mean that the State would also ensure unconsciousness, even though CDCR deliberately refused to say so. ER 339 n. 3. The District Court below then further presumed the procedure would comply with its previous order "in the context of the medical evidence provided by Dr. Heath and Defendants' medical expert, Dr. Dershwitz." ER 340. The District Court refused to order disclosure of the procedures that were going to be employed in executing Mr. Morales. I
I Mr. Morales's request for a Temporary Restraining Order was denied as moot when the court ordered a hearing on the preliminary injunction. ER 220. The court then held it would not take evidence, but requested proffers and oral argument. ER 451-52. Then, the District Court conditionally denied the preliminary injunction, with events to take place in days or a stay issued. ER 31315. In response, Mr. Morales requested a stay of execution. ER 329. His request was deemed a request for reconsideration and denied in an order that is a final, appealable order. ER 341. Time did not permit another stay application in the court below.
lO

IV. ARGUMENT
Under Barefoot v. Estelle, 463 U. S. 880, 885 (1983), Mr. Morales must demonstrate "substantial grounds upon which relief might be granted" to obtain a stay of execution. This standard is satisfied when the movant demonstrates that his "argument warrants further review," which cannot be fully and fairly accomplished in the time remaining before the execution. See Martinez- Villareal v. Stewart, 118 F.3d 625, 626 (9th Cir. 1997).
Given the District Court's orders, and the record, Mr. Morales has met this standard. The Conditional Order identifies some of the glaring deficiencies in Procedure No. 770, and the real and substantial risk of an excruciatingly painful execution for Mr. Morales, one which he will not be able to express because he is paralyzed. See ER 309-11. The fact that the District Court recognized that Mr. Morales had raised "substantial questions" as to the constitutionality of California' s lethal injection protocol (ER 313), and invoked the Court's equitable power to order CDCR to alter the procedure, indicates that the District Court essentially held that Mr. Morales had established his entitlement to injunctive relief against the use of Procedure No. 770. The District Court simply abused its discretion in denying the injunction and a stay.
Instead, at the very last minute, the District Court attempted to fashion a remedy by forcing CDCR to revise its regulations. But, it comes too late to
II

accomplish any adequate review of this procedure in either that court or this one. The new procedures are completely unknown, designed merely to monitor whether Mr. Morales is unconscious and are being interpreted that way by CDCR. For some reason, in the face of a hearsay declaration that states exactly that, and only that, the District Court construed CDCR's representations to mean that it would ensure unconsciousness. But, CDCR has refused to so state, despite two opportunities to do so. The evidence is to the contrary.
The new procedures are not designed to effectuate any remedy should Mr. Morales not be sufficiently sedated. What will happen if the anesthesiologist' s "monitoring" reveals that Mr. Morales is not unconscious is completely undetermined. Without a procedure in place by which the doctor can administer or facilitate an additional dose of sodium, the monitoring will be useless . In addition, the injection team -- untrained personnel who must have a protocol to follow because they lack the background necessary to exercise their own discretion in a medical situation -- must have a procedure in place to respond. Without these safeguards, Mr. Morales is just as much at risk of suffering an excruciating execution as he was before the District Court modified the procedures.
The doctors have no authority to halt the execution, or to order the administration of additional sedatives. In fact, no additional sedatives are even
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available. ER 56, 66 (one syringe). The Defendants plainly stated that all of Procedure 770 remains in effect except for this "monitoring." ER 335.
The new procedures have the following additional difficulties: • CDCR has stated that: "\ can't tell you what they [the doctors] will do; that
is something the anesthesiologists will have to work out with the prison. Basically, the doctors will be brought in as experts to observe and then report back to the court." ER 327. • There is no indication the doctors will employ any procedures whatsoever. There is no indication what their "examination" will entail. In fact, given the substantial doubt as to whether participating in an execution is consonant with medical ethics, or state law, it is doubtful they will do anything other than observe; • There is no indication that the doctor in the chamber will be made aware when the chemicals are being administered, which is done from afar in another room. Without this knowledge, any monitoring by the anesthesiologist is useless; • There is no indication that the doctors will use the medical monitoring equipment necessary to effectively monitor unconsciousness despite the paralyzing effect of the pancuronium, or that such equipment will even be present or available;
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• There is no indication the doctors will be able to direct any alteration in the procedure such as setting up a medically appropriate IV line; properly labeling the syringes with the chemical names; pre-testing the process; notifying the execution team when something is awry; or taking any action whatsoever.
• Discerning adequate sedation requires checking for movement, response to commands, opened eyes, eyelash reflex, pupillary responses or diameters, perspiration and tearing. ER 132-33. Clinical techniques (e.g., checking for purposeful or reflex movement) and conventional monitoring systems (e.g, ECG, BP, HR, end-tidal anesthetic analyzer, capnography) should be used. ER 133-34. There is no indication any of the techniques or equipment will be employed. All of these difficulties arise when a District Court attempts to change the
state' s regulations without holding a hearing as to what is appropriate and why. At least the CDCR could maintain that it had vetted its procedures by observing what was done in other states. Here, there is no such review. As the court below itself noted, in response to Mr. Morales' complaints about the lack of monitoring:
[I]t' s really not the role of the Court to micromanage what the state does. I mean the Court's role is to protect the Constitutional rights of the Plaintiff" .
So I think we could go too far down the road of saying, well, the state should d[0] this, and the state should do this, and have what an ideal
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execution protocol would be, and that's not the Court's function. That's not why the Court is here. ER 479. It appears the District Court forgot its own, wise caution. The Conditional Order raises another difficulty. It fails to specifY the "observation and examination" that is "normally used in medical settings", and whether there are any differences between the sedatives and paralytic agents here that would require alterations from that standard medical practice. For instance, there is a debate in the medical field as to the utility of using a brain wave monitor, with the majority believing it inadequate. ER 143; ER 285-86. If this is what is envisioned, it would be inadequate. CDCR seized upon the Conditional Order's "verification" language as something it must provide to the District Court after the execution. At no time did they verifY it would use medically accepted techniques (only what it thought was medically appropriate). CDCR has not verified any particular method at all. Likewise, the Conditional Order is unclear as to exactly when any examination is to occur, before the administration ofthe paralytic agent, or before the potassium chloride. Reading it literally, it would allow a doctor to sit by and observe, but not actually monitor or examine Mr. Morales, after the paralytic agent is administered. In fact, this highlights a major deficiency in the District Court's last-minute crafting of a state prison regulation. As long as the paralytic agent is being administered, monitoring anesthetic depth will remain incredibly difficult, and
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stopping the execution and reversing the paralysis before the inmate begins to suffer excruciating pain will be impossible. Mr. Morales therefore remains at great risk of suffering an excruciatingly painful death that he, and the doctor who is present, must endure in total silence. This may make the execution appear more pleasant for the attending crowd, but it is not constitutional.
When presented with these difficulties (ER 325 -29), the District Court issued its Final Order. But, neither order states that the doctor can do anything other than watch. The Final Order merely "construes" CDCR' s "monitoring" hearsay declaration to mean it would "ensure" unconsciousness. ER 339 n. 4. Notably, despite Mr. Morales' explicit request to this effect (ER 327-28) that court never ordered that the doctor has the right or ability to intercede in the execution if an inadequate level of unconsciousness is present. No procedure or protocol has been issued to that effect. In fact, CDCR says Procedure 770 still govems2
While the District Court quotes from Dr. Heath in its interpretation of its Conditional Order, it omits a very relevant passage from his declaration - the opinion that any monitoring requires "real-time and continuous integration of multiple lines of evidence and information." Compare ER340 with ER 286.
2 It should be noted that at least four different doctors observed breathing by inmates during executions well beyond the time expected with adequate sedation, and two observed clear signs of inadequate sedation, yet none intervened. They are not permitted to under Procedure 770.
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CDCR has not even attempted to describe anything close to this process, and neither court order requires it. Further, the District Court ignores Dr. Heath' s statement that any such doctor would have to "view vital sign monitors", which are specific in functioning and purpose as described in the ASA requirements. Finally, and most fundamentally, Dr. Heath's statement that proper monitoring by an anesthesiologist is a "positive step" will be rendered completely meaningless if the monitoring physician has no ability to stop the execution, or request admini stration of more drugs, should Mr. Morales be conscious.
Ultimately, the District Court rests it Final Order on the notion that it is "presumed" that the doctors will "understand and comply" with the Conditional Order "in the context of the medical evidence provided by Dr. Heath and ... Dr. Dershwitz." ER 340. But, the Conditional Order is silent as to the process to be used. Dr. Heath and Dr. Dershwitz are opposing experts, with Dr. Dershwitz believing that application of the sedative is sufficient as currently administered and the process fine . And, it is unclear what "medical evidence" is being referred to or what "context" means. As has been shown here, and in some of the most tragic events in human history, simply calling something "medical" does not end the mqUlry.
Finally, the District Court, without any evidence of what procedures will be employed, stated that it is satisfied that the doctors will use their professional
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judgment to ensure unconsciousness before injection of pancuronium bromide and potassium chloride. ER 340-41. But, that is not what the Conditional Order required. It only stated the doctors will monitor and it only stated that at some point they must examine before either one drug or the other. And, it is not what CDCR stated it will allow.
What CDCR and the District Court assume is that there will be no need for anything other than some degree of undefined observation and examination. But, that is not a comfortable assumption in light of the record here. In fact, the opposite is true. While it may be something that will assist the inquiry regarding Procedure 770 in the next case, it does nothing to protect Mr. Morales' rights.
As for delay, the court below noted that Mr. Morales was much more diligent than either Mr. Cooper or Mr. Beardslee. ER 306; see also ER 214-19. 3 But, unlike Beardslee and Cooper, Mr. Morales has not been afford considered review by this Court. While Mr. Morales appreciates the District Court's belief that it needed five rounds of briefing, and these are difficult and weighty issues, the decision arrived much too late, and improperly permitted last-minute modifications that prevent full briefing in this Court and full litigation in the District Court.
, The District Court also noted that exhaustion was satisfied. Mr. Morales' amended complaint indicates he exhausted, and another action was brought after exhaustion and consolidated. ER 350-89. CDCR has not answered either complaint with any defenses, and has not moved in the district court to dismiss for failure to exhaust.
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This case is thus on all fours with Taylor v. Crawford. No. 06-1397 (8th Cir.). In that case, the plaintiff filed well before an execution date was set (because the state procedures allowed it). See Order of Jan . 31, 2006, Taylor v. Crawford, No. 05 -41 73 -CV-C-FJG (W.D. Mis.), at I. After an execution date was set, the district court issued a stay so as to be able to fully litigate the matter. The appellate panel vacated and remanded, and allowed only a limited proceeding below. Jd. at 2. After that proceeding, the en bane panel issued a stay, which was upheld in the Supreme Court.
The failure to allow full litigation in light of such substantial questions about the lethal injection process is exactly why Mr. Taylor obtained his stay. The State of Missouri, much like California, adopted a process that truncated review. In fact, Mr. Taylor was able to present some testimony, including the examination of Dr. Dershwitz. That was not even permitted in Mr. Morales' case. Here, instead, CDCR was pennitted to craft a last-minute process in violation of state law and its own regulations and protocols. See Cal. Gov. Code § 11349 et seq. (Administrative Procedure Act); 15 Cal. Code Regs. § 3380(c} & (d) (limiting written approval to Wardens, subject to approval by the Director); Procedure No. 770 section IV (requiring Warden and Director approval). This was approved at the last minute despite the fact that the issue of unconsciousness has been a critical inquiry since the Cooper case, and medical aspects of that inquiry have been
19

explored since at least Beardslee. Now, that inquiry can only occur with a stay of execution.

V. CONCLUSION

For the foregoing reasons, a stay of execution should be issued so as to allow full briefing and consideration of Mr. Morales' action to allow a full hearing and consideration of the new procedures, adopted only a day or so, that will be used to execute him.

Dated: February 17,2006

MICHAEL ANGELO MORALES

By: John R Grele

20

CERTIFICATE OF COMPLIANCE Pursuant to Ninth Circuit Rules 32- 1, I hereby certifY that the foregoing brief

is produced in a proportional font (Times New Roman) of 14 point type and

utilizes double line spacing, except in footnotes and extended quotations which are

single-spaced. I further certify that, according to the word count of the word

processing system used to prepare the brief, the brief includes 4536 words

(exclusive of the table of contents, table of authorities, proof of service and this

certificate).

Dated:

February 17,2006

JOHNRGRELE
One of the Attorneys for PetitionerAppellant Michael Angelo Morales

21

 
 C.A. NO. 06-99002 UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL ANGELO MORALES,

D.C. Nos. C 06 0219 (JF),

C 06 0926 (JF)

Petitioner-Appellant,

DEATH PENALTY CASE

v.

RODERICK Q. HICKMAN, Secretary of EXECUTION IMMINENT:

the California Department of

Execution Date February 21, 2006

Corrections; STEVEN ORNOSKI,

Warden, San Quentin State Prison, San

Quentin, CA; and DOES 1-50,

Respondents-Appellees.

APPELLANT’S OPENING BRIEF APPEAL FROM DENIAL OF PRELIMINARY INJUNCTION BY THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

David A. Senior McBreen & Senior 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 dsenior@mcbreensenior.com
John R. Grele Law Offices of John R. Grele 703 Market Street, Suite 550 San Francisco, CA 94103 Phone: (415) 348-9300 Fax: (415) 348-0364 jgrele@earthlink.net
Attorneys For Petitioner-Appellant Michael Angelo Morales

Richard P. Steinken Janice H. Lam Stephanie L. Reinhart Jenner & Block LLP One IBM Plaza Chicago, IL 60611-7603 Phone: (312) 923-2938 Fax: (312) 840-7338 rsteinken@jenner.com
Ginger D. Anders Jenner & Block LLP 601 Thirteenth Street, NW Suite 1200 South Washington DC 20005-3823 Phone: (202) 639-6000 Fax: (202) 639-6066 ganders@jenner.com

CORPORATE DISCLOSURE STATEMENT The appellant, Michael Angelo Morales, is an individual confined in San Quentin State Prison, San Quentin, California. He does not have any corporate affiliations.

TABLE OF CONTENTS
TABLE OF AUTHORITIES..............................................................................iii STATEMENT OF JURISDICTION....................................................................1
STATEMENT OF RELATED CASE..................................................................3 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ...........................3
STATEMENT OF THE CASE............................................................................3 STATEMENT OF FACTS..................................................................................7
SUMMARY OF ARGUMENT ...........................................................................9 ARGUMENT ................................................................................................... 11
I. The District Court Abused its Discretion in Denying Mr. Morales’ Request for a Preliminary Injunction........................................................ 14
II. Changes to Procedure No. 770 Imposed by the District Court Will Not Cure the Constitutional Defect in the Lethal Injection Protocol................. 18
III. Mr. Morales Has Demonstrated That He Is Entitled To Injunctive Relief Preventing Defendants From Executing Him According to Procedure No. 770 .................................................................................. 23
A. Evidence Revealed in Discovery Demonstrates Severe Problems With Drug Administration Under Procedure No. 770....... 24
1. Evidence that Sodium Thiopental is Not Being Successfully Administered ................................................... 25
2. Evidence That Inmates Are Not Anesthetized When the Pancuronium Is Administered............................................... 30
3. The Existence of Additional Troubling Questions That Must Be Answered By Defendants ....................................... 32
IV. The CDCR’s Protocol Violates the Eighth Amendment Because It Creates a Significant Risk of An Excruciating Death ................................ 35
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V. The Risk of Inadequate Anesthesia Is Created By the Deficiencies in Procedure No. 770 .................................................................................. 41 A. The Risk of Unsuccessful Drug Administration Is Substantial. ........ 42 B. The Use of Pancuronium Bromide Serves No Valid Purpose and Exacerbates the Risk of Inadequate Anesthesia......................... 48
CONCLUSION................................................................................................ 52 CERTIFICATE OF COMPLIANCE ................................................................. 54
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TABLE OF AUTHORITIES Cases
Abdur’Rahman v. Bredesen, ___ S.W.3d ___, No. M2003-01767-SC-R11CV, 2005 WL 2615801 (Tenn. Oct. 17, 2005) .......................................... 38
Aldrich v. Johnson, 388 F.3d 159 (5th Cir. 2004) ............................................... 38 Anderson v. Evans, No. CIV-05-0825-F, 2006 WL 83093, at *3-*4 (W.D.
Okla. Jan. 11, 2006) .......................................................................... 38, 39 Beardslee v. Woodford, 395 F.3d 1064 (9th
Cir. 2005) ................................................... 6, 10, 11, 12, 14, 15, 16, 19, 37 Bell v. Hood, 327 U.S. 678 (1946) ..................................................................... 16 Bieghler v. State, 839 N.E. 691 (Ind. Dec. 28, 2005) .................................... 38, 39 Boyd v. Beck, ___ F. Supp. 2d ___, No. 5:05-CT-774-D, 2005 WL 3289333
(E.D.N.C. Nov. 29, 2005).................................................................. 38, 39 Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994) ...........................36, 37, 39, 40, 41 Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004) ........................12, 19, 27, 39, 41 Crawford v. Taylor, 546 U.S. ___ , No. 05A705 (Feb. 1, 2006) ............................6 Elizalde v. Livingston, 546 U.S. ___, No. 05A696 (Jan. 31, 2006) ........................6 Estelle v. Gamble, 429 U.S. 97 (1976) ............................................................... 35 Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996)..........................................36, 39, 40 G.C. and K.B. Invs., Inc. v. Wilson, 326 F.3d 1096 (9th Cir. 2003)...................... 14 Gregg v. Georgia, 428 U.S. 153 (1976) ....................................................... 35, 36 Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) ................................................ 38 Hill v. Crosby, 546 U.S. ___, No. 05-8794 (Jan. 25, 2006) ................................. 38 In re Kemmler, 136 U.S. 436 (1890) .................................................................. 35 LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998)............................................ 38
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Lester v. Parker, 235 F.2d 787 (9th Cir. 1956) ................................................... 17 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) ............................... 35 Marbury v. Madison, 5 U.S. 137 (1803)............................................................. 16 Morales v. Woodford, 388 F.3d 1159 (9th Cir. 2004)............................................8 Nelson v. Campbell, 541 U.S. 637 (2004) ............................................................6 Neville v. Livingston, 546 U.S. ___ , No. 05-9136 (Feb. 8, 2006) ..........................6 Pac. West Cable Co. v. City of Sacramento, 798 F.2d 353 (9th Cir. 1986) ........... 14 People v. Morales, 770 P.2d 244 (Cal. 1989) .......................................................8 People v. Morales, No. CR 17960 .......................................................................8 People v. Snow, 65 P.3d 749 (Cal. 2003)............................................................ 38 Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va. 2004) ............................27, 38, 39 Rupe v. Wood, 863 F. Supp. 1307 (W.D. Wash. 1994)........................................ 40 Rutherford v. Crosby, 546 U.S. ___, No. 05-8795 (Jan. 31, 2006)....................... 38 Soster v. Rockefeller, 312 F. Supp. 863 (S.D. N.Y. 1970), rev’d in part on
other grounds, 442 F.2d 178 (2d Cir. 1971).............................................. 17 State v. Webb, 750 A.2d 448 (Conn. 2000)................................................... 38, 39 Stone v. City and County of San Francisco, 968 F.2d 850 (9th Cir. 1992)............ 18 Taylor v. Crawford, No. 05-4173-CV-S-FJG (W.D. Mis.).................................. 46 U.S. v. Farrar, 414 F.2d 936 (5th Cir. 1969) ................................................ 16, 17 Woods v. Wright, 334 F.2d 369 (5th Cir. 1964) .................................................. 17
Statutes 15 Cal. Code Regs. § 3084.7 ...............................................................................8 15 Cal. Code Regs. s. 3380(c) & (d).................................................................. 22
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16 Cal. Admin. Code § 2039 ............................................................................. 43 28 U.S.C. § 1292 ................................................................................................1 28 U.S.C. § 1331 ................................................................................................1 28 U.S.C. § 1343 ................................................................................................1 42 U.S.C. § 1983 ........................................................................................ 1, 3, 6 Cal. Penal Code § 190.2(a)(15), (18) ...................................................................8 Cal. Penal Code § 3604................................................................................. 8, 36 Wash. Rev. Code § 10.95.180 ........................................................................... 40
Other Authorities 2000 Report of the AVMA Panel on Euthanasia, 218 J. Am. Veterinary Med.
Ass’n 669, 681 (2001) ............................................................................. 43 Fed. R. App. P. 32(a)(7)(C)............................................................................... 54 R. Truog et al., Recommendations for End-of-Life Care in the Intensive Care
Unit, 29 Crit. Care Med. 2332, 2345 (2001) ....................................... 50, 51 U.S. Const. amend. VIII.................................................................................... 35
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STATEMENT OF JURISDICTION The District Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and § 1343 (civil rights violation). This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983. This Court of Appeals has jurisdiction over this action pursuant to 28 U.S.C. § 1292 (appeals from interlocutory orders of the district court refusing injunctions). The District Court issued its Order Denying Conditionally Plaintiff’s Motion for Preliminary Injunction (“Order”) on February 14, 2006. ER 301. The Order denied Mr. Morales’ request for injunctive relief and a stay of execution, and permitted Defendants to proceed with the execution on February 21, 2006, if they either (1) certify in writing, by the close of business on February 16, 2006, that they will use only a barbiturate or combination of barbiturates in Mr. Morales’ execution, or (2) agree to independent verification during the execution that Mr. Morales is unconscious before he is injected with pancuronium bromide or potassium chloride, through direct and continuous observation and examination by a qualified individual or individuals “in a manner comparable to that normally used in medical settings where a combination of sedative and paralytic medications is administered.” ER 313-315. The Order required Defendants by the close of business on February 15, 2006 to set forth the proposed individual’s formal

training and experience in the field of general anesthesia, permitted comments in response by Mr. Morales, and promised a ruling by the Court on the adequacy of the qualifications by the close of business on February 16, 2006. ER 314. The Court retained jurisdiction with respect to Defendants’ implementation of the proposed changes to the protocol but stated that the “order otherwise is intended to be final for purposes of appellate review.” ER 315.
On February 15, Defendants filed their Response to Court’s Conditional Denial of Preliminary Injunction and stated that they had retained two anesthesiologists to monitor Mr. Morales throughout the execution. ER 316. On February 16, Plaintiff filed his Response to Modification of Lethal Injection Procedure. ER 325. Then, in response to a request made by the Court unbeknownst to Plaintiff, Defendants filed a Supplemental Response. ER 331. Well after the close of business on February 16, the District Court issued a Final Order Re Defendants’ Compliance with Conditions (“Final Order”). ER 336.
By its Order and Final Order the District Court denied Mr. Morales the injunctive relief and stay of execution sought in his complaint, and effectively disposed of Mr. Morales’ claims in their entirety. ER 315, 341. Accordingly, this Court may now hear this appeal. On February 17, 2006, Mr. Morales filed a Notice of Appeal in the District Court and an Application for Stay of Execution in this Court. ER 342.
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STATEMENT OF RELATED CASE No other cases pending in this Circuit Court are related to the present appeal.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW Whether the District Court abused its discretion when it denied Mr. Morales’ request for a stay and preliminary injunction, despite noting that execution logs from six out of the thirteen most recent executions under California’s lethal injection protocol raised some doubt as to whether the protocol actually is functioning as intended, and finding that based on the evidence presented “substantial questions” exist as to whether the protocol creates an undue risk that Mr. Morales will suffer excessive pain when he is executed using it. Whether the District Court abused its discretion when it denied Mr. Morales’ request for a stay and preliminary injunction under these circumstances and allowed the execution of Mr. Morales to go forward using a last-minute modification to the lethal injection protocol that has never been subjected to any legal, medical or administrative review, which the Court unilaterally devised itself without the benefit of an evidentiary hearing.
STATEMENT OF THE CASE On January 13, 2006, Mr. Morales brought an action in the District Court pursuant to 42 U.S.C. § 1983 seeking injunctive relief to prevent Defendants from executing him by means of lethal injection pending the resolution of his action. ER 351. Mr. Morales alleges that Defendants’ administration of Procedure No.
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770, the lethal injection protocol of California’s Department of Correction and Rehabilitation (“CDCR”), constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment because it creates a substantial risk that Mr. Morales will be fully conscious and in agonizing pain for the duration of the execution process. ER 355-360.
Procedure No. 770 calls for the use of three drugs in succession: first, sodium thiopental, an ultrashort-acting barbiturate intended to cause the inmate to lose consciousness; pancuronium bromide, a neuromuscular blocking agent that paralyzes the muscles for the purpose of making the execution appear peaceful to witnesses; and finally, potassium chloride, which induces cardiac arrest. ER 66, 69-72. Procedure No. 770 also establishes the conditions under which these drugs are administered. ER 65-72. A growing body of evidence persuasively demonstrates that CDCR’s lethal injection protocol creates a significant risk that inmates will fail to receive adequate anesthesia and will be conscious for the duration of their executions, causing them to experience first slow suffocation and then the “extraordinarily painful” activation of the sensory nerve fibers in the walls of the veins that is caused by potassium chloride. Mr. Morales’ suit alleges that the significant risk of botched executions is an entirely foreseeable consequence of the conditions imposed by, and failings of, Procedure No. 770, and that it is
4

unconstitutional for the State to administer an execution protocol that creates a significant risk of inflicting excruciating pain. ER 256-267.
Mr. Morales filed a Motion for Temporary Restraining Order (“TRO”) on January 17, 2006. ER 1. At an initial hearing on January 26, 2006, the District Court announced that it would construe the TRO motion as a motion for a preliminary injunction, ordered supplemental briefing on the motion for preliminary injunction, and scheduled oral argument. ER 220, 450-454. On February 1, 2006, the District Court permitted limited expedited discovery, ordering production of a previously confidential version of California’s lethalinjection protocol and information about the three most recent executions that Defendants have conducted—those of Donald Beardslee on January 19, 2005; Stanley “Tookie” Williams on December 13, 2005; and Clarence Ray Allen on January 17, 2006. ER 229-231. On February 9, 2006, the Court heard argument on the motion for a preliminary injunction, ER 457, and on February 13, 2006, requested additional supplemental briefing to address whether it would be feasible for Plaintiff’s execution to proceed either using only sodium thiopental or utilizing an independent means to insure that Plaintiff will be unconscious before pancuronium bromide and potassium chloride are injected. ER 269-270.
The District Court issued its Order Denying Conditionally Plaintiff’s Motion for Preliminary Injunction on February 14, 2006. ER 301. The District Court
5

found that it had jurisdiction pursuant to 42 U.S.C. § 1983 (2006) and Beardslee v. Woodford, 395 F.3d 1064, 1069-70 (9th Cir. 2005). ER 302. The District Court noted that Mr. Morales was diligent in pursuing his claim by filing his action 39 days before the Ventura Superior Court scheduled his execution, and that from the face of the amended complaint filed by Mr. Morales on February 13, 2006, it appeared that he had exhausted his administrative remedies. ER 306. The District Court held that “[b]ecause in light of Beardslee, Plaintiff is not guilty of undue delay in bringing his claim, there is no presumption against the grant of a stay due to delay, much less the ‘strong equitable presumption’ identified by the Supreme Court” in Nelson v. Campbell, 541 U.S. 637, 650 (2004). ER 306. The District Court analogized the case to Crawford v. Taylor, 546 U.S. ___ , No. 05A705 (Feb. 1, 2006), where the Supreme Court had recently denied, by a vote of 6-3, an application to vacate a stay of execution, and distinguished the case from other recent cases in which the Supreme Court has allowed executions to go forward. See, e.g., Neville v. Livingston, 546 U.S. ___ , No. 05-9136 (Feb. 8, 2006); Elizalde v. Livingston, 546 U.S. ___, No. 05A696 (Jan. 31, 2006). ER 306.
In the Order, the District Court noted that execution logs from six out of the thirteen most recent executions performed using California’s lethal injection protocol raised some doubt as to whether the protocol actually is functioning as intended. ER 311. Based on its review of the recent executions, the District Court
6

found that “substantial questions” exist as to whether the protocol creates an undue risk that Mr. Morales will suffer excessive pain when he is executed under the protocol. ER 313. The District Court concluded, however, that “[w]hile the Court finds that Plaintiff has raised substantial questions in this regard, it also concludes that those questions may be addressed effectively by means other than a stay of execution, and that these alternative means would place a substantially lesser burden on the State’s strong interest in proceeding with its judgment.” ER 313. On that basis, the District Court conditionally denied Mr. Morales the requested relief, subject to Defendants’ compliance with one of two alternative conditions concerning the manner in which the execution is to be carried out. ER 315.
Thereafter Defendants proposed two unnamed anesthesiologists whose credentials were redacted to serve as monitors at the execution to satisfy one of the Court’s conditions. ER 316-324. In its Final Order, the District Court accepted the individuals as qualified, subject to an in camera review of their backgrounds and credentials to be undertaken at Plaintiff’s suggestion. ER 3317-338. With the ruling, the Court’s denial of Mr. Morales’ claim became final. ER 341.
STATEMENT OF FACTS In 1983, a jury in Ventura County, California, convicted Michael Morales of first degree murder, conspiracy and rape. The jury found that two special circumstances – killing by torture and intentional killing by lying in wait – applied
7

to the offense. Cal. Penal Code § 190.2(a)(15), (18). Following the penalty phase, the jury sentenced Mr. Morales to death, and the California Supreme Court affirmed the conviction and sentence. See People v. Morales, 770 P.2d 244, 249 (Cal. 1989). The United States Supreme Court denied certiorari.
Mr. Morales filed a petition for habeas corpus in federal court in 1996, raising several constitutional challenges to his conviction and sentence. The District Court denied the petition in full, and the United States Court of Appeals for the Ninth Circuit affirmed in July 2003. Morales v. Woodford, 388 F.3d 1159 (9th Cir. 2004). The Supreme Court denied certiorari on October 11, 2005, and the stay of execution was lifted shortly thereafter. On January 18, 2006, a public session was held in the Superior Court of Ventura County in the case of People v. Morales, No. CR 17960, where the court set February 21, 2006 as the date of execution of Mr. Morales’ judgment of death. Mr. Morales did not elect a form of execution, and therefore will be executed by means of lethal injection. See Cal. Penal Code § 3604(b).
On January 9, 2006, plaintiff filed an emergency inmate appeal on CDC Form 602, pursuant to 15 Cal. Code Regs. § 3084.7, alleging that his upcoming execution under the California lethal injection protocol, Procedure No. 770, would constitute cruel and unusual punishment. On January 27, 2006, the Director’s Level Appeal Decision was issued, which stated that “no further relief shall be
8

afforded the appellant at the Director’s Level of Review.” ER 227-228. The decision stated that “This decision exhausts the administrative remedy available to the appellant within CDCR.” ER 228.
On January 13, 2006, Mr. Morales filed his complaint under 42 U.S.C. § 1983 in the United States District Court for the Northern District of California, Case No. C 06 219 JF. ER 351. On February 10, 2006, Mr. Morales filed an Amended Complaint in that action and filed a new action under 42 U.S.C.§ 1983 which included the same substantive claims and set forth the fact that Mr. Morales had exhausted his administrative remedies, Case No. C 06 926 JF RS. ER 256. By Order dated February 13, 2006, the two cases were consolidated. ER 271, 363. They are presented here for appeal.
SUMMARY OF ARGUMENT Michael Morales brings this matter before this Court in a posture unlike any of the previous challenges to the California lethal injection protocol under Procedure No. 770. The District Court acknowledges that Mr. Morales presented compelling and undeniable proof of a substantial risk that he will suffer unnecessary and excruciating pain during the lethal injection process. See ER 310315. It is uncontroverted that record evidence from four of the last six, and six of the last 13, California executions raises serious concerns that the inmates were not properly sedated during the process. ER 311. Yet in the face of this chilling and
9

persuasive evidence, Defendants offer no credible answer or explanation, continuing the silence observed by this Court in Beardslee.
Now that the constitutional inadequacy of the procedure has been acknowledged by the District Court, Defendants seek to rehabilitate it by grafting onto it a new procedure suggested by the District Court using non-CDCR personnel. ER 317-320. However, the quick fix suggested by the District Court is completely untested, has never been subjected to any comprehensive legal, medical or administrative review, and represents nothing more than a high stakes experiment, with Mr. Morales’ constitutional rights hanging in the balance. Even as this appeal is taken, uncertainty surrounds the new protocol, as the roles and responsibilities of the monitors are unwritten, poorly defined and of uncertain effectiveness, and the credentials of the proposed monitors are still being evaluated by the District Court. The Court attempts to overcome its finding that the current protocol may not meet the requirements of the Constitution by redesigning the protocol on the fly, rather than through a careful deliberative process of factfinding and analysis befitting the seriousness of the issue. The approach exalts expediency over the rights guaranteed under the Constitution for no good reason.
This Court should issue the stay that the District Court declined to grant. The failure of the District Court to promptly rule on Mr. Morales’ timely request for relief, the Court’s repeated and time-consuming requests for further briefing in
10

light of Defendants’ inadequate responses, and the Court’s ever-evolving creation of a last-minute revision of the protocol in a desperate attempt to make sure Mr. Morales is executed on Defendants’ schedule, have effectively prevented any considered review by this Court, even though the District Court has itself made clear that a constitutional violation has been shown. Given that Mr. Morales demonstrated a substantial likelihood of success on the merits, with a sufficient showing that the lethal injection procedures are improper, the District Court erred as a matter of law in denying the stay. This Court should order that the status quo be preserved until Mr. Morales has received a hearing.
ARGUMENT The last time the United States Court of Appeals for the Ninth Circuit considered a challenge to Procedure No. 770, the Court noted that evidence that recent executions involved problems in the administration of the chemicals used in the process and the expert opinions of Dr. Mark Heath raised “extremely troubling questions about the protocol.” See Beardslee v. Woodford, 395 F.3d 1064, 1075 (9th Cir. 2005). The Ninth Circuit expressed concern that the State “tendered only minimal evidence” in response to the claims raised, that the State “did not defend the protocol,” and, most troubling, that, “[t]he State did not, even under repeated questioning at oral argument, provide a single justification for the use of pancuronium bromide, which is one of the key issues.” Id. at 1075.
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Notwithstanding these “troubling” questions about the administration of Procedure No. 770, however, the Court concluded that “ultimate resolution of the merits of this issue . . . will have to await another day.” 395 F.3d at 1075-76.
In the present case, the District Court took another look at Procedure No. 770, found additional problems and reasons for concern occurring in the administration of the protocol and was met with similar indifference from the State. The District Court first referenced the Beardslee Court’s observation that the execution logs of Messrs. Bonin, K. Williams, Siripongs and Babbitt “contain indications that there may have been problems associated with the administration of the chemicals that may have resulted in the prisoners being conscious during portions of the executions.” ER 306, quoting Beardslee, 395 F.3d at 1075. The District Court then noted that evidence from the recent executions of Messrs. Rich, Anderson, S. Williams and Allen raised further doubt as to whether the protocol was functioning as intended. ER 310-311. The Court further noted that the evidence of still other anomalies, including the fact that some inmates needed second doses of potassium chloride, demonstrated that Mr. Morales has “raised more substantive questions than his counterparts in Cooper and Beardslee.” ER 312.
Faced with this clear evidence that the lethal injection protocol was not functioning properly, the District Court still denied Mr. Morales injunctive relief
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and the necessary stay. ER 315. While giving Defendants the option of either of
two quick fixes, the District Court acknowledged that those remedies were not the
solution to a problem of constitutional dimension, but only a one-time event.
ER 313. The Court said
Whether or not Defendants implement the remedy and thus proceed to execute Plaintiff as scheduled, the Court respectfully suggests that Defendants conduct a thorough review of the lethal-injection protocol, including, inter alia, the manner in which the drugs are injected, the means used to determine when the person being executed has lost consciousness, and the quality of contemporaneous records of executions, such as execution logs and electrocardiograms. Given the number of condemned inmates on California’s Death Row, the issues presented by this case are likely to recur with considerable frequency. Because California’s next execution is unlikely to occur until the latter part of this year, the State presently is in a particularly good position to address these issues and put them to rest. It is hoped that the remedy ordered by this Federal Court in this case will be a one-time event; under the doctrines of comity and separation of powers, the particulars of California’s lethal-injection protocol are and should remain the province of the State’s executive branch. A proactive approach by Defendants would go a long way toward maintaining judicial and public confidence in the integrity and effectiveness of the protocol.
ER 312-313. However, having recognized the fundamental and serious flaws in
the protocol and acknowledged the need to rectify those problems through the
exercise of the executive branch’s administrative powers, the District Court then
simply sacrifices the constitutional rights of Mr. Morales in the name of
expediency. Defendants must design and implement a constitutionally compliant
protocol now, not in the future, and Mr. Morales has the right to benefit from that
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protocol. The District Court’s insistence that the execution can proceed with a stop gap solution, after which the CDCR can implement a real solution, cannot pass constitutional muster. I. The District Court Abused its Discretion in Denying Mr. Morales’
Request for a Preliminary Injunction While a district court’s exercise of discretion to grant or deny injunctive relief generally will not be disturbed absent a clear abuse of that discretion, G.C. and K.B. Invs., Inc. v. Wilson, 326 F.3d 1096, 1107 (9th Cir. 2003), a district court abuses its discretion if the court “employs erroneous legal standards in issuing or denying the injunction.” Pac. West Cable Co. v. City of Sacramento, 798 F.2d 353, 354 (9th Cir. 1986). A district court also abuses its discretion if it “bases its decision upon erroneous legal premises or clearly erroneous findings of fact.” Id. (internal citation omitted). As the District Court correctly observed, to obtain a preliminary injunction, a plaintiff must demonstrate: (1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury to the plaintiff if preliminary relief is not granted; (3) a balance of hardships that favors the plaintiff; and (4) in certain cases, advancement of the public interest. ER 304; Beardslee v. Woodford, 395 F.3d 1064, 1067 (9th Cir. 2005). Alternatively, injunctive relief may be granted if a plaintiff demonstrates (1) a combination of likely success on the merits and the possibility of irreparable injury to the plaintiff if no preliminary relief is granted; or
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(2) that serious questions are raised and the balance of hardships tips sharply in the plaintiff’s favor, with these alternatives more properly characterized as “extremes of a single continuum, rather than two separate tests.” ER 304 (internal quotations omitted). Stated differently, “the greater the relative hardship to the party seeking the preliminary injunction, the less probability of success must be established by the party.” ER 304.
In moving for injunctive relief against Defendants, Plaintiff seeks only to preserve the status quo while he litigates his Eighth Amendment claim. The irreparable harm he will face in the absence of temporary relief is obvious, as otherwise his execution under a protocol found to be constitutionally deficient will proceed, and he will be subjected to the harms attendant with that procedure. The finality of this irreparable harm is significant, as the Ninth Circuit has recognized that the necessary showing of likelihood of success diminishes in proportion to the “relative hardship to the party seeking the preliminary injunction.” Beardslee v. Woodford, 395 F.3d at 1067-68. Where, as here, the balance of hardships tips sharply in favor of Plaintiff, he need only demonstrate the existence of serious questions going to the merits in order to gain entitlement to temporary relief. See Id. Moreover, a grant of temporary relief here will serve the public interest because it will allow the important question of the constitutionality of Procedure
15

No. 770 to be resolved on the merits, a question the District Court has now brought to the forefront with its pointed criticism of the procedure.
Significantly, Plaintiff’s likelihood of success on the merits and the public interest in the constitutionality of Procedure No. 770 have increased based on the District Court’s findings, which recognize that the experiences of California and other states with lethal injection have produced a growing body of evidence that the protocol creates a significant risk that inmates will be subjected to a painful execution that runs afoul of Eighth Amendment protections. The District Court expressly noted the substantial questions about the effectiveness of the lethal injection protocol raised by Mr. Morales, and how the body of evidence raising constitutional challenges to that protocol has grown since Beardslee. ER 305-313.
Federal courts have both the power and the duty to issue injunctions to prevent a deprivation of constitutional rights. See Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution”); Marbury v. Madison, 5 U.S. 137, 163 (1803) (“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”); United States v. Farrar, 414 F.2d 936, 938 (5th Cir. 1969) (“federal courts are empowered to fashion such remedies,
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including the issuance of injunctions, as are necessary to vindicate rights which have been secured under the Constitution and laws of the United States”). District Courts possess this judicial power, among many other instances, when confronted by unconstitutional administrative power such as that at issue here. See Woods v. Wright, 334 F.2d 369, 374-75 (5th Cir. 1964) (noting that “when there is a deprivation of a constitutionally guaranteed right,” a federal court’s duty to exercise its injunctive power to interfere with state officer conduct “cannot be avoided”); Lester v. Parker, 235 F.2d 787, 790 (9th Cir. 1956) (noting that courts have both the power and duty to protect individual rights from unlawful and unauthorized administrative power, particularly when those rights are constitutional). Indeed, it may be considered error for a court to observe that a deprivation of constitutional rights has somehow taken place yet still not issue injunctive relief to prevent that deprivation of constitutional rights. See Soster v. Rockefeller, 312 F. Supp. 863, 884 (S.D. N.Y. 1970), rev’d in part on other grounds, 442 F.2d 178 (2d Cir. 1971), (“This court has no discretion to deny injunctive relief to a person who clearly establishes, after a trial on the merits, that he is being denied his constitutional rights.”); U.S. v. Farrar, 414 F.2d 936, 939 (5th Cir. 1969) (finding that it was error for the district court not to enjoin conduct which constituted a deprivation of constitutional rights and noting that the court
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was “both empowered and obliged to exercise its authority by enjoining appellees from continuing such conduct”).
The District Court noted that the “troubling” questions about Procedure No. 770 have increased in number and seriousness even in the past year, and that as a result changes in the protocol are necessary. ER 306-315. That the District Court chose the expedient route of trying to devise a quick fix at the eleventh hour rather than requiring the State to engage in a comprehensive deliberative process to arrive at a safe and constitutionally compliant protocol, should not be allowed to obscure the Court’s significant and well-grounded conclusion about the problems with the protocol. Having recognized those problems, the District Court should have granted the stay and left it to the CDCR to devise an appropriate remedy. See Stone v. City and County of San Francisco, 968 F.2d 850, 861 (9th Cir. 1992) (in fashioning equitable remedies, Court should “exercise the least possible power adequate to the end proposed.”) The decision denying the stay and requested injunctive relief should be reversed to allow an evidentiary hearing on Mr. Morales’ claims. II. Changes to Procedure No. 770 Imposed by the District Court Will Not
Cure the Constitutional Defect in the Lethal Injection Protocol After noting that “substantial questions” exist as to whether the lethal injection protocol creates an undue risk that Mr. Morales will suffer excessive pain when he is executed, and recognizing that Procedure No. 770 must be changed to
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be constitutionally compliant, ER 312, the District Court invoked its equitable powers to try to micro-manage the CDCR’s execution process. The Court allowed the execution to proceed based on Defendants’ agreement that an anesthesio logist would be present during the execution to monitor that Mr. Morales was in fact unconscious before the pancuronium or potassium was injected. In its Final Order, the Court explained at length that it “intentionally fashioned its order so that the anesthesiologists would perform their duties precisely as contemplated by Dr. Heath,” Plaintiff’s expert. ER 340. The Court noted that in a declaration from a CDCR lawyer submitted in response to the Court’s last minute ex parte request the CDCR committed to have one doctor in the execution chamber and that “Defendants themselves as well as the anesthesiologists are presumed to understand and comply” with the Court’s order. ER 340. While the District Court takes great comfort by reading CDCR submissions for more than they are worth, this Court should not be fooled into thinking that these last minute machinations of the District Court and Defendants have somehow cured the protocol’s fatal defects.
Although the issue of unconsciousness has been a critical inquiry since at least the Cooper case, and medical aspects of that inquiry have been explored since at least Beardslee, the State did nothing to address these concerns until five days before Mr. Morales’ scheduled execution, and then only to appease the District Court to allow the execution to take place as scheduled. Even in purporting to
19

accept the conditions created by the District Court at the eleventh hour, however, Defendants parsed their words carefully and have made no commitment as to how the new procedure will work and what the anesthesiologist will do, other than to monitor Mr. Morales level of unconsciousness. The State should not be permitted to proceed with an execution using a new protocol that was created out of whole cloth and has not been subjected to medical, administrative or legal scrutiny, and indeed has not even been disclosed to Mr. Morales.
Defendants’ commitment to leaving the lethal injection protocol unchanged was reaffirmed when the CDCR lawyer stated in his declaration to the Court that “[o]ther than the monitoring of Mr. Morales by the doctor who will be present in the execution chamber, the process by which San Quentin carries out an execution has not been changed from that set forth in Operations Procedure No. 770.” ER 339. However, the District Court recognized the need to change the protocol, and the presence of a monitor alone fails to effectuate any meaningful change to safeguard Mr. Morales’ constitutional rights. Defendants do not describe a single action or procedure available to the monitor that comports with “a manner comparable to that normally used in medical settings where a combination of sedative and paralytic medications is administered,” as required by the District Court. ER 314.
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Because Procedure No. 770 remains in effect, the monitor will not be available to participate in or direct changes in the setting up of IV lines, the labeling of syringes or the pre-testing of the process. There is no indication of what the monitoring will entail, of what medical monitoring equipment, if any, will be available or used, or of how intraoperative consciousness will be assessed. There is no indication that the monitor will be made aware that the chemical flow has started from the other room. The monitor is not part of the process in determining what chemicals are administered, will have no ability to notify the execution team of problems in the drug administration, and will have no authority to stop a botched execution. Without these capabilities, the doctor monitoring unconsciousness will not be able meaningfully to ensure that the execution is performed humanely. The presence of the monitor will serve no purpose if the doctor is powerless to act on, or cause the injection team to act on, his awareness that Mr. Morales is in fact conscious and in pain. Thus, the District Court’s effort to recast the protocol has done nothing to alleviate the “substantial questions” that have arisen from 4 of the past 6 and 6 of the past 13 executions. Moreover, the lack of clarity in how the procedure will work prevents any considered review and reduces Mr. Morales to little more than a test subject.
Such difficulties are to be expected when a District Court attempts to change flawed State regulations on the fly and without the benefit of a deliberative
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process. Design and implementation of a lethal injection protocol falls within the State’s domain, subject to compliance with constitutional imperatives. The CDCR is supposed to adopt such procedures following considered review and debate, and consultation with not only its security staff, but medical personnel and other experts in the field. Only after such careful consideration and compliance with the State’s Administrative Procedure Act (Cal. Gov. Code § 11349 et seq.), as well as the Agency’s own regulations (15 Cal. Code Regs. § 3380(c) & (d) (limiting written approval to Wardens, subject to approval by the Director); (Procedure 770 Section IV (requiring Warden and director approval)), can the CDCR then issue a procedure describing the various roles of the individuals involved, the equipment that is going to be used, and the timing of events. Such a reasoned process has not been followed here, nor could it have been, given the urgency which has motivated the District Court and Defendants.
Without a single piece of evidence describing the actual procedures that will be employed, the District Court presumes that the doctors will use their professional judgment to ensure unconsciousness before injection of pancuronium bromide and potassium chloride. However, the Court’s first Order required only that they monitor and confirm unconsciousness before the drugs were administered, ER 314, and neither the CDCR nor the doctors have committed to do more. These problems and uncertainties exist because the District Court’s decision
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and subsequent modifications arrived so late in the day, and the modifications are themselves rife with the same difficulties that CDCR’s original procedure itself presents. Most importantly, the Court’s insistence on engrafting changes on to the procedure days before execution results in an inability to obtain meaningful judicial review, even in the face of an extensive history of lethal injection failures in California. The District Court’s actions have failed to correct the problem while preventing considered review by this Court of substantial questions as to whether Mr. Morales’ execution is constitutional. III. Mr. Morales Has Demonstrated That He Is Entitled To Injunctive
Relief Preventing Defendants From Executing Him According to Procedure No. 770 In invoking its power to grant equitable relief ordering the Defendants to modify their execution procedure, the District Court held that Mr. Morales has “raised substantial questions” as to whether “Defendants’ administration of California’s lethal-injection protocol creates an undue risk that Plaintiff will suffer excessive pain when he is executed.” ER 312. In other words, Mr. Morales has demonstrated that the evidence currently available entitles him to injunctive relief preventing the Defendants from executing him in the manner prescribed by Procedure No. 770. The record evidence to support that finding is substantial.
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A. Evidence Revealed in Discovery Demonstrates Severe Problems With Drug Administration Under Procedure No. 770 The District Court found, based on the execution records that have been
produced for the first time as a result of the limited discovery ordered by the Court, that Procedure No. 770 creates a significant and unconstitutional risk that the sodium thiopental will not be successfully administered and the inmate will remain conscious. ER 311 (“in at least six out of thirteen executions” there is “some doubt as to whether the protocol actually is functioning as intended”).
The execution records indicate that several inmates continued breathing for far longer than would be expected had they received the full dose of sodium thiopental. ER 106-109, 179-180. The records also reveal that at least two inmates made labored attempts to breathe upon the administration of the pancuronium, ER 100, 109, a phenomenon that would not occur if the inmates were deeply unconscious and anesthetized by the sodium thiopental by the time of the pancuronium injection. In addition to this compelling evidence that the CDCR is not properly administering the full dose of sodium thiopental, a review of the execution records kept by the CDCR reveals a number of unexplained deviations from Procedure No. 770, as well as inaccuracies in the records themselves. ER 242. In sum, even the limited amount of evidence obtained on an expedited basis here demonstrates that the risk of inadequate anesthesia under Procedure No. 770 as administered is real and most likely has been realized in a number of recent
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executions. Based on this evidence, the District Court found that Mr. Morales has raised “substantial questions” about the constitutionality of the protocol, ER 312, a finding that entitles Mr. Morales to injunctive relief.
1. Evidence that Sodium Thiopental is Not Being Successfully Administered
Evidence recently obtained from the CDCR as a result of court-ordered discovery indicates that four of the last six inmates executed likely did not receive the full dose of sodium thiopental and were not placed into a surgical plane of anesthesia before the administration of the pancuronium and potassium. ER 105109, 178-180. Thus, it is highly likely that these inmates remained conscious, or regained consciousness, during the procedure, and were subjected to excruciating pain. See ER 311.
It is undisputed that the five-gram dose of sodium thiopental is more than sufficient to stop an inmate’s breathing within a minute of administration -assuming that it is successfully injected in full. ER 308-309. Sodium thiopental causes unconsciousness by depressing the central nervous system and suppressing electrical activity in the brain. See ER 243. Respiratory activity, as well as other muscle activity, is controlled by the brain, so the administration of sodium thiopental will cause a person to stop breathing. Because five grams is a massive dose that is well over the amount necessary to completely arrest respiration in any person, ER 243-244, both the Defendants’ expert, Dr. Mark Dershwitz, and Mr.
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Morales’s expert, Dr. Mark Heath, agree that an inmate’s breathing should cease within a minute of administration. ER 234, 243.
The records of six out of thirteen (and four out of the last six) previous executions, however, indicate that the inmates have continued breathing for well over a minute following the administration of the sodium thiopental, in one case for twelve minutes. This evidence is extremely troubling because it demonstrates that the inmates could not have received the full dose of sodium thiopental. Moreover, a person who is breathing is not deeply anesthetized, and therefore may awaken in response to a painful stimuli such as a surgical incision or the administration of either pancuronium or potassium. ER 244.
Specifically, the handwritten records from Stanley “Tookie” Williams’s December 13, 2005, execution indicate that Mr. Williams did not stop breathing until 12:34, upon the injection of the potassium chloride, twelve minutes after the thiopental was injected. ER 179, 310. Clarence Ray Allen, executed on January 17, 2006, continued breathing for 9 minutes after the delivery of the thiopental. ER 180, 311. Stephen Wayne Anderson, executed on January 29, 2002, continued breathing for five minutes after the thiopental was administered. ER 244, 310. The March 15, 2000 execution log of Darrell Keith Rich states that Mr. Rich’s respirations ceased at 12:08, with the administration of the pancuronium, but that Mr. Rich had “chest movements” lasting from 12:09 to 12:10. ER 245, 310.
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These chest movements did not begin until 3 minutes after the administration of the thiopental, after Mr. Rich had ostensibly stopped breathing (and while he was still alive, as shown by his heart rate of 110 beats per minute). ER 245, 310. Finally, both Jaturun Siripongs and Manuel Babbitt, executed in 1999, continued breathing for 5 minutes after the sodium thiopental was admin istered, and 1-2 minutes past the injection of the pancuronium. ER 107, 109, 309. No person given five grams of sodium thiopental should continue breathing for as long as did these inmates. ER 244-245.
The District Court again cited to the oft-repeated assertion in the declarations of Defendants’ medical expert, Dr. Mark Dershwitz, to the effect that “over 99.999999999999% of the population would be unconscious within sixty seconds from the start of the administration of [five grams of] thiopental sodium” and that “this dose will cause virtually all persons to stop breathing within a minute of drug administration. Therefore . . . virtually every person given five grams of thiopental sodium will have stopped breathing prior to” the administration of the pancuronium bromide. ER 308-309. 1 See Cooper, 379 F.3d at 1032; see also, e.g., Reid, 333 F. Supp. 2d at 547 (discussing two grams of sodium thiopental used in Virginia). Faced with statements by a number of eyewitnesses who said that the 1 Plaintiff disputed this calculation below based on an expert declaration and requested Dr. Dershwitz’s underlying data and an opportunity to question him about it. This was denied.
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breathing and consciousness of several inmates did not cease within one minute after administration of sodium thiopental but instead continued long after it should have ceased, however, the District Court concedes that such evidence cannot simply be disregarded on its face and raises at least some doubt as to whether the protocol actually is functioning as intended. ER 311. Moreover, evidence from Defendants’ own execution logs suggests that the inmates’ breathing may not have ceased as expected in at least six out of thirteen executions, further rais ing doubt as to whether the protocol actually is functioning as intended.
Although Defendants attempted to dismiss this evidence of continued breathing by asserting that the inmates were experiencing “chest movements,” rather than actual breathing, the District Court correctly dismissed this assertion as unfounded and unpersuasive. ER 311. Defendants’ expert, Dr. Dershwitz, states that the injection team recording the execution log must have erroneously assumed that the inmates were breathing because of these “chest movements.” ER 234. Dr. Dershwitz does not explain, however, why he is in a better position than the physicians who created the execution records to determine whether the inmates’ “chest movements” constituted breathing, or whether the inmates’ throats and noses were closed for some reason and so the chest movements were not actually breathing. Nor can he explain why the logs themselves differentiate between “respirations” and “chest movements,” by noting when, during particular
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executions, respirations ceased and chest movements began. See ER 310 (describing execution log of Darrell Rich, which indicated that respiration stopped at 12:08, and chest movements began at 12:09). The execution records themselves therefore indicate that the monitoring physicians were capable of distinguishing between breathing and chest movements. Thus, the District Court was right to note that Dr. Dershwitz’s “hypothesis” reflected “considerably less certainty” than his assertions on issues as to which he is actually qualified to opine. ER 311. The Court correctly concluded that the substantial questions raised by Plaintiff’s evidence “cannot simply be disregarded” on the strength of Dr. Dershwitz’s speculation. ER 311.
In the absence of any other evidence as to the conduct of these executions, there is no plausible explanation for these inmates’ continued breathing other than that the sodium thiopental was not successfully administered. In addition, as the District Court recognized, ER 311, the continued breathing indicates that these inmates were almost certainly not deeply anesthetized, and therefore were at risk for regaining consciousness in reaction to the pain inflicted by the pancuronium or potassium. Whether any of these inmates attempted to alert the execution staff of their consciousness or suffering cannot be known, because the pancuronium required by Procedure No. 770 would have masked any signs of awareness or suffering. The Defendants’ own protocol therefore both creates a situation so
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medically unsafe that drug administration may have failed in almost half of recent executions, and also effectively prevents the injection team and other observers from detecting these very failures. Plaintiff has demonstrated the existence of serious doubts as to the efficacy of the CDCR’s administration of sodium thiopental and therefore the humaneness of the executions.
2. Evidence That Inmates Are Not Anesthetized When the Pancuronium Is Administered
Relatedly, two execution logs indicate that inmates made labored attempts to breathe shortly after the pancuronium was administered. ER 100, 109. This is another phenomenon that should not occur if the inmates have been properly anesthetized. Upon the administration of the five-gram dose of sodium thiopental, the inmates should stop breathing and lapse into unconsciousness within a minute. There is currently no plausible medical explanation for labored attempts to breathe that begin and end shortly after the pancuronium is administered other than that the inmates are attempting to fight against the paralyzing effect of the pancuronium. See ER 310 (acknowledging this evidence).
Darrell Rich’s execution log indicates that the pancuronium was administered at 12:08 a.m. ER 245, 310. The log states that Mr. Rich experienced “chest movements @ 0009-0010” – ER 245, 310 – in other words, beginning one minute after the pancuronium was administered. Similarly, Manuel Babbit’s execution log of May 4, 1999, indicates that Mr. Babbit experienced “brief
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spasmodic movements of the upper chest” at 12:32, again one minute after the pancuronium was administered at 12:31. ER 109.
As Dr. Heath has stated, and the District Court recognized, these chest movements are consistent with an attempt to fight against the accruing paralytic effect of the pancuronium. ER 100, 245. Had the five-gram dose of sodium thiopental reached the inmates and provided the expected effect, however, they would not have been able to fight against the pancuronium by attempting to breathe, and indeed because five grams of thiopental would have arrested all cerebral activity, they would not even have been aware of the effect of the pancuronium. Thus, the inmates’ labored attempts to breathe are another indication that the full dose of sodium thiopental may not have reached them. At this point, Defendants have not proffered any evidence suggesting an alternative explanation for these occurrences, aside from Dr. Dershwitz’s conclusory and unsupported assertion that chest movements do not necessarily indicate an attempt to breathe. At a minimum, then, Mr. Morales has demonstrated that there is substantial evidence suggesting that inmates often are not properly anesthetized and may be subject to excruciating pain. Mr. Morales is entitled to further discovery – particularly taking the depositions of the people who perform these executions – and an evidentiary hearing in order to determine the circumstances and causes of these troubling occurrences.
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3. The Existence of Additional Troubling Questions That Must Be Answered By Defendants
The execution records and press accounts of recent executions also have raised a number of troubling questions as to the CDCR’s conduct of executions. An examination of CDCR’s execution records and Warden Ornoski’s comments to the press reveals that the injection team has deviated repeatedly from Procedure No. 770, each time without explanation. Moreover, some of these deviations – such as the administration of a second dose of potassium chloride during Clarence Allen’s execution – have been omitted from the CDCR’s execution records, and some execution logs have been altered without explanation. Once again, the defendants have provided no explanation for the injection team’s repeated deviation from the protocol, or the inadequacy and inaccuracy of its recordkeeping. This evidence, as the District Court noted, “raises additional concerns as to the manner in which the drugs . . . are administered.” ER 311.
Immediately following the execution of Clarence Ray Allen on Tuesday, January 17, 2006, defendant Steven Ornoski, Warden of San Quentin Prison, stated that the injection team administered a second dose of potassium chloride to Mr. Allen. ER 182. Warden Ornoski also stated that the injection team had been forced to administer a second dose of potassium in two previous executions. ER 182. The 100 milliequivalent-dose called for by the Procedure No. 770 should, if administered rapidly, be sufficient to cause cardiac arrest in any inmate. ER 182.
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Perhaps for this reason, Procedure No. 770, makes no mention of a second dose of potassium chloride, and certainly does not provide any information on the situations in which a second dose would be considered appropriate or who would have the authority to order a second dose.2 ER 182; see ER 311-312 (noting lack of explanation for the second dose).
A second dose of potassium was also administered to Stephen Anderson in 2002, according to the log of his execution. See ER 182, 343. There is no explanation in the record for the second dose. The third recipient of an extra potassium dose is presently unknown to Plaintiff-Appellant. This evidence demonstrates that the CDCR has repeatedly deviated from Procedure No. 770, apparently without ever attempting to determine why a situation arose in which a second dose of potassium was considered necessary; whether this situation was normal, or could be avoided; or whether the apparent ineffectiveness or failure rate of the potassium could suggest a drug administration problem affecting the other drugs as well. The CDCR’s tolerance of repeated departures from the protocol suggests that the CDCR treats the execution process rather casually, allowing an atmosphere of ad hoc improvisation and reaction to problems that should have 2 Although Procedure No. 770 states that three syringes, each containing 50 mEq of potassium, are prepared, the protocol provides that two of the syringes should be administered, for a total dose of 100 mEq. ER 66-67. There is no mention of employing the third syringe (which contains only a half dose of 50 mEq) as a backup dose. See ER 69-72.
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been anticipated beforehand and addressed in the written protocol, but which are likely to be causing an unacceptable level of pain during the execution.
Another troubling question regarding the adequacy of the CDCR’s procedures is raised by the inaccuracies, omissions, and alterations evident on the face of the CDCR’s execution records. For instance, the administration of a second dose of potassium is not noted in the records of Mr. Allen’s execution, nor is there any indication of why the second dose might have been given. See ER 180. In addition, the execution log of Stanley Williams appears to have been altered. See ER 179. As discussed above, the handwritten record of the execution indicates that Mr. Williams stopped breathing at 12:34, when the potassium was administered, but the “respirations” column of the execution log has been altered to record a “0” instead of the entry initially made at the time of the pancuronium administration. ER 179. Consequently, the execution log states that Williams’ breathing stopped at 12:28, when the pancuronium was administered. ER 179. This inconsistency in the records, and the apparent alteration of the execution log, is extremely disturbing. The alteration suggests that the CDCR perceived Mr. Williams’ continued respiration as potentially problematic, but that it chose to obscure the problem rather than addressing it in a considered manner.
These inaccuracies in the execution records and deviations from the protocol are not the evidence that one would expect to receive were the execution
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procedures carried out in a professional manner by adequately trained personnel. See ER 310 (noting that Williams’ log has been altered without explanation and “without any indication as to who made the alteration”). Rather, unexplained deviations and faulty record-keeping are hallmarks of an error-ridden procedure. These anomalies raise substantial questions about whether the CDCR tolerates or fosters practices that are inconsistent with the careful administration of lethal injection, and whether the injection team is capable of ensuring that executions are accomplished humanely. The modification to the protocol that CDCR proposes to employ for Mr. Morales’ execution will do nothing to avoid such problems. IV. The CDCR’s Protocol Violates the Eighth Amendment Because It
Creates a Significant Risk of An Excruciating Death The Eighth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the imposition of cruel and unusual punishments as measured by “the evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (internal quotation marks and citations omitted); U.S. Const. amend. VIII. The prohibition includes the “infliction of unnecessary pain in the execution of the death sentence,” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947), and executions that “involve torture or a lingering death,” In re Kemmler, 136 U.S. 436, 447 (1890); see also Gregg v. Georgia, 428 U.S. 153, 173 (1976) (holding that the Eighth Amendment prohibits the “unnecessary and wanton infliction of pain”).
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Whether pain is “unnecessary” must be determined by reference to “evolving standards of decency,” and “contemporary values concerning the infliction of a challenged sanction.” Gregg, 428 U.S. at 173. A method of execution that was considered more humane than available alternatives when it was first introduced therefore could later be held to offend contemporary values if, for example, experience with the method in question has demonstrated that it is not in fact as humane as first thought. See Fierro v. Gomez, 77 F.3d 301, 303 n.1 (9th Cir. 1996) (noting, in a challenge to the constitutionality of execution by lethal gas, that the California Supreme Court had last considered such a challenge in 1953, and that the court’s consideration had been limited by then-existing scientific knowledge), vacated as moot in light of Cal. Penal Code § 3604, 519 U.S. 918.
In determining whether a particular method of execution offends contemporary standards of decency by inflicting unnecessary pain, this Court has held that the most important consideration is the “objective evidence of the pain involved in the challenged method.” Campbell v. Wood, 18 F.3d 662, 682 (9th Cir. 1994). Such evidence can include the execution records of inmates executed using the same method; expert testimony regarding the effect of the method on both humans and animals; and scientific studies and other evidence analyzing the effects on humans and animals. See Fierro, 77 F.3d at 307 (listing the types of evidence considered by the district court in analyzing the effects of exposure to cyanide
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gas); Campbell, 18 F.3d at 683-87 (discussing expert testimony, scientific literature, and experiments on death by hanging considered by the district court).
Because Mr. Morales challenges the specific method of accomplishing lethal injection as it is practiced in California, the fact that other states use lethal injection does not establish that the CDCR’s protocol for lethal injection comports with contemporary standards of decency. See Beardslee, 395 F.3d at 1072-73 (noting that the fact that many other states use lethal injection does not shed light on the constitutionality of the method used in California); cf. Campbell, 18 F.3d at 682 (“The number of states using hanging is evidence of public perception, but sheds no light on the actual pain that may or may not attend the practice.”). Moreover, because Mr. Morales does not allege that the three-drug combination used by CDCR is unconstitutional in itself, but instead asserts that the CDCR’s protocol for administering those drugs is so defective that it creates a significant risk that the drugs will not be successfully administered, the fact that many other states use the same three-drug combination as the CDCR also does not shed light on the constitutionality of the CDCR’s protocol. Instead, Procedure No. 770 must be analyzed on its own merits, in light of the evidence gleaned from the records of executions performed under the protocol, in order to determine whether it involves the infliction of unnecessary pain.
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The District Court observed that many other courts have reviewed lethalinjection protocols similar to Procedure No. 770, and that to date, no court has found either lethal injection in general or a specific lethal-injection protocol in particular to be unconstitutional. ER 308, citing Bieghler v. State, 839 N.E. 691, 694-96 (Ind. Dec. 28, 2005); Boyd v. Beck, ___ F. Supp. 2d ___, No. 5:05-CT-774D, 2005 WL 3289333 (E.D.N.C. Nov. 29, 2005); Abdur’Rahman v. Bredesen, ___ S.W.3d ___, No. M2003-01767-SC-R11-CV, 2005 WL 2615801 (Tenn. Oct. 17, 2005); Aldrich v. Johnson, 388 F.3d 159 (5th Cir. 2004) (lethal injection in Texas); Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va. 2004); Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) (lethal injection in Texas); People v. Snow, 65 P.3d 749, 80001 (Cal. 2003); Sims v. State, 754 So.2d 657 (Fla. 2000); State v. Webb, 750 A.2d 448, 453-57 (Conn. 2000); LaGrand v. Stewart, 133 F.3d 1253, 1265 (9th Cir. 1998) (lethal injection in Arizona); but cf. Rutherford v. Crosby, 546 U.S. ___, No. 05-8795 (Jan. 31, 2006) (granting stay of execution pending disposition of cert. pet.); Hill v. Crosby, 546 U.S. ___, No. 05-8794 (Jan. 25, 2006) (granting stay of execution & granting cert.); Anderson v. Evans, No. CIV-05-0825-F, 2006 WL 83093, at *3-*4 (W.D. Okla. Jan. 11, 2006) (denying mot. to dismiss 8th Amendment challenge to lethal-injection protocol).
Most significantly, however, the District Court conceded that “it should be noted that the record now before this Court, which includes both additional expert
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declarations and detailed logs from multiple executions in California, contains evidence of a kind that was not presented in these earlier cases.” ER 308, citing Reid, 333 F. Supp. 2d at 548-49 (limiting scope of review to “issues pertaining to the particular chemical combination . . . and their [sic] probable affect [sic] on Reid” and excluding other evidence); Webb, 750 A.2d at 453-57 (resolving challenge in state where no lethal injections had been performed); Bieghler, 839 N.E.2d at 696; Boyd, 2005 WL 3289333, at *3.; cf. Anderson, 2006 WL 83093, at *3-*4 (discussing evidence proffered in complaint). With this more comprehensive legal, medical and factual record, a more informed assessment by the District Court of the California lethal injection protocol, as administered, was possible. The District Court’s findings of substantial problems under these circumstances is significant.
Because it is impossible to determine with certainty before the fact whether a particular inmate will suffer unnecessary pain during his execution, the question whether a method of execution will inflict unnecessary pain on an individual inmate is fundamentally an inquiry as to whether the inmate is “subject to an unnecessary risk of unconstitutional pain or suffering.” Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004) (emphasis added); Fierro, 77 F.3d at 307 (“Campbell also made clear that the method of execution must be considered in terms of the risk of pain.”) (emphasis in original). Campbell, 18 F.3d at 687. An
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execution procedure can create an unconstitutional risk of pain in either of two ways: the method itself may inherently carry a risk of pain, as did the lethal gas method considered in Fierro, 77 F.3d at 309; or the execution procedures may be so defectively designed that there is an unconstitutional risk that errors in execution will result in the inmate’s suffering excruciating pain, see Campbell, 18 F.3d at 687 n.17 (upholding Washington’s hanging protocol because it “minimized [the risk] as much as possible”); see also Rupe v. Wood, 863 F. Supp. 1307, 131315 (W.D. Wash. 1994) (holding that a “significant” risk (less than 24% probability) of accidental decapitation rendered judicial hanging unconstitutional as applied to an obese inmate), vacated in part as moot in light of Wash. Rev. Code § 10.95.180 (eff. June 6, 1996), 93 F.3d 1434 (9th Cir. 1996).
Mr. Morales has demonstrated that the CDCR has designed a protocol that is rife with potential problems and opportunities for untrained personnel to commit grave errors, all of which can lead to an excruciating death. Procedure No. 770 creates a significant risk that the execution team will not successfully anesthetize him before they administer the pancuronium and potassium chloride, both of which cause extreme pain. Mr. Morales does not dispute that the five-gram dose of sodium thiopental provided in Procedure No. 770, if successfully administered, is sufficient to render any inmate deeply unconscious. If there are no errors in the administration of the sodium thiopental, therefore, Mr. Morales’s execution will
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not be painful. The deficiencies in Procedure No. 770, however, make it extremely unlikely that no errors will occur and the full dose of sodium thiopental will in fact be administered.
Although the Eighth Amendment does not require executioners to eliminate all possible risk of accident from their execution protocols, see Campbell, 18 F.3d at 687, it does require the elimination or minimization of “unnecessary risks,” Cooper, 379 F.3d at 1033. A risk of error is unnecessary when it is foreseeable and therefore preventable. Mr. Morales has demonstrated that Procedure No. 770 utterly fails to account for a number of foreseeable problems, which are inherent in allowing medically untrained personnel to perform executions by remote control. Record evidence has established that executions performed according to Procedure No. 770 carry a significant and unconstitutional risk of unnecessary pain, a risk that has almost certainly been realized in four of the past six (and six of the last thirteen) executions performed in California. A procedure so rife with unnecessary risk creates a strong likelihood of unnecessary pain which cannot pass muster under the Eighth Amendment. V. The Risk of Inadequate Anesthesia Is Created By the Deficiencies in
Procedure No. 770 The risk that inmates will be insufficiently anesthetized and therefore conscious during their executions, substantiated by the execution records recently produced by Defendants, is a foreseeable result of Procedure No. 770’s utter
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failure to ensure a humane execution. The protocol uses potassium chloride, an extremely painful drug, to cause death, necessitating the administration of general anesthesia to ensure that the inmate is not subjected to the excruciating pain of the potassium. Yet Procedure No. 770 provides that untrained personnel administer general anesthesia remotely, from another room, using multiple IV line extensions with jerry-rigged devices, and inadequately labeled syringes. There is no provision for monitoring the inmate to ensure that he is in fact unconscious throughout the procedure, nor is there any indication of how the injection team should deal with contingencies -- such as the need for a second dose of potassium -- that the evidence demonstrates have in fact arisen. The design and administration of the protocol is inherently and fundamentally flawed. See ER 79-103. The changes proposed by the CDCR only for Mr. Morales’ execution do not eliminate those flaws. See ER 83-103. A. The Risk of Unsuccessful Drug Administration Is Substantial.
Administering the drugs in the manner dictated by Procedure No. 770 creates a substantial risk that the sodium thiopental will not be administered properly and the inmate will not be rendered fully unconscious by the time that the other two drugs are administered. Because Procedure No. 770 fails to ensure the proper administration of sodium thiopental, the risk of consciousness cannot be mitigated by the fact that the five-gram dose of sodium thiopental would be almost
42

certainly sufficient to induce unconsciousness if the full dose actually reached the inmate.
Most fundamentally, Procedure No. 770 does not require that injection personnel be trained in inducing general anesthesia or indeed have any particular medical qualifications. Because the pain caused by potassium is akin to that of a surgical incision, the established veterinary standard of care requires that when veterinarians use potassium to euthanize an animal, the animal must be anesthetized by someone who is trained in placing animals in a surgical plane of anesthesia. See 2000 Report of the AVMA Panel on Euthanasia, 218 J. Am. Veterinary Med. Ass’n 669, 681 (2001) (persons euthanizing animals must be “competent in assessing depth [of anesthesia] appropriate for administration of potassium chloride”). ER 120-121. Similarly, California requires extensive training in the use of anesthesia for all technicians authorized to euthanize animals. See 16 Cal. Admin. Code § 2039. Thus, the individual administering and monitoring the sodium thiopental should have training equivalent to that of an anesthesiologist or Certified Registered Nurse Anesthetist (CRNA). ER 89.
Not only does Procedure No. 770 contain no provisions for ensuring that personnel are adequately trained, however, but Defendants’ responses to the District Court’s inquiries indicate that Defendants themselves believe that their personnel are not capable of monitoring anesthetic depth. On February 13, 2006,
43

the District Court asked the parties to discuss whether a “qualified individual” could be present in the execution chamber with Mr. Morales in order to ensure that he is in fact unconscious. ER 269. Defendants first responded that they would not “approve the presence of non-departmental employees in the chamber area,” but proposed that the Warden could attempt to monitor anesthetic depth by “touching” Mr. Morales. When Defendants finally proposed individuals to monitor consciousness, they offered individuals not employed by the CDCR. ER 274. Thus, Defendants have effectively conceded that no departmental employee is capable of monitoring anesthetic depth, and that an individual qualified to the Court’s satisfaction must be brought in from outside the prison. Although they have now offered to put an anesthesiologist in the chamber, they have declined to say what he will do.
There are other indications that the execution personnel are completely unqualified. No physician participates in the execution procedure as currently written, other than to pronounce death by monitoring an EKG. On repeated occasions, the injection team has had considerable trouble inserting the IVs into the inmates’ veins, in some cases trying for over 10 minutes. See ER 95. This is simply not consistent with the performance that would be expected if the personnel had adequate medical training, including in the placement of IV lines. In addition, the Warden himself -- who personally supervises each execution -- has made
44

public comments that indicate his lack of medical training and understanding of the process. See ER 184 (discussing how Warden Ornoski’s explanation of the need for a second dose of potassium in the Allen execution indicated a lack of medical understanding).
Procedure No. 770 creates a significant risk that inmates will not be adequately anesthetized by having these untrained personnel administer the drugs remotely, from another room. See ER 67-72. The protocol thus prevents personnel from obtaining any sort of visual or other verification that the drugs are actually being administered to the inmate, or that the sodium thiopental anesthetic has taken effect. Proper monitoring of the flow of fluids into the vein requires a clear view of the IV site, and also tactile examination of the skin surrounding the IV site to verify skin firmness and temperature. ER 87, 90-91. In addition, because the drugs are administered from another room, IV line extensions must be used, see ER 56, 65, 86-87, which increases the risk that a flaw or kink in the IV line will disrupt the flow of drugs. ER 91. As the District Court noted, it also increases the risk of the sedative remaining in the line. A reasonable medical standard of care would not permit these unnecessary line extensions.
Procedure No. 770 also creates the risk that the drugs will be administered in the wrong order by requiring that the syringes be labeled by number, rather than by contents. This is a serious deviation from accepted medical standards, which
45

would never permit such ambiguous labeling. ER 86. In fact, Defendants’ expert, Dr. Mark Dershwitz, testified in another ongoing lethal injection case, Taylor v. Crawford, that “[i]t’s very important to label syringes to make sure the right drug is given in the right order. . . . Any person who draws up medication into a syringe is expected to label the syringe immediately afterward with the syringe’s contents so that when it comes time to inject the syringe there is less chance for any sort of error to occur.” Tr. of Hr’g on Jan. 30, 2006, Taylor v. Crawford, No. 05-4173CV-S-FJG (W.D. Mis.). Procedure No. 770 thus flies directly in the face of the medical consensus that failing to label the syringes with their contents creates an unacceptable risk of error in administering the drugs. Should such an error occur -if, for instance, the potassium or pancuronium is injected before the sodium thiopental -- the inmate could be subjected to excruciating pain and the execution personnel will have no means of detecting the problem. Moreover, as the District Court observed, the lethal-injection protocol is not entirely clear as to which dosages of pancuronium bromide and potassium chloride are used. ER 303.
Thus, Procedure No. 770 creates a significant risk that untrained execution personnel, administering the lethal drugs remotely, will commit errors that will expose the inmate to excruciating pain. Procedure No. 770 then fails to minimize the danger of these errors, omitting any mention of problems in drug administration that could occur and failing to provide any procedures for dealing
46

with unusual situations. For example, despite the fact that the injection team personnel are not doctors or nurses who are capable of exercising competent medical judgment based on the situation at hand, Protocol No. 770 contains no specific instructions for inserting the angiocath into the vein; what to do if there is trouble finding an adequate vein; or how to compensate if any equipment malfunctions. See ER 30-72. Nor is there any indication of how personnel should go about exercising their discretion should these types of issues arise, or who bears responsibility for making medical decisions on the scene. See ER 30-72. Indeed, the protocol does not specify whether the injection team is in any way prepared to handle the contingencies that might occur during the course of an execution, or provide that training should encompass foreseeable contingencies. See ER 67-72.
Despite Procedure No. 770’s insistence on removing all personnel from the execution chamber before any drugs are administered, ER 68, the protocol does not anticipate and provide for the problems that could arise as a result of this policy. See ER 67-72. There is no procedure for testing or verifying the efficacy of the extended IV tubing, or even any instruction on precisely how to set up the tubing. See ER 67-72. Nor is there a procedure for entering the chamber during the execution should any of the equipment malfunction or the inmate somehow indicate that something has gone awry. See ER 67-72. Indeed, the protocol requires that the execution team lock the door of the chamber before the injections
47

begin, see ER 68, thus effectively ensuring that no staff member will be able to reach the inmate expeditiously should something go wrong. Although an anesthesiologist will be present in the chamber for Mr. Morales’ execution, he will be authorized to do nothing other than monitor consciousness.
Finally, and most disturbingly, the protocol apparently does not require execution personnel to verify in any manner, even through the windows of the execution chamber, that the inmate has been rendered unconscious by the sodium thiopental. See ER 67-72. Apparently, that will be done in some unknown fashion at some unknown time by an unnamed anesthesiologist here, but even the revised protocol leaves him powerless to do anything besides monitor. The protocol most certainly does not allow the anesthesiologist to have a backup syringe of sodium thiopental to be readied in case something goes wrong. See ER 66; cf. ER 99-100 (noting use of a backup syringe of sodium thiopental in other states). Thus, despite the foreseeable risks created by the protocol and described above, Procedure No. 770 simply does not acknowledge, much less provide for, the possibility that the five-gram dose of sodium thiopental will fail to render the inmate unconscious. B. The Use of Pancuronium Bromide Serves No Valid Purpose and
Exacerbates the Risk of Inadequate Anesthesia. The Defendants’ use of pancuronium bromide exacerbates the risk created by the deficiencies in Procedure No. 770. As a neuromuscular blocking agent that paralyzes the inmate’s muscles, including those of the chest and diaphragm,
48

pancuronium renders the inmate completely unable to move, breathe, or signal his
consciousness to observers. ER 96-97. Although pancuronium has legitimate uses
in surgical settings, where the patient is monitored at all times by a licensed
anesthesiologist, it serves no useful function in the execution procedure, and
simply exacerbates the risk that errors in drug administration will go undetected
and the inmate will suffer excruciating pain. ER 98-99. Indeed, although the
District Court ordered the Defendants to discuss their interest in employing
pancuronium as part of the lethal injection cocktail, the Defendants could point to no valid justification for its use.
Accepted medical and veterinary standards of care forbid the use of
pancuronium in end-of-life and euthanasia situations. Although pancuronium may
promote observer comfort by providing the appearance that the patient is peaceful
and not suffering, that very characteristic of pancuronium carries an unacceptable
risk of masking actual suffering. The Ethics Committee of the American College
of Critical Care Medicine therefore has recommended against using drugs like
pancuronium:
“NMBAs [neuromuscular blocking agents] possess no sedative or analgesic activity and can provide no comfort to the patient when they are administered at the time of withdrawal of life support. Clinicians cannot plausibly maintain that their intention in administering these agents in these circumstances is to benefit the patient. Indeed, unless the patient is also treated with adequate sedation and analgesia, the NMBAs may mask the signs of acute air hunger associated with ventilator withdrawal, leaving the patient to endure the agony of
49

suffocation in silence and isolation. Although it is true that families may be distressed while observing a dying family member, the best way to relieve their suffering is by reassuring them of the patient’s comfort through the use of adequate sedation and analgesia.” See R. Truog et al., Recommendations for End-of-Life Care in the Intensive Care Unit, 29 Crit. Care Med. 2332, 2345 (2001). ER 197, 210. For the same reasons, the American Veterinary Medical Association has stated that pancuronium is unacceptable for use in euthanizing animals. See ER 101, 120-121. Pancuronium’s ability to mask suffering is all the more dangerous in the execution setting, where there are no trained anesthesiologists or other personnel to monitor the depth of anesthesia. An individual trained in assessing anesthetic depth, situated elbow-to-elbow with an inmate, might be able to detect extremely subtle signs that an inmate is conscious and terrified, but paralyzed by the pancuronium. ER 247-248. These signs of fear and pain would include dilated pupils, tearing, and increased heart rate. The untrained members of the injection team, on the other hand, observing the inmate from a distance and through glass, would be utterly unable to detect these indicia of consciousness. ER 247-248. Thus, when pancuronium is used in the execution setting, as determined by Procedure No. 770, it completely prevents the execution staff from determining whether or not the inmate is conscious. If the risks associated with pancuronium in the clinical setting -- where a trained anesthesiologist can penetrate the masking effect of the pancuronium by discerning subtle signs of awareness -- outweigh its
50

benefits, then the interest in using pancuronium in the execution context would have to be strong indeed to outweigh the correspondingly greater danger.
In light of the difficulties created by pancuronium, it is therefore incumbent upon the CDCR to justify its use of the drug. Yet, when questioned by the District Court, the CDCR was unable to come up with any persuasive or plausible justification for its use of pancuronium. Although the CDCR’s expert speculates that pancuronium masks the effects of seizure-like movements induced by potassium, Opp. to TRO Mot. at 11, there is no evidence that such seizures actually would occur. See ER 187. Moreover, masking the inmate’s body movements in order to create the impression, for the benefit of witnesses to the execution, that the inmate is peaceful is simply not a sufficiently strong interest to overcome the risks posed by pancuronium. Notably, Recommendations for End-of-Life Care in the Intensive Care Unit rejects precisely this justification for pancuronium in advising against its use in end-of-life situations. ER 209-210. The CDCR also asserts that it uses pancuronium because other States also use it; this defense of pancuronium does nothing to justify its use in the execution and simply raises the question whether the CDCR engaged in any independent medical analysis when developing its protocol.
51

CONCLUSION Mr. Morales has produced substantial record evidence establishing that there

is a significant risk that the CDCR will not properly administer sodium thiopental,

and that as a result, Mr. Morales will not be rendered deeply unconscious for the

duration of the execution. The District Court expressly acknowledged this

evidence and recognized the risks, but nonetheless chose to deny injunctive relief

that would have allowed the parties to explore these issues at a hearing and instead

attempted to over see the piecemeal modification of the protocol with the benefit of

any legal, medical or administrative review. That desperate effort fails to give due

regard to the constitutional issues that are here in play. Given the District Court’s

conclusion of substantial risk to Mr. Morales, the only constitutionally appropriate

response is a stay preserving the status quo pending a hearing and resolution of the

case on the merits. This Court should grant such relief.

Dated: February 17, 2006

MICHAEL ANGELO MORALES

David A. Senior McBreen & Senior 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 dsenior@mcbreensenior.com

By: ______________________ John R Grele

52

John R. Grele Law Offices of John R. Grele 703 Market Street, Suite 550 San Francisco, CA 94103 Phone: (415) 348-9300 Fax: (415) 348-0364 jgrele@earthlink.net Richard P. Steinken Janice H. Lam Stephanie L. Reinhart Jenner & Block LLP One IBM Plaza Chicago, IL 60611-7603 Phone: (312) 923-2938 Fax: (312) 840-7338 rsteinken@jenner.com Ginger D. Anders Jenner & Block LLP 601 Thirteenth Street, NW Suite 1200 South Washington DC 20005-3823 Phone: (202) 639-6000 Fax: (202) 639-6066 ganders@jenner.com
53

CERTIFICATE OF COMPLIANCE Pursuant to Fed.R.App.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I hereby certify that the attached opening brief is produced in a proportional font (Times New Roman) of 14 point type and utilizes double line spacing, except in footnotes and extended quotations which are single-spaced. I further certify that, according to the word count of the word processing system used to prepare the brief, the brief includes 12,609 words (exclusive of the table of contents, table of authorities, proof of service and this certificate.) Dated: February 17, 2006
________________________________ JOHN R. GRELE One of the Attorneys for PetitionerAppellant Michael Angelo Morales
54

 
 06-99002 IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL ANGELO MORALES, Plaintiff and Appellant,
v.
RODERICK Q. HICKMAN, Secretary; STEVEN ORNOSKI, Warden,
Defendants and Appellees.

CAPITAL CASE

On Appeal from the United States District Court for the Northern District of California Nos. C 06-219 JF and C 06-926 JF RS The Honorable Jeremy Fogel, Judge
APPELLEES' BRIEF AND OPPOSITION TO MOTION FOR STAY OF EXECUTION
BILL LOCKYER Attorney General of the State of California
ROBERT R. ANDERSON Chief Assistant Attorney General
GERALD A. ENGLER Senior Assistant Attorney General
RONALD S. MATTHIAS Supervising Deputy Attorney General
DANE R. GILLETTE Senior Assistant Attorney General State Bar No. 65925
455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5866 Fax: (415) 703-1234
Attorneys for Defendants and Appellees

TABLE OF CONTENTS

Page

PROCEDURAL HISTORY

2

STANDARD OF REVIEW

4

ARGUMENT

5

THE DISTRICT COURT DID NOT ABUSE

ITS DISCRETION BY CONDITIONALLY

DENYING MORALES' MOTION FOR

INJUNCTIVE RELIEF

5

A. California's Execution Procedure

6

B. Consciousness

8

C. Anomalies In Past Executions

9

D. The District Court's Conditional Order

10

E. The Denial OfInjunctive ReliefPursuant To The Conditional

Order Was Not An Abuse Of Discretion

11

CONCLUSION

17

1

TABLE OF AUTHORITIES
Cases
Beardslee v. Woodford 395 F.3d 1064 (9th Cir. 2005) Campbell v. Wood 18 F.3d 662 (9th Cir. 1994) Cooper v. Rimmer 379 F.3d 1029 (9th Cir. 2004) Harris v. Board ofSupervisors 366 F.3d 754 (9th Cir. 2004) Morales v. Woodford 388 F.3d 1159 (9th Cir. 2004) cert. denied 126 S.Ct. 420 (2005) People v. Morales 48 Ca1.3d 527 (1989) Southwest Voter Registration Education Project v. Shelley 344 F.3d 914 (9th Cir. 2003)
Constitutional Provisions
United States Constitution Eighth Amendment

Page
2,4,5,8 9
2, 5, 8 4, 5 3 3 5
1,2,8

11

TABLE OF AUTHORITIES (continued)
Statutes United States Code, Title 42
§ 1983

Page 1,6

11l

06-99002 IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL ANGELO MORALES, Plaintiff and Appellant,
v.
RODERICK Q. HICKMAN, Secretary; STEVEN ORNOSKI, Warden,
Defendants and Appellees.

CAPITAL CASE

Michael Morales is scheduled to be executed at San Quentin State Prison on February 21,2006. He was sentenced to death in 1983, by the Ventura County Superior Court for crimes committed in 1981. To date, every state and federal court to consider his case has denied relief. On January 13,2006, five days before the execution date was set, Morales filed the present action pursuant to 42 U.S.C. § 1983. Claiming that execution by lethal injection constitutes cruel and unusual punishment in violation of the Eighth Amendment, he sought injunctive relief to prevent the scheduled execution. The complaint, most of the exhibits, and the memorandum of points and authorities are virtually identical in every significant

1

respect to those filed in 2004 by Kevin Cooper and Donald Beardslee in their efforts to stop their respective executions. In both of those cases, the district court denied a motion for a temporary restraining order; those orders were affirmed by this Court. Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004); Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005).
Although the district court (which also heard the Cooper and Beardslee cases) again denied injunctive relief, it did so conditioned on the defendants taking steps to insure that Morales will be executed without the unnecessary or wanton infliction of pain. Although defendants agreed to the district court's conditions, Morales remains unsatisfiedY He fails to demonstrate either an abuse ofdiscretion or any basis for a stay of execution.
PROCEDURAL HISTORY Morales strangled, beat, stabbed, and sexually assaulted Terri Winchell in San Joaquin County on January 8, 1981. He was tried on a change of venue in Ventura County. The jury convicted Morales of first degree murder, rape, and conspiracy, and sentenced him to death in 1983. The California Supreme Court
1. In agreeing to abide by the district court's condition, defendants did not, nor do they now, concede any constitutional flaws in the state lethal injection protocol or that any prior lethal injection execution was conducted in violation of the Eighth Amendment.
2

affirmed the judgment in April 1989. People v. Morales, 48 Ca1.3d 527 (1989). The state court also denied habeas corpus relief, as did the United States District Court for the Central District of California. The denial of federal relief was affirmed by this Court. Morales v. Woodford, 388 F.3d 1159 (9th Cir. 2004), cert. denied 126 S.Ct. 420 (2005).
At a hearing on January 18,2006, the Ventura County Superior Court scheduled the execution for February 21,2006. Morales filed a complaint pursuant to § 1983 on January 13.£1 He filed his motions for expedited discovery and a temporary restraining order (TRO) on January 17. Following briefing and two hearings the district court denied Morales' motion for injunctive relief on February 14,2006. ER 365-379. It did so, however, premised on the defendants' agreement either to use only sodium thiopental, the first drug in the state's lethal injection protocol, or to obtain independent verification from a qualified expert that Morales is rendered unconscious by the thiopental before injecting the other two drugs. Defendants agreed to the second condition and have retained the services of two board certified anesthesiologists, one ofwhom will be next to Morales throughout the execution while the second watches from outside the execution chamber. ER
2. The original complaint is not in the Excerpts of Record. Morales filed an amended complaint following exhaustion of his administrative remedies on February 10, ER 256-267, and the district court later consolidated the cases. ER 271-272.
3

316-324. In a second order issued February 16, the district court found that defendants' proposed course complied with the conditions of its previous order. ER 380-385. Morales does not believe this is sufficient and appeals.
STANDARD OF REVIEW In order to obtain injunctive relief Morales was required to demonstrate (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury ifpreliminaryreliefwas not granted, (3) a balance ofhardship favoring him, and (4) advancement of the public interest. Beardslee, 395 F.3d at 1067. Alternatively, relief could be granted upon a showing of either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardship tips sharply in Morales' favor. The "greater the relative hardship to the party seeking the preliminary injunction, the less probability of success must be established by the party." Id. This Court reviews the denial of a preliminary injunction for abuse of discretion. Harris v. Board a/Supervisors, 366 F.3d 754, 760 (9th Cir. 2004). A district court abuses its discretion when it bases its decision on an erroneous legal standard or on clearly erroneous findings of fact. Id. The Court's review of a decision on a request for preliminary injunction is "limited and deferential." Southwest Voter Registration Education Projectv. Shelley, 344 F.3d 914,918 (9th
4

Cir. 2003) (en banc). It does not review the merits of the case but is limited to determining whether the district court applied appropriate legal standards and correctly apprehended the law with respect to the underlying issues. Harris, 366 F.3d at 760.
ARGUMENT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY CONDITIONALLY DENYING MORALES' MOTION FOR INJUNCTIVE RELIEF Twice in the past two years the district court in this case has denied lastminute challenges to California's procedure for conducting lethal injunction executions. This Court affirmed both orders. Cooper v. Rimmer, 379 F.3d at 1029; Beardslee v. Woodford, 395 F.3d at 1064. Following briefing and argument in this case the district court identified what it characterized as "anomalies" in past executions, including several which predate both Cooper and Beardslee. The court nonetheless concluded that Morales was not entitled to a stay of his execution but exercised its equitable powers to fashion an alternative remedy. Although defendants agreed to abide by the district court's conditions, Morales is not satisfied.l' Because the district court did not abuse its discretion the conditional
3. Defendants argued below that habeas corpus rather a § 1983 action is the appropriate procedure for challenging a method of execution, that presentation of the claim was unreasonably delayed, and that Morales had failed to exhaust his administrative remedies when the original complaint was filed. The last defect
5

denial of injunctive relief should be affirmed. A. California's Execution Procedurell
An execution is conducted by volunteer employees of the Department of Corrections whose identities remain confidential. Members ofthe execution team review the procedures on a regular basis and practice extensively in the weeks before a scheduled execution. The IV lines used to deliver the lethal drugs are inserted by either a trained and licensed registered nurse or a medical technician assistant. Although an IV line is set in each arm, only one is actually used for the execution. When the drugs to be used are prepared each syringe is labeled and numbered in the order it will be injected. The syringes are taped to a cart in the correct order.
The drugs used in the execution are delivered as follows: 1. four syringes of thiopental, each containing 1.25 grams for a total of 5 grams or 5000 mg; an extra syringe containing 1.25 grams is prepared as a backup;
may have been overcome by Morales' subsequent filing of a new complaint once exhaustion was completed. Defendants do not waive any of the procedural objections but suggest their resolution is not essential to decide this appeal.
4. The summary is based on I.P. 770, the protocol governing lethal injection executions, and a written offer of proof made by defendants at the February 9 hearing in district court. ER 502-504.
6

2. two syringes ofpancuronium bromide, each containing 50 mg for a total of 100 mg; an extra syringe containing 50 mg is prepared as a backup; 3. one syringe of potassium chloride containing 100 mEq; an extra syringe containing 100 mEq is prepared as a backup.~ Saline solution is injected between the thiopental and the pancuronium, and between the pancuronium and the potassium. The syringes of saline are also marked and placed on the cart in the appropriate location. After each syringe is injected the empty container is replaced on the cart in the order in which it was delivered. A heart monitor is attached to the inmate throughout the execution. Death is declared when there is a flat line reading on the EKG.
B. Consciousness The critical question in resolving an Eighth Amendment challenge to any
lethal injection execution is whether the inmate is subjected "to an unnecessary risk of unconstitutional pain or suffering ...." Cooper v. Rimmer, 379 F.3d at
5. Except for the amount of thiopental used, California's three-drug protocol is indistinguishable from nearly every other jurisdiction in which lethal injection is an available method of execution. No jurisdiction uses more than five grams of thiopental.
7

1033. It is undisputed that the five gram dose of thiopental is independently fatal and if delivered properly will quickly render the inmate unconscious and thus incapable of experiencing pain. See Beardslee v. Woodford, 395 F.3d at 1071. There is no evidence that once the inmate is unconscious the delivery of either pancuronium or potassium will offset the effects of the thiopental and cause the inmate to regain consciousness.
The dose of 5000 mg is more than ten times the usual dose of 300 to 400 mg used as a general anesthetic during surgery. The surgical dose will cause apnea, or cessation of breathing, within a minute. The larger the dose of thiopental, the longer the subject will suffer apnea. During surgery a respirator is necessary to assist the patient. Although chest wall movement may be observed after delivery of thiopental, such movement is not associated with breathing, nor is it reflective of the subject's state of consciousness. ER 233-234. According to plaintiff's expert, having a trained anesthesiologist present during an execution to examine the inmate, monitor vital signs, and determine that the inmate is unconscIOUS after delivery of the thiopental but before the other drugs are administered, "would greatly reduce the possibility of an inhumane execution." ER 287-288.
8

c. Anomalies In Past Executions
In its order ofFebruary 14 the district court acknowledged that to date "no court has found either lethal injection in general or a specific lethal-injection protocol in particular to be unconstitutional." ER 372. It also acknowledged this Court's previous holdings in Cooper and Beardslee with respect to California's use of lethal injection, noting that the mere risk of accident need not be eliminated from an execution protocol in order for it to be constitutional. ER 373, citing Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994). Nonetheless, the district court was concerned about the administration oflethal injection in California based on information from the logs of prior executions.
The notations identified by the district court related primarily to the apparent observation of continued breathing after the thiopental was delivered. ER 373-375. Recognizing that there "is no direct evidence that any condemned inmate actually was conscious when pancuronium bromide was injected," the court was nonetheless concerned that some breathing may have continued, thus indicating that the protocol was not functioning as intended. ER 375. It concluded that only a trained anesthesiologist could, in fact, determine when the thiopental is properly administered and the inmate is actually unconscious. ER 378-379. Although Morales had hyptothesized a number of ways in which delivery of the
9

drugs could have been compromised, there is no showing in the record that during
any execution an IV was improperly established, an IV became dislodged as the
drugs were injected, the drugs flowed onto the floor, or that the entire (concedely fatal) dose of thiopental was not delivered to the inmate.2/
D. The District Court's Conditional Order Despite potential issues resulting from the perceived anomalies in past
executions, the district court concluded that Morales was not entitled to a stay of
execution. Instead, the court exercised its equitable powers to preserve both the
State's interest in proceeding with the execution of a twenty-five-year-old murder
judgment, while also preserving Morales' right to not be sUbjected to an undue risk
of extreme pain during the execution. To that end it denied an injunction
conditioned upon defendants' implementation of one of two modifications to the
state's protocol. ER 376. Specifically, defendants could either agree to execute
Morales by using only thiopental, or to have an anesthesiologist or similarly qualified person present to verify that Morales was unconscious before the
6. The court also noted that some inmates had been given a second dose of potassium chloride before death was pronounced which, the court suggested, raised additional concerns about the manner in which the state protocol is administered. ER 375-376. In each of those cases the inmate exhibited a fatal, but not flat line, EKG reading before given the additional potassium. The extra dose was simply intended to eliminate additional, unnecessary delay in pronouncing death. ER 175180, 509-512. In any event, use of a second dose of potassium has no relevance to the issue of whether the inmates were conscious.
10

pancuronium or potassium was delivered. ER 377-379. Defendants elected the second alternative and identified two licensed, board-certified anesthesiologists who will be present at the execution to monitor Morales in accordance with the requirements of the district court's order. ER 317-320. After reviewing the credentials ofthe experts in camera the district court found they were qualified and affirmed that defendants could proceed with the execution under the terms of the court's conditional order. ER 380-385. E. The Denial Of Injunctive Relief Pursuant To The Conditional Order
Was Not An Abuse Of Discretion Morales, who had insisted in his TRO application that he was "not
attempting to prevent the state from executing him," but was merely "requesting that the Court ensure that he is not executed in an unconstitutional manner," ER 28, complains that the district court "unilaterally devised itself without benefit of an evidentiary hearing" a modification to the state execution protocol, AOB at 3, and criticizes the court's "ever-evolving creation of a last-minute revision of the protocol in a desperate attempt to make sure Mr. Morales is executed on Defendant's schedule ...." AOB at 11. Not so. In fact, the district court took Morales at his word and conditioned the execution on the application ofprocedures recommended by his own expert.
In his motion for temporary restraining order (TRO) Morales objected to
11

the state lethal injection protocol because "it creates a significant and substantial risk that the inmate will experience a prolonged agonizing death." ER 12. He professes concern for the risk that he "will not be anesthetized" before he is injected with the second and third drugs in the execution sequence. ER 17. Because all of the experts agree that proper delivery of thiopental in the amount used by California will result in unconsciousness, and that an unconscious person cannot experience pain, the risk perceived by Morales is that a sufficient amount of the thiopental will not be delivered to insure unconsciousness throughout the execution. Morales made clear his position in the TRO application: "Michael Morales is not attempting to prevent the State from executing him. He is simply demanding the constitutional protection to which he is entitled, by requesting that this Court ensure that he is not executed in an unconstitutional manner." ER 28. In short, he asked the district court to ensure that he is rendered and remains unconscious throughout the execution.
Morales acknowledges in his brief that it is impossible to determine with certainty before the fact whether a particular inmate will suffer unnecessary pain. AOB at 39-40. During argument before the district court counsel for Morales complained that there was no provision for determining whether the inmate was conscious before proceeding from the thiopental to the other drugs. ER 480.
12

Analogizing to the procedures used by veterinarians counsel asserted there should be "somebody touching the body. We have to have somebody observing." Asked by the court whether that could be a prison guard counsel stated, "Somebody with some training ...." Then asked whether the person had to have medical training, counsel responded, "I don't know that it does, but, again, that's for the state to figure out." ER 482.
Following the argument, on February 13 the district court asked for defendants' views on whether it would be feasible to proceed with the execution either (1) using only thiopental or (2) by implementing some independent means insure that Morales was unconscious before receiving pancuronium or potassium. ER 269-270. Defendants responded by observing that an execution adopting the first option could take much longer. As to the second option, defendants offered to have the warden remain in the chamber and assess Morales' consciousness as the execution proceeded. ER 273-274.
In response Morales offered a declaration from his expert, Dr. Mark Heath, who opined that the "assessment of anesthetic depth" is "inherently a complex task that requires the real-time and continuous integration of multiple lines of evidence and information." Thus, in his opinion, someone with training as an anesthesiologist would be required to examine the prisoner during the
13

execution. Monitoring by a properly qualified individual "would meet the standards of care for general anesthesia, would meet the standard of care for veterinary euthanasia by potassium chloride administration, and could, ifproperly done, reasonably 'insure that [Morales] is in fact unconscious.'" ER 286-287. In short, according to Morales himself, the presence of such an expert would ensure a humane execution, which is precisely the relief he sought in the complaint and TRO application, and he later described as "exactly that which plaintiff alleges should be occurring at San Quentin." ER 280.
On February 14 the district court issued its order denying injunctive relief if defendants adopted one of the two alternatives suggested in the February 13 inquiry. The Court made clear, however, that the second option required a person "with formal training and experience in the field of general anesthesia," ER 378, again precisely tailoring the order to the demands ofDr. Heath. Defendants agreed to the follow the second approach and identified two licensed, board-certified anesthesiologists who will be present throughout the execution to monitor Morales. ER 317-320. In a supplemental filing defendants explicitly stated that one of the doctors would be in the chamber with Morales throughout the execution and would use "whatever equipment or other techniques he deems medically appropriate" to assess and monitor consciousness per the district court's order. ER 335.
14

In response to the court's conditional order, Morales did not question the court's authority to provide such relief, nor did he suggest that the presence of an anesthesiologist would be inadequate to assess consciousness. Rather, he expressed concern about the qualifications of the doctors and the degree of cooperation they would receive from defendants. ER 325-329. After reviewing those complaints and the assurance provided by defendants, the district court referenced the explicit requirements of its order, noting that it was "influenced to a very large extent by the opinions of Plaintiff s own medical expert, Dr. Mark Heath." The court then quoted from the February 14 declaration discussed above, stating that it had "intentionally fashioned its order so that the anesthesiologists would perform their duties precisely as contemplated by Dr. Heath." ER 383-384.
Despite Morales' ever-evolving dissatisfaction, it is clear that the district court did not abuse its discretion by conditionally denying injunctive relief. Morales certainly cannot be heard to complain that the court's order was based on erroneous findings of fact given that it was expressly based on a procedure proposed by Morales' own expert. As set forth in the complaint and other pleadings, Morales sought assurance that his constitutional right to be free of wanton and unnecessary infliction ofpain during his execution by lethal injection will not be violated. Because there is no doubt that he cannot and will not suffer
15

pam if unconscious, the remedy crafted by the district court though hardly necessary as a constitutional matter provides Morales with precisely the form of assurance he demanded. He is entitled to that much, but he is surely entitled to no more.
16

CONCLUSION For the reasons stated above the order denying injunctive reliefshould be affirmed and the motion for a stay should be denied. Dated: February 17,2006
Respectfully submitted,
BILL LOCKYER Attorney General of the State of California ROBERT R. ANDERSON Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General RONALD S. MATTHIAS
ri . . Supervising Deputy AttoIJ\ey General V(~ ~\ '~~~'/ h///V ( iC/\~j
DANE R. GILLETTE Senior Assistant Attorney General
Attorneys for Defendants and Appellees
17

06-99002 IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL ANGELO MORALES, Plaintiff and Appellant,
v. RODERICK Q. HICKMAN, Secretary; STEVEN ORNOSKI, Warden,
Defendants and Appellees.

CAPITAL CASE

STATEMENT OF RELATED CASES
To the best of our knowledge, there are no related cases.
Dated: February 17, 2006
Respectfully submitted,
BILL LOCKYER Attorney General of the State of California
fA \"J'iJ\' { /. ". L,'--/--'_~"1_/_"/1/l'-.J/ /"1'-\
DANE R. GILLETTE Senior Assistant Attorney General
Attorneys for Defendants and Appellees

IV

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 C.A. NO. 06-99002 UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL ANGELO MORALES,
Petitioner-Appellant, v. RODERICK Q. HICKMAN, Secretary of the California Department of Corrections; STEVEN ORNOSKI, Warden, San Quentin State Prison, San Quentin, CA; and DOES 1-50,

D.C. Nos. C 06 0219 (JF), C 06 0926 (JF)
DEATH PENALTY CASE
EXECUTION IMMINENT: Execution Date February 21, 2006

Respondents-Appellees.

APPELLANT’S REPLY BRIEF AND REPLY TO OPPOSITION TO MOTION FOR STAY OF EXECUTION

APPEAL FROM DENIAL OF PRELIMINARY INJUNCTION BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

David A. Senior McBreen & Senior 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 dsenior@mcbreensenior.com
John R. Grele Law Offices of John R. Grele 703 Market Street, Suite 550 San Francisco, CA 94103 Phone: (415) 348-9300 Fax: (415) 348-0364 jgrele@earthlink.net
Attorneys For Petitioner-Appellant Michael Angelo Morales

Richard P. Steinken Janice H. Lam Stephanie L. Reinhart Jenner & Block LLP One IBM Plaza Chicago, IL 60611-7603 Phone: (312) 923-2938 Fax: (312) 840-7338 rsteinken@jenner.com
Ginger D. Anders Jenner & Block LLP 601 Thirteenth Street, NW Suite 1200 South Washington DC 20005-3823 Phone: (202) 639-6000 Fax: (202) 639-6066 ganders@jenner.com

TABLE OF CONTENTS
I. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING MR. MORALES INJUNCTIVE RELIEF............................1
II. MR. MORALES’ EXECUTION SHOULD BE STAYED IN LIGHT OF THE COURT’S RECOGNITION THAT PROCEDURE NO. 770 IS FLAWED....................................................4
III. APPELLEES HAVE NOT SOLVED THE PROBLEMS WITH PROCEDURE NO. 770 WITH THE ADDITION OF A MONITOR..............................................................................................6
IV. THE DISTRICT COURT HAS IMPROPERLY INJECTED ITSELF INTO THE ADMINISTRATIVE PROCESS. .......................11
V. APPELLEES’ BRIEF REFERS TO NUMEROUS FACTS NOT OF RECORD AND HAS NUMEROUS FACTUAL MISTATEMENTS................................................................................12
VI. THE FACTUAL RECORD OF PROBLEMS WITH PROCEDURE NO. 770 IS OVERWHELMING..................................17
VII. A STAY OF EXECUTION IS REQUIRED…………………………….20 VIII. CONCLUSION .....................................................................................27
-ii-

TABLE OF AUTHORITIES
CASES Barefoot v. Estelle, 463 U.S. 880 (1983) .......................................................................................21 Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005).........................................2, 3, 4, 18, 23, 24 California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002) ...........5, 12, 22 Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004) ......................................................................2, 4 Department of Housing & Urban Development v Rucker, 535 U.S. 125 (2002) ............................1 Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir.1996) ........................................................................1 Fierro. v. Terhune, 147 F.3d 1158 (9th Cir. 1998)........................................................................23 G.C. and K.B. Investments, Inc. v. Wilson, 326 F.3d 1096 (9th Cir. 2003) .....................................1 Gomez v. U.S. District Ct. N. D. Cal., 503 U.S. 653 (1992).............................................2, 3, 4, 23 Harris v. Board of Supervisors, 366 F.3d 754 (9th Cir. 2004) ........................................................1 Malone v. Calderon, 167 F.3d 1221 (9th Cir. 1999) .....................................................................21 Martinez-Villareal v. Stewart, 118 F.3d 625 (9th Cir. 1997) ........................................................21 Nelson v. Campbell, 541 U.S. 637 (2004) ...................................................................................3, 4 Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974) ...........................12 In re Public Service Co. of New Hampshire, 963 F.2d 469 (1st Cir. 1992) ..................................25 Rucker. v. Davis, 237 F.2d 1113 (9th Cir. 2001), rev'd on other grounds.......................................1 Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750 (9th Cir.1982) ......................1 Stone v. City and County of San Francisco, 968 F.2d 850 (9th Cir. 1992) ...................................12 Taylor v. Crawford, No. 06-1397 (8th Cir.) ............................................................................23, 25 United States v. Farrar, 414 F.2d 936 (5th Cir. 1969) ....................................................................1
iii

Wilson v. Watt, 703 F.2d 395 (9th Cir. 1983) ..................................................................................1 Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003) ..........................................................................25
STATUTES Fed.R.App.P. 32(a)(7)....................................................................................................................28 U.S. Const. Article III ................................................................................................................25 Cal. Pen. Code sec. 3604 ...............................................................................................................23 Cal. Pen. Code section 3605(a) ..............................................................................16, 17, 18, 19, 20 Title 15 Cal. Code Regs. Sec 3349(a) ............................................................................................23
iv

ARGUMENT I. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING
MR. MORALES INJUNCTIVE RELIEF. This Court reviews the denial of a preliminary injunction for abuse of discretion. Harris v. Board of Supervisors, 366 F.3d 754, 760 (9th Cir. 2004); G.C. and K.B. Invs., Inc. v. Wilson, 326 F.3d 1096, 1107 (9th Cir. 2003). A district court “necessarily abuses its discretion when it bases its decision on an erroneous legal standard or on clearly erroneous findings of fact.” Rucker. v. Davis, 237 F.2d 1113, 1118 (9th Cir. 2001)(en banc), rev’d on other grounds, Dep’t of Hous. & Urban Dev. v Rucker, 535 U.S. 125 (2002). A district court also errs if, in applying the appropriate legal standards, the court misapprehends the law with respect to the underlying issues in litigation. Wilson v. Watt, 703 F.2d 395, 398 (9th Cir. 1983); Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 752 (9th Cir.1982). If the district court has relied on an erroneous legal premise in decid ing to deny a preliminary injunction, this Court must review the underlying issue of law on a de novo basis. Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.1996). See also United States v. Farrar, 414 F.2d 936, 938 (5th Cir. 1969)(reverse denial of injunction because “we are concerned with the lower court's characterization of the evidence, and conclusions drawn from the evidence, which we find to be clearly erroneous.”)
1

In the present case, the District Court recognized that no court around the country to date has found lethal injection to be unconstitutional, but observed that “[a]t the same time, it should be noted that the record now before this Court, which includes both additional expert declarations and detailed logs from multiple executions in California, contains evidence of a kind that was not presented in these earlier cases.” ER at 308. After considering this more comprehensive body of evidence, the Court conceded that eyewitness statements that many inmates continue to breathe long after breathing should have ceased “cannot simply be disregarded on its face,” that notations in execution logs indicating that the breathing did not cease as expected in at least six out of thirteen executions “raises at least some doubt as to whether the protocol actually is functioning as intended,” and that evidence of other “anomalies” in the record “raises additional concerns as to the manner in which the drugs used in the lethal-injection protocol are administered.” ER at 311. On that basis, the District Court concluded “that Plaintiff has raised more substantial questions than his counterparts in Cooper and Beardslee.” ER at 312.
Having recognized this growing body of evidence, particularly from California, that the lethal injection protocol creates a significant risk that inmates will be subjected to a painful execution in violation of the Eighth Amendment, the District Court refused to grant a preliminary injunction relying exclusively on the State’s “strong interest in proceeding with its judgment,” under Gomez v. U.S. Dist.
2

Ct. N. D. Cal., 503 US. 653, 654 (1992). Such reliance however is badly misplaced in the circumstances of this case. In Gomez, the Supreme Court noted that petitioner’s claim for relief followed four prior federal habeas petitions, that the claim could have been brought more than a decade earlier, and that petitioner was guilty of abusive delay, “which has been compounded by last minute attempts to manipulate the judicial process.” 503 U. S. at 654. Thus, central to the Supreme Court’s holding was the “last minute nature of an application” and the “obvious attempt at manipulation.” Id. The District Court here acknowledged that Mr. Morales’ request for equitable relief bears no evidence of manipulation or delay.
The Court noted that in pursuing this action, Mr. Morales was even more diligent than plaintiff had been in Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005). The Court noted that Mr. Morales filed his challenge to the lethal-injection protocol shortly before the Ventura Superior Court scheduled his execution date, and 39 days before the execution date that the trial court ultimately set. The District Court concluded that “[b]ecause in light of Beardslee, Plaintiff is not guilty of undue delay in bringing his claim, there is no presumption against the grant of a stay due to delay, much less the “strong equitable presumption” identified by the Supreme Court in Nelson, 541 U.S. at 650.” ER at 306. The Court acknowledged the salutary effect of Mr. Morales’ diligence, which “made it possible for this Court to proceed in a somewhat more orderly fashion than otherwise would have been possible,” as a result of which “the record in the present action is substantially
3

more developed than the record” in Cooper v. Rimmer, 379 F.3d 1029 (9th Cir.
2004) or Beardslee. ER at 306.
Thus, the District Court misapplied the law with respect to the underlying
issues in the litigation when it denied injunctive relief based upon the Supreme
Court’s presumption in Gomez and Nelson v. Campbell, 541 U.S. 637 (2004)
against grant of a stay where an inmate has unnecessarily delayed in seeking relief.
Accordingly, this Court should take a de novo look at this case and grant the
requested relief.
II. MR. MORALES’ EXECUTION SHOULD BE STAYED IN LIGHT OF THE COURT’S RECOGNITION THAT PROCEDURE NO. 770 IS FLAWED.
The Court summarized the motivation behind its refusal to grant the
injunctive relief mandated by the evidentiary record and its insistence on trying to
craft a quick-fix to Procedure No. 770 to allow the execution to go forward:
Even if the Court were to hold an evidentiary hearing and Plaintiff were to prevail, Plaintiff would remain under a sentence of death. Neither the death penalty nor lethal injection as a means of execution would be abolished. At best, Plaintiff would be entitled to injunctive relief requiring the State to modify its lethal-injection protocol to correct the flaws Plaintiff has alleged. Presumably, at some point, Plaintiff would be executed. ER at 312. This notion that the inevitability of Mr. Morales’ execution permits the
District Court to provide less protection to Mr. Morales’ constitutional rights than
might be provided to condemned inmates in the future if Defendants take up the
Court’s suggestion that after the Morales execution, they proactively “conduct a
thorough review of the lethal-injection protocol,” cannot be squared with
4

constitutional jurisprudence. A likely constitutional violation having been found by the District Court’s review of the limited evidentiary record, injunctive relief should have been entered.
Appellee CDCR does not dispute either that non-medical personnel are administering the process, or that the delivery system does not meet any proper medical standard for administration of drugs. They merely say Mr. Morales can’t prove it matters. But, now, it has been proven, at least as much as possible given that he must rely on prison logs, which, as this Court noted, have inherent difficulties. California First Amendment Coalition v. Woodford, 299 F.3d at 884 (“As Warden Calderon's memo demonstrates, a prison official's perception of the execution process may be vastly different--and markedly less critical--than that of the public.”). This is not to mention the actual difficulties presented by apparent alterations in numerous entries, incomplete notations and a lack of attention to details. As discussed infra and in the briefing and exhibits, the evidence is compelling and requires discovery and a hearing.
What the District Court and Appellees have done instead is to devise a process that may or may not inform the debate at the next lethal injection challenge, sometime in the distant future. At that point, the monitors will be able to come forward with their records, undoubtedly kept under seal, and offer to the Court a description of what they observed. At that point, there may be a more complete evidentiary record of what is actually going on with the execution
5

process under the protocol, although that may depend on how much the monitors are required to reveal. And, even then, they may have employed procedures that do not meet accepted standards.
This may assist the courts who are facing challenges and having to confront disturbing evidence, but it does nothing for Michael Morales. It is Mr. Morales’ rights that are at stake, not the ability of the District Court to develop a better record for future cases, or the State’s ability to fend off future challenges. Mr. Morales has no quarrel with the District Court’s ability to fashion a remedy, he merely wants a real one.
III. APPELLEES HAVE NOT SOLVED THE PROBLEMS WITH PROCEDURE NO. 770 WITH THE ADDITION OF A MONITOR.
In Appellees’ Brief, they emphasize a point made by the District Court in its Final Order, namely that the modification of Procedure No. 770 that the Court has tried to engraft onto the protocol was an attempt to incorporate and be responsive to suggestions and observations made by Plaintiff’s expert anesthesiologist, Dr. Heath. See ER at 339-40; Appellee Br. at 8, 11, 13,14, 15. However, Appellees, like the District Court, overreach in the extreme when they contend that Plaintiff’s expert somehow had a hand in their stopgap approach to modifying the protocol or that Dr. Heath would endorse the modification as a solution to the myriad of problems that have been identified in the protocol. Dr. Heath did indeed suggest that, along with many other possible changes, adding an anesthesiologist in the
6

abstract would be an improvement to Procedure No. 770. However, at no time did Dr. Heath presume to prescribe how the State should implement and incorporate such an addition of skilled personnel to the overall procedure for conducting an execution by lethal injection. Presumably, outside of a correctional setting, a comparable change to a sophisticated medical procedure would be adopted only after careful and comprehensive study and research. Defendants offer no explanation why a far more casual approach is appropriate when devising the procedure to be used to end a man’s life. In any event, the claim that Dr. Heath somehow bears responsibility for the still-defective procedure Appellees intend to use in the Morales execution is disingenuous.
Likewise, Mr. Morales never stated that having someone merely monitoring the execution would “ensure a humane execution”, nor is that the assurance he seeks. Appellee Br., at 14, 16. Any review of the citiation offered (ER 280) would demonstrate this to be incorrect. The representation was that the District Court’s inquiry was what San Quentin should be engaged in so as to develop a constitutional protocol. The assertion that Dr. Heath would be satisfied with mere monitoring, and nothing more, is simply incorrect. Even the District Court would not go that far. This, again, shows that CDCR believes only monitoring is needed. Finally, the Court should not be fooled by the statement that CDCR said the monitors would “assess” and monitor. Appellee Br., at 14. They said no such thing. ER 335. Nor should this Court assume that CDCR presented anything to
7

the District Court by way of “assurances” that the monitoring would include the ability to insure sedation. Appellee Br., at 15. No such offers were made there, and none are made here.
Moreover, the contention that there has been any appreciable change in the lethal injection protocol is difficult to support when the CDCR’s Chief Counsel stated in his declaration to the Court that “[o]ther than the monitoring of Mr. Morales by the doctor who will be present in the execution chamber, the process by which San Quentin carries out an execution has not been changed from that set forth in Operations Procedure No. 770.” ER 339. Thus, while the District Court contends that meaningful changes have been made to the protocol, the State obviously feels otherwise and the mere presence of the monitor changes nothing in the process of how an inmate is put to death. The monitor will not be available to participate in or direct changes in the setting up of IV lines, the labeling of syringes or the pre-testing of the process. There is no indication of what the monitoring will entail, of what medical monitoring equipment, if any, will be available or used, or of how intraoperative consciousness will be assessed. The monitor is not part of the process in determining what chemicals are administered, will have no ability to notify the execution team of problems in the drug administration, and will have no authority to stop a botched execution. Without these capabilities, all the monitor can do is watch, with no power to act on, or cause the injection team to act on, his awareness that Mr. Morales is in fact conscious and in pain.
8

Because the District Court failed to put any enforcement or oversight
mechanism in its ruling, Appellees are going to merely station a monitor in the
execution chamber, but provide that monitor with absolutely no authority or
opportunity to intercede. The record on that is undisputed. ER 327, 335 (besides addition of monitor, Procedure 770 remains fully in effect).1 And Appellees have not disputed that conclusion in Court, through their Chief Counsel or publicly.2
Any conclusions or presumptions to the contrary are clearly erroneous.
Unfortunately, the “fix” came so late in the day that Mr. Morales could not get a hearing on it to properly contest and vet it. The only means Mr. Morales now has
available to test the approach is to have his execution go forward, with Mr.
Morales as the test subject.
The District Court did not even make any findings of fact when his quick fix
was challenged, instead, the Court merely “presumed” Appellees were going to do
something (unspecified) that would somehow comport with indiscernible “medical
evidence” presented by two conflicting experts, neither of whom testified and
neither of whom was trying to design and implement a new protocol for carrying
1 The Sovin Declaration is rank hearsay, probably third-hand. It was offered at the last minute and, except for the admission that Procedure 770 will be used, the statements contained therein are so equivocal as to be meaningless. Noticeably, the Warden did not offer a declaration, nor did the doctors, as to what was going to be done. 2 The District Court opinion states that this was “one CDCR official.” ER 384. In fact, it was the official spokesperson for the entire department. See http://www.corr.ca.gov/AboutCDCR/offices.html.
9

out executions.. ER 340. Instead of subjecting Appellees’ representations to the Court to exacting scrutiny, the Court merely “construed” their statement that they were going to monitor according to Procedure No. 770 as a statement that Appellees were going to insure unconsciousness, without recognizing the Procedure No. 770 that Appellees insist remains in place actually prevents anything except monitoring. ER 339 n. 3. The statement that the Sovin declaration does not contradict the District Court’s order (ER 341) can only be true if that order is construed to mean solely monitoring, and nothing more. Otherwise, it is patently erroneous. And, the District Court did this without recognizing its previous orders did not in fact require that Appellees actually ensure unconsciousness.3 To the extent that any of these are findings of fact (as opposed to mere observations), they are clearly erroneous.
Another supposition without any evidence to support it, and therefore clearly erroneous, is that the monitors themselves will ensure unconsciousness. ER 340. Not one shred of information has been provided to the any court, or to Mr. Morales, that this is true. Noticeably, the District Court follows this with the holding that the monitors are to abide by professional standards for “examination and documentation” (not administration of drugs), and that there is nothing in the Sovin Declaration to contradict this. ER 341. That is exactly correct. Sovin only states they will monitor, nothing more. 3 Even then, the District Court never actually ordered it in its Final Order.
10

As for what equipment is going to be used, the District Court merely notes the monitors “may” use and “would be expected” to use whatever a certified anesthesiologist would. ER 339. As with its other statements, the court below never actually ordered that this occur. That equipment is extensive. ER 285. (“physicians should rely on “multiple modalities, including clinical techniques [e.g., checking for clinical signs such as purposeful or reflex movement] and conventional monitoring systems [e.g., electrocardiograms, blood pressure monitors, heart-rate monitors, end-tidal anesthetic analyzers and capnographs].”) IV. THE DISTRICT COURT HAS IMPROPERLY INJECTED ITSELF
INTO THE ADMINISTRATIVE PROCESS. The failure to truly incorporate the monitor into the lethal injection process to enable him to provide useful service was a natural outgrowth of District Court’s attempt to change flawed State regulations on the fly without the benefit of a deliberative process solely to allow the State to proceed with this execution. Although the District Court correctly observed that “under the doctrines of comity and separation of powers, the particulars of California’s lethal-injection protocol are and should remain the province of the State’s executive branch,” the Court ignored that principle in injecting itself into the process here. ER at 313. This Court has previously recognized that the courts should not attempt to micromanage the work of government agencies. In general, federal courts take a "hands-off attitude towards problems of prison administration" because they "are complex and intractable
11

and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). California First Amendment Coalition v. Woodford, 299 F.3d 868, 877-78 (9th Cir. 2002). The wisdom of that approach is apparent by the problems created by the Court’s protocol revisions here. Having recognized a serious problem with the protocol, the District Court should have granted the stay and left it to Defendants to devise an appropriate remedy. See Stone v. City and County of San Francisco, 968 F.2d 850, 861 (9th Cir. 1992). The Court’s current approach is a last-minute quick-fix that is hastily drawn, undefined and untested in either the administrative or adversarial process. It is merely an ill-considered effort to go forward at all costs. V. APPELLEES’ BRIEF REFERS TO NUMEROUS FACTS NOT OF RECORD AND HAS NUMEROUS FACTUAL MISTATEMENTS Appellees’ Brief includes numerous incorrect and unsupported statements of fact that need to be corrected for this Court to fully understand the factual issues in this appeal. In their Brief, Appellees contend that under California’s lethal injection protocol, Procedure No. 770, the execution team has a backup syringe of sodium thiopental, but fail to cite to the protocol for support. Appl. Br. at 6. However, the protocol is clear that no such backup syringe is available to the execution team.
12

ER 66-67 (describing one 35-cc syringe of 5 grams of sodium Pentothal (thiopental), backups of only the second and third drugs).4 It is that one syringe
that is injected initially. ER 69. Procedure No. 770 specifies that from the initial
inventory of drugs gathered prior to mixing, the sodium thiopental must be mixed
with dilutent in order to be used. ER 85-86. Although the protocol identifies
under “chemicals needed” (ER 55) a five gram vial of the powdered form of
sodium thiopental, plus a back-up, unopened vial, that backup is never opened or
even in the execution chamber or anteroom. Indeed, Procedure No. 770 makes
clear that the “equipment and materials” needed for execution includes only the
single mixture of five grams of sodium Pentothal. ER 56. CDCR counsel
admitted as much in his proffer, with only four 1.25 grams of the drug being administered, and no mention of any backup syringe. ER 502-504.5
Appellees state that a saline solution must be injected between injection of
the first and second, and second and third chemicals. Appl. Br. at 7. Indeed,
Procedure 770 recognizes the critical importance of such a saline “flush” because
of the potential for the sodium thiopental to mix with the pancuronium and clog the
4 The second drug is designed to paralyze. The third is designed to kill the inmate by stopping the heart. Both will result in excruciating pain: the first by suffocation, the second by burning the veins. 5 For some reason, CDCR’s very detailed and fact-specific written proffer, containing many additional facts, most of which do not appear in the protocol and are contested by plaintiff, did not make its way into the District Court record even though it was offered. It only further demonstrated why a hearing was necessary. The fact that now 4 syringes are being used instead of one only increases the chances or failure.
13

passage for the second drug as they pass through the fifty plus feet of jury-rigged line. ER 70. If there is no flush, or if drugs adhere to one another, the result would likely be a partially-sedated inmate who then gets hit with a massive dose of pancuronium, or a partially sedated inmate who gets only a partial dose of pancuronium, then a dose of potassium chloride. Either scenario is extremely problematic and both may account for the previous botched executions that have occurred in California. Thus, while the saline flush is an important part of the protocol, the actual logs of the previous executions contain notations that sometimes but not always, indicate that such a saline flush took place. Had the District Court conducted the requested hearing, fact-finding into how and why the logs are so inconsistent on this critical point would have been conducted.
Appellees’ Brief also exhibits some confusion about how the syringes are “marked.” Appellees would have this Court believe the syringes are marked according to the type of chemical present. Appl. Br. at 6-7. In fact, the syringes are marked only by number. ER 66. This is one of the major flaws in the protocol, one that Dr. Dershwitz has recognized elsewhere. The requested hearing would have established these facts in detail, and explored any difficulties that have arisen from them.
Appellees make other factual assertions in their brief that are not supported by the record. For instance, they repeat their assertion, also made before the District Court, that Procedure No. 770 is “indistinguishable” from those of other
14

states. Plaintiffs contest that position, but have been denied a hearing to establish
that fact. As the District Court noted, only in California is there a record of executions available that was presented as evidence to support a hearing and trial.6
Appellees’ also assert that “there is no evidence that once an inmate is
unconscious, the delivery of the second or third drugs will offset the effects” of the
sedative. Appl. Br. at 8. Appellees cleverly place this sentence after noting that
the five gram dose, “if properly delivered” would render Mr. Morales unconscious.
However evidence exists that the second and third chemicals would cause Mr. Morales to re-awaken if he is partially sedated, a fact recognized by the District
Court. ER 14. It is another issue that required a hearing because Mr. Morales has
presented overwhelming evidence that proper sedation is not occurring in
California.
Appellees are simply incorrect concerning Dr. Dershwitz’s attempt to
dismiss the undeniable evidence that many inmates are still breathing well after the
supposed administration of the sedative. Appl. Br. at 8. As counsel for Mr.
Morales pointed out below, Dr. Dershwitz was “working backwards” by assuming
proper administration, then stating that it could not be breathing that was being
6 That record is truncated as a result of limited discovery. The District Court limited it to the last three executions. The problem is that none of the previous cases obtained any discovery either. The Anderson and Rich logs, recently disclosed, are new evidence even though they predated the Bearsdlee execution. Full discovery and a hearing will determine what other evidence exists. For instance, the handwritten logs, so powerful for the Williams execution, have not been provided for a majority of the executions. Nor have the EKGs.
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observed. ER 480. Mr. Morales strongly contested the Dershwitz opinion as completely unscientific and offered to present such testimony at a hearing. ER 473. The fact of the matter is, as the District Court noted, trained doctors observed respirations in many executions well after sedation. ER 309 Dr. Dershwitz’s colorful “chest wall movements” theory, and the notion that such is not associated with breathing is untested. Likewise, his theory that this is not associated with consciousness is without any foundation and will, at a hearing, be shown to be completely incorrect.
The fact that Dr. Dershwitz was willing to offer such opinions reflects strongly and negatively on his credibility. His “magic number” of 99.99999% certainty of unconsciousness even if there is proper administration is now being examined in the field and may very well be incorrect. ER 236-38. Because there was no hearing or examination of Dershwitz, neither theory could be explored and his underlying data has never been turned over.
Ironically, Dr. Dershwitz relies on the “highly sensitive” monitoring equipment used in the operating room. ER 234, par. 10. These two devices are offered as ways in which a trained anesthesiologist can determine if breathing is occurring. Id. But, there is no indication whatsoever that those monitors will be present for Mr. Morales’ execution. Indeed, CDCR complained that it could
16

not provide such equipment, most likely because of the logistics of the chamber (it is the gas chamber modified to contain a gurney and is extremely small). ER 274.7 VI. THE FACTUAL RECORD OF PROBLEMS WITH PROCEDURE
NO. 770 IS OVERWHELMING. Because Appellees casually dismiss the past problems with executions in California as “anomalies,” some of the more salient features of the problematic executions need to be recalled: Babbit: While Manny was on the execution table, his eyes closed and he took a couple of deep breaths. About 3 or 4 minutes later, he had a sudden and extreme convulsion. It lasted a few seconds. It seemed as if he was going to break all the restraints when this happened.” ER 75 The Babbitt log notes these “spasmodic” movements were after the Pavulon and lasted less than 10 seconds. ER 109. He had “respirations” at least 3 minutes after administration of the sedative (it may be longer because the log is unclear). ER 109. His heart rate is inconsistent with adequate sedation. ER 100. And the logs and descriptions are consistent with him being conscious during the administration of Pavulon. Id.
7 Admittedly, it is not clear from this response whether CDCR was complaining that the equipment was not “easily obtainable” and could not be used by staff, or whether it was saying that it was unable to obtain equipment that staff could use. The problem may be that the California Penal Code prevents anyone other than CDCR employees and selected guests to be present at an execution. Cal. Pen. Code section 3605(a).
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Anderson: “A male technician came in to the room with a caddy full of syringes and needles. He tried for quite awhile to insert the needle into a vein in Mr. Anderson’s left arm. He was not able to find a vein and Mr. Anderson’s arm began to bleed. The technician became frustrated, removed his gloves, put them back on, and started over. During this time, Mr. Anderson looked over at his arm several times to see what was happening. Mr. Anderson attempted to help the technician find a vein by pumping his fist.” ER 110-111.
“Within a minute his eyes closed and his head rolled over slightly. Thereafter, his cheeks began puffing as if air were coming out of his mouth. Within moments after that, Mr. Anderson’s chest and stomach area began to heave upward. The convulsions continued with some irregular pauses in between. Altogether, Mr. Anderson’s chest and stomach heaved more than 30 times.” ER 111. Mr. Anderson was likely reacting to the suffocation induced by Pavulon; He was not properly sedated. ER 99.
The logs support this strong evidence of inadequate sedation. “The January 29, 2002 execution log of Stephen Wayne Anderson, recently produced by the defendants, reveals that Mr. Anderson continued breathing until 12:22, 5 minutes after the thiopental was administered. Again, this persistent respiratory activity is not consistent with the expected effect of 5 grams of thiopental, which would be to stop all visible respiratory activity within a minute of its delivery into the
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circulation. I am unable to provide any explanation for the recorded events other than a failure to deliver the complete dose.” ER 244-45.
Siripongs: Mr. Siripongs did not stop breathing for five minutes after the sedative started. The potassium chloride did not produce a flat line for eight full minutes, which should not occur with proper administration. ER107.
Bonin: “In the execution of William Bonin, it took the staff assigned anywhere between 18 and 27 minutes to fashion the IV lines (the records are unclear as to this point). This is an unusually long period of time for an experienced and properly trained professional.” ER 95.
His heart rate increased with administration of the Pavulon. ER 106. As a second dose was administered, likely because no backup sedative is available SR 99-100. Id. The entry as to when respirations ceased is altered, as is a notation about his pulse. Id. There appears to have been problems with the heart monitor and no rate is noted for the time of administration of the potassium chloride. Id.
The administration of redundant and inappropriate doses of pancuronium raises enormous concerns about the discipline, logic, medical judgment, and rigor that was applied to the conduct of this execution.” ER 99-100.
Beardslee: The execution log of Donald Beardslee’s execution indicates that the second IV line was inserted with “difficulty,” and the time entries indicate that it took 12 minutes to insert the second line. ER 95.
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Mr. Beardslee’s log is clearly altered. ER 105. Although heart rate was monitored (as shown by an EKG notation and an EKG was provided in discovery), no rates are noted in the log. Id. The box to indicate when respirations ceased is not filled in.
S. Williams: “[T]he injection team took 12 minutes to insert the IV lines. The first line was placed quickly but spurted blood, and the staff struggled for 11 minutes to insert the second line, having so much difficulty that Williams asked whether they were ‘doing that right.’ By 12:10 a.m., the medical tech’s lips were tight and white and sweat was pooling on her forehead as she probed Williams’ arm.” ER 95
Mr. Williams was breathing for a full 12 minutes after the sedative was administered. ER 244. “Thus, the thiopental did not have the effect on Mr. Williams’s brain and respiratory activity that would be expected with a high degree of certainty from the delivery into the circulation of the full 5-gram dose of thiopental.” Id. He was inadequately sedated. Id.
The execution log has been proven to have been deliberately altered to make it appear as if he was not breathing at the time the Pavulon was given. ER 245-46. There are other alterations as well, including the time of death. ER 179. Boxes are blank. Id. The log indicates a failure in one of the IV lines. ER 179. His heart rate increased dramatically upon administration of the Pavulon. ER 179.
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Allen: Mr. Allen required two doses of potassium chloride. ER 182. This was not noted in his log. ER 180. His heart rate increased as well. Id. These events would not occur with adequate sedation. ER 182-86.
Breathing did not cease for 9 minutes. Id. “Again, 5 grams of thiopental, if successfully delivered into the circulation, simply should not take 9 minutes to ablate cerebral electrical activity and respiratory activity.” ER 244.
Darrel Rich: Mr. Rich was breathing for 3 minutes after the sedative. ER 245. His chest movements are, like Babbit’s and Anderson’s, consistent with fighting off the effects of Pavulon. ER 245. “These chest movements, beginning after Mr. Rich had ostensibly stopped breathing (and while he was still alive, as shown by his heart rate of 110 beats per minute), and 3 minutes after the administration of the thiopental, are again inconsistent with successful administration of the thiopental. The chest movements are consistent, however, with an attempt to fight against the accruing paralytic effect of the pancuronium. Had the 5-gram dose of thiopental reached Mr. Rich and had the expected effect, he would not have been able to fight against the pancuronium by attempting to breathe, nor would he even have been aware of the effect of the pancuronium.” ER 145. He was inadequately sedated. VII. A STAY OF EXECUTION IS REQUIRED
CDCR does not separately address the requested stay of execution. However, should the Court feel there is sufficient reason for concern, both about
21

the constitutional violation shown and the remedy provided, the matter requires a stay. See Martinez-Villareal v. Stewart, 118 F.3d 625, 626 (9th Cir. 1997) (stay when argument warrants further review). The parties have attempted to give the Court a sense of what evidence was offered below in the two days since the Final Order. But, by necessity, this has been a much abbreviated proceeding. Given what has been shown, and what is at stake, the matter requires much more thought and consideration than has been allowed. See Malone v. Calderon, 167 F.3d 1221 (9th Cir. 1999). This is particularly true because of the District Court’s last-minute remedy and the substantial dispute over whether it does anything to rectify the problems Mr. Morales faces Monday night. Id.
Mr. Morales’ allegations and evidence, limited as it is by a lack of discovery and the denial of a hearing, must be accepted as true. When such “substantial grounds upon which relief might be granted” are presented, as they are here, a stay of execution is appropriate. Barefoot v. Estelle, 463 U. S. 880, 885 (1983). As the District Court noted, Mr. Morales is going to be executed in any event. ER 312. Of course, that favors a stay as the state’s judgment is not in jeopardy. In the balance of equities, it is an important factor. In fact, the length of time it took the District Court to act is a further indication of the substantive and real disputes that need to be resolved.
As was noted below, the District Court cannot fully adjudicate this case until adequate discovery, including questioning of the state’s doctors (or whomever is in
22

charge of and observing the process); an examination of the Dershwitz figures; an explanation as to why California’s executions appear not to be proceeding according to their own protocol; why they are not proceeding as they would if the sedative was being properly administered; why the inmates are manifesting behaviors inconsistent with that sedation; why second dosages of the paralytic agent and the potassium chloride are applied when, if properly administered, they are not necessary at all (leading to the strong inference that none of the chemicals are being administered properly); and, why the state has never medically vetted this procedure. Perhaps most compelling of all – whether the paralytic agent is a “chemical veil” merely masks what strong evidence now indicates is inadequate sedation.
As this Court has noted elsewhere, the review of such weighty matters often requires a hearing with live testimony and the opportunity to examine witnesses, particularly where facts are undisclosed and witnesses have offered only declarations. See California First Amendment Coalition v. Woodford, 299 F.3d 868, 879-80 (9th Cir. 2002) (noting the information obtained after remained for a hearing on 770’s viewing restrictions). Mr. Morales never got this chance. We do not know if the admittedly incomplete logs reflect mere “anomalies” as the District Court and CDCR call them, or actual evidence of a system gone awry because nonmedical personnel are administering it without sufficient training, and using a drug delivery system that Mr. Morales contests meets no medical standard
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Another factor is that there has been no delay here attributable to Mr. Morales. He arrives in this Court as quickly as he could given the state statutes and regulations that prevent him from acting sooner. That is why it is so perplexing and erroneous for the District Court to have relied on Gomez to deny the stay. ER 312. See Beardslee v. Woodford, 395 F.3d 1064, 1070 (9th Cir. 2005) (error to rely on Gomez). CDCR does not even assert delay here, but it is worth describing just how such challenges are litigated under such time pressures.
The State of California has accomplished the same extremely shortened time frame that in effect prevents an adequate inquiry as was present in Taylor v. Crawford, No. 06-1397 (8th Cir.). An inmate’s section 1983 challenge to execution method is not ripe until the inmate decides what the method of execution will be. See Beardslee, 395 F.3d at 1069 n. 16, citing LaGrand v. Stewart, 170 F.3d 1158, 1159 (9th Cir. 1999); Fierro. v. Terhune, 147 F.3d 1158, 1160 (9th Cir. 1998). California continues to have such a choice mechanism. Cal. Pen. Code sec. 3604. The state decides when the date-setting hearing will be and what execution date is requested. Cal. Pen. Code sec. 1193(a). This usually results in 10 days notice of the hearing, and a warrant mandating an execution date 30 days after that hearing. By regulation, however, the choice of method itself is not determined until the Warden reads the warrant to the inmate after the date-setting hearing and asks what method he chooses (gas or lethal injection). Title 15 Cal. Code Regs. Sec 3349(a) (when inmate silent for 10 days, method is lethal injection). At the most,
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this leaves an inmate with about 28 days to file and litigate. At the least, it is 18 days.
This shortened time frame is compounded by the state’s administrative review process. Although the state has never once represented that this process can afford any relief at all, whether it be a review of Procedure 770 or the actual suspension of it, the state still insists that inmates challenging lethal injection go through this process. As the Court noted in Beardslee, this creates enormous problems for the inmate because the administrative mechanism forbids a challenge to an “anticipated” violation. See Beardslee v. Woodford, 395 F.3d 1064, 1069 & n. 5 (9th Cir. 2005). Thus, an inmate cannot utilize this administrative process unless and until his execution is imminent, i.e. the state has actually notified him of the fact that a date will be set and what that date will be. This is exactly what happened to Mr. Beardslee as he attempted to exhaust before a date was set only to be told that he commenced the administrative process too early.8
This game of “legal gotcha” was played out in Mr. Morales’ case, as outlined in the Declaration of David Senior. ER 215-17. Mr. Morales could not count on the dispute over execution date-setting hearings, and he filed his complaint on January 13, 2006 to prevent a possible delay argument by the state.
8 There is substantial doubt whether this also means exhaustion is futile. Execution itself is not necessarily a condition of confinement, and is an “anticipated” violation up until the actual execution itself. And, the reviewing entity does not have any authority to alter or review Procedure 770.
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He turned out to be correct, as the state then went back to the trial court and convinced it to reconsider its ruling, and re-set the date-setting hearing so that the February 21, 2006 date would remain.
The administrative review process was commenced the very day that the notice for a date-setting hearing was filed (January 9, 2006) and it became plain that an execution date was going to be set. At the time, the February 21, 2006 was still the proposed date, although its viability was questionable. Even then, it took too long, and the complaint was filed on January 13, 2006 so as to avoid delay arguments by the state. The “Catch-22” orchestrated by the state in effect prevented the very exhaustion they demanded. They have not properly asserted the defense below, Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), and have admitted here that the filing of a new complaint and consolidation obviates any problems. Opp., at 5-6, 3.
It is simply the state’s own fault that Mr. Morales comes before this Court in the procedural posture he does, and requests a stay so as to litigate his Eighth and Fourteenth Amendment claim. This is exactly like the situation in Taylor and this Court is in exactly the same position, unable to achieve a reasoned inquiry based on a complete record. Considered appellate review is equally important. See In re Public Service Co. of New Hampshire, 963 F.2d 469, 471 (1st Cir. 1992) (“Jurisdictional concerns may arise from the constitutional limitations imposed on the exercise of Article III judicial power in circumstances where no effective
26

remedy can be provided, or from a loss of jurisdiction over the res or the parties, before or during the appeal, which renders the appellate court powerless to grant the requested relief.”) Here, this Court can only look at the evidence and argument in a few days.
For these reasons, and those articulated in the substantive briefing, a stay of execution should issue so the matter may be considered and resolved with either a grant of relief or a remand to the District Court for a hearing on the new execution modifications and whether or not they will actually protect Mr. Morales’ rights. VIII. CONCLUSION
Mr. Morales has produced substantial record evidence establishing that there is a significant risk that the CDCR will not properly administer sodium thiopental, and that as a result, Mr. Morales will not be rendered deeply unconscious for the duration of the execution. Appellees do not and cannot deny those problems. The District Court acknowledged this evidence and recognized the risks, but nonetheless chose to deny the injunctive relief necessary to safeguard Mr. Morales’ rights. This Court should do so.
MICHAEL ANGELO MORALES

Dated: February 18, 2006

By: ______________________ One of his attorneys

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David A. Senior McBreen & Senior 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 dsenior@mcbreensenior.com
John R. Grele Law Offices of John R. Grele 703 Market Street, Suite 550 San Francisco, CA 94103 Phone: (415) 348-9300 Fax: (415) 348-0364 jgrele@earthlink.net
Richard P. Steinken Janice H. Lam Stephanie L. Reinhart Jenner & Block LLP One IBM Plaza Chicago, IL 60611-7603 Phone: (312) 923-2938 Fax: (312) 840-7338 rsteinken@jenner.com
Ginger D. Anders Jenner & Block LLP 601 Thirteenth Street, NW Suite 1200 South Washington DC 20005-3823 Phone: (202) 639-6000 Fax: (202) 639-6066 ganders@jenner.com
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CERTIFICATE OF COMPLIANCE Pursuant to Fed.R.App.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I hereby certify that the attached reply brief is produced in a proportional font (Times New Roman) of 14 point type and utilizes double line spacing, except in footnotes and extended quotations which are single-spaced. I further certify that, according to the word count of the word processing system used to prepare the brief, the brief includes 6,579 words (exclusive of the table of contents, table of authorities, proof of service and this certificate.) Dated: February 18, 2006
________________________________ JOHN R. GRELE One of the Attorneys for PetitionerAppellant Michael Angelo Morales
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 C.A. NO. 06-99002 UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL ANGELO MORALES,
Petitioner-Appellant, v. RODERICK Q. HICKMAN, Secretary of the California Department of Corrections; STEVEN ORNOSKI, Warden, San Quentin State Prison, San Quentin, CA; and DOES 1-50,

D.C. Nos. C 06 0219 (JF), C 06 0926 (JF)
DEATH PENALTY CASE
EXECUTION IMMINENT: Execution Date February 21, 2006

Respondents-Appellees.

APPELLANT’S PETITION FOR REHEARING AND REQUEST FOR REHEARING EN BANC AND STAY OF EXECUTION

David A. Senior McBreen & Senior 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 dsenior@mcbreensenior.com
John R. Grele Law Offices of John R. Grele 703 Market Street, Suite 550 San Francisco, CA 94103 Phone: (415) 348-9300 Fax: (415) 348-0364 jgrele@earthlink.net
Attorneys For Petitioner-Appellant Michael Angelo Morales

Richard P. Steinken Janice H. Lam Stephanie L. Reinhart Jenner & Block LLP One IBM Plaza Chicago, IL 60611-7603 Phone: (312) 923-2938 Fax: (312) 840-7338 rsteinken@jenner.com
Ginger D. Anders Jenner & Block LLP 601 Thirteenth Street, NW Suite 1200 South Washington DC 20005-3823 Phone: (202) 639-6000 Fax: (202) 639-6066 ganders@jenner.com

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TABLE OF CONTENTS I. PETITION FOR REHEARING OR REHEARING EN BANC ............1 II. NATURE OF THE CASE ......................................................................4 III. ISSUES ...................................................................................................5 IV. ARGUMENT .........................................................................................6 V. CONCLUSION ....................................................................................17
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TABLE OF AUTHORITIES
CASES Abdur'Rahman v. Bredesen, ___ S.W.3d ___................................................................................11 Barefoot v. Estelle, 463 U.S. 880 (1983) .......................................................................................17 Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005).................................................................16 Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005).................................................................10 Bell v. Hood, 327 U.S. 678 (1946).................................................................................................15 California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002) .....................14 Crawford v. Taylor, 546 U.S. ___ (Feb. 1, 2006) ......................................................................9, 10 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)..........................................13 Farmer v. Brennan, 511 U.S. 825 (1994) ......................................................................................13 M2003-01767-SC-R11-CV, 2005 WL. 2615801 (Tenn. Oct. 17, 2005) ........................................11 Marbury v. Madison, 5 U.S. 137 (1803) ........................................................................................15 Martinez-Villareal v. Stewart, 118 F.3d 625 (9th Cir. 1997) ........................................................17 Nelson v. Campbell, 541 U.S. 637 (2004) .....................................................................................15 Pac. West Cable Co. v. City of Sacramento, 798 F.2d 353 (9th Cir. 1986)...................................16 Pac. West Cable Co. v. City of Sacramento, supra, 798 F.2d at 354 (abuse of discretion
for clearly erroneous findings of fact)................................................................................17 Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va. 2004) .................................................................11 State of California ex rel. Lockyer v. F.E.R.C., 329 F.3d 700 quoting Mathews v.
Eldridge, 424 U.S. 319 (1976) ...........................................................................................15 State v. Webb, 750 A.2d 448 (Conn. 2000) ...................................................................................11 Taylor v. Crawford, No. 06-1397 (8th Cir. 2006) ...........................................................................2
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U.S. v. Shaffer Equipment Co., 11 F.3d 450 (4th Dist. 1993)........................................................15 Zepeda v. I.N.S., 753 F.2d 719 (9th Cir. 1984)........................................................................11, 16
STATUTES 42 U.S.C. § 1983..............................................................................................................................1 18 U.S.C. sec. 3626(a) ...................................................................................................................16 18 U.S.C. sec. 3626(a)(1)...............................................................................................................15 Cal. Code Regs., tit. 15 sec. 3084.3(c)...........................................................................................10 Cal. Code Regs., tit. 15, sec 3349(a)..............................................................................................10 Cal. Code Regs. § 3380(c) & (d) ...................................................................................................14 Cal. Gov. Code § 11349 et seq ......................................................................................................14 Cal. Pen. Code sec. 3604 ...............................................................................................................10 Fed.R.App.P. 32(a)(7)....................................................................................................................20 Fed. R. Civ. P. 65 ...........................................................................................................................16 U.S. Const., Art. III ........................................................................................................................15
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PETITION FOR REHEARING OR REHEARING EN BANC
Petitioner-Appellant Michael Morales petitions this Honorable Court for rehearing or rehearing en banc based on the following facts:
Mr. Morales brought a timely challenge under 42 U.S.C. § 1983 to the State of California’s lethal injection procedure that was going to be employed to execute him. On February 18, 2006, a panel of this Court affirmed the denial of a preliminary injunction and the denial of a stay of execution by the District Court.
The proceeding now before this Court involves questions of exceptional importance because the District Court below and this Circuit are, apparently, the only courts to deny an evidentiary hearing to a timely, well-supported challenge to lethal injection procedures. They did this with last-minute changes that, essentially, created a new protocol.
None of these modifications have ever been vetted in any manner, they have never been tested in a court, reviewed medically, or considered administratively. They are based on two glaring, faulty premises: that Procedure 770’s flaws do not affect administration of the sedative so that the initial, medically inappropriate processes can remain unaltered; and that a doctor can quickly re-sedate an inmate once the pancuronium (or potassium) is injected into an inadequately sedated inmate, thereby protecting him at the end-stage.
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As noted in his Motion for Stay of Execution, by Dr. Heath, and by the District Court, there is a real danger of the appearance of sedation, even to a trained anesthesiologist, and the realization once the pancuronium hits (only by a highly trained eye) that the inmate is not properly sedated. ER 314. This is exactly why this drug is not used in animal euthanasia or in end-of-life decisions. It is what happened to Mr. Babbit, Mr. Anderson, Mr. Rich and possibly others who were breathing. When this occurs in hospitals, corrective action can easily be taken because it is not a lethal dose. But, here, re-sedation is likely to be useless unless vast changes are made in the protocol, particularly in its delivery system. The same is true for the potassium chloride stage. Mr. Morales has never had his day in court to demonstrate that these quick fixes will not, and cannot work. This is what happens when courts decide complicated medical issues without any input from counsel or medical experts because of a need to maintain an execution date.
The United States Court of Appeals for the Eighth Circuit, when confronted with a very similar set of circumstances, voted 9-1 en banc to stay a Missouri execution and to allow for further briefing by the parties and judicial consideration on the merits, after the district court had provided the parties with a very truncated lower court proceeding, but one at which at least some testimony was taken, and after the panel approved. ER 236 Taylor v. Crawford, No. 06-1397 (8th Cir. 2006).
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The situation here is even more compelling, as no court in the nation has ever been presented with the evidence that was before the District Court and the panel in this case. Even the limited record here provides disturbing evidence that the lethal injection procedure in California is not working properly. The evidence continues to grow, as more difficulties arise and more information about executions becomes known. We are now, finally, at the point where at the very least a hearing with discovery and witnesses needs to be held.
The evidentiary proceeding mandated by the facts never took place. And yet again, the Department of Corrections and Rehabilitation has escaped the glare of scrutiny into its procedures and avoided questioning about the constitutionality of its legal injection procedure. The panel’s attempt will fare no better because a court simply cannot fashion this type of remedy without even asking the parties if it will work, much less having it reviewed and considered according to the evidence.
Accordingly, Mr. Morales respectfully requests that this Court grant his petition for rehearing or request for rehearing en banc, to enter a stay of execution, and the matter be remanded for full discovery and a hearing on the merits of the complaint.
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NATURE OF THE CASE In 1983, Mr. Morales was convicted of first degree murder and sentenced to death. After his appeals were exhausted Mr. Morales exhausted his criminal appeals and unsuccessfully pursued a writ of habeas corpus, an execution date of February 21 was set. Because of state laws, Mr. Morales filed this action in the District Court only 39 days before his scheduled execution. After five rounds of briefing and two oral proceedings, the District Court, with only five days remaining before the execution date, held that Mr. Morales had established that there existed substantial questions about California’s lethal injection process, but announced there would be no evidentiary proceeding or discovery beyond the limited materials provided earlier because the State had agreed to have two anesthesiologists monitor Mr. Morales during the execution to determine consciousness. Mr. Morales was left with only a few hours to respond to the Court’s implementation of a procedure that heretofore had never been employed in the California protocol (or anywhere else, for that matter). Although Mr. Morales pointed out several problems with this late-in-the-day procedure that was devoid of any description of what the monitors were going to do or how, and highlighted admissions by the State that the monitors were going to merely observe the procedure, the District Court nonetheless refused to stay the execution to allow for
4

review of this new plan. When these flaws were noted to the panel, it adopted yet another procedure without any input from the parties as to whether it will correct known deficiencies.
ISSUES 1. Whether the District Court can refuse to stay an execution or hold an evidentiary proceeding despite its finding a substantial risk that Mr. Morales will not be properly sedated during his execution, and a finding that the State of California needs to address and repair its protocol, but without determining either a likelihood of success or balancing the harms to the respective parties from its inaction. 2. Whether the District Court, aided by a panel of this Court, can fashion a last-minute remedy in the face of this evidence, without any expert consideration or administrative or adversarial review, and without determining what the remedy will entail, how it will be implemented or whether it will be effective. 3. Whether a District Court and the panel can refuse to stay proceedings, thereby preventing review of the newly-implemented and vague remedy in the face of evidence that the remedy will not be effective to protect Mr. Morales’ rights to a humane execution.
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ARGUMENT DESPITE COMPELLING EVIDENCE THAT CALIFORNIA’S LETHAL INJECTION PROTOCOL CREATES A SUBSTANTIAL RISK THAT MR. MORALES WILL SUFFER PAIN DURING EXECUTION, THE DISTRICT
COURT REFUSED TO PROVIDE MEANINGFUL RELIEF. The District Court’s finding of a substantial risk that Mr. Morales would suffer unnecessary pain during his execution mandated that the Court stay the execution and conduct a judicial review through an evidentiary hearing into that process. Such a course of action was undeniable given the presentation of evidence establishing a grossly defective procedure, untrained personnel and numerous incidents of executed inmates not being adequately sedated. There is no doubt the evidence established a sufficient likelihood of success on the merits to warrant an injunction that would allow discovery and a hearing. After 33 days, and five rounds of requested briefing with two oral proceedings, and only five days prior to the scheduled execution, the District Court announced a plan concocted by itself alone, giving Mr. Morales a few hours to respond. Instead of a hearing as to the procedure in place, the Court created a new plan under which Appellees would have two anesthesiologists attend Mr. Morales’ execution to monitor his level of unconsciousness. Mr. Morales immediately requested a stay and a hearing to review this new plan because it was issued only days before the execution and said nothing about what these doctors were going to do or how. From all appearances, the new plan conflicted with Procedure No. 770,
6

but retained all of that procedure’s myriad flaws. This fact was confirmed only hours afterwards when Appellees made clear in their filing and in their official statements that the doctors would be present only to monitor Mr. Morales, and otherwise the process under Procedure No. 770 would remain unchanged. That process contains no mechanism for medical intervention, and there are no back-up sedatives available should the monitors observe inadequate sedation.
Four days prior to the execution, the District Court denied the stay request by interpreting Appellee’s position to be consistent with the Court’s intended plan, construing “monitor” to mean “insure adequate sedation” and presuming those monitors would be able to interceded in a medically appropriate manner. It did not order Appellees to make sure that the monitors had this capability and Appellees have never stated they would, even in this Court. Neither Appellees nor the District Court have explained how the new monitors will be incorporated into the new protocol, leaving a high level of uncertainty and an even greater opportunity for mistakes than before.
The panel here attempted to fix these problems by construing the orders still further to mean that the doctors could return Mr. Morales to a level of sedation and would have the supplies necessary. Op., at 13. Yet, no one has answered the point raised in the briefing seeking a stay of execution --- once the pancuronium hits Mr. Morales and inadequate sedation is realized, which the District Court recognized as
7

a real potentiality given at least 3 prior instances wherein this occurred, it is likely too late. If there had been any evidentiary proceedings on these last-minute fixes, Mr. Morales could have made this clear.
There are still further problems unaddressed by either court. There are a number of specific issues that the CDCR will need to address in planning to carry out Mr. Morales’s execution in accordance with the court’s order. Two new actors -- the anesthesiologists -- must be integrated into the execution procedure. The already-existing execution team, composed of untrained personnel, must have a means of interacting with the newly added doctors. For the first time ever, a member of the team will be present in the execution chamber -- which is sealed and locked -- with the inmate. A method of communication must be developed between this sealed and locked chamber and the anteroom from which the rest of the team injects the drugs. A method of stopping the execution should the doctor find that Mr. Morales is conscious must be developed and tested for effectiveness. These are only a few examples of the procedures that the CDCR must create.
Thus, to implement the court’s remedy the CDCR must come up with a new protocol that addresses issues never before confronted by the CDCR. All of these new issues must be described in the new protocol and step-by-step instructions developed. Even as deficient as Procedure No 770 is, it recognizes the need to give detailed instructions for preparing and injecting the drugs and for detailing the
8

roles that the untrained personnel will play. With literally hours before Mr. Morales’ execution, the State must now develop a procedure that implements the Courts’ remedies and defines the roles of all personnel. Neither the State, nor the Court, nor Mr. Morales know what that new protocol will look like and whether it will be adequate. But given that the State has already come up with one deficient protocol, Mr. Morales surely should be entitled to litigate whether the new protocol is adequate, but that opportunity has been denied because no one even knows what that protocol will be.
And why the panel or any other court would assume that Appellees would be able to devise a satisfactory protocol now, when they have failed to do so for the past four years, is never explained. Thus, in additiona to the fundamental misconception concerning re-sedation, having anesthesiologists participate in the execution may in the abstract ensure a humane execution. But, we don’t know because there is no protocol to examine. And, “medically appropriate” means fixing all the problems that have resulted in inadequate sedation, not just the few at the end stage. In fact, it is highly likely that the new protocol, developed at the last minute with only days before Mr. Morales’s execution, without time to consult with experts, will fail to ensure that the doctors’ participation will be meaningful.
In many ways, this case is even more egregious than Taylor. In that case, the State of Missouri prevented considered review of a very similar claim through
9

its execution-setting mechanism, forcing last-minute litigation, the same device it had used previously for several other litigants. See ER 306-07 n. 3; 458-60; ER 466-68 (description of Taylor case). Here, the State of California’s actions have the same effect. See Beardslee v. Woodford, 395 F.3d 1064, 1069 n. 16 (9th Cir. 2005)(ripeness at time of execution choice); Cal. Pen. Code sec. 3604 (state choice provision); Cal. Pen. Code sec. 1193(a) (state decides requested date for execution); Cal. Code Regs., tit. 15, sec 3349(a) (choice made only after date set, which is usually 30 days); Cal. Code Regs., tit. 15 sec. 3084.3(c) (late administrative review procedure). Undoubtedly, the Eighth Circuit was concerned with proceedings that do not allow for appropriate review of a claim that a lethal injection procedure presents a substantial risk of unnecessary pain. Its action was upheld 6-3 in the Supreme Court. Crawford v. Taylor, 546 U.S. ___ , No. 05A705 (Feb. 1, 2006).
In Taylor, however, the district court had at least given plaintiff an opportunity to call some witnesses. This included the cross-examination of Dr. Dershwitz, the transcript of which was not available until after the District Court’s final order. In Mr. Morales’ case, the Court permitted no examination of any witnesses, despite the requests of Mr. Morales to do so. Mr. Taylor received five days to present evidence while Mr. Morales’ attempt for 33 days to obtain a hearing on Procedure No. 770 was futile. Then, Mr. Morales was given less than a
10

day to digest, analyze and address the District Court’s new plan. Now, he as but a few hours to consider the panel’s further modifications.
As a result, California remains one of the few states for which there has never been any proper judicial review of its lethal injection protocol once a timely challenge is made. See Abdur’Rahman v. Bredesen, ___ S.W.3d ___, No. M200301767-SC-R11-CV, 2005 WL 2615801 (Tenn. Oct. 17, 2005); Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va. 2004); State v. Webb, 750 A.2d 448, 453-57 (Conn. 2000). Ironically (or, tragically), California is the only state that has a developed record of error, a point noted by the District Court. ER 308
The District Court and the panel ignore what Mr. Morales pled and contended, which neither can do. Zepeda v. I.N.S., 753 F.2d 719, 724 (9th Cir. 1984) (reversal if court applied an acceptable preliminary injunction standard in a manner that results in an abuse of discretion). Mr. Morales has always insisted that Procedure No. 770 was so rife with error in the selection and administration of the drugs, and has resulted in numerous inadequately sedated inmates during executions, that there is a substantial risk of an unnecessarily painful execution. ER 13-24. This risk was compounded by the lack of both verification and monitoring. ER 17. Attempts to address monitoring without changing the procedure would not present a medically appropriate solution. This would have
11

been plain had the District Court or the panel allowed more than a few hours of review.
One need only look at precisely what Dr. Heath presented this error. Dr. Heath conducted a painstaking medical review of Procedure No. 770 and found numerous deficiencies in nearly every aspect of the process that do not comport with standard medical procedures: drug preparation, labeling, equipment used, remote injection, the lengthy IV tubing, insertion of the catheter, leakage, excessive pressure, improper restraints, a jury-rigged line with a modified diaphragm, no standardized time frame for drug administration, no training or qualifications, and the use of a paralytic agent that was rejected for animal euthanasia and for end-of-life decisions in hospitals because of its risk of masking error in a painful and grotesque manner. ER 84-102; ER 186-88. Although inadequate monitoring of unconsciousness, the lack of backup sedative, and no procedures to stop the process if problems arise were certainly noted, those end points in the process were by no means the only difficulties.
Dr. Heath’s analysis was not a hypothetical or academic exercise, but was informed by numerous compelling instances of error in California that are undeniable at this point. ER 95, 99-100; ER 182-88; ER 242-45. This is supported by Dr. Heath’s review of over 200 toxicological reports of executions. ER 248-49. Appellees do not even contest most of them, and the counter offer they made to
12

explain post-sedation breathing was completely unscientific and was rejected by the District Court. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); ER 311. Thus, this list of inadequate medical procedures now includes inadequate record-keeping and lack explanations for numerous difficulties and deviations. ER 95, 99-100; ER 182-88; ER 245-46. And, it includes an absolute failure to review the procedures once those errors became apparent. ER 242. This is a deliberate indifference to the harm that itself requires relief. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In short, Mr. Morales and Dr. Heath have established that the medically appropriate manner of insuring sedation would require that the process in its entirety be reviewed and changed in numerous ways so as to comport with standard medical procedure.
Because the District Court waited until the eleventh hour to announce its “cure” for the protocol, and the panel grafted still further procedures onto the process, none of this could be explained or presented. Nor was Mr. Morales allowed to discover and develop further the instances of error so as to prove the substantial risk of unnecessary pain. Instead, the working assumption is that there is no problem, or the problem is so self-contained that mere provisions for lastminute sedation are sufficient. That assumption can no longer carry the day. At the very least, it requires a hearing and presentation of evidence.
13

More fundamentally, the notion that Dr. Heath offered a cure-all fix to the Court for the defective protocol is pure fancy, as neither Dr. Heath nor Mr. Morales has ever presumed to undertake to develop a new, humane protocol for the State of California. If it were true that the District Court or the panel were following Dr. Heath’s recommendations, and if it were true that meant a medically appropriate method of insuring sedation, then it would require a change in the IV process, the labeling of the syringes, the delivery of drugs, which drugs to use, and all the other medically-deficient features which result in inadequate sedation. Obviously, none of this is going to occur as the result of the District Court’s twoday review and the latest modification by the panel. And, it shouldn’t because that is the state’s province as the District Court itself noted and counsel for Mr. Morales agreed. ER 479; ER 482. This Court has explained exactly why that is. California First Amendment Coalition v. Woodford, 299 F.3d 868, 877-78 (9th Cir. 2002). The District Court and the panel should have stayed the execution, held the hearing, and requested the state review and revise its protocol to address any deficiencies through the normal administrative procedures already in place. See Cal. Gov. Code § 11349 et seq. (Administrative Procedure Act hearing and comment); 15 Cal. Code Regs. § 3380(c) & (d) (limiting written approval to Wardens, subject to approval by the Director); ER 30 (Procedure No. 770 section IV requiring Warden and Director approval). Once that was accomplished, then it
14

could be brought to the District Court and orderly review conducted. Indeed, this is exactly what the Prison Litigation Reform Act contemplates in its deference to state decision-making. See 18 U.S.C. sec. 3626(a)(1)(B) & (2); Nelson v. Campbell, 541 U.S. 637, 650 (2004).
Even if the District Court or panel could bypass these established state procedures, its hastily-devised plan was in error. Our system of justice is founded upon the adversarial testing of argument and evidence. U.S. v. Shaffer Equipment Co., 11 F.3d 450, 457 (4th Dist. 1993) (noting that our adversary system “depends on the adversarial presentation of evidence, precedent and custom, and argument to reasoned conclusions”). Neither a District Court nor a panel can reach out and fine tune state regulations without some adversarial process that allows considered input and review. To do so violates the Due Process rights of the litigants before it. See State of California ex rel. Lockyer v. F.E.R.C., 329 F.3d 700, 708 n.6, quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976). A few hours of review are simply not enough.
Courts are allowed to make decisions in a considered and timely manner, regardless of the swirling public debate. See ER 303-304 (court’s discussion of media perception of the case); U.S. Const., Art. III; See Bell v. Hood, 327 U.S. 678, 684 (1946); Marbury v. Madison, 5 U.S. 137, 163 (1803). There are numerous statutory and equitable provisions that maintain the status quo so as to
15

permit this. See Fed. R. Civ. P. 65 (injunctions and restraining orders); 18 U.S.C. sec. 3626(a) (PLRA). There are established standards that require the balancing of the likelihood of success with the resulting harm to the litigants if an injunction is either permitted or denied. Beardslee v. Woodford, 395 F.3d 1064, 1067-68 (9th Cir. 2005).
The District Court here declined all of these mechanisms, and seizing upon a selective reading of Mr. Morales’ papers, adopted a quick-fix so late in the day that no review or considered input was possible. See Pac. West Cable Co. v. City of Sacramento, 798 F.2d 353, 354 (9th Cir. 1986) (abuse of discretion in not applying correct law); Zepeda v. I.N.S., supra, 753 F.2d at 724 (misapplication of the law). Even then, Mr. Morales was able to demonstrate that the plan had gone awry less than an hour after it was announced as the official spokesperson for the entire Department announced there would only be monitoring (ER 327), a position echoed by its Chief Counsel in papers submitted to the District Court that Mr. Morales never was able to comment upon (ER 335). The District Court’s response was to construe it as permitting more, even though Procedure 770 does not allow it. See e.g. ER 56, 66, 502-504 (no back-up sedative).1 This was clearly
1 Although rendered moot by the panel’s modifications, the state’s brief is not evidence and it was untrue that any backup sedative is available. A review of the citation offered (ER 503-504) establishes this.
16

erroneous. Pac. West Cable Co. v. City of Sacramento, supra, 798 F.2d at 354 (abuse of discretion for clearly erroneous findings of fact).
The District Court and the panel never addressed the harm to Mr. Morales – which is obvious as he will likely die in a painful, excruciating manner but be unable to utter or register a complaint. The State of California has used advances in medicine not to make the process humane, but to chemically mask its failings. Now, his drug-induced silence will be joined by a doctor who, may in theory have the authority and ability to relieve his pain, but how is uncertain. What is clear, though, is that once the pancuronium hits, it is highly unlikely that anything will be able to save Mr. Morales from this awful fate.
Mr. Morales has made a sufficient showing so as to allow him his day in court. There are “substantial grounds upon which relief might be granted”, Barefoot v. Estelle, 463 U. S. 880, 885 (1983), and a necessity for review, Martinez-Villareal v. Stewart, 118 F.3d 625, 626 (9th Cir. 1997).
CONCLUSION For the foregoing reasons, rehearing or en banc review is required, and a stay of execution issued.
17

MICHAEL ANGELO MORALES

Dated: February 19, 2006
David A. Senior McBreen & Senior 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 dsenior@mcbreensenior.com
John R. Grele Law Offices of John R. Grele 703 Market Street, Suite 550 San Francisco, CA 94103 Phone: (415) 348-9300 Fax: (415) 348-0364 jgrele@earthlink.net
Richard P. Steinken Janice H. Lam Stephanie L. Reinhart Jenner & Block LLP One IBM Plaza Chicago, IL 60611-7603 Phone: (312) 923-2938 Fax: (312) 840-7338 rsteinken@jenner.com

By: John R Grele

18

Ginger D. Anders Jenner & Block LLP 601 Thirteenth Street, NW Suite 1200 South Washington DC 20005-3823 Phone: (202) 639-6000 Fax: (202) 639-6066 ganders@jenner.com
19

CERTIFICATE OF COMPLIANCE Pursuant to Fed.R.App.P. 32(a)(7)(C) and Ninth Circuit Rule 40-1(a), I hereby certify that the attached Petition for Rehearing and Request for Rehearing En Banc is produced in a proportional font (Times New Roman) of 14 point type and utilizes double line spacing, except in footnotes and extended quotations which are single-spaced. I further certify that, according to the word count of the word processing system used to prepare the brief, the brief includes 3,991 words in total. Dated: February 19, 2006
________________________________ JOHN R. GRELE One of the Attorneys for PetitionerAppellant Michael Angelo Morales
20

 
 C.A. NO. 06-99002 UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL ANGELO MORALES, Petitioner-Appellant,

D.C. Nos. C 06 0219 (JF), C 06 0926 (JF)
DEATH PENALTY CASE

v. RODERICK Q. HICKMAN, Secretary of the California Department of Corrections; STEVEN ORNOSKI, Warden, San Quentin State Prison, San Quentin, CA; and DOES 1-50,
Respondents-Appellees.

EXECUTION IMMINENT: Execution Date February 21, 2006

APPLICATION OF STAY OF EXECUTION

Emergency Motion Under Circuit Rule 27-3

David A. Senior McBreen & Senior 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 dsenior@mcbreensenior.com

Richard P. Steinken Janice H. Lam Stephanie L. Reinhart Jenner & Block LLP One IBM Plaza Chicago, IL 60611-7603 Phone: (312) 923-2938 Fax: (312) 840-7338 rsteinken@jenner.com

John R. Grele Law Offices of John R. Grele 703 Market Street, Suite 550 San Francisco, CA 94103 Phone: (415) 348-9300 Fax: (415) 348-0364 jgrele@earthlink.net

Ginger D. Anders Jenner & Block LLP 601 Thirteenth Street, NW Suite 1200 South Washington DC 20005-3823 Phone: (202) 639-6000 Fax: (202) 639-6066 ganders@jenner.com

Attorneys For Petitioner-Appellant Michael Angelo Morales

1

Plaintiff, Michael Morales hereby seeks a stay of execution to review the procedures for his execution now announced by the State of California, only one half-hour before he is to be executed. Those procedures do not comply with medical standards and do not comply with the previous orders of the court. A stay of execution is requested so as to allow for review of this Court=s denial of an order that Respondents comply with appropriate medical standards and the order of the Ninth Circuit. The District Court denied this request to allow for review therem and in this Court.
The district Court made more fact-finding about the process without any input from Mr. Morales. It determined, in an ex parte communication with respondent’s counsel and untested by plaintiff, that there would be a dedicated line for any emergency. This means that both lines must be working at all times, something that has not occurred in the past. There will be some sort of signal, rather than an oral communication, and the sedative will be readministered. But, what the Court fails to mention is that it must go through the same problematic 50 feet of line. Even if true, this does not meet the standard of practice for medical treatment of such an emergency and circumvents this Court’s order.
I have just been informed from the defense witnesses that the spokesperson for the Wardne stated the doctors needed further training. Respondent’s counsel denies this. The court declined a telelphone call to the Warden.
As outlined in the District Court papers, the procedures do not allow for medically appropriate administration of an anesthetic. First, there is no
2

communicating between the doctor and those administrating the drugs. Second, the doctor will not be able to administer a sedative if one is necessary. Instead, someone 50 feet away, with whom the doctor cannot communicate, will do it through the very same problematic line that likely caused the trouble in t eh first place. This is all to avoid the doctor from having to inject a lethal sedative into Mr. Morlaes. But, the doctor volunteered to do this. It is what is required if there is an emergency. It is what this Court required as well.
After the denial of certiorari in this matter, I presented to the District Court an order to seek compliance with the previous courts interpretations of the adjustments in the protocaol for execution. That was lodged with this Courte. This Motion was denied. In the process, the state revealed some of what it was going to do only minutes before the execution was to take place. .
Dr. Heath was made avaible to explain this to the court. The Court declined.
I have been informed that there will be no verbal communication between the doctor in the chamber and those on the injection team. I am informed by Dr. Heath that this does not meet the standard of care to ensure adequate sedation. The doctor must be made aware when each drug and saline flush is being administered so he can properly gauge consciousness. He will not be. Instead, they propose a series of hand or light signals.
I have been informed that an anesthesiologist with 5 grams of sodium thiopental will not be able to apply it in the existing line if there is
3

pancuronium in the line, and that a flush will be needed. Otherwise, the line will be blocked. Without any knowledge of whether the pancuronium is in the line, the extra sedative will not reach Mr. Morales. It must be administered very quickly and precisely to avoid the rapid onset of excruciating pain. The 50 foot line must be cleared. If the doctor is not able to do it, as is done every day in hospitals whenver there is such a medical emergency, then it will no be effective.
If the anesthesiologist in the chamber is not able to personally administer extra sedative, then it will not meet the standard of care to assure re-sedation.
San Quentin intends to have someone in another room, at least 50 feet away, administer the sedative upon direction by the anesthesiologist should there be any difficulty. This does not meet appropriate medical standards and the court order that the anesthesiologist administer whatever sedative is necessary to ensure unconsciousness if there are difficulties. It will suffer from the same problems that lead to whatever difficulty is apparent because the delivery system is too long and unreliable to get the sedative into Mr. Morales in time to avoid the massive dose of pancuronium.
The procedure is not designed to medically treat a lack of sedation in what will have to be a very quick and precise action to avoid excruciating pain. Instead, it is designed so that the doctor does not have to be the one to inject a lethal dose of sedative into a human being. The doctors should have thought of this before they volunteered for this task. They must, according to the orders here, act in a medically appropriate fashion. The lack of oral
4

communication (because San Quentin does not want to have to modify the chamber to allow for this) is far below the standard of care. And, the inability of the doctor to act as any anesthesiologist would in such an emergent setting is simply inadequate medically and contravenes this Court’s orders.
The court was very clear that it required re-sedation in a medically appropriate fashion. Simply because San Quentin is not presently set up to accommodate this, and because the doctors do not want to have to fulfill their duties is not sufficient reason to deviate from standard practices.
A stay of execution is required to ensure a humane execution. Someone has to be there, present to monitor and able to react quickly. This is simply not the process contemplated, and it is not one that is medically appropriate.

Dated: February 20, 2006

John Grele

5

6

 
 1 David A. Senior (# 108759) McBreen & Senior
2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067
3 Phone: (310) 552-5300 Fax: (310) 552-1205
4 dsenior@mcbreensenior.com

5 John R. Grele (# 167080) Law Offices of John R. Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP
10 One IBM Plaza Chicago, IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Ginger Anders (admitted pro hac vice) Jenner & Block LLP
14 601 13th St. NW Suite 1200S Washington, DC 20005
15 Phone: (202) 639-6000 Fax: (202) 639-6066
16 ganders@jenner.com

17 Attorneys For Plaintiff MICHAEL ANGELO MORALES

18

IN THE UNITED STATES DISTRICT COURT

19

FOR THE NORTHERN DISTRICT OF CALIFORNIA

20

SAN JOSE DIVISION

21 MICHAEL ANGELO MORALES,

22

Plaintiff,

23

24

v.

25 JAMES E. TILTON, Acting Secretary of the California Department of Corrections and
26 Rehabilitation; ROBERT L. AYERS, JR., Acting Warden, San Quentin State Prison, San
27 Quentin, CA; and DOES 1-50, Defendants.
28

Post-Trial Declaration of Dr. Mark Heath No. C 06 219 JF No. C 06 926 JF

) Case No. C 06 219 (JF)

)

C 06 926 (JF)

)

) POST-TRIAL DECLARATION OF

) DR. MARK HEATH

)

)

)

)

)

)

)

)

1

1

2

I, Mark Heath, M.D., under penalty of perjury, both depose and state as follows:

3

1. Counsel for Mr. Morales has asked me to address the issues raised by the Court's

4 Request for Briefing, dated October 3, 2006. I have reviewed the Court’s questions carefully and

5 thought about the issues raised in them.

6

2. The Court's questions to the parties highlight important issues that need to be

7 thoroughly considered by the CDCR and its experts. While I will attempt, so far as is consistent with

8 my personal ethical beliefs, to provide information that I feel is relevant to the Court's questions,

9 some of those questions touch on areas in which I am not aware of scientific or medical data on

10 which to rely, and therefore further study would be warranted. In my opinion, having listened to the

11 entirety of the hearing testimony and reviewing nearly all of the deposition testimony, determining

12 how best to remedy the deficiencies in the CDCR’s execution procedure is a task that demands in-

13 depth consideration by multiple experts -- much as the AVMA Guidelines on Euthanasia are the

14 result of the thorough efforts of a panel of veterinary experts.

15 I. The Execution Team

16

3. The Court has asked what improvements could be made in the CDCR’s screening of

17 potential execution team members, and what the experience of other states has been in this regard.1

18 As I testified at trial, it appears that to this point, the CDCR has performed no meaningful screening

19 of execution team members, and at least two former team leaders have medical conditions or

20 problematic histories that lead me to question the wisdom of placing them on the execution team.

21

4. This issue -- the failure to screen execution personnel -- has been a problem in other

22 states, and it has direct consequences on the safety of the execution process. The most salient

23 example of this is probably the recent revelations (published in July in the St. Louis Post-Dispatch) in

24

25 1 Although I will attempt to provide as much information as possible about other states’ practices in

26 this declaration, almost every case in which I am involved is subject to a protective order. These

orders vary in scope, and I can disclose information learned in these cases only if I am completely

27 certain that the protective order does not forbid it. The states in which protective orders govern and

limit my ability to comment include Virginia, Missouri, North Carolina, Maryland, and Oklahoma.

28

2

Post-Trial Declaration of Dr. Mark Heath

No. C 06 219 JF

No. C 06 926 JF

1 Missouri regarding the surgeon who designed and oversaw Missouri's execution procedure. That

2 doctor, designated in litigation as John Doe I, had lost privileges at two hospitals and had been

3 disciplined for failing to disclose his extensive malpractice history in his application for

4 credentialing. His problematic conduct during executions turned out to be similar to his conduct in

5 his professional life: He substantially reduced the dose of thiopental used in executions (from 5

6 grams to 2.5 grams in some executions, and perhaps lower in others) without ever informing the

7 Department of Corrections. When asked repeatedly why he had reduced the dose, the doctor gave

8 different answers at different times, ranging from "concerns in other states" that the 5-gram dose

9 might be too large, to difficulty getting the thiopental powder to dissolve, to dyslexia-related

10 confusion about the dose. Thus, not only was John Doe I’s conduct of executions inconsistent and

11 unreliable, but he was unable or unwilling to provide the court with a straightforward account of what

12 he had been doing. Judge Gaitan has now barred John Doe I from participating in executions in any

13 manner.

14

5. In this case, Witness #6 had trouble mixing the thiopental, was confused about the

15 mixing process, and apparently had been preparing less than the 5-gram dose. In both California and

16 Missouri, it is troubling that the departments of corrections fostered such a slack environment that the

17 people who made these errors were allowed to keep making the same errors, in execution after

18 execution. Both institutions have been willing to place on their execution teams people who are

19 willing to remain ignorant of how the procedure works, or who are willing to deviate from the

20 protocol in fundamental ways. The experiences with Witness #6 and John Doe I demonstrate that

21 another important component of screening execution team members is that people knowledgeable in

22 how the procedure should be performed should continuously evaluate the team members’

23 performance. The CDCR should be willing to remove people from the team for inadequate

24 performance or execution-related misconduct.

25

6. In Maryland, press investigation has recently revealed that the person responsible for

26 injecting the drugs during executions was fired from his police department for refusing to cooperate

27 with an internal investigation, and that he was charged with poisoning and killing several

28

3

Post-Trial Declaration of Dr. Mark Heath

No. C 06 219 JF

No. C 06 926 JF

1 neighborhood dogs. (An article about this conduct is attached as Ex. 18.) This type of conduct

2 should be considered extremely problematic in a candidate for the execution team: The sensitivity

3 and importance of the execution process demands personnel who understand the importance of

4 internal auditing and dialogue; and it should be self-evident that someone who poisons animals

5 should not be chosen to participate in executions.

6

7. Another member of Maryland’s execution team was suspended for spitting in

7 prisoners’ food prior to the food being delivered to their cells. It is very concerning that individuals

8 given the responsibility of mixing and delivering the anesthetic drugs have histories such as these. In

9 view of the apparent inability or unwillingness to reliably exclude problematic individuals from the

10 execution process it is particularly important that the CDCR does not obscure the process by using

11 pancuronium.

12

8. These experiences, as well as the problematic histories of Witnesses #1 and #5,

13 indicate the importance of effective screening. In addition, the example of John Doe I demonstrates

14 that medical professionals involved in executions should be subject to screening too, just as they

15 would be in a hospital. In order to admit patients and practice in hospitals physicians must undergo

16 scrutiny from a credentialing board and must renew their privileges on an annual basis. This process

17 is set in place to minimize the probability that problematic physicians are able to participate in health

18 care delivery. Before being hired by a hospital, all doctors are subject to rigorous background checks

19 that evaluate the fitness of the person for the tasks for which they will be responsible, as well as their

20 susceptibility to some of the common dangers of the job, such as drug abuse.

21

9. No comparable process has taken place at San Quentin; clearly, asking someone if

22 they would be willing to serve on the execution team, without more, does not come close to

23 constituting effective screening. It appears that the CDCR, unlike hospitals, has not carefully

24 considered the responsibilities of execution team members and the potential types of misconduct in

25 which team members could engage, and then designed a screening process in light of these issues.

26 That failure has negatively impacted the safety of the execution procedure.

27

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1

10. Ideally, screening should be performed by someone experienced in hiring health care

2 professionals, because the type of screening necessary appears to be similar. Like health care

3 professionals in many circumstances, the execution team has complete responsibility for the welfare

4 of the inmate on the night of the execution, and their misconduct or errors could have disastrous

5 consequences for the inmate. Like health care professionals, the team members have access to

6 addictive drugs, must be able to keep detailed records of those drugs, and must be willing and able to

7 learn the procedure.

8

11. The Court has also asked what training should be given to execution team members. I

9 believe that my testimony covers the primary, most appalling inadequacies in the training and

10 understanding of the current and former team members. Anyone who participates in executions

11 should understand and be trained in all aspects of the procedure. I would suggest looking to

12 veterinary standards to determine the minimum standard of training for non-medical personnel (such

13 as shelter technicians) who perform euthanasia. Of course, if the CDCR continues to use

14 pancuronium and potassium, it is necessary that an individual with extensive training in

15 anesthesiology monitor anesthetic depth regardless of the training level of the rest of the team.

16

12. Certain tasks within the execution process require medical training. In particular, I

17 testified at the hearing that the CDCR needs to institute a plan to obtain central venous access if the

18 team is unable to insert a peripheral IV. The experiences of other states buttress my opinion, as in

19 addition to the Stanley Williams execution, there are numerous examples of executions in which the

20 team was unable to obtain reliable venous access. Examples of executions that were most likely

21 inhumane as a result include the Ohio execution of Joseph Clark, and the Oklahoma execution of

22 Loyd LaFevers. (The testimony of a witness to the Clark execution, given in the Evans hearing in

23 Maryland, is attached as Ex. 1, and a newspaper article describing the execution is attached as Ex. 2.

24 My affidavit in Oklahoma discussing the LaFevers execution is attached as Ex. 3.) Therefore, the

25 CDCR needs to have a procedure for inserting a central line. Because only physicians or, in rare

26 cases, highly trained non-physician professionals, have the training and ability to safely and reliably

27 insert central lines, a doctor must be available and willing to insert central lines in executions if

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1 necessary. My views on this subject are supported by Dr. Dershwitz, excerpts of whose October 10,

2 2006 testimony on this subject in the Evans case is attached as Ex. 4. Other states, including

3 Georgia, Indiana, Missouri, Florida, Oklahoma, Arizona, Arkansas, and possibly others have resorted

4 to central lines or cut-down procedures as a result of difficulty obtaining peripheral IV access, and

5 have evidently identified physicians who are willing and able to undertake this task. I am confident

6 that Dr. Singler would also be capable of establishing venous access by alternative means if other

7 members of the execution team were unable to establish adequate peripheral IV access.

8

13. Finally, the issues of training and screening are interrelated. In reviewing the

9 deposition testimony of the execution team members, one of the things I found most shocking was

10 the attitude revealed by some team members, that nothing could go wrong, or that it was not

11 necessary to know anything about the procedure because it was not part of their daily work.

12 Additional training might mitigate this problem, but training alone cannot inculcate the belief that

13 this procedure is important and dangerous, and must be performed carefully. I would be surprised if

14 animal shelters would hire euthanasia technicians who exhibited a similar degree of glibness or

15 disregard for the process of euthanizing animals, because training may not change a person's

16 fundamental outlook on the procedure. Thus, it seems that a shift in the CDCR's culture surrounding

17 executions is necessary, and one element of that shift would be to select execution personnel who are

18 willing to treat the procedure, and their responsibilities within it, with the care that it demands. I do

19 not know how one can reliably screen personnel to determine whether they actually harbor the

20 humane intent and attitude that seems to be intrinsic to the psyche of veterinary caregivers.

21 II. Physical Aspects of the Execution Facility

22

14. The Court has asked the parties to discuss potential improvements to the physical

23 aspects of the execution facility. On this point, counsel for Mr. Morales has asked me to address a

24 few points regarding the execution facilities in other states.

25

15. As I testified at trial, there are numerous difficulties that are engendered by the

26 CDCR's use of the gas chamber to perform executions by lethal injection. The unnecessarily

27 cramped quarters make inserting reliable peripheral IVs much more difficult, and would render

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1 inserting a central line nearly impossible.2 Dr. Singler noted this problem when he first saw the

2 chamber, and so did I. The physical shape of the chamber and the angle of the gurney impede

3 observation of the inmate and the catheter site. Finally, the execution team's unthinking adherence to

4 practices used for lethal gas -- such as sealing the chamber door -- and its inability to solve problems

5 caused by the gas chamber -- such as the question of where to situate the IV bags, and how to observe

6 the inmate -- further increase the dangers of the procedure. Of course, medical procedures can be

7 performed under adverse circumstances when necessary, such as when a patient is being transported

8 in a helicopter, but those occasions are dictated by necessity. There is no such necessity here, and the

9 team members do not have the training and competence that would allow them to compensate

10 effectively for the adverse circumstances.

11

16. From a medical perspective, it is imperative that the facility in which a procedure is

12 performed be designed with the needs of the patient, procedure and medical professionals in mind.

13 The CDCR is attempting to perform a medical procedure, the induction of general anesthesia, in a

14 facility that is not remotely appropriate for that purpose. Nor has the CDCR even attempted to

15 meaningfully reconfigure or rebuild its execution facility for lethal injection, and as a result, it has

16 unthinkingly and needlessly compromised the safety of the procedure.

17

17. There are other states that, like California, once used gas as the sole method of

18 execution and now either provide inmates with a choice of gas or injection, or use lethal injection as

19 the sole method of execution. I have inspected the execution chambers of two of these states,

20 Missouri and Maryland, and both of them have built new execution chambers specifically for lethal

21 injection. Those facilities -- while far from ideal, since both employ remote injection -- do not suffer

22 from the irrational, needless flaws that plague California's gas chamber facility.

23

24

25

26 2 The awkwardness in setting IVs in the gas chamber may explain why the execution team has had

trouble setting the IVs in a relatively high proportion of the executions that have been performed in

27 California (difficulties have been documented in the executions of Anderson, Massey, Beardslee, and

Stanley Williams).

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1

18. I inspected Missouri's death chamber in May 2006, in conjunction with the Taylor v.

2 Crawford litigation. Photos of the Missouri execution chamber, taken from a video of the inspection

3 that was entered into evidence in the Taylor trial, are attached as Exhibits 5 through 9. The chamber

4 is rectangular in shape and contained perhaps four times the floor area of California's gas chamber.

5 Importantly, the chamber is large enough to allow execution team members the freedom of

6 movement that may be necessary to achieve IV access. There is sufficient space to place a central

7 line. The gurney could be repositioned if desired (indeed, Judge Gaitan has ordered the DOC to

8 consider doing so), and it would be possible to place the monitors associated with assessment of

9 anesthetic depth, as well as the equipment necessary to treat complications from central lines, inside

10 the execution chamber itself.

11

19. Missouri's equivalent of California's anteroom -- the "execution support room" -- is

12 also far larger than the anteroom. While I do not know the exact dimensions of the room, it was

13 capacious in comparison to California’s anteroom. It had cabinets for keeping equipment and

14 materials readily available. Ex. 7. It was separated from the execution chamber by an ordinary door

15 with a window in it. The photo attached as Exhibit 6 shows the door leading from the execution

16 support room into the execution chamber. Two windows in the support room were meant to allow

17 observation of the inmate. In front of these windows, the members of the execution team (two people

18 to inject the drugs, a nurse, and the surgeon in charge of the procedure, known as John Doe I) would

19 stand.

20

20. There was no evidence in the case that any officials (aside from prison officials who

21 had responsibilities to perform during the procedure) would stand in the support room during the

22 execution. This may have been because Missouri had designed the facility to include three entirely

23 separate witness rooms, one on each of three sides of the execution chamber. Each room was meant

24 for a different category of witnesses (state officials and the press; the inmate’s family; and the

25 victim’s family), so the state witnesses had a large, isolated area from which they could view the

26 procedure. In addition, it was represented to me that only the execution team members occupied the

27 space directly in front of the observation windows.

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1

21. I inspected Maryland's execution facility in June 2006, as part of the Evans v. Saar

2 litigation. Architectural schematic drawings used as exhibits in that case are attached as Exhibit 10.

3 As those drawings show, the execution chamber used for lethal injection is situated right next to (and

4 shares a wall with) the gas chamber. Again, Maryland, unlike the CDCR, has chosen to create a new

5 space more suited to lethal injection. The execution chamber is 11 feet by almost 17 feet,

6 substantially larger (again, perhaps three to four times the floor area) than the San Quentin gas

7 chamber. Again, this space provides execution team members with greater maneuvering space to set

8 the IVs, and it affords sufficient room to place a central line and situate the necessary equipment in

9 the execution chamber itself for any additional monitoring. As in Missouri, Maryland's execution

10 support room provides ample space for execution team members to perform their tasks. Nor was

11 there any testimony that the room is crowded with officials during executions.

12

22. Mississippi is another state that uses lethal gas as well as lethal injection. Although I

13 have not visited the Mississippi execution chamber, a photograph of the lethal injection chamber is

14 available on the Internet at http://mshistory.k12.ms.us/features/feature57/electric.htm. That photo

15 shows that Mississippi does not use its gas chamber for lethal injection, and the chamber appears to

16 be more spacious than California’s gas chamber. Similarly, publicly available photos of Arizona’s

17 lethal injection chamber and its gas chamber (http://www.azcorrections.gov/prisons/

18 florenceHist.htm#Chamber) establish that Arizona uses separate facilities for its lethal injection and

19 gas executions.

20

23. Another example of a state that has built a new lethal injection facility is Oklahoma,

21 which used to use electrocution as its method of execution. The lethal injection facility in Oklahoma

22 affords ample room and space for proper and safe establishment of intravenous access.

23

24. When I read the Plata report, I found it striking that the report discussed San Quentin’s

24 antiquated health care facilities, because my overriding impression of the gas chamber was exactly

25 that -- that it was an antiquated, outmoded facility that should be replaced. I understand that the

26 CDCR is building a new death row; based on news accounts, construction is underway or imminent.

27

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1 This seems like a good opportunity to build a new execution facility to alleviate some of the needless

2 problems that currently plague the procedure.

3 III. Recordkeeping and Drug Custody

4

25. The judge has asked what improvements can be made to the CDCR's recordkeeping in

5 the context of an execution. The execution team's contemporaneous recordkeeping should be

6 sufficient to allow the team and the CDCR and the public to discern, after the fact, whether the

7 protocol was followed and the drugs were properly prepared, and whether any unexpected events

8 occurred during the execution. I testified at trial about the recordkeeping and drug custody practices

9 used at Columbia University Medical Center, and the importance of recording precisely how much of

10 each drug is prepared, used, and disposed of. Precise and reliable recordkeeping is part of an

11 environment and culture of adherence, carefulness, and accuracy, and as such is conducive to correct

12 and reliable accomplishment of a complex procedure. Careful record keeping also permits after-the-

13 fact analysis and troubleshooting, which is essential if the system is to improve itself and continually

14 attempt to minimize the risk of inhumane executions. Further, detailed and accurate records would

15 be helpful were there to be future disputes or litigation regarding the conduct of lethal injection

16 procedures. It is my understanding that some states are using video recordings of suspect

17 interrogations and confessions, and that these are helpful in weighing the validity of any statements

18 that are made. Video recording of the execution process in California would be similarly useful in

19 resolving disputes about the conduct of the procedure, and would also be likely to be a good source

20 of pressure to ensure that the personnel to carry out the procedure with care.

21

26. To minimize the risk that any particular execution will be inhumane, what is really

22 needed are personnel who understand the underlying reasons for recordkeeping requirements and the

23 importance of carefully, precisely and reliably handling the drugs themselves. The CDCR and

24 execution team members must understand that both securing and recording the chain of custody of

25 thiopental are important because thiopental is a scheduled drug that is vulnerable to drug diversion.

26 Team members must understand why it is important to give the same amount of thiopental every time

27 and record that amount every time. They must understand that the CDCR must be able to verify after

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1 the fact that its executions have been performed consistently, according to the protocol, and in a

2 manner that minimizes the dangers created by the use of potassium and pancuronium. They also

3 must understand that if something goes wrong during an execution, the team and the CDCR must be

4 able to reconstruct the events after the fact and analyze what happened in order to prevent

5 reoccurrences. Notably, neither the team members nor the CDCR displayed this understanding after

6 the Stanley Williams execution. More broadly, they must understand that the anesthesia phase of the

7 execution is the most important phase with respect to ensuring that the procedure is humane, and it

8 must be carefully and properly performed.

9

27. If the CDCR comprehends the importance of these issues and ensures that its

10 execution personnel do as well, then careful recordkeeping will complement the consistent, careful

11 performance of the execution procedure. Based on my conversations with veterinarians and review

12 of veterinary literature, including the Humane Society’s Euthanasia Training Manual, veterinarians

13 believe that it is important to ensure that euthanasia personnel, whether in a hospital or a shelter,

14 appreciate the issues described above and the complementary need for precise recordkeeping.

15 Anesthesiologists observe these standards as well, in the context of clinical anesthesia practice, in

16 order to maximize positive outcomes and understand adverse ones.

17

28. In addition, auditing and debriefing are important quality control measures in clinical

18 practice. When unfavorable outcomes occur in a hospital, the professionals involved know to report

19 the problems, which are then reviewed by a committee of other doctors and administrators. The

20 committee makes recommendations for avoiding the problems in the future. This type of oversight

21 would be an important safety measure in the execution context. The evidence in California and in

22 other states, including Missouri and Maryland, shows that unexplained deviations from the protocol

23 are a recurring problem. An auditing procedure should review such deviations as well as any

24 problems that occur during executions.

25

29. I feel it is important to note here that careful recordkeeping will be particularly

26 important if the protocol is modified in any substantial manner in the future. Any time that a

27 complex procedure is substantially altered, the people performing it need to be especially attuned to

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1 the importance of evaluating and analyzing the performance of the procedure after the fact, to

2 determine whether there are unanticipated flaws or the procedure could be improved further.

3 IV. Using Longer-Acting Barbiturate in Place of Thiopental

4

30. The judge has asked what the advantages and disadvantages are to using a longer-

5 acting barbiturate, such as pentobarbital, while continuing to use pancuronium and potassium. As I

6 testified at trial, sodium pentobarbital is a barbiturate anesthetic that is longer-lasting, but potentially

7 slower to take effect, than thiopental.

8

31. Although I have little experience using pentobarbital for purposes of anesthesia or

9 animal euthanasia, I believe it is significant that veterinarians, who purposefully have attempted to

10 develop as humane a method of euthanasia as possible, have chosen to use pentobarbital for

11 euthanasia, rather than other barbiturates such as thiopental. The AVMA Report explains the

12 qualities that have led the AVMA to conclude that pentobarbital is the best available option for

13 animal euthanasia in more detail.

14

32. As I stated in my first declaration in this case, as well as in my declaration in the

15 Beardslee case, thiopental is very sensitive to errors in administration and preparation because it is

16 unstable and wears off quickly. One of the dangers created by the use of thiopental is that an inmate

17 who does not receive the full dose of thiopental may reawaken during the execution because of the

18 short duration of the drug's effect. The duration of action of pentobarbital is much longer than that of

19 thiopental, and it therefore may be somewhat less sensitive to some errors than thiopental.

20

33. A theoretical advantage of thiopental is that it takes effect more quickly than many

21 other barbiturates. The speed of onset is affected by the speed of injection, however, and the

22 CDCR’s execution team currently intends to administer the thiopental so slowly (by measuring the

23 injection speed by the drip rate) that the thiopental would probably not have its usual expected rapid

24 onset. In any event, administering a huge dose of a slower-acting barbiturate will result in rapid

25 onset, possibly within seconds. The extreme rapidity of the onset of pentobarbital is familiar to

26 people who have brought household pets for euthanasia by a veterinarian. Over the past several years

27 I have spoken with several veterinarians and numerous pet owners who have performed or witnessed

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1 euthanasia by lethal injection, and nobody has described occurrences in which the animal did not

2 pass from consciousness to unconsciousness within a few seconds.

3

34. It is important to understand, however, that whatever advantages pentobarbital may

4 possess over thiopental, the use of pentobarbital (or indeed any anesthetic, narcotic, or sedative agent

5 in combination with a barbiturate or alone) cannot in itself obviate the need to assess anesthetic

6 depth. So long as pancuronium and potassium are employed in the execution protocol, it is necessary

7 to assess the inmate's anesthetic depth prior to and during the administration of pancuronium and

8 potassium. Like thiopental, pentobarbital would have to be delivered into the inmate's circulation by

9 means of an intravenous drug delivery system. As I testified at trial, the CDCR's drug delivery

10 system is so convoluted and outmoded that it renders the execution process very vulnerable to drug

11 delivery failures. Whatever the drug delivery system used, however, the inmate's anesthetic depth

12 must be verified, because drug delivery failures can and do occur even under the best of

13 circumstances. Leaking of the IV tubing could result in only a fraction of the pentobarbital dose

14 reaching the inmate, and that has in fact occurred in a Maryland execution. A publication describing

15 the effect of leaking tubing on the delivery of anesthetic in a clinical setting is attached as Exhibit 11.

16 Of note, the leaking of the anesthetic was detected because assessment of anesthetic depth indicated

17 that the patient was “light”, resulting in an investigation of possible causes and the recognition of the

18 leaking IV tubing. Depending on the relative dosages, infiltration could result in the delivery of an

19 inadequate dose of pentobarbital, but sufficient pancuronium and potassium to have their intended

20 effects. Individual characteristics such as weight and tolerance to barbiturates, as well as preparation

21 errors, deliberate diversion, and defective batches of the drug, can also prevent a dose of anesthetic

22 from having its expected effect. The discovery process also brought to light several features of the

23 execution process that are so irrational and unexpected that I could not have and did not foresee

24 them. I am concerned that additional problematic elements of the procedure may exist that would

25 only become apparent during the actual conduct of an execution. Only assessment of anesthetic

26 depth by a competent, adequately trained individual can reasonably ensure that the anesthetic has its

27 intended effect prior to and during the injection of pancuronium and potassium.

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1

35. Finally, substituting pentobarbital for thiopental in the three-drug cocktail could raise

2 a other dangers and concerns, some of which cannot even be anticipated, because no execution has

3 ever been performed using pentobarbital. For instance, in recent cases in Missouri and Oklahoma, a

4 pharmacokineticist testified that executioners were injecting the potassium before the thiopental had

5 had time to take full effect. I do not know whether this concern would come into play in California if

6 pentobarbital were used in the protocol instead of thiopental, but the slower-acting nature of

7 pentobarbital should be taken into account. Any modification of the protocol to use pentobarbital,

8 while keeping the other two drugs, would have to evaluate every aspect of the procedure -- speed and

9 rate of injections, dosages, etc. -- in light of the characteristics and pharmacology of pentobarbital.

10 The CDCR has failed to undertake this analysis with respect to thiopental. The protocol’s failure to

11 address the rate of administration of the drugs, which is troubling and may have affected the

12 humaneness of previous executions, should not be carried over into a new procedure using

13 pentobarbital.

14

36. This concern touches on a larger point, that as with any complex procedure, altering

15 one element could have unintended or adverse consequences on other elements. This is why, in my

16 opinion, it is important that any new protocol be created by a deliberative process undertaken by a

17 panel of suitable experts. The panel would need to include individuals with expertise in euthanasia,

18 and who are cognizant of the training and experience of the execution team members. This would

19 permit the creation of a protocol that was suited to the capabilities of the CDCR. The AVMA

20 euthanasia methods are the result of such a repeated, deliberative, thoughtful process, and the

21 execution procedure should be treated with at least as much care as we provide to animals.

22 V. Assessing Anesthetic Depth when using Pancuronium and Potassium

23

37. The Court has asked what steps are necessary to monitor the inmate's anesthetic depth

24 assuming the continued use of pancuronium and potassium. As I testified at trial, so long as

25 potassium is used to cause death, it is absolutely necessary to have an adequately trained individual

26 assess the inmate's anesthetic depth during the execution. I will endeavor to provide more specifics

27 about what that assessment should entail here.

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1

38. As an initial matter, any assessment of anesthetic depth in the execution context must

2 possess several characteristics in order to reasonably ensure that the execution is humane. First, the

3 assessment of anesthetic depth must be geared towards ensuring that the inmate has reached, and

4 remains in, a surgical plane of anesthesia. Dr. Dershwitz (in Baze v. Kentucky) and I have both

5 likened the pain caused by potassium to a surgical stimulus, and I have no doubt that the injection of

6 potassium in a concentration sufficient to cause death is excruciatingly painful. In addition, the

7 feeling of suffocation and paralysis caused by pancuronium would be agonizing to a conscious

8 person. Only by ensuring a surgical plane of anesthesia can one be confident that the inmate is

9 sufficiently anesthetized not to be aware of the potassium. Second, any assessment of anesthetic

10 depth must continue for the duration of the execution procedure (ie until death is known to have

11 occurred) because the inmate could regain consciousness before the potassium is injected. Third, the

12 assessment of anesthetic depth subsequent to the injection of the pancuronium must take into account

13 the fact that the inmate could not respond to stimuli or indicate distress even if he were fully

14 conscious. Verifying the anesthetic depth of an individual paralyzed by pancuronium requires the

15 assessment of extremely subtle indicators of consciousness that do not rely on the activity of facial

16 muscles or any other motor responses. An individual with advanced training in anesthesiology would

17 be capable of assessing anesthetic depth subsequent to the injection of pancuronium if they were at

18 the bedside and could deploy and observe the necessary monitors. Fourth, as I testified at trial,

19 assessment of depth is meaningless if no one is equipped to quickly react to a finding of insufficient

20 depth by administering more anesthetic. Either the person monitoring depth or members of the

21 execution team must be prepared to administer additional anesthetic. The team must have a

22 procedure for administering more anesthetic, and they must be trained in it and able to interact

23 effectively with the anesthesia professional.

24

39. The assessment of anesthetic depth is a bedside procedure that requires trained clinical

25 evaluation of the patient. Dr. Singler, Dr. Rosko, and I agree that monitoring an inmate's anesthetic

26 depth during an execution would require the responsible individual to be situated in the execution

27 chamber, by the inmate's "bedside." Like driving or flying, assessing anesthetic depth is something

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1 that can only be learned from experience and practice. Inducing general anesthesia, and verifying

2 that a patient has reached a surgical plane of anesthesia, is a complex task that requires the integration

3 of multiple modalities of information. As an anesthesiologist, I monitor anesthetic depth by

4 integrating my physical examination of the patient (which involves evaluating various physical

5 indicia) with information provided by monitors, such as heart rate and blood pressure. Synthesizing

6 this information into an evaluation of anesthetic depth is the core of an anesthesiologist's profession,

7 and this synthesis -- as much an art as it is a science -- can only be performed adequately by a trained

8 professional with extensive clinical experience.

9

40. To perform this task reliably and properly, a person must have extensive training in

10 the medical subspecialty of Anesthesiology. Learning how to assess anesthetic depth requires formal

11 anesthesia training from individuals who are themselves proficient in the assessment of anesthetic

12 depth. The training necessarily includes extensive clinical experience in which anesthetic depth is

13 assessed over and over again on many patients until one develops the intuitive capacity for doing it

14 accurately and properly. It is also necessary to have current and practical experience in monitoring

15 patients' anesthetic depth (such as an anesthesiologist would gain during his or her training and

16 residency) in order to be able to reliably discern when a patient has been insufficiently anesthetized.

17

41. There are many useful tests and techniques and monitors that anesthesiologists use in

18 their assessment of anesthetic depth. However, one cannot just “do a test”; one has to know which

19 tests to perform, how to perform them, how to interpret them, and how to integrate the results with

20 other streams of real-time data to form an impression or conclusion about anesthetic depth. It is

21 important to understand that the ability to effectively and accurately use these techniques can only be

22 developed through extensive clinical training in the field of anesthesiology.

23

42. An anesthesiologist would be able to use his or her medical judgment to determine

24 what techniques to use to monitor anesthetic depth in an execution setting, as Dr. Singler did back in 25 February.3 Conversely, using personnel who have no background in anesthesiology to monitor

26

27 3 Dr. Singler planned to rely on his trained physical assessment of Mr. Morales; a pulse oxymeter; a

blood pressure cuff; a BIS monitor; and EKG data. I agree with Dr. Singler that these sources of

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1 anesthetic depth, while specifying what techniques they might use to monitor depth, would not come

2 close to reasonably ensuring that the assessment of depth is performed reliably and accurately.

3 Missouri proposed such a method -- having an EMT or nurse assess the inmate's anesthetic depth by

4 performing tests from a list of potential tests created by the Department of Corrections -- and the

5 judge in the Taylor case rejected that idea -- rightfully, in my view -- as failing to come close to

6 providing for meaningful assessment of anesthetic depth. Similarly, the CDCR’s initial proposal that

7 Warden Ornoski “monitor” anesthetic depth by touching Mr. Morales was very inadequate.

8

43. In other words, the Court’s decision in February proposing that the CDCR retain an

9 anesthesia professional who could then use his or her training and judgment to determine how to

10 monitor the inmate's anesthetic depth made logical sense. A trained professional properly integrated

11 into the execution situation, with knowledge of the protocol, an understanding of the drugs, and the

12 ability to communicate closely with execution team members, would be able to reasonably ensure

13 that the inmate was sufficiently anesthetized by monitoring anesthetic depth throughout the execution

14 and, if necessary, causing more anesthetic to be administered. Similar protections have been ordered

15 by the Missouri court in Taylor v. Crawford; that is why I mentioned Missouri as a state in which the

16 judge’s orders appear to address many of the concerns about the dangers of the procedure there. The

17 court’s orders in Taylor are attached as Exhibits 12, 13, and 14.

18

44. In terms of what type of professional could adequately assess anesthetic depth,

19 obviously a board-certified anesthesiologist is the only specialist who is by dint of their certification

20 necessarily capable of successfully and properly performing this essential function. The label of

21 “board-certified anesthesiologist” gives one assurance that the individual necessarily has advanced

22 training in anesthesiology, has extensive clinical training and experience in monitoring anesthetic

23 depth, and has passed the rigorous oral and written exams necessary to obtain board certification. As

24

25 information, synthesized using Dr. Singler’s clinical judgment, would have provided an accurate

26 assessment of anesthetic depth. I do not mean to suggest, however, that all of these particular

monitoring techniques should be mandatory, or that additional or different monitors might not also be

27 helpful. An anesthesiologist would be able to determine what techniques and monitors would be

most helpful to him or her personally based on his or her day-to-day clinical practice.

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1 I previously noted in declarations in this case, a Certified Registered Nurse Anesthetist (CRNA)

2 would also have the requisite training in anesthesiology. In rare cases, a physician who is not an

3 anesthesiologist may have training in anesthesiology such that that person is credentialed in a

4 hospital to induce and monitor anesthetic depth in, for instance, critical care (intensive care)

5 environments. In short, to find a professional who can monitor anesthetic depth in an execution, the

6 CDCR would need to recruit from the population of professionals who are credentialed in a hospital

7 to monitor anesthetic depth in paralyzed patients.

8

45. I feel that it is necessary to note here that whenever one hires a doctor or other medical

9 professional, one must take precautions to make sure that the doctor, in addition to being trained and

10 possessing board certification and the necessary licenses, is also competent and will perform his or

11 her duties in good faith. For instance, if the CDCR were to hire an anesthesiologist who has been

12 barred from practice, for example for incompetence or commission of a felony, or states that he

13 believes inmates should be subject to excruciating pain, then I would be concerned that that doctor's

14 participation in the execution procedure would create a significant risk that the inmate would suffer

15 during the procedure. In sum, any medical professional who is retained to assess an inmate's

16 anesthetic depth should be subject to at least the same degree of screening as execution team

17 members, in order to ensure that the individual will be able and disposed to perform his or her

18 function in good faith, and does not have issues in his or her background that render the individual a

19 poor choice.

20

46. Any professional who is tasked with monitoring anesthetic depth should also

21 understand the dangers of the procedure (such as the fact that potassium is extremely painful), and

22 should be well-versed in the procedure itself and integrated into the execution team. The importance

23 of these issues is demonstrated by the disturbing testimony of Witness #3, to the effect that Dr.

24 Singler had instructed the team to reduce the dose of thiopental to approximately 1 gram. This is

25 extremely troubling, not only because a 1-gram dose may be insufficient in an execution context, and

26 certainly provides little safety margin, but also because Dr. Singler apparently based his instruction

27 on his hypothesis that too much thiopental would cause circulatory collapse. That hypothesis may or

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1 may not be correct, but there is no experimental evidence to support it and it would be wrong to

2 simply experiment during an execution. In addition, Dr. Singler had not, at the time of the scheduled

3 execution, reviewed any of the data pertaining to previous executions. Dr. Singler testified at the

4 hearing that the execution team misconstrued his statements as an order. Regardless, this event --

5 whether it was a miscommunication or a decision to deviate from the most important aspect of the

6 protocol -- demonstrates that whoever is chosen to monitor anesthetic depth should be bound to

7 operate within constraints that prevent undisclosed deviations from the protocol, and should be able

8 to interact effectively with the execution team. Any intentional deviations from the protocol should

9 not be permitted unless and until the anesthesia professionals’ concerns are addressed in a

10 comprehensive manner and any new procedure is disclosed and reviewed.

11 VI. Use of a BIS Monitor to Assess Anesthetic Depth

12

47. The judge has also asked whether the reliability of the protocol would be improved by

13 the use of a BIS or other EEG monitor. A BIS monitor can be a helpful addition to the clinical

14 evaluation performed by anesthesiologists, when used in conjunction with other traditional means of

15 monitoring anesthetic depth. Dr. Singler planned to use a BIS monitor for Mr. Morales's execution,

16 and I believe that the BIS monitor would have been helpful to him because he uses it in his clinical

17 practice in addition to other means of monitoring, and he possesses the training necessary to be able

18 to integrate data from the BIS monitor into his overall assessment. For these reasons, I would not

19 question the decision of Dr. Singler or any other anesthesiologist to incorporate a BIS monitor into

20 their assessment of an inmate's anesthetic depth.

21

48. As I stated in my declaration in this case filed on February 14, 2006, however,

22 allowing personnel untrained in anesthesiology to employ a BIS monitor as the sole measure of

23 anesthetic depth is simply not consistent with a minimum standard of care. I believe that it would be

24 dangerous to use a BIS monitor in this manner. Assessment of anesthetic depth is fundamentally a

25 clinical evaluation, and anesthesiologists agree that the BIS monitor cannot be used, even by trained

26 anesthesiologists, as the sole measure of anesthetic depth. The ASA’s Practice Advisory on

27 Intraoperative Monitoring, which was attached to my expert report, explains this conclusion. Using a

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1 BIS monitor to substitute for assessment by a trained individual could give the execution team a false

2 sense of security if they believe that the monitor is failsafe and that no other assessment is needed.

3

49. Importantly, the anesthesiology profession's insistence that the BIS monitor may only

4 be used by trained professionals as one element of the clinical evaluation is based in part on evidence

5 of the BIS monitor's fallibility. Here it may be helpful to briefly explain how the BIS monitor works.

6 The monitor must attached to the patient's forehead by means of an electrode strip, thereby permitting

7 measurement of the electrical activity. The amplitude of the electrical activity of the brain, when

8 recorded from the forehead, is very small compared with the amplitude of electrical activity from the

9 muscles of the forehead (which permit frowning and movement of the eyebrows). Therefore the BIS

10 monitor attempts to discern and distinguish the brain-derived electrical activity from other electrical

11 activity, including muscles and the heart. The monitor displays a number between 0 and 100, with 0

12 indicating EEG flatline and 100 indicating consciousness, that is intended to correlate with a level of

13 consciousness. The algorithm by which this number is calculated is confidential, proprietary

14 information that is not released by the manufacturer. We do know, however, that the BIS monitor

15 was developed by testing it on individuals in varying levels of anesthesia, and recording the numbers

16 displayed; this data was then used to assign BIS values that correlate to different levels of anesthetic

17 depth.

18

50. A recent peer-reviewed study has demonstrated that the number displayed by a BIS

19 monitor can vary at any given time even within the same patient, and therefore concludes that

20 "[a]nesthesia providers should not rely exclusively on the BIS reading when assessing depth of

21 anesthesia." Niedhart et al., Intrapatient Reproducibility of the BISxp Monitor, Anesthesiology, Vol.

22 4, No. 2 (Feb. 2006) (attached as Exhibit 15). The study hypothesized that "when two BISxp

23 electrode strips are placed concurrently on opposite sides of the forehead on the same patient, they

24 reproducibly produce the same single number throughout the anesthetic period." (Page 242.) The

25 study disproved this hypothesis, and instead found that the two BIS values for the same patient often

26 varied, and sometimes concurrently indicated differing levels of anesthesia. Thus: “The results of

27 this study suggest that the BISxp does not consistently display intrapatient reproducibility. . . . The

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1 results of this study reinforce the sentiment expressed on the Aspect Medical Web site: ‘Clinical

2 judgment should always be used when interpreting the BIS in conjunction with other available

3 clinical signs. Reliance on the BIS alone for intraoperative anesthetic management is not

4 recommended.’” (Page 248.)

5

51. In addition, the BIS monitor’s readout is subject to artifactual interference that can

6 lead to an inaccurate indication of anesthetic depth. For instance, a peer-reviewed study shows that

7 the injection of neuromuscular blockers in a conscious patient causes the BIS monitor to produce

8 readouts consistent with a deep level of unconsciousness -- even though the subjects remained fully

9 conscious throughout the experiment. Messner et al., The Bispectral Index Declines During

10 Neuromuscular Block in Fully Awake Persons, Anesth. Analg., 2003; 97-488 (attached as Exhibit

11 16). Not only does this study indicate that the BIS monitor should not be used as the sole monitor of

12 anesthetic depth after pancuronium has been administered, but more generally, it demonstrates that

13 the reliability of the BIS readout can be compromised by factors that affect a patient’s muscles but

14 not their consciousness.

15

52. Dr. Singler suggested in his deposition that while it would not be appropriate to use a

16 BIS monitor as the sole measure of anesthetic depth in the surgical context, where the goal is to

17 carefully calibrate the level of anesthesia, a BIS monitor could be used, standing alone, in an

18 execution context because an overdose of anesthetic is used and there is no need to calibrate depth of

19 anesthesia based on the BIS reading. I disagree with his opinion. For one thing, it assumes that the

20 anesthetic is successfully administered. The instances of BIS unreliability described above can occur

21 regardless of the dose of anesthetic that is intended to be administered, and in any event, the BIS

22 alone would be rendered effectively inoperative once the pancuronium was administered. Only a

23 trained professional would be able to use their experience and judgment to integrate the BIS monitor,

24 with an understanding of its potential unreliability, into an effective assessment of an inmate’s

25 anesthetic depth throughout the execution procedure.

26

53. In sum, it is my strongly held opinion that the BIS monitor cannot be used to

27 substitute for assessment of anesthetic depth by an individual with adequate training in anesthesia.

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1 This opinion is shared by the American Society of Anesthesiologists, as noted above. It is also

2 shared by Dr. Scott Kelley, the Medical Director of Aspect Medical Systems, which manufactures the

3 BIS monitor. Dr. Kelley’s affidavit in the Brown case in North Carolina is attached as Exhibit 17. In

4 the Brown case, Dr. Dershwitz asserted that the BIS monitor could be used as a stand-alone monitor

5 of anesthetic depth, but he was the sole proponent of that position.

6 VII. Removing Pancuronium from the Protocol

7

54. The Court has also asked about the advantages and disadvantages of removing

8 pancuronium from the execution protocol. I cannot think of any disadvantages, from the perspective

9 of ensuring that executions are performed humanely. As I testified at trial, if an inmate receives

10 insufficient thiopental, or it is administered improperly, and the inmate is awake during the potassium

11 injection, in the absence of pancuronium the execution team (assuming proper training) will at least

12 be able to detect that mistake and attempt to correct it by immediately injecting more thiopental into

13 the other arm (although this would be difficult given the current setup). Of course, monitoring of

14 anesthetic depth is still necessary as long as potassium is being used to prevent such a scenario from

15 occurring in the first place.

16

55. Another advantage of removing pancuronium is that the use of pancuronium renders

17 ineffective several widely-used means of testing anesthetic depth. Without pancuronium in the

18 protocol, an individual charged with monitoring anesthetic depth will have more options to employ

19 throughout the procedure.

20

56. Based on the comments of Dr. Singler and Dr. Dershwitz, I imagine that a perceived

21 disadvantage of removing pancuronium from the protocol will be the possibility that inmates will

22 exhibit movements that could be mistaken for evidence of suffering. Any misconceptions on the part

23 of witnesses could be avoided by explaining to them the nature of the expected movements, just as is

24 done in end-of-life situations and in veterinary euthanasia.

25 VIII. Use of a Single-Drug Protocol

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57. The Court has asked the parties to address the possibility of using a single drug, such

27 as pentobarbital, to cause death. My opinions on this possibility have not changed since I responded

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1 to the Court’s inquiry about using thiopental alone to cause death in my declaration filed on February

2 14, 2006, so I would respectfully refer the Court to that declaration. Removing pancuronium and

3 potassium from the execution process would eliminate much of the unnecessary risk that now is

4 inherent in the procedure. I would add only that the AVMA has determined that pentobarbital is the

5 best barbiturate to use in animal euthanasia, because of the qualities described above and in the

6 AVMA Report.

7

58. My personal ethics do not allow me to discuss dosages, methods of administration,

8 and other specifics of a hypothetical execution protocol using only a single drug. Based on my

9 knowledge of the development of other states’ protocols, however, I believe that many medical

10 professionals, including anesthesiologists, would be willing to provide relevant advice to the CDCR.

11 I have corresponded with Dr. Jay Chapman, the medical examiner who designed the first lethal

12 injection protocol in Oklahoma; he felt that doing so was consistent with his ethical obligations. John

13 Doe I in Missouri designed the state’s execution protocol, though obviously his participation was

14 problematic for other reasons. And it appears that Dr. Singler was willing to give the CDCR

15 information about alternatives to the current protocol.

16

59. Even if the CDCR decides to use a single-drug protocol, it is my opinion that there

17 should be a physician or other highly trained medical professional supervising the execution and

18 standing ready to intervene (or direct the team to intervene) if something goes wrong. As I stated at

19 the hearing and in February, a single-drug protocol is not devoid of risks; for instance, if the inmate

20 does not receive the full dose, he might not completely stop breathing, and might wake up brain

21 damaged. A doctor would be able to detect any failure of the drug to have its expected effect, ensure

22 that any drug delivery problems that arise are corrected, and generally minimize the risk of a botched

23 execution. In addition, a barbiturate has never been used as the sole instrument of execution, and

24 although what we know about barbiturates tells us that death will occur in a relatively short time

25 given a sufficient dose, there is no clinical data to give us a more concrete idea of what might occur,

26 and what problems might arise, during such an execution. Therefore, if the CDCR wants to ensure

27 that any unanticipated contingencies that arise can be dealt with effectively and safely, and if the

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1 CDCR wants to avoid placing the execution team, who have little or no relevant medical training, in

2 the position of performing an untested execution procedure, then it should retain a doctor to oversee

3 the procedure.

4 IX. Conclusion

5

60. The process of designing or revising the execution procedure deserves expert

6 consideration of the many medical and scientific issues involved, as well as careful analysis of the

7 priorities in an execution and the best ways of protecting the inmate and supporting the personnel. It

8 appears that no such process has ever taken place in California. The court has raised important

9 questions. I have done my best to address them within the constraints detailed above, and hope that

10 the Court finds this discussion informative.

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November 9, 2006

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By: ______________________

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Dr. Mark Heath

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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 1 of 19

DECLARATION UNDER PENALTY OF PERJURY

STATE OF NEW YORK

'

COUNTY OF NEW YORK

'

The undersigned, Mark J. S. Heath, M.D., makes the following statement under penalty of perjury:
I. Qualifications
1. I am an Assistant Professor of Clinical Anesthesiology at Columbia University in New York City. I received my Medical Doctorate degree from the University of North Carolina at Chapel Hill in 1986 and completed residency and fellowship training in Anesthesiology in 1992 at Columbia University Medical Center. I am Board Certified in Anesthesiology, and am licensed to practice Medicine in New York State. My work consists of approximately equal parts of performing clinical anesthesiology (specializing in cardiothoracic anesthesiology), teaching residents, fellows, and medical students, and managing a neuroscience laboratory. As a result of my training and research I am familiar with and proficient in the use and pharmacology of the chemicals used to perform lethal injection. I am qualified to do animal research at Columbia University and am familiar with the American Veterinary Medical Association’s guidelines for animal research and animal euthanasia.
2. Over the past several years, as a result of concerns about the mechanics of lethal injection as practiced in the United States, I have performed many hundreds of hours of research into the techniques that are used during this procedure. I have testified as an expert medical witness in courts in Missouri, Maryland, Tennessee, Georgia, Kentucky, Virginia, and Louisiana in the following actions: Taylor v. Crawford, No. 05-4173-CV-C-FJG (W.D. Mo.); Evans v. Saar, 06-cv-00149BEL (D. Md.); Baker v. Saar, No. WDQ-05-3207 (D. Md.); Reid v. Johnson, No. 3:03cv1039 (E.D. Va.); Abdur’Rahman v. Bredesen, No. 02-2236-III (Davidson County Chancery Ct., Tenn.); State v. Michael Wayne Nance, 95-B-2461-4 (Ga. Superior Ct.); Ralph Baze & Thomas Bowling v. Rees, 04-CI-01094 (Franklin County Circuit Ct., Ky.), Commonwealth v. Lamb, CR05032887-00 (Rockingham County Cir. Court, Va.), State v. Nathaniel Code, No. 138860 (1st Judicial District Court of La. for Caddo Parish). I have filed affidavits that have been reviewed by courts in the above states and also in California, Pennsylvania, New York, Alabama, North Carolina, South Carolina, Ohio, Oklahoma, Texas, Maryland, Missouri, Connecticut, Virginia, Arkansas, Delaware, Nevada, and Montana, and by the United States Supreme Court.
3. I have reviewed the execution protocols and autopsy data (when available) from each of the above referenced states and the federal government. Additionally, I

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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 2 of 19
have reviewed execution protocol and/or autopsy data from Florida, Idaho, and Oregon.
4. As a result of the discovery process in litigation I have participated in inspection of the execution facilities in Maryland, Missouri, and California.
5. During court proceedings, I have heard testimony from prison wardens who are responsible for conducting executions by lethal injection.
6. I have testified before the Nebraska Senate Judiciary Committee regarding proposed legislation to adopt lethal injection. I have testified before the Pennsylvania Senate Judiciary Committee regarding proposed legislation to prohibit the use of pancuronium bromide or other neuromuscular blockers in Pennsylvania’s lethal injection protocol.
7. My research regarding lethal injection has involved extensive conversations with recognized experts in the fields of anesthesiology, toxicology and forensic pathology, and communicated extensively with Drs. Jay Chapman and Stanley Deutsch, the physicians responsible for introducing lethal injection as a method of execution in Oklahoma.
8. My qualifications are further detailed in my curriculum vitae, a copy of which is attached hereto as Exhibit 1 and incorporated by reference as if fully rewritten herein.
9. I have been asked by counsel for Eric Patton to review the procedures concerning lethal injection currently in place in Oklahoma to determine whether those procedures create medically unacceptable risks of inflicting unnecessary pain and suffering while the lethal injection is administered. I hold all opinions expressed in this declaration to a reasonable degree of medical certainty unless otherwise specifically noted. I understand that discovery in this case has not yet begun; I, therefore, reserve the right to supplement or modify this declaration based on new or additional information as and when such information is provided to me.
10. In preparing this declaration, I have referred to and relied on:
a. My training and experience as a practicing anesthesiologist;
b. My research into lethal injection and materials reviewed in litigation;
c. The autopsy reports and execution logs provided by the Office of the Chief Medical Examiner of Oklahoma labeled ME 1-2684;
d. The affidavit of Warden Mike Mullin, dated January 12, 2004, and the statements made by the State of Oklahoma regarding the accuracy of Warden Mullin’s January 12, 2004, affidavit made at the hearing in Boltz v. Jones et al. (W.D. Okla. June 1, 2006); and
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 3 of 19
e. The Ehlers declaration, and the affidavits of Burton, Burden, and Chesley.
II. Summary of Facts on Which This Opinion Is Based
11. From the foregoing materials, the Oklahoma Department of Corrections’s (“ODOC”) has represented the facts pertaining to execution by lethal injection to be the following:
a. The intended initial dosage of thiopental is 1.2 grams (1200 milligrams) delivered from a 60 cc syringe.
b. The lethal injection drugs are intended to be administered through two intravenous lines, one placed in each arm. Thiopental is administered into the left arm, followed by a flush of saline solution. Vecuronium bromide is administered next in the right arm, followed by a flush of saline solution. Potassium chloride is administered next in the left arm, followed by a flush of saline solution. Potassium chloride is administered again, this time into the right arm, followed by a flush of saline solution. Thiopental is administered again, in the left arm, followed by a flush of saline solution. Finally, vecuronium bromide is administered again, in the right arm, followed by a flush of saline solution.
c. Contrary to Oklahoma’s statutory requirement for a continuous administration of an ultrashort-acting barbiturate,1 the drugs and saline flushes used in executions in Oklahoma are given in bolus2 doses, rather than as continuous infusions.
d. The drugs, and intervening flushes of saline solution, are intended to be delivered serially, one after another.
e. The intravenous catheters are inserted by phlebotomists.
f. The ODOC does not monitor the condemned inmate to ensure that he or she has been successfully anesthetized.
1 I understand Oklahoma’s statute to require the following: “continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice.” Okla. Stat. tit. 22 ' 1014 (A). 2 A bolus dose is a single dose of drug injected into a blood vessel rapidly, over a short period of time. Bolus drug delivery should be contrasted with a continuous infusion of drugs which involves the slow introduction of a fluid or drugs into a vein or artery over a period of time.
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 4 of 19
IV. Summary of Opinions
12. Based upon my review of the foregoing material and my knowledge of and experience in the field of anesthesiology, I have formed several conclusions with respect ODOC’s protocol for carrying out lethal injections. These conclusions arise both from the details disclosed in the materials I have reviewed and available at this time and from medically relevant, logical inferences drawn from the details in those materials. My principal conclusions are as follows:
a. The ODOC’s failure to have an appropriately qualified and trained persons monitor the condemned inmate after the administration of thiopental to ensure that the inmate has reached an appropriate plane of anesthesia prior to the administration of drugs which would cause suffering is contrary to all standards of practice for the administration of anesthetic drugs and creates a severe and unnecessary risk that the condemned will not be adequately anesthetized before experiencing asphyxiation and/or the pain of potassium chloride injection.
b. The ODOC’s practice of delivering thiopental and vecuronium bromide from two separate intravenous lines, one in the right arm and one in the left arm, is medically inappropriate, unnecessary, and, even if all drugs are effectively delivered to the condemned inmate, creates a severe and unnecessary risk that the ODOC cannot control the relative rate and timing of drug onset.
c. The ODOC’s practice of delivering thiopental and vecuronium from two separate intravenous lines, one in the right arm and one in the left arm, creates a severe and unnecessary risk that, if there is a problem in the thiopental delivery (such as an infiltration), a condemned inmate will not be adequately anesthetized and will feel the agonizing effects of vecuronium bromide and potassium chloride while still conscious.
d. The ODOC’s second dose of thiopental has been preceded by two doses of potassium chloride. Two doses of potassium chloride, if properly delivered, will reliably and rapidly cause death. It is nonsensical to administer any drug, and especially an anesthetic drug, to a dead person. The ODOC cannot possibly understand the function of the drugs if it believes this order of drug administration is appropriate.
e. The ODOC’s first dose of 1.2 grams (1200 milligrams) of thiopental, unadjusted for weight or body mass, is the lowest dose of thiopental in the nation of which I am aware and it is insufficient to reliably ensure prolonged and deep anesthesia for all condemned prisoners.
f. It is my opinion that published reports, declarations and affidavits from witnesses who have attended executions by lethal injection which recount
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 5 of 19
prolonged body movements (which lay persons describe as convulsing or seizuring) indicate the protocol devised by the ODOC is not working as intended.
g. Vecuronium bromide (or any other similar neuromuscular blocking agent) serves no legitimate medical purpose during execution by lethal injection and inclusion of such agents adds a severe and unnecessary risk of masking body movements that could signal condemned inmate distress during execution.
V. Discussion
13. It useful to divide the procedure of lethal injection into four stages. The first stage is achieving intravenous access. The second stage is the administration of general anesthesia. The third stage is the administration of neuromuscular blocking agent that has a paralyzing effect to ensure the execution appears serene and peaceful. The fourth stage is the execution through the administration of potassium chloride which kills the prisoner by stopping his heart. For purposes of discussion, it is helpful to consider the execution process in reverse order.
A. Potassium Chloride Causes Extreme Pain
14. I have reviewed execution logs from Oklahoma, and execution logs and electrocardiogram (“EKG”) strips from executions around the country. These data show clearly that the administration of potassium chloride disrupts the electrical signals in the heart, paralyzes the cardiac muscle, and causes death by cardiac arrest.
15. The ODOC currently injects 100 milliequivalents (meq) of potassium chloride in a 50 cc syringe to cause death; this is a highly concentrated dose.
16. There is no medical dispute that intravenous injection of concentrated potassium chloride solution, such as that administered by the ODOC, causes excruciating pain. The vessel walls of veins are richly supplied with sensory nerve fibers that are highly sensitive to potassium ions. There exist other chemicals which can be used to stop the heart and which do not cause pain upon administration.
17. Even though the statute authorizing lethal injection in Oklahoma does not require the use of potassium, the ODOC has nevertheless selected potassium chloride to cause cardiac arrest. Thus, the ODOC has exercised its discretion and chosen a means of causing death that causes extreme pain upon administration, instead of selecting available, equally effective yet essentially painless medications for stopping the heart. In so doing, the ODOC has assumed the responsibility of ensuring, through all reasonable and feasible steps, that the prisoner is sufficiently anesthetized and cannot experience the pain of potassium chloride injection.
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 6 of 19
18. A living person who is to be intentionally subjected to the excruciating pain of potassium injection must be provided with adequate anesthesia. This imperative is of the same order as the imperative to provide adequate anesthesia for any person or any prisoner undergoing painful surgery. Given that the injection of potassium is a scheduled and premeditated event that is known without any doubt to be extraordinarily painful, it would be unconscionable and barbaric for potassium injection to take place without the provision of sufficient general anesthesia to ensure that the prisoner is rendered and maintained unconscious throughout the procedure, and it would be unconscionable to allow personnel who are not properly trained in the field of anesthesiology to attempt to provide or supervise this anesthetic care.
19. Indeed, the need for proper medical anesthetic care before death by potassium chloride is so well understood that standards for animal euthanasia require that euthanization by potassium chloride be performed only by one qualified to assess anesthetic depth:
It is of utmost importance that personnel performing this technique [euthanasia by potassium chloride injection] are trained and knowledgeable in anesthetic techniques, and are competent in assessing anesthetic depth appropriate for administration of potassium chloride intravenously. Administration of potassium chloride intravenously requires animals to be in a surgical plane of anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of response to noxious stimuli.
2000 Report of the American Veterinary Medical Association Panel on Euthanasia, 218 (5) J. AM. VET. MED. ASS’N 669, 681 (2001) (emphasis added), attached hereto as Exhibit 2. As result of the ODOC’s failure to assess anesthetic depth and its failure to provide personnel who are competent in assessing anesthetic depth, the ODOC protocol for executing humans is unacceptable for the euthanasia of animals.
B. Administration of Neuromuscular Blocking Agents Is Medically Unnecessary and Causes an Extreme Risk of Suffering
20. The ODOC’s protocol calls for the administration of 20 milligrams of vecuronium bromide.3 Vecuronium bromide is one of a class of drugs called neuromuscular blocking agents. Such agents paralyze all voluntary muscles, but do not affect sensation, consciousness, cognition, or the ability to feel pain and suffocation. The effect of the vecuronium bromide is to render the muscles (including the
3 Oklahoma has, over time, used a variety of neuromuscular blocking agents to paralyze prisoners during executions. Most states use pancuronium to produce paralysis; for purposes of this discussion pancuronium and vecuronium are interchangeable because their paralytic properties are essentially identical.
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 7 of 19
diaphragm which moves to permit respiration) unable to contract. It does not affect the brain or the nerves.
21. Clinically, the drug is used to ensure a patient is securely paralyzed so that surgical procedures can be performed without muscle contraction. Anesthetic drugs are administered before neuromuscular blocking agents so that the patient does not consciously experience the process of becoming paralyzed and losing the ability to breathe. Thus, in any clinical setting where a neuromuscular blocker is to be used, a patient is anesthetized and monitored to ensure anesthetic depth throughout the duration of neuromuscular blocker use. To assess anesthesia, a trained medical professional, either a physician anesthesiologist or a nurse anesthetist, provides close and vigilant monitoring of the patient, their vital signs, using various diagnostic indicators of anesthetic depth. The appropriate procedures for monitoring a patient undergoing anesthesia and who is about to be administered a drug which masks the ability to convey distress are detailed in the American Society of Anesthesiology’s recently published Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 850-51 (Apr. 2006) (describing preoperative and intraoperative measures for gauging anesthetic depth, including close monitoring of sites of IV access), attached hereto as Exhibit 3. See also ASA Standards for Basic Anesthetic Monitoring (Oct. 25, 2005), attached hereto as Exhibit 4. ODOC’s procedure, to the extent disclosed, indicates that, contrary to all medical practice, no one, let alone a properly trained individual, assesses anesthesia prior to the administration of vecuronium bromide.
22. It is important to understand that vecuronium bromide does not cause unconsciousness in the way that an anesthetic drug does; rather, if administered alone, a lethal dose of vecuronium bromide would cause a condemned inmate to lose consciousness only after he or she had endured the excruciating experience of suffocation. It would totally immobilize the inmate by paralyzing all voluntary muscles and the diaphragm, causing the inmate to suffocate to death while experiencing an intense, conscious desire to inhale. Ultimately, consciousness would be lost, but it would not be lost as an immediate and direct result of the vecuronium bromide. Rather, the loss of consciousness would be due to suffocation, which would be preceded by the torment and agony caused by suffocation. This period of torturous suffocation would be expected to last at least several minutes and would only be relieved by the onset of suffocation-induced unconsciousness.
23. Based on the information presently available, I believe it is likely that this has occurred in Oklahoma. But before commenting on a specific execution, I think it is important to explain how assessing the degree of consciousness that may have been felt in an execution differs from assessing consciousness in a clinical context. In the clinical context, anesthesiologists closely monitor patients for signs of awareness, and conduct post-operative interviews to assess to what extent a
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 8 of 19
patient may have consciously experienced any part of his or her surgical procedure. The American Society of Anesthesiologists has recently commented that “[i]ntraoperative awareness cannot be measured during the intraoperative phase of general anesthesia, because the recall component of awareness can only be determined postoperatively by obtaining information directly from the patient.” See Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 850 (Apr. 2006), attached hereto as Exhibit 3.
24. Neither monitoring nor post-process interviews take place with an execution; we can therefore never know with absolute certainty the degree of consciousness felt in an execution. But, to the extent we can know, after the fact, we look for signs of intravenous access problems, physical reaction to the process, and postmortem blood concentrations of anesthetic drugs. Based on the information presently available, this information suggests a terrible problem in the ODOC’s execution of Loyd LaFevers in 2001. During Mr. LaFevers’s execution witnesses observed an infiltration (a problem with intravenous access) in the intravenous (IV) line delivering the anesthetic thiopental. This problem was confirmed by the Medical Examiner’s office notes attached to Mr. LaFevers’s autopsy file. Witnesses to Mr. LaFevers’s execution observed movements that they described as convulsions or seizures lasting for many minutes. See Declaration of Pat Ehlers, attached hereto as Exhibit 5; Affidavit of Catherine Burton, attached hereto as Exhibit 6. These witness reports were confirmed by newspaper reports of the LaFevers execution. The levels of thiopental in Mr. LaFevers’s blood after death were very low, suggesting that little thiopental entered his body. Based on this presently available evidence, it is my opinion that Mr. LaFevers’s execution was botched and it is more likely than not that he experienced conscious or partly conscious asphyxiation. Such a conscious or partly conscious asphyxiation would have occurred as a result of inadequate anesthesia. Inadequate anesthesia results from the completely avoidable problem of the ODOC’s very poorly designed protocol for the delivery of anesthetic drugs, which I will discuss in full below.
25. When thiopental is not properly administered in a dose sufficient to cause loss of consciousness for the duration of the execution procedure, it is my opinion held to a reasonable degree of medical certainty, that the use paralytic drugs such as pancuronium or vecuronium bromide will cause conscious paralysis, suffocation, and the excruciating pain of the intravenous injection of concentrated potassium chloride, such as Mr. LaFevers likely experienced.
26. There is no legitimate reason for including vecuronium bromide in the execution process and assuming the foregoing risks. Because potassium chloride causes death in executions by lethal injection, there is no rational place in the protocol for vecuronium bromide; the drug simply serves no function in the execution process. Its inclusion, therefore, only adds risk, with no medical benefit.
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 9 of 19
27. Because of the concerns enumerated above, medical practitioners eschew the use of neuromuscular blocking agents in circumstances similar to that of executions, end of life care:
NMBAs [neuromuscular blocking agents] possess no sedative or analgesic activity and can provide no comfort to the patient when they are administered at the time of withdrawal of life support. Clinicians cannot plausibly maintain that their intention in administering these agents in these circumstances is to benefit the patient. Indeed, unless the patient is also treated with adequate sedation and analgesia, the NMBAs may mask the signs of acute air hunger associated with ventilator withdrawal, leaving the patient to endure the agony of suffocation in silence and isolation. Although it is true that families may be distressed while observing a dying family member, the best way to relieve their suffering is by reassuring them of the patient’s comfort through the use of adequate sedation and analgesia.
* * * As a general rule, therefore, pharmacologic paralysis should be avoided at the end of life.
Robert D. Truog et al., Recommendations for end-of-life care in the intensive care unit: The Ethics Committee of the Society of Critical Care Medicine, 29(12) CRIT. CARE MED. 2332, 2345 (2001) (emphasis added), attached hereto as Exhibit 7.
28. I have heard some prison officials comment that neuromuscular blocking agents are included in the execution process to paralyze the condemned so that witnesses will not see muscle contractions associated with potassium chloride administration that could look painful, but because of the presence of anesthesia, are not, in fact, indicative of pain. Because vecuronium bromide takes time to act on the body, and executions in Oklahoma generally proceed at a very rapid rate, it is extremely unlikely that the vecuronium has time to provide an effective neuromuscular blockade; it therefore cannot fulfill this purported function. It is particularly ironic that the ODOC has added a drug to the process that cannot (because of the manner of administration) achieve its intended purpose and instead greatly increases the risk of an inhumane execution.
C. The ODOC’s Administration of General Anesthesia Fails to Adhere to a Medical Standard of Care
29. Because of the potential for an excruciating death created by the use of potassium chloride and the risk of conscious asphyxiation created by the use of the vecuronium bromide, it is necessary to induce and maintain a deep plane of anesthesia. The circumstances and environment under which anesthesia is to be induced and maintained, according to Warden Mullin’s affidavit and other
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 10 of 19
available documents, create, needlessly, a significant risk that inmates will suffer. It is my opinion, stated to a reasonable degree of medical certainty, that the lethal injection procedures selected by the ODOC subject condemned inmates to an increased and unnecessary risk of experiencing excruciating pain in the course of execution.
30. Presumably, because of the ODOC’s awareness of the potential for excruciating pain evoked by potassium, the protocol plans for the provision of general anesthesia by the inclusion of thiopental. When successfully delivered into the circulation in sufficient quantities, thiopental causes sufficient depression of the nervous system to permit excruciatingly painful procedures to be performed without causing discomfort or distress. Failure to successfully deliver into the circulation a sufficient dose of thiopental would result in a failure to achieve adequate anesthetic depth and thus failure to block the excruciating pain.
31. The ODOC’s procedures do not comply with the medical standard of care for inducing and maintaining anesthesia prior to and during a painful procedure. Likewise, the ODOC’s procedures are not compliant with the guidelines set forth by the American Veterinary Medical Association for the euthanasia of animals.
The Dangers of Using Thiopental as an Anesthetic
32. Thiopental is an ultrashort-acting barbiturate that is intended to be delivered intravenously to induce anesthesia. In typical clinical doses, the drug has both a quick onset and short duration, although its duration of action as an anesthetic is dose dependant.
33. When anesthesiologists use thiopental, we do so for the purposes of temporarily anesthetizing patients for sufficient time to intubate the trachea and institute mechanical support of ventilation and respiration. Once this has been achieved, additional drugs are administered to maintain a “surgical depth” or “surgical plane” of anesthesia (i.e., a level of anesthesia deep enough to ensure that a surgical patient feels no pain and is unconscious). The medical utility of thiopental derives from its ultrashort-acting properties: if unanticipated obstacles hinder or prevent successful intubation, patients will likely quickly regain consciousness and resume ventilation and respiration on their own.
34. The benefits of thiopental in the operating room engender serious risks in the execution chamber. The duration of narcosis provided by thiopental is dose dependent. Generally, the larger the dose, the longer the narcosis. Oklahoma administers a 1.2 gram (or 1200 milligram) dose of thiopental in a single injection from a single syringe. This initial dose of thiopental is the smallest dose of thiopental of which I am aware given by any state conducting executions by lethal injection. If successfully delivered into the circulation, such a dose is larger than the typical clinical dose, and would likely produce a deep anesthesia in most people. However, this dose is concerning because, if an inmate does not receive
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 11 of 19
the full dose of thiopental because of any error or problems in drug preparation or administration, there is absolutely no safety margin in the dose. This is unacceptable given the context in which the drug is being administered and it is appalling that the ODOC has for years been performing executions with this initial dose of thiopental. Additionally, given the range of time it has taken to complete some Oklahoma executions and the range of inmate weights, this dose of thiopental is small enough that, unadjusted for weight or body mass, some inmates could be at risk of reawakening.
35. Many foreseeable situations exist in which human or technical errors could result in the failure to successfully administer the intended dose. The ODOC’s procedure both fosters these potential problems and fails to provide adequate mechanism for recognizing these problems, and it does these things needlessly and without legitimate reason.
Drug Administration Problems
36. Examples of problems that could occur (and which have occurred in executions) that could prevent the proper administration of thiopental include, but are not limited to, the following:
a. Errors in Drug Preparation. Thiopental is delivered in powdered form and must be mixed into an aqueous solution prior to administration. This preparation requires the correct application of pharmaceutical knowledge and familiarity with terminology and abbreviations. Calculations are also required, particularly if the protocol requires the use of a concentration of drug that differs from that which is normally used. Recently drug preparation problems were revealed in the State of Missouri, which was using a board-certified physician to prepare drugs. See Excerpts of Transcript of June 12, 2006 Bench Trial, at 30-39, Taylor v. Crawford, No. 05-4173-CV-C-FJG (W.D. Mo.), attached hereto as Exhibit 8.
b. Error in Labeling of Syringes. It is of paramount importance that the drugs in an execution be given in the correct order. If the drugs are mislabeled, it greatly increases the chances the drugs will not administered in the correct order.
c. Error in Selecting the Correct Syringe. As presently configured, the ODOC protocol uses the serial injection of fluid from eleven syringes. With that number of syringes it would be easy to make a mistake in selecting the correct syringe, especially in the reportedly low light conditions described as occurring in the Oklahoma drug room during executions. See Affidavit of Janet Chesley, &11, attached hereto as Exhibit 9.
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 12 of 19
d. Error in Correctly Injecting the Drug into the Intravenous Line. If the syringe holding the drug is turned in the wrong direction, a retrograde injection of the drug into the IV fluid bag rather than into the inmate will result. Even experienced anesthesiologists sometimes make this error, and the probability of this error occurring is greatly increased in the hands of inexperienced personnel.
e. The IV Tubing May Leak. An “IV setup” consists of multiple components that are assembled by hand prior to use. If, as indicated by publicly available pictures of Oklahoma’s execution chamber, the drugs are not at the bedside but are instead in a different room then it will be impossible to maintain visual surveillance of the full extent of IV tubing so that such leaks may be detected. The configuration of the death chamber and the relative positions of the executioners and the inmate may hinder or preclude such surveillance, thereby causing a failure to detect a leak. Leaking IV lines were noted in Maryland. See Maryland Department of Corrections Execution Log, attached hereto as Exhibit 10.
f. Incorrect Insertion of the Catheter. If the catheter is not properly placed in a vein, the thiopental will enter the tissue surrounding the vein but will not be delivered to the central nervous system and will not render the inmate unconscious. This condition, known as infiltration, occurs with regularity in the clinical setting. Recognition of infiltration requires continued surveillance of the IV site during the injection, and that surveillance should be performed so as to permit correlation between visual observation and tactile feedback from the plunger of the syringe. One cannot reliably monitor for the presence of infiltration through a window from another room. There has been at least one occasion in Oklahoma in which an infiltration in the catheter delivering the anesthetic thiopental has been noted. See Medical Examiner Records on the Execution of Loyd LaFevers, at ME 1695, attached hereto as Exhibit 11; Declaration of Pat Ehlers, attached hereto as Exhibit 5
g. Migration of the Catheter. Even if properly inserted, the catheter tip may move or migrate, so that at the time of injection it is not within the vein. This would result in infiltration, and therefore a failure to deliver the drug to the inmate's circulation and failure to render the inmate unconscious.
h. Perforation or Rupture or Leakage of the Vein. During the insertion of the catheter, the wall of the vein can be perforated or weakened, so that during the injection some or all of the drug leaves the vein and enters the surrounding tissue. The likelihood of rupture occurring is increased if too much pressure is applied to the plunger of the syringe during injection, because a high pressure injection results in a high velocity jet of drug in the vein that can penetrate or tear the vessel wall. This is a particularly grave risk in Oklahoma where the drugs are injected as fast as possible.
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 13 of 19
See Oklahoma Drug Administration Times, attached hereto as Exhibit 12. Recently, during the Clark execution in Ohio, the Department of Corrections failed to recognize that the condemned’s veins had collapsed, causing the inmate to reawaken during the execution process and the condemned inmate to plead “Can’t you just give me something by mouth to end this.” See Jim Provance, Problematic execution draws questions: Correction official to appear before panel, TOLEDO BLADE (May 17, 2006), attached hereto as Exhibit 13.
i. Excessive Pressure on the Syringe Plunger. Even without damage or perforation of the vein during insertion of the catheter, excessive pressure on the syringe plunger during injection can result in tearing, rupture, and leakage of the vein due to the high velocity jet that exits the tip of the catheter. Should this occur, the drug would not enter the circulation and would therefore fail to render the inmate unconscious. This is a particularly grave risk in Oklahoma where the drugs are injected as fast as possible. See Oklahoma Drug Administration Logs, attached hereto as Exhibit 12.
j. Securing the Catheter. After insertion, catheters must be properly secured by the use of tape, adhesive material, or suture. Movement by the inmate, even if restrained by straps, or traction on the IV tubing may result in the dislodging of the catheter. If this were to occur under a sheet, it would not be detected, and the drug would not enter the inmate’s circulation and would not render the inmate unconscious.
k. Failure to Properly Loosen or Remove the Tourniquet. A tourniquet is used to assist in insertion of an IV catheter. Failure to remove such tourniquets from the arm or leg after placement of the IV catheter will delay or inhibit the delivery of the drugs by the circulation to the central nervous system. This may cause a failure of the thiopental to render and maintain the inmate in a state of unconsciousness.
l. Impaired Delivery Due to Restraining Straps. Restraining straps may act as tourniquets and thereby impede or inhibit the delivery of drugs by the circulation to the central nervous system. This may cause a failure of the thiopental to render and maintain the inmate in a state of unconsciousness. Even if the IV is checked for “free flow” of the intravenous fluid prior to commencing injection, a small movement within the restraints on the part of the inmate could compress the vein and result in impaired delivery of the drug. It has been noted in at least one execution by lethal injection that the straps hindered the flow of drugs. See Editorial, Witnesses to a Botched Execution, ST. LOUIS POST-DISPATCH, at 6B (May 8, 1995).
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 14 of 19
37. These types of drug administration problems are not uncommon in the practice of medicine. A number of medical publications detail exactly these types of administration issues. For example, the National Academy of Sciences Institute on Medicine has just published the report of the Committee on Identifying and Preventing Medication Errors, which details the rates of drug preparation and administration errors in hospital setting and concludes “[e]rrors in the administration of IV medications appear to be particularly prevalent.” PREVENTING MEDICATION ERRORS: QUALITY CHASM SERIES 325-60 (Philip Aspden, Julie Wolcott, J. Lyle Bootman, Linda R. Cronenwett, Eds. 2006), excerpt attached hereto as Exhibit 14. Id. at 351. Likewise a recent study shows that “drug-related errors occur in one out of five doses given to patients in hospitals.” See Bowdle, T. A., Drug Administration Errors from the ASA [Am. Soc. Anesthesiologists] Closed Claims Project, 67(6) ASA NEWSLETTER, 11-13 (2003), attached hereto as Exhibit 15. This study recognizes that neuromuscular blockers have been administered to awake patients and to those who have had inadequate doses of general anesthetic. Id.
38. In the practice of medicine, preventing pain and/or death as a result of these common drug administration problems is achieved by having persons in attendance who have the training and skill to recognize problems when they occur and the training and skill to avert the negative consequences of the problems when they arise.
The Need for Adequate Training in Administering Anesthesia
39. Because of these foreseeable problems in administering anesthesia, in Oklahoma and elsewhere in the United States, the provision of anesthetic care is performed only by personnel with advanced training in the medical subspecialty of Anesthesiology. The establishment of a surgical plane of anesthesia is a complex task which can only reliably be performed by individuals who have completed the extensive requisite training to permit them to provide anesthesia services. See Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 859 Appendix 1 (Apr. 2006) (recommending the use of “multiple modalities to monitor depth of anesthesia”), attached hereto as Exhibit 3. If the individual providing anesthesia care is inadequately trained or experienced, the risk of these complications is enormously increased. The President of the American Society of Anesthesiologists recently agreed that “the only way to assure [a surgical plane of anesthesia] would be to have an anesthesiologist prepare and administer the drugs, carefully observe the inmate and all pertinent monitors, and finally to integrate all this information.” Orin F. Guidry, M.D., Message from the President: Observations Regarding Lethal Injection (June 30, 2006), attached hereto as Exhibit 16.
40. In Oklahoma, and elsewhere in the United States, general anesthesia is administered by physicians who have completed residency training in the
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specialty of Anesthesiology, and by nurses who have undergone the requisite training to become Certified Registered Nurse Anesthetists (CRNAs). Physicians and nurses who have not completed the requisite training to become anesthesiologists or CRNAs are not permitted to provide general anesthesia.
41. In my opinion, individuals providing general anesthesia in the Oklahoma State Penitentiary (“OSP”) should not be held to a different or lower standard than is set forth for individuals providing general anesthesia in any other setting in Oklahoma. Specifically, the individuals providing general anesthesia within OSP should possess the experience and proficiency of anesthesiologists and/or CRNAs. Conversely, a physician who is not an anesthesiologist or a nurse who is not a CRNA should not be permitted to provide general anesthesia within OSP prison (or anywhere else in Oklahoma).
42. There is no evidence, at this time, that any person on the ODOC’s injection team has any training in administering anesthesia, or, if personnel are given training, what that training might be. The absence of any details as to the training, certification, or qualifications of injection personnel raises critical questions about the degree to which condemned inmates risk suffering excruciating pain during the lethal injection procedure. The great majority of nurses are not trained in the use of ultrashort-acting barbiturates; indeed, this class of drugs is essentially only used by a very select group of nurses who have obtained significant experience in intensive care units and as nurse anesthetists. Very few paramedics are trained or experienced in the use of ultrashort-acting barbiturates. Based on my medical training and experience, and based upon my research of lethal injection procedures and practices, inadequacies in these areas elevate the risk that the lethal injection procedure will cause the condemned to suffer excruciating pain during the execution process. Failure to require that the injection team have training equivalent to that of an anesthesiologist or a CRNA compounds the risk that inmates will suffer excruciating pain during their executions.
43. In addition to apparently lacking the training necessary to perform a lethal injection, the ODOC’s protocol imposes conditions that exacerbate the foreseeable risks of improper anesthesia administration described above, and fails to provide any procedures for dealing with these risks. Perhaps most disturbingly, the protocol prevents effective monitoring of the inmate’s condition or whether he is anesthetized and unconscious. After IV lines are inserted and the execution begins, it appears that only the Warden (who is standing next to the condemned) has a clear view of the intravenous catheter sites. Accepted medical practice, however, would dictate that trained personnel monitor the IV lines and the flow of anesthesia into the veins through visual and tactile observation and examination. The lack of any qualified personnel present in the chamber during the execution thwarts the execution personnel from taking the standard and necessary measures to reasonably ensure that the thiopental is properly flowing into the inmate and
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 16 of 19
that he is properly anesthetized prior to the administration of the vecuronium bromide and potassium.
44. In my opinion, having a properly trained and credentialed individual examine the inmate after the administration of the thiopental (but prior to the administration of vecuronium) to verify that the inmate is completely unconscious would substantially mitigate the danger that the inmate will suffer excruciating pain during his execution. This is the standard of care, and in many states the law, set forth for dogs and cats and other household pets when they subjected to euthanasia by potassium injection. Yet the ODOC protocol does not apparently provide for such verification.
45. The ODOC’s protocol calls for the drugs to be administered through two intravenous lines. Thiopental is administered through the left arm and vecuronium is administered through the right arm. I know of no other state that administers drugs for lethal injection in this manner. In clinical practice, an anesthesiologist would never plan to induce anesthesia through two separate IV sites. Even if the drugs are intended to be given serially, one after another, the use of two lines creates a grave risk that serial drug administration will not actually occur. The ODOC is injecting different volumes of drug through two IV lines at a high rate of speed. The rapid rate of injection of different volumes means that, sent through two different IV lines, the ODOC has lost its ability to control precisely when the drugs get to the condemned inmate. Seconds matter in an execution that is taking place in under three (or even under two) minutes. The loss of control over the drug delivery (even if everything else is working according to plan) creates a serious and completely avoidable risk regarding timing the drug onset.
46. Even more concerning, if a condemned inmate has a drug delivery problem in the thiopental arm (as we know to have occurred in the execution of Loyd LaFevers), thiopental will be ineffectively delivered, and as a result of the ODOC’s uniquely dangerous use of two IV lines, the full doses of vecuronium and potassium will then be injected via the other arm. The inmate will then experience the full effect of those drugs, with the pain of that experience unameliorated by anesthetic. The ODOC’s method of using two IV catheters for the injection of drugs is blatantly reckless and inadequate and raises serious concerns about the qualifications and experience of those who designed this protocol.
47. The rate of drug administration in Oklahoma executions presents a serious risk of suffering. Thiopental, like any anesthetic – even an ultra-short acting anesthetic – takes time to act. When all injections are completed with two minutes, as would appear to be the case in Oklahoma, the ODOC is recklessly pushing the boundary of ensuring that the condemned inmate has been adequately anesthetized even if there are no IV access or drug related issues. The ODOC has simply not allowed enough time for the thiopental to work to its fullest.
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 17 of 19
48. The ODOC protocol calls for the administration of thiopental after the administration of two doses of potassium chloride. As soon as the potassium chloride perfuses the inmate’s heart, his heart will stop beating and his circulation will stop. He will be dead. It is senseless to administer anesthetic to a dead person. That the ODOC does not understand that its second dose of anesthetic can serve no purpose in ameliorating pain suggests, once again, that the ODOC does not understand the lethal injection process.
D. Unqualified Persons Creating Intravenous Access
49. The first step in the lethal injection process is creating effective intravenous access for drug delivery. The subsequent administration of the anesthetic drugs can only be successful if IV access is properly achieved. But the ODOC has put in place a protocol that exacerbates the risk that IV access will not be adequately achieved. Oklahoma states it uses phlebotomists to insert IV catheters. In my experience as an anesthesiologist (which has been confirmed by the affidavit of Mary Burden) phlebotomists are not qualified by virtue of their phlebotomy training to insert catheters for the administration of intravenous anesthetics. See Affidavit of Mary Burden, attached hereto as Exhibit 17. I have identified at least one occurrence where the ODOC was unable to effectively achieve IV access and failed to recognize and rectify that problem. See Medical Examiner Records of Loyd LaFevers, attached hereto as Exhibit 11. The failure to recognize and avert the negative consequences of a significant problem like an infiltration is the direct consequence of having unqualified persons engaged in complicated medical tasks in conjunction with an absence of monitoring or oversight.
50. Autopsy reports of executed inmates show that the ODOC has experienced difficulty in establishing IV access. In the last execution conducted in Oklahoma, newspapers report that “Boltz’s execution was delayed more than one hour because prison workers had trouble finding a vein to inject the lethal cocktail, said Jerry Massie, spokesman for the Oklahoma Department of Corrections.” Tim Talley, Oklahoma executes 74-year-old death row inmate, AP Alert (June 2, 2006), attached hereto as Exhibit 18. Although it is not entirely clear, it appears that the ODOC was not able to achieve peripheral venous access to Mr. Boltz and instead used some other method, possibly a “cut-down” as mentioned in Warden Mullin’s affidavit, to achieve intravenous access.
51. A “cut-down” is a complicated medical procedure requiring equipment and skill that are not accounted for Warden Mullin’s affidavit. It has a very high probability of not proceeding properly in the absence of adequately trained and experienced personnel, and without the necessary equipment. If done improperly, the “cut-down” process can result in very serious complications including severe hemorrhage (bleeding), pneumothorax (collapse of a lung which may cause suffocation), and severe pain. It is well documented that lethal injection procedures in Oklahoma and other states have at times required the use of central intravenous lines. As is widely recognized in the medical community,
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 18 of 19
administration of intravenous medications and the management of intravenous systems are complex endeavors with significant risks and complications. The report of apparent blood from the execution of Mr. Boltz in the entrance to H-Unit is not inconsistent with complications occurring in a cut-down or central line placement. See Affidavit of Janet Chesley, ¶ 14, attached hereto as Exhibit 9.
52. It is my opinion that, to reasonably minimize the risk of severe and unnecessary suffering during the ODOC’s execution by lethal injection, there must be: proper procedures that are clear and consistent; qualified personnel to ensure that anesthesia has been achieved prior to the administration of vecuronium bromide and potassium chloride; qualified personnel to select chemicals and dosages, set up and load the syringes, administer “pre-injections,” insert the IV catheter, and perform the other tasks required by such procedures; and adequate inspection and testing of the equipment and apparatus by qualified personnel. The ODOC’s procedures for implementing lethal injection, to the extent that they have been made available, provide for none of the above.
VI. Conclusions
53. Based on my research into methods of lethal injection used by various states and the federal government, and based on my training and experience as a medical doctor specializing in anesthesiology, it is my opinion stated to a reasonable degree of medical certainty that, given the apparent absence of a central role for a properly trained professional in ODOC’s execution procedure, the characteristics of the drugs or chemicals used, the failure to understand how the drugs in question act in the body, the failure to properly account for foreseeable risks, the design of a drug delivery system that exacerbates rather than ameliorates the risks of error, the ODOC’s lethal injection procedure creates medically unacceptable risks of inflicting excruciating pain and suffering on inmates during the lethal injection procedure. All of these problems could easily be addressed, and indeed have been addressed by the veterinary profession for the euthanasia of dogs and cats. It is difficult to understand why the ODOC has failed to address these problems and has failed to meet the minimum standards set forth for veterinary euthanasia.
54. In addition, in order to more fully and fairly assess the impact of ODOC’s protocol failings, it is necessary to obtain all the records and logs used, and all official witness statements from prior executions, as well as the full rules and regulations devised by ODOC for lethal injection. This would include identifying the qualifications, experience and training of those persons who apply the IVs and who administer and monitor the injection.
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Case 5:06-cv-00591-F Document 17 Filed 07/28/2006 Page 19 of 19 I declare under penalty of perjury that the foregoing is true and correct. EXECUTED ON THIS 27th DAY OF July, 2006.
_____________________________ Mark J. S. Heath
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 David A. Senior (# 108759) McBreen & Senior 2 1880 Century Park East, Suite 1450 Los Angeles, CA 90067 3 Phone: (310) 552-5300 Fax: (310) 552-1205 4 dsenior@mcbreensenior.com

5 John R. Grele (# 167080) Law Offices of John R. Grele
6 703 Market Street, Suite 550 San Francisco, CA 94103
7 Phone: (415) 348-9300 Fax: (415) 348-0364
8 jgrele@earthlink.net

9 Richard P. Steinken (admitted pro hac vice) Jenner & Block LLP
10 One IBM Plaza Chicago,IL 60611-7603
11 Phone: (312) 923-2938 Fax: (312) 840-7338
12 rsteinken@jenner.com

13 Ginger Anders (admitted pro hac vice) Jenner & Block LLP
14 601 13th St. NW Suite 1200S Washington, DC 20005
15 Phone: (202) 639-6000 Fax: (202) 639-6066
16 ganders@jenner.com

17 Attorneys For Plaintiff MICHAEL ANGELO MORALES

18

IN THE UNITED STATES DISTRICT COURT

19

FOR THE NORTHERN DISTRICT OF CALIFORNIA

20 MICHAEL ANGELO MORALES,

) Case No. C 06219 (JF)

)

C 06 926 (JF)

21

Plaintiff,

)

) POST-TRIAL DECLARATION OF

22

) DR. KEVIN CONCANNON

v.

)

23

)

24

JAMES E. TILTON, Acting Secretary ofthe California Department of Corrections and

) )

25 Rehabilitation; ROBERT L. AYERS, JR.,

)

Acting Warden, San Quentin State Prison, San )

26 Quentin, CA; and DOES 1-50,

)

Defendants.

)

27

)

I+---------------------------------~-----------------------------

28

1

Declaration of Dr. Kevin Concannon

No. C 06 219 JF

No. C 06 926 JF

1

2

I, Kevin Concannon, D.V.M., D.A.C.V.A., both depose and state as follows:

3

1. As a veterinary anesthesiologist and a practicing veterinarian, I have extensive

4 experience euthanizing animals and am knowledgeable about the drugs commonly used during the

5 euthanasia procedure. I have reviewed the questions asked by the judge in the Court's Request for

6 Briefing, dated October 3,2006. Counsel for Mr. Morales has asked me to address the standards of

7 care that are observed in veterinary euthanasia and explain how these standards are relevant to the

8 concerns expressed in the judge's questions. Portions of this affidavit refer to the Humane Society of

9 the United States' Euthanasia Training Manual (Manual, attached as Exhibit 1). I want to stress that

10 this manual was written for use in animal control facilities or shelters. The Manual should not be

11 used as a detailed, step by step guide for lethal injection of humans. The Manual along with the

12 AVMA Panel Report on euthanasia serve as examples of what can be achieved through expert

13 review. These documents are the product of veterinary experts who have been and who are

14 committed to the development, review, participation in, and revision of euthanasia protocols. They

15 demonstrate what could be done for the lethal injection process, knowing that standards of care for

16 humans will be different than those for animals.

17

2. In the veterinary clinical setting, as opposed to other settings such as a wildlife area or

18 slaughter house, sodium pentobarbital, alone or in combination with a secondary drug, is the drug of

19 choice for euthanasia. A concentrated solution of pentobarbital delivered intravenously will

20 consistently lead to rapid achievement of an anesthetic state after which the animal will stop

21 breathing. Brain and heart function will cease after breathing has ended. The AVMA report and the

22 Stanford University School of Medicine, Animal Care Guidelines (Stanford ACG), attached as

23 Exhibit 2, both list pentobarbital as the drug of choice for non-human primate euthanasia.

24

3. The AVMA Report reviews settings where animals are euthanized. The panel

25 recognized that all circumstances where the need for euthanasia may arise could not be covered. The

26 report recommends that a veterinarian experienced with the species in question should use

27

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No. C 06219 JF

No. C 06 926 JF

1 professional judgment and knowledge of clinically accepted techniques in selecting an appropriate

2 euthanasia method. This line of thought should also be used when expected clinical signs are not

3 observed during a euthanasia procedure. Based on my training and my clinical experience, I have

4 full confidence that the majority of animals (greater than 95%) will succumb within a few minutes

5 after injection of a euthanasia solution or an overdose of pentobarbital. I am in direct contact with

6 the patient during the euthanasia procedure. If the patient is not showing clinical signs associated

7 with a rapid progression to a deep anesthetic state, I would immediately search for the cause(s) and

8 correct problems associated with differing patient physiology, intravenous (IV) access, the medical

9 supplies used during the procedure, or drug dosage and administration method. It goes without

10 saying that in performing this troubleshooting, I rely on my training and experience.

11

4. The state of North Carolina recognizes the training and skill needed to practice

12 veterinary medicine and has defined standards for licensees. Only a veterinarian can practice

13 veterinary medicine. Only a veterinarian can perform a procedure which causes an irreversible

14 change in an animal, euthanasia being one such procedure. Exceptions to this rule are present in

15 circumstances where economic or other societal factors come into play. The use of non-

16 professionals, such as veterinary technicians, to euthanasia animals in shelters is a concession to

17 economic constraints and the reality of large numbers of unwanted pets.

18

5. The American Veterinary Medical Association, AVMA, first convened a panel on

19 euthanasia in 1963 and the findings have been evaluated and updated five times since then. Between

20 the first and the last review (2000) understanding of animal physiology has increased and changes

21 have occurred in society's concern for animals and the definition of humane treatment. Veterinary

22 experts have devoted time and resources to determine the most humane methods of euthanasia, and

23 this process will continue into the future. For veterinarians, the main example of the euthanasia

24 review process is the 2000 report of the American Veterinary Medical Association Panel on

25 Euthanasia (AVMA Report).

26

6. Another product of a review process is the Humane Society of the United States'

27 Euthanasia Training Manual. The Manual differs from the A VMA Report as it is less technical and

28 '

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Declaration of Dr. Kevin Concannon

No. C 06219 JF

No. C 06 926 JF

1 deals more with the physical act of euthanasia in an animal control facility or shelter. This manual is

2 produced for shelter managers, administrators, and technicians, and it grew out of previous attempts

3 to improve the euthanasia process for both animals and shelter workers. The manual was written by

4 a veterinarian with an advisory panel containing other veterinarians including a board certified

5 veterinary anesthesiologist.

6

7. The AVMA report lists twelve different criteria that were used to evaluate methods of

7 euthanasia. The foremost criteria is the "ability to induce loss of consciousness and death without

8 causing pain, distress, anxiety, or apprehension." The report mentions that even in slaughter houses,

9 "Animals intended for food should be slaughtered humanely... " The report further suggests that

10 animals used for food must be handled so as to reduce their stress and must not be restrained in a

11 painful manner prior to death. The Manual reiterates the twelve criteria for euthanasia listed in the

12 AVMA report and says that "The primary concern of those performing euthanasia should be ending

13 an animal's life with the least amount of pain and stress possible." Both of these documents use

14 humane death as the primary goal of the euthanasia process and as a guiding principle for designing

15 appropriate euthanasia protocols.

16

8. Even though a different standard exists for animal shelters as compared to veterinary

17 hospitals, shelter workers (who may have little or no veterinary training) still need training on

18 provision of humane care, drug action, IV injection, vital sign monitoring, record keeping, safety

19 concerns, emotional stress, and any issues specific to the physical layout of the euthanasia room. The

20 breadth of recommendations available in the Manual contrasts with the more narrow focus of the

21 lethal injection process in the CDCR's execution protocol. The Manual creates a minimum standard

22 of care that should be observed by shelters to ensure that euthanasia is humane, efficient, and as

23 stress free as possible on the animal and shelter personnel.

24

9. The authors of the Manual clearly state that "This manual is not meant to be a

25 substitute for supervised training, and no one should attempt any of the techniques explained except

26 under the guidance of a properly qualified individual experienced and proficient in euthanasia." (page

27 iv, page 8). Whether for a veterinarian or a shelter worker, initial and ongoing training is important

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Declaration of Dr. Kevin Concannon

No. C 06219 JF

No. C 06 926 JF

so that humane euthanasia can be achieved and participants feel comfortable that they are providing

2 the optimum level of care.

3

10. In addition to ongoing training, screening euthanasia personnel is important.

4 "Euthanasia should be entrusted to the most conscientious and qualified personnel only -- never to a

5 person who is careless, indifferent to animal suffering, or untrained in animal behavior or euthanasia

6 techniques." (Humane Society of the United States, General Statement Regarding Euthanasia

7 Methods for Dogs and Cats, attached as Exhibit 3.)

8

11. I rely upon my knowledge of pentobarbital and of the patient to predict the desired

9 effect of the drug within a patient. Pentobarbital, or a pentobarbital containing euthanasia solution,

10 will cause unconsciousness within seconds of intravenous injection and this is accompanied by

11 relaxation of the animal. Unconsciousness rapidly progresses to a deep level of anesthesia with

12 reductions in blood pressure. Breathing will stop shortly after the drop in blood pressure due to the

13 depressant effect of pentobarbital on the respiratory centers of the brain. Without continuous uptake

14 of oxygen from the lungs and delivery of oxygen to the brain through the cardiovascular system,

15 brain function stops and death occurs.

16

12. I use direct, physical assessment of the patient to definitively determine the effect of

17 my injection. Circumstances in a shelter environment dictate that a veterinarian can't be present

18 during most euthanasia procedures. The concept of direct monitoring is so important to the provision

19 of humane euthanasia that the Manual recommends that shelter workers be taught about the clinical

20 signs they will see during euthanasia. The Manual recommends that shelter workers be trained to

21 listen for a heartbeat with a stethoscope, visually assess the patient, touch the patient to check

22 reflexes, and corroborate that the heart has stopped by placing a needle through the heart and

23 observing for motion associated with a heart beat. Although shelter workers won't have a

24 veterinarian's level of understanding, training them to recognize the physical changes associated with

25 euthanasia is far better than having untrained workers perform euthanasia.

26

13. The Manual recommends pentobarbital as the drug of choice for euthanasia in a

27 shelter setting. The document also makes a valid point when it notes that no method of euthanasia is

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Declaration of Dr. Kevin Concannon

No. C 06 219 JF

No. C 06 926 JF

1 perfect. Pentobarbital requires close contact with the animal to monitor vital signs and to deliver the

2 drug intravenously. Use of this drug also "requires adequate restraint and mastery of appropriate

3 irtiection technique." (Stanford University School of Medicine, Animal Care Guidelines) These

4 points can be perceived as disadvantages for the people involved in the euthanasia procedure as close

5 contact with the animals will frequently lead to emotional stress and secondary physical problems.

6 Training of workers by experienced staff and monitoring to ensure procedures are followed can be

7 lengthy, costly, and time consuming. Achieving a humane death outweighs these potential

8 disadvantages. Dealing directly and appropriately with these issues will make workers feel that they

9 are acting humanely and in the most appropriate manner possible.

10

14. Pentobarbital is classified as a schedule II controlled substance under the Controlled

11 Substances Act. The classification scale runs from I to V with schedule I drugs carrying the greatest

12 risks of physical or psychological addiction and schedule V drugs having the least risk. Addition of a

13 secondary drug to pentobarbital as is done with commercially available euthanasia solutions will

14 result in a change from schedule II to schedule III. Federal law requires documentation of the

15 purchase, administration, dosing, and disposal of all controlled drugs.

16

15. The AVMA report leaves the details of euthanasia to the professional judgment of the

17 veterinarian. The Manual makes few assumptions about the knowledge level of the reader and

18 covers details including the physical environment where euthanasia occurs. "The ideal euthanasia

19 area is a clean, well-ventilated, and readily accessible room ... and is used only for euthanasia." (p.

20 21). "Some shelters, especially those that previously used another euthanasia method, have

21 designated rooms for injection euthanasia that were not designed for this purpose. . .. inappropriate

22 spaces have been transformed into euthanasia rooms without adequate consideration for how the

23 people who must use them and the animals to be euthanized will affected by the space." Page 22.

24 The Manual recommends that lighting "bright enough to provide clear visibility in all areas is very

25 important," page 23. A well designed room for euthanasia will help tacilitate a humane procedure

26 while poor lighting, inadequate access to the animal, or lack of immediate access to supplies will

27 increase the chances for an improperly performed procedure.

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Declaration of Dr. Kevin Concannon

No. C 06 219 JF

No. C 06 926 JF

16. Each shelter should have an individualized, wTitten manual that describes in detail the

2 euthanasia procedures for that shelter. A checklist of items is helpful to promote consistency in the

3 euthanasia procedure particularly when more than one individual performs this task. In a veterinary

4 clinical setting, this Manual or one like it will never replace the expertise of a veterinarian. A manual

5 is necessary as a helpful aid only when the economic and pragmatic constraints of a shelter setting

6 preclude a veterinarian being present.

7

17. During my training and in my practice I have been involved in many clinical

8 situations where my initial plan did not work, and I had to resort to alternate plans. The Manual

9 echoes this point. "Because of the many variables involved, it will never be possible to prevent all

10 problems that may occur during the injection (euthanasia) process... , The true test of a good

11 technician is not the number of problems that occur but how those problems are handled." (Page

12 105.) For this reason, a carefully trained shelter worker is much more able to react to problems

13 effectively than an untrained one. Even so, a shelter worker is much better prepared to troubleshoot

14 problems associated with the mechanical delivery of the drug during euthanasia than in

15 understanding differences in patient physiology or drug action that could result in unexpected

16 problems during the procedure. The optimal setting for a euthanasia will continue to be in a

17 controlled environment with a veterinarian present such as happens in a veterinary hospital.

18

18. Standards of care require that accurate records are kept so that problems with drug

19 dosage or administration can be easily noted and corrected. Records should be followed over days to

20 weeks to note trends. Consistent discrepancies between amount of drug administered and the effects

21 in the patient may suggest that drugs are being diverted. Any deviations from expectations during the

22 euthanasia procedure should be noted in the record, corrected if necessary, and then discussed with

23 knowledgeable individuals after the fact. The shelter worker must have confidence that they are

24 doing their best to ensure a humane euthanasia and unexplained problems will cause them to harbor

25 doubts about their role in the euthanasia process.

26

19. Communication between shelter workers and professional staff is important to

27 prevent, evaluate and correct problems. Clear written instructions are the first step in

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Declaration of Dr. Kevin Concannon

No. C 06 219 JF

No. C 06 926 JF

communications and the establishment of a training program is the second. Training must be

2 monitored to ensure consistency between different staff members and adherence to policies. Shelter

3 workers must be encouraged to speak up when problems arise with the goal of solving the problem

4 rather than assigning blame. Professional, veterinary staff must listen to feedback from those

5 entrusted to perform euthanasias. Improvements may be made based on this feedback, but veterinary

6 staff must have the final decision. Veterinarians should participate in the euthanasia process as

7 necessary as part of any improvement process.

8

20. Shelters and animal care facilities must recognize the "widespread and strong negative

9 influence" that euthanasia has on euthanasia technicians. (Manual, p 8) Shelter workers should focus

lOon successful provision of a human procedure rather than the outcome of the procedure, i.e. the death

11 of an animal. The negative influence of euthanasia can lead to stress on workers directly and

12 indirectly involved with the procedure. Stress can be manifest as disruption of daily activities, lack

13 of concentration, sleep problems, feelings of inadequacy, lack of self-worth, family conflict,

14 substance abuse, depression, burn-out, and negative job satisfaction. The management team at

15 animal shelters should watch for signs of stress and have internal protocols to proactively deal with

16 the inevitable negative feelings that come with performing euthanasias.

17

21. In summary, these are some examples of the issues that need to be considered when

18 designing a veterinary euthanasia procedure. Medical experts would do well to address these issues

19 in order to answer current or any future questions about the lethal injection protocol employed by the

20 state of California.

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Declaration of Dr. Kevin Concannon

No. C 06 219 JF

No. C 06 926 JF

11/08/2006 18:57 FAX 919 854 1155

VET SPEC HOSP

141 002

2

I declare under penalty ofperjury ofthe h:ws of the United States that the foregoing is true

3 and correct.

4

Executed on this 9th day of November, 2(106.

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15

16

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BY:l~sc~
Dr. Kevin Concannon

27
28 Declaration ofDr. Kevin Concannon No. C 06 219 JF No. C 06 926 JF

 
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n --n- __n

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David A. Senior (#108759) McBreen & Senior 1880 Century Park East. Suite ]450 Los Angeles, CA 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 dsenior@mcbreensenior.com
John R Grete (#167080) Law Offices of John R Gre1e
703MarketS~ Suite550 San Francisco, CA 94103 Phone: (415) 348-9300 fin: (415) 348-0364 jgrele@earth1ink.net
Richard P. Steinken (admittedpro hac vice)
Jenner &:,Block: LLP
One mM Plaza Chicago, IL 60611-7603 Phone; (312) 923-2938 Fax: (312) 840-1338 r&teinken@jenner.com
Attorneys For Plaintitf MICHAEL ANGELO MORALES
UNITED STATES DISTRICT COURT
NORI'Ut:RN DISTRICT OF CAUFORNIA
SANJOSR nwrSIoN

MICHAELANGELOM. ORALES Plaintiff,
v.
JAMES TILTON, Acting Secretary of the

) Case nos. 06-219 (JF)(RS)

)

06-926 (JF)(RS)

)

) ) DECLARATIONOF MICHAEL ) WOMlS, DVM

)

)

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California Department or Con-c:ctions;

)

ROBERT L AYBRS. Acting Warden of San )

Quentin State Prison; and DOES 1-50.

)

)

Defendants.

)

~c.hl,l1JIiq~..QfMichael t,oomis. DVM
I, Michael Loomis, dcclaccas fun ows;
1. ' I am a doctor of veterinary medicinc. I am 1icensedto prAct14;viCeterinary medicine in the states ofCalifomia and North Carolina.. I ani CUJTentltyhe Cbicfveterinarian of the Norrh Carolina ZoologicaJ P'U'k, I earned a B.S. in 1972 at the University of Georgia,
AtbCDB.Geol'gia. In 1974, I received an MA at Indiana. University, Bloomington, Indiana. I earned a.doctorate in veterinary medjcine at the UniversitYofCalifomia at Davis. in navis., California, in 1980. I h~c rcocivcd awards rfum uumeruw;national bonor societies as wen 3!i Phi Zeta, the National Honorary Society for Veterinary Medicine. I am a ..ecipi~lt of the Achievement Rewards f()TCollege Scientists Scholarship in Primate Medicine and Primate PaIhoiogy.
2. I have been an Associate ProfE'~uoarf Zoological Medicine at the North Carolina College of yeterinary Medi"ine Binee1991. 1authored the chapter on Great Apes in Zoo and
2

t- ~UM : LUNN LULL I:IUIHNY + 1:11ULUL:iY

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~4

Wild Animal Medicine, a standard text in the fieJd. I have authored published 5Ciholarlyarticles in a number of peer reviewed professionaljournals including Laboratory Anima1Science, The Journal of the American Veterinary Associati~ and The JoumaJ of Zoo and Wildlife Medicine, among others. I am a Diplomate of the American College of Zoological Medicine, the specialty board for zoological medicine. I have been invir.ooto give presentations at professional conferences regarding gorilla health. I am a member of several professional organizations including the American Association of Zoo Veterinarians and the American CoI1egeof ZooJogical Medicine,. I have served as president of both organizations. I was the Association of Zoos and Aquaria Chimpanzee Species Survival Plan Veterinary Advisorftnm 1990-2000.
2. At the request of counsel, I have been asked to provide the steps taken jn a stond81'deuthanasia of a gorilla. r have never pc.rsonaJlyeutbani~ it gUlil1a..I d', have tWent)'six years af experience providing veterinary cO«;to gorillu and have e:densive experience in gorilla anesthesia. I have, in those 26 years, bad to cutbani2'.Ca number of animals including other primates for a variety of reasons. Euthanasia of gorillas are rare events. Written protocols and pmcedul1!5specific:t:o gorillas do not exist in the literature or veterinaJy training materials. That said~gorilfa euthanasia complies with the ~tandMdeuthanasia procedures established by the American Veterin;uy Medicine Association and contained in their publighed standards. Gorilfa euthmasia varies from those protocols only in that additional sedation steps are included to reduce animal distress and increase veterinarian safety.
3. Thefirststep in a gorillaeuthanasiais pre-sedation.The animalis commonly .Dec«uaJionqfMichaelLoomisDVM' Case nos. 06-219(JF)(RS).06-929(JF)(RS)
3

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Jdven an oral elms. for anxiolytic or sedative purposes. mixed in a consumable substance placed in the animal's IivinAspace. For example, Valium@may he mixed into a favorite beverage. This is done to lessen the gorilla's anxiety that might reml1t&om the second step described below. This mixture is prepared by the veterinarian but often offered to the gorilla by a keeper as gorillas frequemJyshy away from veterinarians.

4.

The second step in gorilla euthanasia is the administration of lJDesthesia agent(s)

to induce unconsciousness. Many gorillas do Dotnaturally submit to medical procedures of any

kind and are generally placed under general anesthesia for the insertion of intravenous catheters.

TIns i~ fur the safety of the gorillas and their handlers. The injection of the anesthetic is

delivered via dart intramusculady. 8U1Degorillas are tnlined 10accept an imramuscular injection

by hand syril1gCor pole syringe. If the gorilla 18trained to aa.ept injecliUlD,the injection may be

given by a keeper-who is trained to give injections. HowevCf,the drug Ofdrug ""Ul1IbiJ1at1isl}n

prepared by the veterinarian and the veterinarian diredly supervises th~ administration of the

anesthetic agent A (".ammonanesthetic combination used is

ketaminelmedetomodinelbntorphenol. although other drugs or combinations of drugs can be

used. This combination produces rapid anesthesia. Ketamine is a rapidly acting generaJ

anesthetic that does not significant1ysuppress respiration. Medetomodine is a sedative analgesic.

Butorphenol is an analgesic. In surgical procedures. this combination is used to induce

anesthesia in a gorilla for a.short period of time, then they are given inhalant anesthetics and their

breathing ;s supported. In the euthanasia process, once this combination has taken effect, the

garma is unconscious, and still breathing. The veterinarian then places intravenous catheters in Deckuadon ofMich4el Loomis DYM Case nos. 06-219 (JFXRS), 06-929 (JF)(RS)
4

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the ,gOlilla and proceed.~ to the third step.
s. The third step in gorina euthanasia is tbe intravenous administration of a
commercial preparation euthanasia solution, for example, Beuthanasia@. This compound is made of phenytoil\ an anti-convulsant, and pentobarbital, a barbiturate. The dose suggested by the manufacturer is 1 mU 10 Ibs for dogs. In practice it is common to adjust the dosage to account for size of the animal as well as physical condition. The pentobarbital rapidly suppresses respirations and heart beat.
G. TII" gUl'jlJaahuuld b~ monitored throughout the procedure to include pulse oximetry, blood pressure, tIDdtidal camon dioxide, and electrocardiogram. I understand some practitionC1'&carry out euthanasias monitoring the cessation ofvitaJ &gns with iWScuJtatiOl1, visual observation of respirations, and evaluation of the corne.o1rcflC)(only. however I feel this is insufficient. At the very leu~] would recommend monitoring the electrocardigram during the procedure. In my experience. among a variety ofspecies including primate...;i.t can become necessary to administer a second bolus dose oftbe euthanasia solution. This is a rare occurrence and is generallv due to underestimation of animal weight. individual metabolic rates. or a species specific response to the drug(s) used. Without appropriate instrumentation this secondary dose may be unduly delayed.
7. In my experience, respirations cease within one to two minutes but can
'occasionally continue for up to five minutes of administering the IV bolus oftbe euthanasia
Declaration of Michael Loomis DVM
Case Dns.06-21 9 (JF)(RS)~ 06-929 (J''')(RS) 5

FROM :CONN COLL BOTANY + BIOLOGY

FAX NO. :860 439 2519

Nov. 09 2006 06:52PM P7

solution and cardiac atTeStoccurs within one to two minutes or so after. If respiration continues for longer than two minutes, I would consider giving a second bolus.
8. The zoo veterinarian remains directly at the gorilla's side from the induction of
general anesthesia until the confinnation of death. The veterinarian conducts tbp,procedures and monitors the animal's condition. It is common for zoo keepers and zoo hospital staff to be present at these sad events, however, it would be illegal and inappropriate for keepers or technicians to administer these medications except under the direct supervision of a veterinarian. The administration of anesthetics must be done by veterinarians or under their direct supervision by law in the State of North Carolina.
I declare under penalty of pCljuryunder the laws of the United States and the State of California that the foregoing is true and correct.
Executed in New London, Connecticut on this 9th day of November, 2006
4~fJ2~
Michael Loomis

Declaration of Michael Loomi!l DYM Case nos. 06-219 (JF)(RS), 06-929 (JF)(RS)
6

 
 STATE OF CALIFORNIA LETHAL INJECTION PROTOCOL REVIEW
May 15, 2007
Arnold Schwarzenegger, Governor State of California
James E. Tilton, Secretary Department of Corrections and Rehabilitation

STATE OF CALIFORNIA LETHAL INJECTION PROTOCOL REVIEW
California Department of Corrections and Rehabilitation Lethal Injection Protocol Review Team
K. W. Prunty, Jr. Undersecretary, Operations California Department of Corrections and Rehabilitation Steven Cambra, Jr. Consultant Chief Deputy Director, Retired California Department of Corrections Carl Larson Regional Administrator, Institutions Division, Retired California Department of Corrections John McAuliffe Correctional Counselor II, Retired California Department of Corrections and Rehabilitation

State of California Department of Corrections and Rehabilitation
Table of Contents

Lethal Injection Protocol Review

Executive Summary ...................................................................................................... 1

Introduction ................................................................................................................... 3

Background ................................................................................................................... 3 Evolution of Capital Punishment .................................................................................. 3 History of Capital Punishment in California.................................................................. 3

Current Death Penalty Challenge................................................................................. 5

Memorandum of Intended Decision; Request for Response from Defendants ....... 5 Operational Procedure No. 770 ................................................................................... 5

Identified Deficiencies .................................................................................................. 7 Lethal Injection Protocol Review.................................................................................. 7

Governor’s Office Response to Memorandum of Intended Decision ....................... 9

Defendants’ Response to Memorandum of Intended Decision............................... 10

Review Methodology................................................................................................... 10 Scope ........................................................................................................................ 10 Participation............................................................................................................... 10 Document Review...................................................................................................... 10 Lethal Injection Survey .............................................................................................. 11 Site Visits................................................................................................................... 11 Expert Consultation ................................................................................................... 11 Barriers ...................................................................................................................... 12

Improvements .............................................................................................................. 12 1. Screening of Execution Team Members............................................................. 12 2. Meaningful Training, Supervision, and Oversight of the Execution Team .......... 13 3. Consistent, Reliable Record Keeping ................................................................. 16 4. Proper Use of Sodium Thiopental by the Execution Team ................................. 17 5. Lethal Injection Facility ....................................................................................... 17 6. The Lethal Injection Protocol .............................................................................. 19

Attachment A: Attachment B: Attachment C:

San Quentin State Prison Execution Chamber San Quentin State Prison Proposed Lethal Injection Site Revised Three-Chemical Protocol

State of California Department of Corrections and Rehabilitation

Lethal Injection Protocol Review

Executive Summary
Since 1993, California law has authorized capital punishment by lethal injection. San Quentin State Prison Operational Procedure No. 0-770 (OP 770) is California’s protocol governing executions by lethal injection. This protocol, like those used by the federal government and most other states, provides for lethal injection by way of three chemicals intravenously injected into the condemned inmate scheduled for execution. The three-chemical protocol includes using:
Sodium Thiopental–a barbiturate sedative, to induce unconsciousness;
Pancuronium Bromide–a neuromuscular blocking agent, to induce paralysis, and cause breathing to cease; and,
Potassium Chloride–to induce cardiac arrest.
On February 21, 2006, Michael Angelo Morales, the Plaintiff in Morales v. Tilton, was scheduled to be the twelfth inmate executed by lethal injection in California. Morales’ execution was stayed because of his challenge to California’s administration of its lethal injection protocol. Morales challenged the constitutionality of his execution, contending that San Quentin State Prison’s OP 770, the current protocol for lethal injection, and the manner in which the California Department of Corrections and Rehabilitation (CDCR) implements it, would subject him to an unnecessary risk of excessive pain, thus violating the Eighth Amendment’s command that cruel and unusual punishments not be inflicted.
After lengthy review and an evidentiary hearing, on December 15, 2006, Judge Fogel, United States District Court, Northern District of California, issued a Memorandum of Intended Decision; Request for Response from the Defendants, Morales v. Tilton, et al., in which the court identified five deficiencies in California’s lethal injection protocol. The specific deficiencies identified were:
1. Inconsistent and unreliable screening of execution team members;
2. A lack of meaningful training, supervision, and oversight of the execution team;
3. Inconsistent and unreliable record keeping;
4. Improper mixing, preparation, and administration of sodium thiopental by the execution team; and
5. Inadequate lighting, overcrowded conditions, and poorly designed facilities in which the execution team must work.
The Court also stated, “Defendants’ implementation of lethal injection is broken, but it can be fixed.” The Court also expressed its belief “that the Governor’s Office is in the
Page 1

State of California Department of Corrections and Rehabilitation

Lethal Injection Protocol Review

best position to direct the changes needed to correct the deficiencies noted in the Court’s Memorandum.”

In response to the Memorandum of Intended Decision, and as directed by the Governor, the CDCR initiated a review of all aspects of the lethal injection protocol and its implementation. Following the review, the CDCR initiated action to address all of the identified deficiencies noted by the Court in its Memorandum of Intended Decision.

Finally, as an integral element of the review, the CDCR considered alternatives to the existing three-chemical protocol including a one-chemical protocol. Based upon the information considered, the CDCR has elected to substantially revise the three-chemical protocol used as California’s method of execution.

The actions taken by the CDCR to address the specific deficiencies noted by the Court, coupled with other modifications to the procedure, will assure the condemned inmate is rendered unconscious by the sodium thiopental and remains unconscious during the injection of the pancuronium bromide and the potassium chloride. The revisions to California’s Lethal Injection Protocol will result in the dignified end of life for the condemned inmate.

Page 2

State of California Department of Corrections and Rehabilitation

Lethal Injection Protocol Review

Introduction
Capital punishment has been an authorized punishment in California from the time of statehood. Over the years the laws governing capital punishment and the methods for its implementation have faced numerous legal challenges. Repeatedly, the voters of the State of California and the State Legislature have expressed their support for capital punishment.
Here, the method of execution is being challenged, and specific deficiencies in the Lethal Injection Protocol have been identified. The CDCR has been directed to take the actions necessary to address the deficiencies.
This report outlines the steps taken to address any deficiencies and ensure that the Lethal Injection Protocol meets constitutional standards.

Background
Evolution of Capital Punishment
“The Framers of our Constitution were not far removed from a society in which condemned prisoners were put to death by being beheaded, drawn, and quartered. The Eighth Amendment was adopted in part as a response to such brutality, and it since has been construed by our Supreme Court to require that punishment for crimes comport with ‘the evolving standards of decency that mark the progress of a maturing society’.” Roper v. Simmons, 543 U.S. 551, 561 (2005) quoting Trop v Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion).
“The use of lethal injection in executions represents an evolution from earlier methods such as hanging, electrocution, and lethal gas that now are viewed by most jurisdictions as unduly harsh.” Morales v. Tilton (Memorandum of Intended Decision–P.13, 16-19).
History of Capital Punishment in California
The Criminal Practices Act of 1851 authorized legal executions to be carried out by the sheriff of each county in California. On February 14, 1872, capital punishment was incorporated into the California Penal Code, stating in part:
A judgment of death must be executed within the walls or yard of a jail or some convenient private place in the county. The Sheriff of the county must be present at the execution …

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Capital punishment continued on a county level until 1891 when the California State Legislature enacted an amendment to the Penal Code that provided:

A judgment of death must be executed within the walls of one of the State prisons designated by the court by which judgment is rendered.

As a result of the 1891 statute, the warden of the prison replaced the sheriff as the person, who must be present at the execution, and an invitation to the attorney general, rather than to the district attorney, was required.

Executions by hanging were conducted at both San Quentin State Prison and Folsom State Prison. In August 1937, the California State Legislature replaced hanging as the method of capital punishment with the use of lethal gas. The gas chamber was installed at San Quentin State Prison in 1938, and on December 2, 1938, the first executions by lethal gas occurred at San Quentin State Prison.

Beginning in 1967, as a result of various State and United States Supreme Court decisions, there were no executions in California for a 25-year period. In 1972, the California Supreme Court found that the death penalty constituted cruel and unusual punishment under the California State Constitution and 107 condemned inmates were re-sentenced to terms of life with the possibility of parole, and removed from California’s death row.

In 1972, the California electorate amended the State Constitution, and in 1973 enacted legislation making the death penalty mandatory in specified criminal cases. In 1976, the California Supreme Court held that the California death penalty statute was unconstitutional under the Federal Constitution because it did not allow mitigating circumstances to be admitted as evidence. In 1977, the California Legislature reenacted the death penalty allowing for evidence in mitigation, and in 1978, California voters approved Proposition 7 reaffirming the death penalty in California. Although the death penalty was reinstated in California in 1978, executions did not resume in California until April 1992.

In 1993, California law changed to allow condemned inmates to choose either lethal gas or lethal injection as a method of execution. San Quentin State Prison developed lethal injection protocols based upon protocols from other jurisdictions.

In October 1995, a United States District Court ruled that the use of cyanide gas was considered cruel and unusual punishment. In February 1996, this ruling was upheld by the United States Ninth Circuit Court of Appeals, thus barring California from using the existing lethal gas protocol as a method of execution unless selected by the inmate.

The first execution by lethal injection in California occurred in February 1996. Since that date, eleven condemned inmates have been executed in California by lethal injection with the last execution occurring on January 17, 2006.

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On February 21, 2006, Michael Angelo Morales, the Plaintiff in Morales v. Tilton, was scheduled to be the twelfth condemned inmate executed by lethal injection in California. Morales’ execution was stayed as a result of his challenge to the administration of the lethal injection protocol.

Current Death Penalty Challenge

Morales challenged the constitutionality of his execution contending that San Quentin State Prison’s OP 770, the protocol for lethal injection, then in effect, and the manner in which the CDCR implements it would subject him to an unnecessary risk of excessive pain, thus violating the Eighth Amendment’s command that cruel and unusual punishments not be inflicted.
Memorandum of Intended Decision; Request for Response from Defendants

On December 15, 2006, Judge Fogel, United States District Court, Northern District of California, issued a Memorandum of Intended Decision; Request for Response from the Defendants (Memorandum). Judge Fogel framed the question presented in this case very narrowly:
“does California’s lethal-injection protocol—as actually administered in practice—create an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment?” Morales v. Tilton (Memorandum of Intended Decision–P.2, 24-26).
The Court concluded that absent effective remedial action by CDCR, it would be compelled to answer the question presented in the affirmative, stating:
“Defendants’ implementation of lethal injection is broken, but it can be fixed.” Morales v. Tilton (Memorandum of Intended Decision–P.3, 9-12).
Operational Procedure No. 770

San Quentin State Prison Operational Procedure No. 0-770 (OP 770) is California’s protocol governing executions by lethal injection. This protocol, like those used by the federal government and most other states, provides for lethal injection by way of three chemicals injected into the inmate being executed:
Sodium Thiopental–a barbiturate sedative, to induce unconsciousness;
Pancuronium Bromide–a neuromuscular blocking agent, to induce paralysis, cause breathing to cease; and,
Potassium Chloride–to induce cardiac arrest.

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On January 13, 2006, Morales filed the present action contending that OP 770, and the manner in which it was implemented, would subject him to an unnecessary risk of excessive pain, thus violating the Eighth Amendment.

The Court reviewed, in detail, evidence from previous execution logs, and finding anomalies in six logs, stated that:

“… inmates’ breathing may not have ceased as expected in at least six out of thirteen executions by lethal injection in California.” Morales v. Tilton (Memorandum of Intended Decision–P.4, 16-18).

This and other evidence raised concerns that condemned inmates may not have been unconscious when they were injected with pancuronium bromide and potassium chloride, chemicals that would cause an unconstitutional level of pain if injected into a conscious person.

The Court found:

“…the amount of sodium thiopental to be given to the condemned person pursuant to OP 770 is sufficient to cause virtually all persons to become unconscious or even to cease breathing within one minute.” Morales v. Tilton (Memorandum of Intended Decision–P.9, 12-14).

“Accordingly, assuming that the sodium thiopental is delivered properly, there should be virtually no risk that an inmate will suffer an unconstitutional level of pain.” Morales v. Tilton (Memorandum of Intended Decision–P.9, 16-18).

Therefore, the Court noted:

“As it has from its inception, the resolution of this case turns on a single factual question: whether OP 770, as implemented, provides constitutionally adequate assurance that condemned inmates will be unconscious when they are injected with pancuronium bromide and potassium chloride.” Morales v. Tilton (Memorandum of Intended Decision–P.9, 6-9).

“…the record in this case … is replete with evidence that in actual practice OP 770 does not function as intended.” Morales v. Tilton (Memorandum of Intended Decision–P.9, 19-21).

“There can be no real doubt that Defendant’s implementation of OP 770 has major flaws …” Morales v. Tilton (Memorandum of Intended Decision –P.13, 4-5).

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Identified Deficiencies
In the Memorandum the Court noted:
“The evidence shows that the protocol and Defendants’ implementation of it suffer from a number of critical deficiencies, including:
1. Inconsistent and unreliable screening of execution team members.
2. A lack of meaningful training, supervision, and oversight of the execution team.
3. Inconsistent and unreliable record keeping.
4. Improper mixing, preparation, and administration of sodium thiopental by the execution team.
5. Inadequate lighting, overcrowded conditions, and poorly designed facilities in which the execution team must work.” Morales v. Tilton (Memorandum of Intended Decision–P. 9-11)”
“In light of the substantial questions raised by the records of previous executions, Defendant’s actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation.” Morales v. Tilton (Memorandum of Intended Decision–P.13-14, 21-22; 1).
“Because the Court is prepared to find that the sequence of the three drugs described in OP 770, when properly administered will provide for a constitutionally adequate level of anesthesia, and given that the deficiencies in the implementation of the protocol appear to be correctable, a thorough, effective response to the issues raised in this memorandum likely will enable the Court to enter such a favorable judgment.” Morales v. Tilton (Memorandum of Intended Decision-P. 14-15, 23-25; 1-2).
Lethal Injection Protocol Review
As contemplated by the Court, a review of the lethal-injection protocol must include:
“…the manner in which the drugs are injected, the means used to determine when the person being executed has lost consciousness, and the quality of contemporaneous records of executions, such as execution logs and electrocardiograms.” Morales v. Tilton (Memorandum of Intended Decision–P.16, 2-5).

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To be meaningful, the Court said:
“…such a review may require consultation with independent experts and with other jurisdictions, and it must be undertaken with an openness to the idea of making significant improvements in the ‘infrastructure’ of executions.” Morales v. Tilton (Memorandum of Intended Decision–P.16, 5-8).
Additionally, the Court stated:
“…because of the paralytic effect of the pancuronium bromide, a determination of the inmate’s anesthetic depth after being injected with that drug is extremely difficult for anyone without substantial training and experience in anesthesia, the protocol must ensure that a sufficient dose of sodium thiopental or other anesthetic actually reaches the condemned inmate and that there are reliable means of monitoring and recording the inmate’s vital signs throughout the execution process.” Morales v. Tilton (Memorandum of Intended Decision–P.16, 9-14).
“An adequate protocol also must include a means of providing additional anesthetic to the inmate should the need arise.” Morales v. Tilton (Memorandum of Intended Decision–P.16, 14-15).
Finally, the Court noted:
“Because an execution is not a medical procedure, and its purpose is not to keep the inmate alive but rather to end the inmate’s life, the Court agrees with the Defendants that the Constitution does not necessarily require the attendance and participation of a medical professional. However, the need for a person with medical training would appear to be inversely related to the reliability and transparency of the means for ensuring that the inmate is properly anesthetized: the better the delivery system, the less the need for medical participation.” Morales v. Tilton (Memorandum of Intended Decision–P.16, 15-21).
“…because the constitutional issues presented by this case stem solely from the effects of pancuronium bromide and potassium chloride on a person who has not been properly anesthetized, removal of these drugs from the lethal-injection protocol, with the execution accomplished solely by an anesthetic, such as sodium pentobarbital, would eliminate any constitutional concerns, subject only to the implementation of adequate, verifiable procedures to ensure that the inmate actually receives a fatal dose of the anesthetic.” Morales v. Tilton (Memorandum of Intended Decision–P.16-17, 22-25; 1-2).
The Court directed:
“Accordingly, and good cause therefore appearing, within thirty days Defendants shall advise the Court and Plaintiffs of their response to this

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memorandum, including specifically, whether Defendants and the Governor’s Office intend to review and revise OP 770 further and, if so, how much additional time, if any, they believe they will need to complete the task.” Morales v. Tilton (Memorandum of Intended Decision–P.17, 6-9).

Governor’s Office Response to Memorandum of Intended Decision

On January 16, 2007, the Governor’s Office submitted a response to the Court’s December 15, 2006, Memorandum of Intended Decision stating, in part:
“Although the Governor is not a party to this case, he appreciates the Court’s invitation to address the deficiencies in implementation of the lethal injection protocol identified in the Memorandum of Intended Decision filed December 15, 2006, (Memorandum) and the opportunity to review, evaluate, and revise the current lethal injection protocol.” Governor’s Office Response to Memorandum of Intended Decision–P.1, 3-6.
“The Court expressed its belief that the Governor’s Office is in the best position to direct the changes needed to correct the deficiencies noted in the Court’s Memorandum.” Governor’s Office Response to Memorandum of Intended Decision–P.1, 21-22.
“In response to the Court’s December 15, 2006 Memorandum, the Governor’s Office took immediate action. The next business day, the Governor directed his administration to correct the deficiencies identified by the Court.” Governor’s Office Response to Memorandum of Intended Decision–P.1-2, 27-28; 1.
“…the Governor directed his administration to:
1. establish a screening process for selection of execution team members and a periodic review process for team members;
2. establish a comprehensive training program for all execution team members;
3. develop standardized record keeping to ensure there are complete and reliable records of each execution;
4. recommend how to improve the death penalty facility at San Quentin Prison to ensure there is adequate equipment, lighting and space for the execution team; and
5. identify the best experts to provide advice on the lethal injection protocol and its implementation.” Governor’s Office Response to Memorandum of Intended Decision–P.2, 2-9.

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Defendants’ Response to Memorandum of Intended Decision

On January 16, 2007, the CDCR submitted a response to the Court’s December 15, 2006, Memorandum of Intended Decision stating, in part:
“The Defendants and the Governor’s Office intend to review and revise OP 770 and to correct deficiencies in the implementation of the protocol.” Defendants’ Response to Memorandum of Intended Decision–P.2, 17-18.
“To allow a thorough review and opportunity to take corrective action, Defendants will submit to the Court and Plaintiff a report setting forth a revision of OP 770 and identifying corrective actions addressing deficiencies in the implementation of lethal injection executions by May 15, 2007.” Defendants’ Response to Memorandum of Intended Decision-P.2, 23-26.
Review Methodology
Scope

The scope of the CDCR’s review included, but was not limited by, the Memorandum. In addition to a review and revision of OP 770, with focused evaluation and effective responses addressing each of the five specified deficiencies, the CDCR sought to identify other improvements to the lethal injection protocol. The review included consultation with individual experts and site visits to other jurisdictions with the goal of improving all aspects of the lethal injection process.

Participation
The CDCR assembled a team to conduct the review. The team members were selected on the basis of their background, experience, and expertise. The staff selected had a variety of experience in line, supervisory, management, and administrative positions.
Some team members made site visits. Selected staff attended related training in another jurisdiction. The team members and selected staff reviewed schematics, prepared working documents, reviewed and drafted OP 770 and lesson plans, and drafted and reviewed final reports.

Document Review
The review began with the identification, collection and examination of relevant information. Volumes of information were reviewed including testimony of expert
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witnesses related to the instant case as well as others. Information reviewed also included the Final Report with Findings and Recommendations completed on March 1, 2007, by The Governor’s Commission on Administration of Lethal Injection, subsequent to the execution of Angel Diaz in the State of Florida on December 13, 2006 and the Tennessee Department of Correction, Report on Administration of Death Sentences in Tennessee, issued in April 2007.

Lethal Injection Survey
The CDCR prepared a lethal injection survey to gather relevant lethal injection protocol information. The survey included questions specific to the five deficiencies noted in the Memorandum. The survey was distributed to the 37 states and the federal government that utilize lethal injection as a method of execution. The CDCR received responses from 15 jurisdictions. The responses were reviewed, analyzed, and recorded. An assessment of the responses confirmed that all jurisdictions were using a similar combination of chemicals as those set forth in California’s lethal injection protocol at the time of the Morales v. Tilton legal challenge. However, there was some notable degree of variance in the quantities used and methods of administration.

Site Visits
As an integral element of the review, physical site visits were made to other jurisdictions to examine both the implementation of the existing lethal injection protocols and the facilities in which executions were conducted.
Sites were selected after considering the content of the Memorandum, the results of the survey, recommendations from legal staff, and the willingness of the jurisdictions to participate. In all, site visits were made to four other jurisdictions, as well as multiple visits to San Quentin State Prison. The four site visits were: Virginia Department of Corrections, Greensville Correctional Facility; Oklahoma State Penitentiary, McAlester, Oklahoma; Indiana State Prison, Michigan City, Indiana; and The Federal Correctional Complex at Terre Haute, Indiana. All jurisdictions were helpful in discussing their protocols and allowing tours of their execution facilities. Each of the jurisdictions used the same three-chemical protocol, as is currently the protocol for California; however, each differed slightly in the quantity of chemicals and method of administration. Each jurisdiction also had a dedicated facility in which executions were conducted, and while each differed slightly from the others, there were basic similarities among them.

Expert Consultation
Considerable discussion surrounded the selection and consultation with experts in the subject of execution by lethal injection. In the instant case, the Court considered volumes of testimony and documentary evidence from experts on the subject. Much of
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that information, including testimony and reports of Dr. Mark Heath, was made available and reviewed by team members and selected CDCR staff involved in this effort. Volumes of additional information, including testimony of experts on this subject in other cases nationwide was also obtained and reviewed.

The CDCR also obtained the services of a nationally renowned anesthesiology. The consultant reviewed several proposed revisions to the Lethal Injection Protocol and provided comments to the CDCR.

Barriers
In its Memorandum, the Court noted, that to be meaningful, the CDCR’s review may require consultation with independent experts and with other jurisdictions. During the review, the absence of a protective order was found to limit access to one jurisdiction with considerable experience in execution by lethal injection. Other jurisdictions were reluctant to share written procedures. Nevertheless, the cooperation, information, and advice obtained from the jurisdictions responsive to the survey, and those who consented to site visits, was invaluable, not only to this review, but also in allowing California to make the improvements to its lethal injection protocols.

Improvements
The CDCR has taken the following steps to address the deficiencies noted by the Court in its Memorandum and to otherwise improve the lethal injection process.

1. Screening of Execution Team Members
The Court stated the CDCR’s lethal injection process included inconsistent and unreliable screening of execution team members. To correct this deficiency, the CDCR has developed a formal process for selection of execution team members.
With the assistance of the Director, Division of Adult Institutions (DAI), the Warden will coordinate the recruitment and selection of Lethal Injection Team Members. The Lethal Injection Team will consist of a minimum of 20 members to be determined by the Warden. If necessary, the CDCR may contract with specialists to perform specific duties during the lethal injection process.
A panel of staff will be designated to review the qualifications of potential Lethal Injection Team Members. The Warden will chair an interview panel of at least three members, including the Associate Director, Reception Centers, to interview the candidates and make the selection of Lethal Injection Team Members based on the following established criteria. Each team member must:

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• Volunteer. • Have consistently demonstrated professional job performance and
demeanor. • Have a good attendance record. • Have no prior stress claims. • Have no history of Corrective Action within the preceding three years and
no sustained disciplinary action during State employment. • Have received annual performance evaluations that meet or exceed
performance expectations during State employment. • Not be on probation in his or her current position. (This criteria does not
apply to promotions made subsequent to initial placement on the Lethal Injection Team). • Not have been assigned to any condemned housing unit during the preceding twelve months.
The Warden will personally review the performance of Lethal Injection Team Members annually to ensure they continue to meet the initial screening criteria. Any Lethal Injection Team Member who no longer meets the screening criteria will be immediately removed from the Team.

2. Meaningful Training, Supervision, and Oversight of the Execution Team
The Court stated the CDCR’s lethal injection process lacked meaningful training, supervision, and execution team oversight. To address the Court’s noted deficiencies, the CDCR developed formalized training plans for all Lethal Injection Team Members and specialized team functions. The CDCR has also developed and will implement procedures for the execution team to be closely supervised and monitored.
Specifically, an Associate Warden will provide direct management oversight for the training of the Lethal Injection Team Members, including the Lethal Injection Team Leader. The Lethal Injection Team will train at least once per month for at least 8 hours, and will attend additional training as directed by the Lethal Injection Team Leader and approved by the Associate Warden. All Team Members must attend a minimum of six training sessions within the six-month period immediately preceding a scheduled execution. Any specialists contracted to perform specific duties during the lethal injection process will train, at least annually, with the Lethal Injection Team, and during each of the three days immediately prior to a scheduled execution. All Lethal Injection Team Members will attend all scheduled training unless on approved vacation or sick leave.
All training (with the exception of any specifically appropriate certification training and updating) will take place at the dedicated Lethal Injection Facility. Training is designed to provide each Lethal Injection Team Member with specific knowledge of all aspects of OP 770, duties of their specific assignments, recent executions in other jurisdictions,
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current litigation, and potential problems with recommendations for avoidance or resolution.

To improve the content and quality of training to be provided to the Lethal Injection Team Members, during the week of April 16, 2007, the CDCR sent seven employees to attend training provided by the Federal Bureau of Prisons at Terre Haute, Indiana. During the training, the CDCR staff actively participated in exercises identical to the actual protocol for execution by lethal injection used by the Federal Bureau of Prisons. Following training, the CDCR staff, in consultation with staff from CDCR’s Office of Training and Professional Development, constructed initial lesson plans for the Lethal Injection Team and for each of its specialized teams:

Lethal Injection Team
• Lethal Injection Security Team • Lethal Injection Intravenous Team • Lethal Injection Infusion Team • Lethal Injection Record Keeping Team.

The training for all Lethal Injection Team Members will include, but not be limited to:
• Custody and care of the condemned inmate; • Overview–Intravenous catheter application and vein access; • Identification of chemicals used in the process, including:
o Characteristics and effects of each chemical used; o Proper preparation and mixing of the chemicals; • Infusion process; • Security of the Lethal Injection Facility; • Proper report writing and record keeping; and, • Potential problems and recommendations for avoidance or resolution.

Additionally, all Lethal Injection Team Members assigned to specific functional areas will receive additional training relative to those functions.

Lethal Injection Security Team Members

Training will include, but not be limited to:
• Application of restraint equipment; • Escort and transportation of condemned inmates; • Inmate and staff relations; • Effective communication; • Departmental Use of Force Policy and use of force options; and, • Potential problems and recommendations for avoidance or resolution.

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Lethal Injection Intravenous Team Members
Training will include, but not be limited to:
• Training necessary to maintain a current certification and licensure for initiation and monitoring of intravenous catheters in peripheral veins;
• Training necessary to maintain current certification and licensure for placement of ECG leads and monitoring of ECG during the lethal injection process; and,
• Potential problems and recommendations for avoidance or resolution.
Lethal Injection Infusion Team Members
Training will include, but not be limited to:
• Proper mixing of chemical(s) used in the lethal injection process; • Sequence and rate of infusion of the lethal injection chemicals; • Proper handling and accountability of lethal injection chemicals; and, • Potential problems and recommendations for avoidance or resolution.
Lethal Injection Record Keeping Team
Training will include, but not be limited to:
• Report writing; • Accurate record keeping; and, • Specific documentation required for the Lethal Injection Protocol.
In addition to the regularly scheduled monthly training for Lethal Injection Team Members, the Lethal Injection Team will be activated three days immediately prior to a scheduled execution. Daily training and preparedness exercises will be conducted throughout this period.
The training and certification of Lethal Injection Team Members will be documented by the Lethal Injection Team Leader under the direction of the assigned Associate Warden. Identity of Team Members will be confidential. Records will be maintained and properly secured, by the Associate Warden and reviewed by the Warden at least quarterly.
Additional Execution Team Oversight
Following an execution, the Warden and the Associate Warden will conduct a debriefing with all of the Lethal Injection Team Members. All documents and records concerning the execution will be collected by the Associate Warden and secured for follow-up review.
An Execution Report will be prepared immediately following each execution. The Lethal Injection Team Leader will complete a San Quentin State Prison Execution Report,
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Part A, Summary. Each Team Member will complete an Execution Report, Part B, Supplemental Report. Identity of Team Members will be confidential.

The completed Execution Report will include all appropriate supplemental reports. Following review by the Associate Warden, the Execution Report will be routed through the Chief Deputy Warden for the Warden’s review and signature. A copy of the Execution Report will be delivered through the Associate Director, Reception Centers to the Director, DAI, for review and follow-up as determined necessary. The original Execution Report will be maintained in the Execution File.

After Action Critique

Within 72 hours following an execution, the Warden will conduct an “After Action Critique” to evaluate the execution from all operational perspectives for compliance with OP 770. The critique will be documented for inclusion in the Master Execution File with other records of the execution.

3. Consistent, Reliable Record Keeping
The Court stated the CDCR’s lethal injection process was flawed by inconsistent and unreliable record keeping. To address this deficiency, the CDCR developed a formal process, including the assignment of Lethal Injection Team Members specifically to the record keeping function.
The CDCR has developed specific forms, processes, and formats to ensure that complete and accurate record keeping is achieved. Specialized training will be provided to all Lethal Injection Team Members on the subject of report writing and proper record keeping. Selected Lethal Injection Team Members will be assigned to the Record Keeping Team to ensure proper documentation is achieved at each stage of the execution process. These selected Lethal Injection Team Members will receive focused training on the specific formats and records to be maintained for documenting an execution. During regularly assigned training, as the Lethal Injection Team rehearses for an actual execution, the Record Keeping Team will practice documenting the events with the established forms and report formats.
The forms and reports prepared by the Record Keeping Team during rehearsals will be reviewed and critiqued by the Lethal Injection Team Leader and the Associate Warden for accuracy and completeness. Additionally, each Lethal Injection Team Member will prepare an Execution Report, Part B Supplemental Report documenting his or her assignment and duties during the execution.

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4. Proper Use of Sodium Thiopental by the Execution Team
The Court stated the CDCR’s lethal injection process included improper mixing, preparation, and administration of sodium thiopental by the execution team. To address this deficiency, the CDCR developed training processes for proper mixing, preparation, and administration of sodium thiopental.
Of the three chemicals, only sodium thiopental requires mixing. The chemical is a powder that must be mixed with a liquid before it is administered. The chemical is available, pre-packaged, in a variety of quantities, containing the powder and the appropriate quantity of liquid to be mixed together to obtain optimal solution. From the review of literature, site visits, discussions with personnel from other jurisdictions and the consultant, the CDCR has determined that proper mixing of sodium thiopental can only be achieved by adhering strictly to the manufacturer’s instructions.
Lethal Injection Team Members assigned to the Infusion Team will practice mixing sodium thiopental on an on-going basis during regularly scheduled training and rehearsal. The rehearsal will emulate the Lethal Injection Protocol actually used during an execution, and will include preparation of the syringes and administration of the lethal chemical(s) through intravenous lines in the manner used in the execution to the highest degree possible. The training and practice of the preparation, mixing, and administration of the chemical(s) will be conducted under the supervision of the Lethal Injection Team Leader with direct oversight by the Associate Warden. All training and practice will be fully documented in training files. Strict accountability of the issuance, use, and disposal of the chemicals will be maintained during all training and practice just as during an execution, by direct supervision of the Lethal Injection Team Leader, oversight by the Associate Warden, and use of the Chain of Custody form.
5. Lethal Injection Facility
The Court stated the CDCR’s lethal injection chamber provided inadequate lighting, overcrowded conditions and poorly designed facilities in which the execution team must work.
To address these deficiencies, designated CDCR staff reviewed the Memorandum and visited the existing Execution Chamber at San Quentin State Prison. The existing Execution Chamber was originally constructed in 1938 to accommodate a change in the law authorizing capital punishment by lethal gas. The “Gas Chamber” was specifically designed for execution by lethal gas.
Following another change in the law in 1993, authorizing capital punishment by lethal injection, modifications were made to the gas chamber to allow executions by lethal injection to occur. Since the change in the law and the modification of the gas chamber, a total of eleven condemned inmates have been executed by lethal injection using the chamber.
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Designated CDCR staff conducted an on-site evaluation of the existing execution chamber to determine whether additional modifications could be made to address the deficiencies identified by the Court. Because California law permits a prisoner to choose lethal gas as the means of execution, it was important that the structural integrity of the gas chamber not be irreversibly compromised. The assessment concluded that it was not practical to make additional modifications to address the noted deficiencies.
Current law requires that all executions be conducted within the walls of San Quentin State Prison. Therefore, assigned staff completed a tour of the grounds of San Quentin State Prison in an attempt to identify alternative sites that, with modification, could be converted to a dedicated Lethal Injection Facility. The tour identified an existing secure building. The building had enough floor space that, with modification, could be developed into a dedicated Lethal Injection Facility.
An additional review of the building by staff from the CDCR Office of Facilities Management was conducted. Following this review, it was concluded that modification to the building could be made to convert the building into a dedicated Lethal Injection Facility that would address the deficiencies identified by the Court.
The CDCR staff that conducted site visits and reviewed lethal injection protocols at other jurisdictions were also able to tour several dedicated lethal injection facilities at those sites. There were basic similarities, including a lethal injection room where the condemned inmate is executed in view of witnesses, and separate viewing rooms for official witnesses, members of the victim’s families, and other witnesses. There were separations, either a curtain or a wall, between the condemned inmate and the infusion team. In addition, there were cells for the confinement of the condemned inmate immediately before an execution.
In years past, relocating the condemned population or at least a portion of it from San Quentin State Prison to other institutions within the CDCR had been considered. In addition, the need for a Lethal Injection Facility at the new locations was also considered. The Office of Facilities Management had previously prepared schematics for such a Lethal Injection Facility. In considering the feasibility of modifying the newly identified secure building at San Quentin State Prison these schematics were reviewed. (A schematic for the existing Execution Chamber and the new Lethal Injection Facility are attached to this report. In addition, digital virtual tours of the two facilities are available on the CDCR website at www.cdcr.ca.gov).
Based upon the assessments, the physical modifications of the building moved forward. However, after the physical modifications had begun, it became apparent the modifications would exceed authorized funding limits. Therefore, the modification of the facility was suspended pending authorization for additional funding. Funding for completion of the Lethal Injection Facility is included in the Governor’s Budget for Fiscal Year 2007/08. (See May Revise released on May 14, 2007).
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Upon completion, the new Lethal Injection Facility will address the structural deficiencies identified by the Court. The facility will be specifically designed for its intended purpose. Lighting will be more than adequate and sufficient space will be available to accommodate the needs of the Lethal Injection Team as well as the witnesses.
Additionally, the CDCR will prohibit observers in the area designated for the Lethal Injection Team to prevent overcrowding during an execution and maintain the dignity of the process.
6. The Lethal Injection Protocol
Review of OP 770 included consideration of the chemical(s) used and the method of administration.
A one-chemical protocol was considered. Five grams of sodium thiopental would be expected to cause death. The use of only one chemical, sodium thiopental, has the advantages of being simpler to administer and virtually eliminates the potential for pain. However, the use of only one chemical also has disadvantages. Since no other jurisdiction currently uses only one chemical, the protocol remains untested. The use of only a barbiturate would likely result in involuntary muscle movement, with unpredictable consequences. Finally, the execution may take an extended period of time.
The three-chemical protocol was also re-examined. The advantages to retaining a three-chemical protocol are:
• All jurisdictions that use lethal injection for executions use the same three-chemical combination in varying amounts, in the same sequence of administration, and have in most cases done so in the course of many executions conducted over many years.
• The lethality of the three-chemical combination is unquestioned, and when properly administered, the protocol will result in a pain free, dignified end of life for the condemned inmate.
The disadvantage is that unless the condemned inmate is rendered unconscious by the sodium thiopental prior to the administration of the pancuronium bromide and the potassium chloride, the inmate would suffer unnecessary pain.
There is no doubt that the amount of sodium thiopental given to the condemned inmates, as reflected in the last previous versions of OP 770, was sufficient to cause virtually all persons to become unconscious within less than one minute. The Court commented:

Page 19

State of California Department of Corrections and Rehabilitation

Lethal Injection Protocol Review

“…the Court is satisfied that even one and one half grams of sodium thiopental, if properly administered, are sufficient to eliminate any unconstitutional risk that an inmate will be conscious when the pancuronium bromide and the potassium chloride are injected.” Morales v. Tilton (Memorandum of Intended Decision-P.9, footnote 6).

However, the earlier versions of OP 770 made no provisions for any objective assessment of consciousness of the condemned inmate following administration of the sodium thiopental, and prior to the administration of the other chemicals. As noted by the Court:
“…the Lethal Injection Team Members are too far away to permit effective observation of any unusual or unexpected movements by the condemned inmate, much less to determine whether the inmate is conscious…” Morales v. Tilton (Memorandum of Intended Decision-P.11, 18-20).

There are reliable, but relatively uncomplicated methods for effectively assessing consciousness that have been incorporated into the Lethal Injection Protocol. Among them are talking to and gently shaking the inmate, as well as lightly brushing the eyelash.

Changes were made to the protocol to place staff in close proximity to the condemned inmate throughout the execution to assess and confirm the condemned inmate is unconscious prior to and during the administration of the pancuronium bromide and the potassium chloride.

Considering this and other information from literature reviewed, as well as information from other jurisdictions and consultation with an expert, the CDCR elected to retain the three-chemical protocol as the method of execution by lethal Injection in California. An overview of the revised protocol is included as an attachment to this report.

These improvements and others will ensure the Lethal Injection Protocol is followed and any unnecessary risk of excessive pain is eliminated. These changes will also instill an appropriate degree of care and professionalism in carrying out “the solemn task of executions in the State of California.”

Page 20

Attachment A
California Department of Corrections and Rehabilitation San Quentin State Prison Execution Chamber

Attachment C
California Department of Corrections and Rehabilitation Revised Three-Chemical Lethal Injection Protocol
• Bilateral intravenous catheters will be initiated and maintained with saline drips. o One catheter is designated as primary to administer the lethal chemicals. o One catheter is designated as back up if the primary fails.
• The Warden will remain in the execution room to observe the condemned inmate throughout the execution.
• A member of the Intravenous Team will remain in the execution room in close proximity to the condemned inmate to observe the condemned inmate throughout the execution. The Intravenous Team Member will continuously monitor the patency of the intravenous catheters and assess the consciousness of the condemned inmate.
4
• The lethal chemicals will be administered as follows: o Two identical trays of lethal injection chemicals will be prepared: • Tray “A” color-coded red • Tray “B” color-coded blue
• Syringes will be colored-coded and labeled by content and sequence of administration:
o Beginning with Tray “A” • #1—60cc syringe: 1.5 grams sodium thiopental will be administered, followed by an assessment of the condemned inmate; the Intravenous Team Member will brush the back of his/her hand over the condemned inmate’s eyelashes, and speak to and gently shake the condemned inmate. Observations will be documented. If the condemned inmate is unresponsive, it will demonstrate that he is unconscious. Regardless, the Protocol will continue as follows: • #2—60cc syringe: 1.5 grams sodium thiopental will be administered. • #3—60cc syringe: 50cc saline flush will be administered, followed by another assessment of consciousness as outlined above. Observations will be documented. At this point if the condemned inmate is determined to be unconscious, the Warden will authorize the protocol to proceed in the following sequence:
• #4—60cc syringe: 50 mg pancuronium bromide • #5—60cc syringe: 50cc saline flush • #6—60cc syringe: 100 ml/Eq potassium chloride • #7—60cc syringe: 100 ml/Eq potassium chloride • #8—60cc syringe: 50cc saline flush
• If, following the administration of syringe #2 and syringe #3, the assessment indicates the condemned inmate is not unconscious, the Warden will direct that the injection through the primary intravenous catheter, be discontinued and the entire sequence be re-initiated using chemicals on Tray B via the designated back-up intravenous catheter.
• Complete records will be made and retained of the exact sequence and quantities of the chemicals administered.
• Vital signs will be monitored via ECG.
• Death will be pronounced by a doctor.

 
 Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 1 of 64
APPEAL,CAPITAL,CONSOL,E−Filing,ProSe,REFSET−DMR,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:06−cv−00219−RS

Morales v. Beard, et al Assigned to: Hon. Richard Seeborg Referred to: DPLC JHC
Magistrate Judge Donna M. Ryu (Settlement) Relate Case Cases: 3:06−cv−01793−RS
3:18−cv−02146−RS
Case in other court: USCA for the Ninth Circuit, 10−99019
18−16547 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 01/13/2006 Jury Demand: None Nature of Suit: 535 Death Penalty − Habeas Corpus Jurisdiction: Federal Question

Michael A. Morales

represented by David Andrew Senior McBreen & Senior 1901 Avenue of the Stars Suite 450 Los Angeles, CA 90067 (310) 552−5300 Fax: (310) 552−1205 Email: dsenior@mcbreensenior.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Laurence Weston McBreen & Senior 1901 Avenue of the Stars, Suite 450 Los Angeles, CA 90067 (310) 552−5300 Email: mweston@mcbreensenior.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ann−Kathryn Rose Tria McBreen & Senior 1901 Avenue of the Stars Suite 450 Los Angeles, CA 90067 310−552−5300 Fax: 310−552−1205 Email: atria@mcbreensenior.com ATTORNEY TO BE NOTICED

Ginger D. Anders Jenner & Block LLP 601 13th St. NW Suite 1200S Washington, DC 20009 202−639−6070 Email: ginger_anders@yahoo.com TERMINATED: 11/12/2010 ATTORNEY TO BE NOTICED

Janice H. Lam Jenner & Block One IBM Plaza Chicago, IL 60611 312−840−7401 TERMINATED: 11/12/2010

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 2 of 64
ATTORNEY TO BE NOTICED
Jean M Doherty Jenner and Block LLP 633 West 5th Street Suite 3500 Los Angeles, CA 90071 213−239−5172 Email: jdoherty@jenner.com ATTORNEY TO BE NOTICED
John R Grele Law Office of John R. Grele 1000 Brannan St. suite 400 San Francisco, CA 94103 (415) 655−8776 Fax: (415) 484−7003 Email: jgrele@earthlink.net ATTORNEY TO BE NOTICED
Kate Tainsky Spelman Jenner and Block LLP 633 W 5th Street Suite 3500 Los Angeles, CA 90071 213−239−5171 Fax: Email: kspelman@jenner.com ATTORNEY TO BE NOTICED
Kelly Elizabeth Dahlstrom Office of the Federal Public Defender Capital Habeas Unit 411 W. Fourth Street, Suite 7110 Santa Ana, CA 92701 714−338−4530 Email: elizabeth_dahlstrom@fd.org ATTORNEY TO BE NOTICED
Kelly Marie Morrison Jenner and Block LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001−4412 (202) 639−6000 Fax: (202) 639−6066 Email: kmorrison@jenner.com ATTORNEY TO BE NOTICED
Richard P. Steinken Jenner & Block LLP 353 N. Clark Street Chicago, IL 60654−3456 (312) 222−9350 Fax: (312) 527−0484 Email: rsteinken@jenner.com ATTORNEY TO BE NOTICED
Sara Melissa Cohbra McBreen & Senior 1901 Avenue of the Stars, Suite 450 Los Angeles, CA 90067 (310) 552−5300 Email: saracohbralaw@gmail.com ATTORNEY TO BE NOTICED

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 3 of 64

Plaintiff David Raley
Plaintiff Ricardo Sanders
V. Intervenor Pla Albert Greenwood Brown

Stephanie L. Reinhart Jenner & Block One IBM Plaza Chicago, IL 60611 312−840−7427 TERMINATED: 11/12/2010 ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by David Andrew Senior (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
Jean M Doherty (See above for address) ATTORNEY TO BE NOTICED
John R Grele (See above for address) ATTORNEY TO BE NOTICED
Jonathan Charles Aminoff Office of the Federal Public Defender 321 East 2nd Street Los Angeles, CA 90012 213−894−2854 Fax: 213−894−0081 Email: jonathan_aminoff@fd.org ATTORNEY TO BE NOTICED
Kate Tainsky Spelman (See above for address) ATTORNEY TO BE NOTICED
Kelly Marie Morrison (See above for address) ATTORNEY TO BE NOTICED
Michael James Quinn California State Attorney General's Office Correctional Law Section 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 4 of 64

Intervenor Pla Mitchell Carlton Sims
Intervenor Pla Stevie Lamar Fields

415 510−3611 Fax: 415−703−5843 Email: Michael.Quinn@doj.ca.gov ATTORNEY TO BE NOTICED
Richard P. Steinken (See above for address) ATTORNEY TO BE NOTICED
represented by Cliona R Plunkett Habeas Corpus Resource Center 303 Second Street, Suite 400 South San Francisco, CA 94107 (415) 348−3800 Fax: (415) 348−3873 Email: cplunkett@hcrc.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael David Laurence Habeas Corpus Resource Center 303 Second Street Suite 400 South San Francisco, CA 94107 415−348−3800 Fax: 415−348−3873 Email: Mlaurence@mlaurence.org TERMINATED: 09/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Melissa Cohbra (See above for address) TERMINATED: 09/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Elizabeth Garvey Habeas Corpus Resource Center 303 Second Street, Suite 400 South San Francisco, CA 94107 (415) 348−3800 Fax: (415) 348−3873 Email: sgarvey@hcrc.ca.gov ATTORNEY TO BE NOTICED
represented by Stevie Lamar Fields PRO SE
Michael David Laurence (See above for address) TERMINATED: 09/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Melissa Cohbra (See above for address) TERMINATED: 09/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 5 of 64

Intervenor Pla Tiequon A. Cox
Intervenor Pla Scott Lynn Pinholster
Intervenor Pla Robert G. Fairbank
Intervenor Pla Kevin Cooper

represented by David Andrew Senior (See above for address) ATTORNEY TO BE NOTICED
John R Grele (See above for address) ATTORNEY TO BE NOTICED
Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Margo Ann Rocconi Ofc Federal Pub Def 321 E 2nd St Los Angeles, CA 90012 213−894−2854 Fax: 213−894−0081 Email: margo_rocconi@fd.org ATTORNEY TO BE NOTICED
Sean Kevin Kennedy Federal Public Defender 321 East 2nd Street Los Angeles, CA 90012 United Sta 213−894−5063 Fax: 213−894−0081 Email: sean_kennedy@fd.org ATTORNEY TO BE NOTICED
represented by Mark Raymond Drozdowski Office of the Federal Public Defender 321 East 2nd Street Los Angeles, CA 90012−4202 213−894−2854 Fax: 213−894−0081 Email: Mark_Drozdowski@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hilda Richardson−Royer Office of the Federal Public Defender Capital Habeas Unit 321 E 2nd Street Los Angeles, CA 90012 213−894−5092 Fax: 213−894−0081 Email: elizabeth_richardson−royer@fd.org TERMINATED: 06/12/2017 ATTORNEY TO BE NOTICED
represented by Norman C. Hile Orrick Herrington & Sutcliffe LLP 400 Capitol Mall Suite 3000 Sacramento, CA 95814 916−329−7900

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 6 of 64

Intervenor Pla Fernando Belmontes, Jr.
Intervenor Pla Royal Kenneth Hayes
Intervenor Pla Richard Delmer Boyer
Intervenor Pla Ron Deere
Intervenor Pla Harvey Lee Heishman
Intervenor Pla Anthony Jack Sully
Intervenor Pla Albert Cunningham

Fax: 916−329−4900 Email: nhile@orrick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katie Christine DeWitt 400 Capitol Mall Suite 3000 Sacramento, CA 95691 916−329−7923 Email: kdewitt@orrick.com TERMINATED: 04/18/2017 ATTORNEY TO BE NOTICED
Leo Moniz Orrick, Herrington and Sutcliffe 400 Capitol Mall Suite 3000 Sacramento, CA 95814 916−447−9200 Fax: 916−329−4900 Email: lmoniz@orrick.com TERMINATED: 04/18/2017 ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 7 of 64

Intervenor Pla Douglas Mickey Intervenor Pla Hector Ayala Intervenor Pla Richard Samayoa Intervenor Pla Raynard Cummings Proposed Intervenor
Intervenor Pla Conrad Jess Zapien Intervenor Pla Ronaldo Ayala Intervenor Pla John Louis Visciotti

represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Kelly Elizabeth Dahlstrom Office of the Federal Public Defender Capital Habeas Unit 411 West Fourth Street, Suite 7110 Santa Ana, CA 92701 (714) 338−4530 Fax: (714) 338−4520 Email: elizabeth_dahlstrom@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hilda Richardson−Royer (See above for address) TERMINATED: 06/12/2017 ATTORNEY TO BE NOTICED
Statia Peakheart Attorney at Law P.O. Box 531967 Los Angeles, CA 90053 (310) 692−5500 Email: statia.peakheart@gmail.com ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Lopez Molayem Federal Public Defender Central District of CA 321 E. 2nd Street Los Angeles, CA 90012 213−894−2854 Fax: 213−894−0081 Email: Jennifer_Molayem@fd.org ATTORNEY TO BE NOTICED

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 8 of 64

Intervenor Pla District Attorney Stephen M Wagstaffe
Intervenor Pla Guy Rowland
Intervenor Pla Tracy D Cain

Kelly Elizabeth Dahlstrom (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen Martin Wagstaffe Ofc Of District Attorney Hall Of Justice 400 County Center 3rd Fl Redwood City, CA 94063 650−363−4752 Email: swagstaffe@smcgov.org ATTORNEY TO BE NOTICED
represented by Ann−Kathryn Rose Tria (See above for address) ATTORNEY TO BE NOTICED
John R Grele (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan Charles Aminoff (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Robert L. Ayers, Jr. Warden of San Quentin State Prison

represented by Michael James Quinn California State Attorney General's Office Correctional Law Section 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415−703−5726 Fax: 415−703−5843 Email: Michael.Quinn@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dane R. Gillette State Attorney General's Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415/703−5866 Fax: 415/703−5877 Email: dane.gillette@doj.ca.gov ATTORNEY TO BE NOTICED
Kelly Lynn McClease , Femal California Department of Corrections and Rehabilitation PO Box 942883 1515 S Street Suite 319−S Sacramento, CA 94283−0001 916 323−5448

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 9 of 64

Defendant Arnold Schwarzengger Governor of the State of California
Defendant Acting Warden Vincent Cullen
Defendant Edmund G. Brown, Jr. TERMINATED: 01/29/2019

Fax: 916−322−9696 Email: kelly.mcclease@cdcr.ca.gov ATTORNEY TO BE NOTICED
Ronald Stephen Matthias Office of Attorney General, State of Cal 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415−510−3823 Email: ronald.matthias@doj.ca.gov ATTORNEY TO BE NOTICED
represented by Jay Michael Goldman California Department of Justice Office of the Attorney General 455 Golden Gate Ave., Ste 11000 San Francisco, CA 94102 415−510−3571 Fax: 415−703−5843 Email: Jay.Goldman@doj.ca.gov ATTORNEY TO BE NOTICED
Michael James Quinn (See above for address) ATTORNEY TO BE NOTICED
Thomas Stuart Patterson California Attorney General's Offic 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415−703−5727 Fax: (415) 703−5843 Email: thomas.patterson@doj.ca.gov ATTORNEY TO BE NOTICED
represented by Jay Michael Goldman (See above for address) ATTORNEY TO BE NOTICED
Michael James Quinn (See above for address) ATTORNEY TO BE NOTICED
Thomas Stuart Patterson (See above for address) ATTORNEY TO BE NOTICED
represented by Jay Michael Goldman (See above for address) ATTORNEY TO BE NOTICED
Joanna Breiden Hood California Department of Justice 1300 I Street Sacramento, CA 95814 916−210−7343 Email: Joanna.Hood@doj.ca.gov ATTORNEY TO BE NOTICED
Marisa Y. Kirschenbauer

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 10 of 64

Defendant Acting Warden Michael Martel
Defendant Kevin Chapelle
Defendant Kernan TERMINATED: 10/04/2018

California Department of Justice Office of the Attorney General 455 Golden Gave Avenue Suite 11000 San Francisco, CA 94102 (415) 703−1380 Fax: (415) 703−5843 Email: marisa.kirschenbauer@doj.ca.gov ATTORNEY TO BE NOTICED
Michael James Quinn California State Attorney General's Office Correctional Law Section 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415 510−3571 Fax: 415−703−5843 Email: Michael.Quinn@doj.ca.gov ATTORNEY TO BE NOTICED
Robert Lawrence Bragg California State Attorney General's Office Correctional Law 1300 I Street, Suite 125 Sacramento, CA 94244 916−445−2595 Fax: 916−324−5205 Email: Lawrence.Bragg@doj.ca.gov ATTORNEY TO BE NOTICED
represented by Jay Michael Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marisa Y. Kirschenbauer (See above for address) ATTORNEY TO BE NOTICED
Michael James Quinn (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James Quinn California State Attorney General's Office Correctional Law Section 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 415 510−3611 Fax: 415−703−5843 Email: Michael.Quinn@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 11 of 64

Defendant Davis
Defendant Ralph Diaz Acting Secretary of the California Department of Corrections and Rehabilitation
Defendant

Jay Michael Goldman (See above for address) ATTORNEY TO BE NOTICED
Joanna Breiden Hood (See above for address) ATTORNEY TO BE NOTICED
Robert Lawrence Bragg (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aseil H Mohmoud California Department of Justice Correctional Law Section 1300 I Street Sacramento, Ca 94536 916−445−3304 Fax: 916−324−5205 Email: Aseil.Mohmoud@doj.ca.gov ATTORNEY TO BE NOTICED
Jay Michael Goldman (See above for address) ATTORNEY TO BE NOTICED
Joanna Breiden Hood (See above for address) ATTORNEY TO BE NOTICED
Robert Lawrence Bragg (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aseil H Mohmoud (See above for address) ATTORNEY TO BE NOTICED
Jay Michael Goldman (See above for address) ATTORNEY TO BE NOTICED
Joanna Breiden Hood (See above for address) ATTORNEY TO BE NOTICED
Robert Lawrence Bragg (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 12 of 64

Ricky Lee Earp Defendant Governor Gavin C. Newsom
Defendant Jeffrey A. Beard

represented by Emily Jane Groendyke Federal Public Defender 321 E. 2nd Street Los Angeles, CA 90012 United Sta 213−894−2854 Fax: 2138940081 Email: emily_groendyke@fd.org ATTORNEY TO BE NOTICED
represented by Michael James Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aseil H Mohmoud (See above for address) ATTORNEY TO BE NOTICED
Jay Michael Goldman (See above for address) ATTORNEY TO BE NOTICED
Joanna Breiden Hood (See above for address) ATTORNEY TO BE NOTICED
Marisa Y. Kirschenbauer (See above for address) ATTORNEY TO BE NOTICED
Robert Lawrence Bragg (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald Stephen Matthias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jay Michael Goldman (See above for address) ATTORNEY TO BE NOTICED
Marisa Y. Kirschenbauer (See above for address) ATTORNEY TO BE NOTICED
Michael James Quinn (See above for address) ATTORNEY TO BE NOTICED
Robert Lawrence Bragg (See above for address) ATTORNEY TO BE NOTICED
Thomas Stuart Patterson (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 13 of 64

V. Intervenor Dft San Bernardino DA San Bernardino County District Attorney's Office
Intervenor Dft San Mateo Co. District Attorney San Mateo Co. District Attorney 400 County Center, 3rd Fl Redwood City, CA 94063 650−363−4636
Intervenor Dft Riverside District Attorney Riverside Co. District Attorney 3960 Orange Street Riverside, CA 92501 951−955−5555 Objector Office of the Inspector General

represented by Robert Paul Brown DA San Bernardino County 303 W. Third St. Fifth Floor San Benardino, CA 92415 909−382−7755 Fax: 909−748−1376 Email: rbrown@sbcda.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R Secord Ofc District Attorney Appellate Services 412 W Hospitality Ln Fl 3 San Bernardino, CA 92415 909−382−7741 Fax: 909−748−1376 Email: jsecord@sbcda.org ATTORNEY TO BE NOTICED
Sean Ward Daugherty San Bernardino County District Attorney's Office Specialized Prosecutions 303 West Third Street, 5th Floor San Bernardino, CA 92415 909−382−7735 Email: sdaugherty@sbcda.org ATTORNEY TO BE NOTICED
represented by Ivy Bridgett Fitzpatrick Riverside County District Attorney's Office 3960 Orange Street Riverside, CA 92501 951−955−5400 Fax: 951−955−7640 Email: ivyfitzpatrick@rivcoda.org ATTORNEY TO BE NOTICED
represented by Ivy Bridgett Fitzpatrick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara L Sheldon Office of the Inspector General P.O. Box 348780 Invalid email address as of 01/08/2016 Sacramento, CA 95834 916−830−3600 Fax: 916−928−5996 Email: invalidaddress@example.com ATTORNEY TO BE NOTICED

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 14 of 64

Amicus Mr. Kermit Alexander
Amicus Mr. Bradley Winchell

represented by Kent Stephen Scheidegger Criminal Justice Legal Foundation 2131 L Street Sacramento, CA 95816 916−446−0345 Fax: 916−446−1194 Email: kent.scheidegger@cjlf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kent Stephen Scheidegger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Miscellaneous Habeas Corpus Resource Center
Miscellaneous California Appellate Project
Miscellaneous Sacramento Bee, The

represented by Cliona R Plunkett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael David Laurence (See above for address) TERMINATED: 09/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Melissa Cohbra (See above for address) TERMINATED: 09/13/2017 ATTORNEY TO BE NOTICED
Susan Elizabeth Garvey (See above for address) ATTORNEY TO BE NOTICED
represented by Michael G. Millman California Appellate Project 101 Second St., Suite 600 San Francisco, CA 94105 415−495−0500 Fax: 415−495−5616 Email: mmillman@capsf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Karl Olson Cannata, O'Toole, Fickes & Olson LLP 100 Pine Street San Francisco, CA 94111 415−409−8900 Fax: 415−409−8904 Email: kolson@cofolaw.com ATTORNEY TO BE NOTICED

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 15 of 64

Miscellaneous Pacific News Service
Miscellaneous Habeas Capital Notification Miscellaneous San Francisco Progressive Media Center

Rochelle L. Wilcox 865 South Figueroa Street, Suite 2400 Los Angeles, CA 90017 213−633−6800 Fax: 213−633−6899 Email: rochellewilcox@dwt.com ATTORNEY TO BE NOTICED
represented by Ajay Krishnan Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: akrishnan@keker.com ATTORNEY TO BE NOTICED
Jon Burgess Streeter Keker & Van Nest LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: jstreeter@kvn.com TERMINATED: 12/18/2014 ATTORNEY TO BE NOTICED
Wendy Jill Thurm Keker & Van Nest LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: wendythurm@gmail.com (Inactive) ATTORNEY TO BE NOTICED
represented by Ajay Krishnan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Los Angeles Times Communications, LLC
Intervenor McClatchy Newspapers, Inc.
Intervenor San Francisco Chronicle

represented by Karl Olson (See above for address) ATTORNEY TO BE NOTICED
represented by Karl Olson (See above for address) ATTORNEY TO BE NOTICED
represented by Karl Olson (See above for address)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 16 of 64

Intervenor Los Angeles County District Attorneys Office
Intervenor Steve Cooley

ATTORNEY TO BE NOTICED
represented by Ann Hyanghun Park Los Angeles County District Att 320 West Temple Street Suite 540 Los Angeles, CA 90012 (213) 974−5908 ATTORNEY TO BE NOTICED
Brentford Joseph Ferreira , sole practitioner 5318 E. 2nd St., PMB 399 Long Beach, CA 90803 562−400−8578 Fax: Email: bjferreira47@hotmail.com ATTORNEY TO BE NOTICED
Michele A Hanisee Los Angeles County District Att 320 West Temple Street Suite 540 Los Angeles, CA 90012 (213) 974−5908 ATTORNEY TO BE NOTICED
Patrick Denis Moran Los Angeles County District Attorneys Office 320 West Temple Street Suite 540 Los Angeles, CA 90012 (213) 974−5908 ATTORNEY TO BE NOTICED
represented by Ann Hyanghun Park (See above for address) ATTORNEY TO BE NOTICED
Brentford Joseph Ferreira , (See above for address) ATTORNEY TO BE NOTICED
Jo Ann Lach Los Angeles County District Attorney's Office Appellate Division 320 West Temple Street Suite 540 Los Angeles, CA 90012 213−893−0634 Fax: 213−217−5104 Email: jlach@da.lacounty.gov ATTORNEY TO BE NOTICED
Michele A Hanisee (See above for address) ATTORNEY TO BE NOTICED
Patrick Denis Moran (See above for address)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 17 of 64

Intervenor William C Payton

ATTORNEY TO BE NOTICED
represented by Margo Ann Rocconi (See above for address) ATTORNEY TO BE NOTICED
Michael Lawrence Parente Federal Public Defender's Office 321 E. 2nd Street Los Angeles, Ca 90012 United Sta 213−894−1798 Email: Michael_Parente@fd.org ATTORNEY TO BE NOTICED
Susel Beatriz Carrillo−Orellana Federal Public Defender's Office 321 E. 2nd Street Los Angeles, CA 90012 213−894−1883 Fax: 213−894−1221 Email: Susel_Carrillo−Orellana@fd.org ATTORNEY TO BE NOTICED

V. Witness Schwarzennegger

represented by Diana Lynn Cuomo Attorney General's Office 1300 I Street Sacramento, CA 95814 916−327−4853 Fax: 916−324−8835 Email: diana.cuomo@doj.ca.gov TERMINATED: 09/27/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Mark Gevercer Office of the Attorney General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244−2550 916−322−7487 Fax: 916−324−5567 Email: Steven.Gevercer@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/13/2006
01/13/2006

# Docket Text
1 COMPLAINT for Equitable and Injunctive Relief against Roderick Q. Hickman, Steven Ornoski ( Filing fee $ 250, receipt number 3380416.) Filed byMichael A. Morales. (rcs, COURT STAFF) (Filed on 1/13/2006) Additional attachment(s) added on 1/24/2006 (gm, COURT STAFF). Additional attachment(s) added on 1/27/2006 (gm, COURT STAFF). (Additional attachment(s) added on 5/17/2019: # 2 Civil Cover Sheet) (rcsS, COURT STAFF). (Entered: 01/18/2006)
Summons Issued as to Roderick Q. Hickman, Steven Ornoski. (rcs, COURT STAFF) (Filed on 1/13/2006) (Entered: 01/18/2006)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 18 of 64

01/13/2006 01/18/2006 01/19/2006 01/19/2006
01/20/2006
01/20/2006 01/20/2006 01/20/2006 01/20/2006 01/20/2006 01/20/2006 01/20/2006 01/20/2006 01/20/2006 01/20/2006
01/20/2006 01/23/2006 01/23/2006 01/23/2006

CASE DESIGNATED for Electronic Filing. (rcs, COURT STAFF) (Filed on 1/13/2006) (Entered: 01/18/2006)
2 ORDER RELATING CASE signed by Judge Maxine M. Chesney on January 18, 2006. (mmcsec, COURT STAFF) (Filed on 1/18/2006) (Entered: 01/18/2006)
3 SCHEDULING ORDER. Signed by Judge Jeremy Fogel on 1/19/06. (jfsec, COURT STAFF) (Filed on 1/19/2006) (Entered: 01/19/2006)
4 ORDER REASSIGNING CASE. Case reassigned to Judge Jeremy Fogel for all further proceedings. Judge Maxine M. Chesney no longer assigned to case.Signed by Executive Committee on 1/19/06. (as, COURT STAFF) (Filed on 1/19/2006) (Entered: 01/19/2006)
5 FILED IN ERROR. PLEASE SEE DOCKET #1
COMPLAINT against all defendants (Filing fee $ 250.). Filed byMichael A. Morales. (Attachments: # 1 Exhibit A)(Grele, John) (Filed on 1/20/2006) Modified on 1/24/2006 (gm, COURT STAFF). (Entered: 01/20/2006)
6 MOTION for Discovery filed by Michael A. Morales. (Grele, John) (Filed on 1/20/2006) (Entered: 01/20/2006)
7 Declaration of John R Grele filed byMichael A. Morales. (Grele, John) (Filed on 1/20/2006) (Entered: 01/20/2006)
8 Proposed Order Granting Discovery by Michael A. Morales. (Grele, John) (Filed on 1/20/2006) (Entered: 01/20/2006)
9 MOTION to Shorten Time to Hear Discovery Motion filed by Michael A. Morales. (Grele, John) (Filed on 1/20/2006) (Entered: 01/20/2006)
10 Declaration in support of Motion to Shorten Time filed byMichael A. Morales. (Grele, John) (Filed on 1/20/2006) (Entered: 01/20/2006)
11 Proposed Order to Shorten Time by Michael A. Morales. (Grele, John) (Filed on 1/20/2006) (Entered: 01/20/2006)
12 MOTION for Temporary Restraining Order filed by Michael A. Morales. Motion Hearing set for 1/26/2006 02:00 PM in Courtroom 3, 5th Floor, San Jose. (Grele, John) (Filed on 1/20/2006) (Entered: 01/20/2006)
13 EXHIBITS re 12 MOTION for Temporary Restraining Order Exhibit A filed byMichael A. Morales. (Related document(s) 12 ) (Grele, John) (Filed on 1/20/2006) (Entered: 01/20/2006)
14 EXHIBITS re 12 MOTION for Temporary Restraining Order Exhibit B filed byMichael A. Morales. (Related document(s) 12 ) (Grele, John) (Filed on 1/20/2006) (Entered: 01/20/2006)
15 EXHIBITS re 12 MOTION for Temporary Restraining Order Exhibit C (Heath Decl.) filed byMichael A. Morales. (Attachments: # 1 Exhibit Curriculum Vitae# 2 Exhibit Execution Logs# 3 Exhibit Rocconi Declaration# 4 Exhibit Derswitz Decl in Cooper# 5 Exhibit AVMA report# 6 Exhibit ASA Advisory# 7 Exhibit Dershwitz Aff in Perkins# 8 Exhibit Williams Execution Article)(Related document(s) 12 ) (Grele, John) (Filed on 1/20/2006) (Entered: 01/20/2006)
16 Proposed Order re 12 MOTION for Temporary Restraining Order by Michael A. Morales. (Grele, John) (Filed on 1/20/2006) (Entered: 01/20/2006)
17 Memorandum in Opposition TO APPLICATION TO TRO filed bySteven Ornoski. (Gillette, Dane) (Filed on 1/23/2006) (Entered: 01/23/2006)
18 EXHIBITS PART 1 filed bySteven Ornoski. (Gillette, Dane) (Filed on 1/23/2006) (Entered: 01/23/2006)
19 EXHIBITS PART 2 filed bySteven Ornoski. (Gillette, Dane) (Filed on 1/23/2006) (Entered: 01/23/2006)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 19 of 64

01/23/2006 01/25/2006 01/25/2006
01/25/2006
01/25/2006 01/26/2006 01/27/2006
01/27/2006
01/27/2006 01/30/2006 02/01/2006
02/01/2006 02/06/2006 02/06/2006 02/06/2006 02/06/2006 02/06/2006

20 NOTICE by Steven Ornoski LODGING DOCUMENT UNDER SEAL (Gillette, Dane) (Filed on 1/23/2006) (Entered: 01/23/2006)
21 Reply Memorandum in Support of Motions for TRO and Discovery filed byMichael A. Morales. (Grele, John) (Filed on 1/25/2006) (Entered: 01/25/2006)
22 EXHIBITS re 21 Reply Memorandum filed byMichael A. Morales. (Attachments: # 1 Exhibit 1 to Heath Declaration# 2 Exhibit 2 to Heath Declaration# 3 Exhibit 3 to Heath Declaration)(Related document(s) 21 ) (Grele, John) (Filed on 1/25/2006) (Entered: 01/25/2006)
23 *** FILED IN ERROR. DOCUMENT LOCKED. PLEASE SEE DOCKET # 24 . *** EXHIBITS re 21 Reply Memorandum Exhibit A (Senior Declaration) filed byMichael A. Morales. (Related document(s) 21 ) (Grele, John) (Filed on 1/25/2006) Modified on 1/25/2006 (ewn, COURT STAFF). Modified on 1/26/2006 (ewn, COURT STAFF). (Entered: 01/25/2006)
24 EXHIBITS re 21 Reply Memorandum Exhbiit A (Senior Decalration) CORRECTION OF DOCKET # 23 filed byMichael A. Morales. (Related document(s) 21 ) (Grele, John) (Filed on 1/25/2006) (Entered: 01/25/2006)
25 EXHIBITS re 6 MOTION for Discovery Exhibit A filed byMichael A. Morales. (Related document(s) 6 ) (Grele, John) (Filed on 1/26/2006) (Entered: 01/26/2006)
26 Minute Entry: Motion for Temporary Restraining Order and Motion for Discovery Hearing held on 1/26/2006 before Judge Jeremy Fogel (Date Filed: 1/27/2006). Court sets the case for Preliminary Injunction hearing on 2/9/2006 at 2:00 p.m. (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 1/27/2006) (Entered: 01/27/2006)
27 Second MOTION for Discovery filed by Michael A. Morales. (Attachments: # 1 Exhibit Exhibit 1 (discovery request)# 2 Exhibit Exhibit 2 (Discovery response)# 3 Exhibit Exhibit 3 (second request)# 4 Exhibit Exhibit 4 (second response)# 5 Exhibit Exhibit 5 (Admin Review))(Grele, John) (Filed on 1/27/2006) (Entered: 01/27/2006)
28 Proposed Order re 27 Second MOTION for Discovery by Michael A. Morales. (Grele, John) (Filed on 1/27/2006) (Entered: 01/27/2006)
29 Memorandum in Opposition DEFENDANT'S RESPONSE TO PLAINTIFF DISCOVERY REQUEST filed bySteven Ornoski. (Gillette, Dane) (Filed on 1/30/2006) (Entered: 01/30/2006)
30 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR EXPEDITED DISCOVERY by Judge Jeremy Fogel (jfsec, COURT STAFF) (Filed on 2/1/2006 AT 11:34 A.M.) Modified on 2/1/2006 (jfsec, COURT STAFF). (Entered: 02/01/2006)
31 TRANSCRIPT of Proceedings held on 1/26/2006 before Judge Jeremy Fogel. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 2/1/2006) (Entered: 02/02/2006)
32 Memorandum in Opposition DEFENDANT'S SUPPLEMENTAL OPPOSITIONTO MOTION FOR INJUNCTIVE RELIEF filed bySteven Ornoski. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
33 EXHIBITS filed byRoderick Q. Hickman. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
34 EXHIBITS PART 1 filed bySteven Ornoski. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
35 EXHIBITS PART 2 filed bySteven Ornoski. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
36 EXHIBITS PART 3 filed bySteven Ornoski. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 20 of 64

02/06/2006 02/06/2006 02/06/2006 02/06/2006 02/06/2006 02/06/2006 02/06/2006 02/06/2006 02/06/2006 02/06/2006 02/06/2006 02/06/2006
02/06/2006 02/09/2006
02/10/2006 02/10/2006 02/10/2006 02/13/2006
02/13/2006
02/13/2006 02/13/2006

37 EXHIBITS PART 4 filed bySteven Ornoski. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
38 EXHIBITS PART 5 filed byRoderick Q. Hickman. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
39 EXHIBITS PART 6 filed byRoderick Q. Hickman. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
40 EXHIBITS PART 7 filed bySteven Ornoski. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
41 EXHIBITS PART 8 filed byRoderick Q. Hickman. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
42 MEMORANDUM in Support Plaintiff's Supplemental Brief filed byMichael A. Morales. (Grele, John) (Filed on 2/6/2006) (Entered: 02/06/2006)
43 EXHIBITS PART 9 filed bySteven Ornoski. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
44 EXHIBITS PART 10 filed bySteven Ornoski. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
45 EXHIBITS PART 11 filed byRoderick Q. Hickman. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
46 EXHIBITS PART 12 filed byRoderick Q. Hickman. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
47 EXHIBITS PART 13 filed byRoderick Q. Hickman. (Gillette, Dane) (Filed on 2/6/2006) (Entered: 02/06/2006)
48 EXHIBITS re 42 Memorandum in Support filed byMichael A. Morales. (Attachments: # 1 Exhibit 1 −− Taylor Motion to Dismiss# 2 Exhibit 2 Taylor Declaration in Support of Stay# 3 Exhibit 3 Taylor Minute Orders# 4 Exhibit 4 Taylor Denial of Relief# 5 Exhibit 5: 8th Circuit Stay Order# 6 Exhibit 6: Declaration of Dr. Melenthil# 7 Exhibit 7: Dr. Heath Declaration# 8 Taylor 8th Cir. Brief# 9 Exhibit 9: Reid Transcript)(Related document(s) 42 ) (Grele, John) (Filed on 2/6/2006) (Entered: 02/06/2006)
50 Mail Returned as Undeliverable. Mail sent to David A. Senior. (gm, COURT STAFF) (Filed on 2/6/2006) (mhpsec, COURT STAFF). (Entered: 02/09/2006)
49 Minute Entry: Preliminary Injunction Hearing held on 2/9/2006 before Judge Jeremy Fogel (Date Filed: 2/9/2006). (Court Reporter Peter Torreano.) (pmc, COURT STAFF) (Date Filed: 2/9/2006) (Entered: 02/09/2006)
51 AMENDED DOCUMENT by Michael A. Morales. Amendment to 1 Complaint, Amended Complaint. (Grele, John) (Filed on 2/10/2006) (Entered: 02/10/2006)
52 MOTION to Consolidate Cases filed by Michael A. Morales. (Attachments: # 1 Declaration in support)(Grele, John) (Filed on 2/10/2006) (Entered: 02/10/2006)
53 Proposed Order re 52 MOTION to Consolidate Cases by Michael A. Morales. (Grele, John) (Filed on 2/10/2006) (Entered: 02/10/2006)
54 ORDER REQUESTING SUPPLEMENTAL BRIEFING. Signed by Judge Jeremy Fogel on 2/13/06, E−filed at 8:39 A.M. (jfsec, COURT STAFF) (Filed on 2/13/2006) (Entered: 02/13/2006)
55 ORDER GRANTING REQUEST TO CONSOLIDATE by Judge Jeremy Fogel granting 52 Motion to Consolidate Cases (jfsec, COURT STAFF) (Filed on 2/13/2006) (Entered: 02/13/2006)
56 Reply Memorandum Defendants' response to court inquiry filed bySteven Ornoski. (Gillette, Dane) (Filed on 2/13/2006) (Entered: 02/13/2006)
61 TRANSCRIPT of Proceedings held on 2/9/2006 before Judge Jeremy Fogel. Court Reporter: Perer Torreano.. (gm, COURT STAFF) (Filed on 2/13/2006) (mhpsec,

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 21 of 64

02/14/2006 02/14/2006
02/14/2006 02/14/2006 02/14/2006 02/15/2006 02/15/2006 02/16/2006 02/16/2006 02/16/2006
02/17/2006
02/17/2006 02/17/2006 02/17/2006 02/17/2006 02/20/2006 02/20/2006 02/21/2006

COURT STAFF). (Entered: 02/14/2006)
57 Reply Memorandum to Court's Inquiry filed byMichael A. Morales. (Attachments: # 1 Exhibit A −− news article)(Grele, John) (Filed on 2/14/2006) (Entered: 02/14/2006)
58 Declaration of Mark Heath, M.D. in Support of 57 Reply Memorandum to Court's Inquiry filed byMichael A. Morales. (Attachments: # 1 Exhibit 1 to Heath Declaration# 2 Exhibit 2 to Heath Declaration# 3 Exhibit 4 to Heath Declaration# 4 Exhibit 5 to Heath Declaration)(Related document(s) 57 ) (Grele, John) (Filed on 2/14/2006) (Entered: 02/14/2006)
59 EXHIBITS re 58 Declaration in Support, Exhibit 3 to Heath Declaration filed byMichael A. Morales. (Related document(s) 58 ) (Grele, John) (Filed on 2/14/2006) (Entered: 02/14/2006)
60 SUMMONS Returned Executed by Michael A. Morales. Michael A. Morales served on 1/19/2006, answer due 2/8/2006. (Grele, John) (Filed on 2/14/2006) (Entered: 02/14/2006)
62 ORDER DENYING CONDITIONALLY PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION by Judge Jeremy Fogel (jfsec, COURT STAFF) (Filed on 2/14/2006) (Entered: 02/14/2006)
63 RESPONSE in Support redacted statement of compliance with conditional injunction filed byRoderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 2/15/2006) (Entered: 02/15/2006)
64 MOTION for Discovery of Information filed by Michael A. Morales. (Grele, John) (Filed on 2/15/2006) (Entered: 02/15/2006)
65 Reply Memorandum Plaintiff's Response to Modification of Procedure filed byMichael A. Morales. (Grele, John) (Filed on 2/16/2006) (Entered: 02/16/2006)
66 AFFIDAVIT supplemental response to denial of injunction by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 2/16/2006) (Entered: 02/16/2006)
67 FINAL ORDER RE DEFENDANTS' COMPLIANCE WITH CONDITIONS; ORDER DENYING PLAINTIFF'S MOTIONS FOR DISCOVERY OF INFORMATION AND FOR RECONSIDERATION. Signed by Judge Jeremy Fogel on 2/16/06. (jfsec, COURT STAFF) (Filed on 2/16/2006) (Entered: 02/16/2006)
68 NOTICE OF INTELOCUTORY APPEAL as to 67 Order, 62 Order on Motion to Shorten Time, Order on Motion for TRO by Michael A. Morales. Filing fee $ 255.00, receipt number 338190. (gm, COURT STAFF) (Filed on 2/17/2006) Additional attachment(s) added on 2/28/2006 (gm, COURT STAFF). (Main Document 68 replaced on 5/17/2019) (rcsS, COURT STAFF). (Entered: 02/17/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 68 Notice of Appeal (gm, COURT STAFF) (Filed on 2/17/2006) (Entered: 02/17/2006)
Copy of Notice of Appeal and Docket sheet mailed to all counsel (gm, COURT STAFF) (Filed on 2/17/2006) (Entered: 02/17/2006)
69 AFFIDAVIT notice of lodging declarations under seal by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 2/17/2006) (Entered: 02/17/2006)
70 NOTICE TO COUNSEL OF RECEIPT OF DECLARATIONS. Signed by Judge Jeremy Fogel on 2/17/06. (jfsec, COURT STAFF) (Filed on 2/17/2006) (Entered: 02/17/2006)
71 Ex Parte Application for compliance order filed by Michael A. Morales. (Grele, John) (Filed on 2/20/2006) (Entered: 02/20/2006)
72 Proposed Order for compliance by Michael A. Morales. (Grele, John) (Filed on 2/20/2006) (Entered: 02/20/2006)
73 MOTION to Amend/Correct Defendants' motion to proceed with alternative method of execution filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 2/21/2006) (Entered: 02/21/2006)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 22 of 64

02/21/2006 02/21/2006
02/21/2006 02/21/2006 02/21/2006
02/21/2006 02/21/2006 02/22/2006 02/22/2006 02/22/2006 02/22/2006 02/22/2006 02/22/2006 02/22/2006 02/22/2006 02/23/2006 02/27/2006 03/02/2006 03/02/2006

74 ORDER by Judge Jeremy Fogel denying petitioner's ex parte application and motion for stay (awb, COURT−STAFF) (Filed on 2/21/2006) (Entered: 02/21/2006)
75 Minute Entry: Motion to Proceed with Execution hearing held on 2/21/2006 before Judge Jeremy Fogel (Date Filed: 2/21/2006). The motion is taken under submission. (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 2/21/2006) (Entered: 02/21/2006)
76 Reply Memorandum in Opposition to Modification filed byMichael A. Morales. (Grele, John) (Filed on 2/21/2006) (Entered: 02/21/2006)
77 Declaration in Support of 76 Reply Memorandum Fifth Declaration of Dr. Heath filed byMichael A. Morales. (Related document(s) 76 ) (Grele, John) (Filed on 2/21/2006) (Entered: 02/21/2006)
78 ORDER ON DEFENDANT'S MOTION TO PROCEED WITH EXECUTION UNDER ALTERNATIVE CONDITION TO ORDER DENYING PRELIMINARY INJUNCTION. Signed by Judge Jeremy Fogel on 2/21/06. (jfsec, COURT STAFF) (Filed on 2/21/2006) (Entered: 02/21/2006)
79 TRANSCRIPT of Telephonic Proceedings held on 2/21/2006 before Judge Jeremy Fogel. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 2/21/2006) (Entered: 02/22/2006)
80 Mail Returned as Undeliverable. Mail sent to California Appellate Project. (gm, COURT STAFF) (Filed on 2/21/2006) (mhpsec, COURT STAFF). (Entered: 02/23/2006)
82 MOTION for Attorney Ginger Anders for leave to appear in Pro Hac Vice (FEE PAID) filed by Michael A. Morales. (gm, COURT STAFF) (Filed on 2/22/2006) (mhpsec, COURT STAFF). (Entered: 02/24/2006)
Received Order re 82 MOTION for leave to appear in Pro Hac Vice by Michael A. Morales. (gm, COURT STAFF) (Filed on 2/22/2006) (Entered: 02/24/2006)
83 MOTION for Attorney Janice H. Lam for leave to appear in Pro Hac Vice (FEE PAID) filed by Michael A. Morales. (gm, COURT STAFF) (Filed on 2/22/2006) (mhpsec, COURT STAFF). (Entered: 02/24/2006)
Received Order re 83 MOTION for leave to appear in Pro Hac Vice by Michael A. Morales. (gm, COURT STAFF) (Filed on 2/22/2006) (Entered: 02/24/2006)
84 MOTION for Attorney Stephanie L. Reinhart for leave to appear in Pro Hac Vice (FEE PAID) filed by Michael A. Morales. (gm, COURT STAFF) (Filed on 2/22/2006) (mhpsec, COURT STAFF). (Entered: 02/24/2006)
Received Order re 84 MOTION for leave to appear in Pro Hac Vice by Michael A. Morales. (gm, COURT STAFF) (Filed on 2/22/2006) (Entered: 02/24/2006)
85 MOTION for Attorney Richard P. Steinken leave to appear in Pro Hac Vice (FEE PAID) filed by Michael A. Morales. (gm, COURT STAFF) (Filed on 2/22/2006) (mhpsec, COURT STAFF). (Entered: 02/24/2006)
Received Order re 85 MOTION for leave to appear in Pro Hac Vice by Michael A. Morales. (gm, COURT STAFF) (Filed on 2/22/2006) (Entered: 02/24/2006)
81 ORDER SETTING CASE MANAGEMENT CONFERENCE. Signed by Judge Jeremy Fogel on 2/23/06. (jfsec, COURT STAFF) (Filed on 2/23/2006) Modified on 2/23/2006 (jfsec, COURT STAFF). (Entered: 02/23/2006)
86 Emergency Ex Parte Application for Stay of Execution received by the Court 2/21/06 at 12:07 A.M. filed by John R. Grele on behalf of Plaintiff Michael A. Morales. Order issued 74 (jfsec, COURT STAFF) (Filed on 2/27/2006) (Entered: 02/27/2006)
88 ORDER by Judge Jeremy Fogel granting 82 Motion for Attorney Ginger Anders for admission Pro Hac Vice (gm, COURT STAFF) (Filed on 3/2/2006) (mhpsec, COURT STAFF). (Entered: 03/07/2006)
89 ORDER by Judge Jeremy Fogel granting 83 Motion for Attorney Janice H. Lam for admission Pro Hac Vice (gm, COURT STAFF) (Filed on 3/2/2006) (mhpsec, COURT

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 23 of 64

03/02/2006 03/02/2006 03/03/2006 03/07/2006 03/07/2006 03/08/2006 03/08/2006
03/09/2006 03/16/2006 03/16/2006 03/20/2006 03/20/2006 03/22/2006
03/23/2006 03/24/2006 03/24/2006 03/24/2006
03/24/2006 03/24/2006

STAFF). (Entered: 03/07/2006)
90 ORDER by Judge Jeremy Fogel granting 84 Motion for Attorney Stephanie L. Reinhart for admission Pro Hac Vice (gm, COURT STAFF) (Filed on 3/2/2006) (mhpsec, COURT STAFF). (Entered: 03/07/2006)
91 ORDER by Judge Jeremy Fogel granting 85 Motion for Attorney Richard P. Steinken for admission Pro Hac Vice (gm, COURT STAFF) (Filed on 3/2/2006) (mhpsec, COURT STAFF). (Entered: 03/07/2006)
87 CASE MANAGEMENT STATEMENT filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 3/3/2006) (Entered: 03/03/2006)
92 NOTICE of Appearance by Ronald S. Matthias (Matthias, Ronald) (Filed on 3/7/2006) (Entered: 03/07/2006)
95 Mail Returned as Undeliverable. Mail sent to California Appellate Project. (gm, COURT STAFF) (Filed on 3/7/2006) (mhpsec, COURT STAFF). (Entered: 03/09/2006)
93 NOTICE by Roderick Q. Hickman, Steven Ornoski Notice of lodging document under seal (Gillette, Dane) (Filed on 3/8/2006) (Entered: 03/08/2006)
94 Minute Entry: Initial Case Management Conference held on 3/3/2006 before Judge Jeremy Fogel (Date Filed: 3/8/2006). Court set discovery cut−off dates as recited. The case is referred to Magistrate Judge Richard Seeborg for discovery. The case remains set for hearing on 5/2/06 and 5/3/06. (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 3/8/2006) (Entered: 03/08/2006)
Magistrate Judge Seeborg added to case for Discovery matters re Civil Minutes of March 3, 2006.(bw, COURT STAFF) (Filed on 3/9/2006) (Entered: 03/09/2006)
96 NOTICE by Steven Ornoski NOTICE OF LODGING OF REDACTED VERSION OF SEALED DOCUMENT (Matthias, Ronald) (Filed on 3/16/2006) (Entered: 03/16/2006)
97 RESPONSE in Support of Consolidation filed byMichael A. Morales. (Grele, John) (Filed on 3/16/2006) (Entered: 03/16/2006)
98 Letter from Karl Olson to the Honorable Jeremy Fogel. (Olson, Karl) (Filed on 3/20/2006) (Entered: 03/20/2006)
99 TRANSCRIPT of Proceedings held on 3/3/2006 before Judge Jeremy Fogel. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 3/20/2006) (Entered: 03/21/2006)
100 Minute Entry: Motion to Consolidate hearing held on 3/21/2006 before Judge Jeremy Fogel (Date Filed: 3/22/2006). The motion is taken under submission. Case Management Conference held on 3/21/2006 before Judge Jeremy Fogel (Date Filed: 3/22/2006). (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 3/22/2006) (Entered: 03/22/2006)
101 Letter from John Grele and Wendy J. Thurm. (Thurm, Wendy) (Filed on 3/23/2006) (Entered: 03/23/2006)
102 Reply Memorandum letter re consolidation filed byRoderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 3/24/2006) (Entered: 03/24/2006)
103 Memorandum in Opposition opposition to media presence filed byRoderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 3/24/2006) (Entered: 03/24/2006)
*** FILED IN ERROR. DOCUMENT LOCKED. NO NEW DOCUMENT. *** MOTION for Protective Order defendants' application for protective order filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 3/24/2006) Modified on 3/28/2006 (ewn, COURT STAFF). (Entered: 03/24/2006)
105 MOTION for Protective Order proposed protective order filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 3/24/2006) (Entered: 03/24/2006)
106 MOTION to Intervene filed by Sacramento Bee, The. (Attachments: # 1 Signature Page (Declarations/Stipulations) # 2 Proposed Order # 3 Notice of Motion and

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03/27/2006 03/27/2006
03/27/2006 03/27/2006 03/27/2006 03/27/2006 03/28/2006 03/28/2006 03/28/2006 03/29/2006 03/29/2006 03/29/2006 03/29/2006 03/30/2006
03/30/2006 03/31/2006 04/02/2006

Motion# 4 Signature Page (Declarations/Stipulations) Wilcox, Declaration# 5)(Wilcox, Rochelle) (Filed on 3/24/2006) (Entered: 03/24/2006)
107 Request for Judicial Notice re 106 MOTION to Intervene filed bySacramento Bee, The. (Attachments: # 1 # 2)(Related document(s) 106 ) (Wilcox, Rochelle) (Filed on 3/27/2006) (Entered: 03/27/2006)
108 ORDER GRANTING EX PARTE APPLICATION OF THE NON−PARTY PRESS ORGANIZATIONS TO HEAR MOTION TO INTERVENE AND FOR ACCESS TO JUDICIAL PROCEEDINGS re 106 MOTION to Intervene filed by Sacramento Bee, The,. Signed by Judge Jeremy Fogel on 3/27/06. (jfsec, COURT STAFF) (Filed on 3/27/2006) (Entered: 03/27/2006)
109 ORDER GRANTING REQUEST FOR JUDICIAL NOTICE re 107 Request filed by Sacramento Bee, The,. Signed by Judge Jeremy Fogel on 3/27/06. (jfsec, COURT STAFF) (Filed on 3/27/2006) (Entered: 03/27/2006)
110 ORDER DENYING MOTION TO CONSOLIDATE WITHOUT PREJUDICE. Signed by Judge Jeremy Fogel on 3/27/06. (jfsec, COURT STAFF) (Filed on 3/27/2006) (Entered: 03/27/2006)
111 Memorandum in Opposition Defendants' opposition to motion for access to prison hearing filed byRoderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 3/27/2006) (Entered: 03/27/2006)
Set/Reset Hearings: Motion to Intervene and for Access to Judicial Proceedings hearing set for 3/29/2006 at 10:30 AM. (dlm, COURT STAFF) (Filed on 3/27/2006) (Entered: 03/30/2006)
112 MOTION for Protective Order CORRECTION OF DOCKET NO. 104 filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 3/28/2006) (Entered: 03/28/2006)
113 MOTION to Remove Incorrectly Filed Document filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 3/28/2006) (Entered: 03/28/2006)
114 MOTION to Remove Incorrectly Filed Document proposed order filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 3/28/2006) (Entered: 03/28/2006)
115 Reply Memorandum to Media Access Motion filed byMichael A. Morales. (Grele, John) (Filed on 3/29/2006) (Entered: 03/29/2006)
116 ORDER by Judge Jeremy Fogel granting 114 Motion to Remove Incorrectly Filed Document (jfsec, COURT STAFF) (Filed on 3/29/2006) (Entered: 03/29/2006)
117 Memorandum in Opposition to Motion for Protective Order filed byMichael A. Morales. (Grele, John) (Filed on 3/29/2006) (Entered: 03/29/2006)
118 ORDER REGARDING MEDIA ACCESS TO DOCUMENTS AND PROCEEDINGS by Judge Jeremy Fogel granting in part and denying in part 106 Motion to Intervene (jfsec, COURT STAFF) (Filed on 3/29/2006) (Entered: 03/29/2006)
119 Minute Entry: Motion to Intervene and for Access to Judicial Proceedings hearing held on 3/29/2006 before Judge Jeremy Fogel (Date Filed: 3/30/2006). The motion is taken under submission. (See Order Docket no. 118). (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 3/30/2006) (Entered: 03/30/2006)
121 REDACTED TRANSCRIPT of Proceedings held on 3/30/2006 before Judge Jeremy Fogel. Court Reporter: Peter Torreano. (gm, COURT STAFF) (Filed on 3/30/2006) (Entered: 03/31/2006)
120 TRANSCRIPT of Proceedings held on 3/30/2006 before Judge Jeremy Fogel. Court Reporter: Peter Torreano. (FILED UNDER SEAL). (gm, COURT STAFF) (Filed on 3/31/2006) (Entered: 03/31/2006)
122 Reply to Opposition re 105 MOTION for Protective Order proposed protective order, 112 MOTION for Protective Order CORRECTION OF DOCKET NO. 104 defendants' reply to plaintiff's response to application for protective order filed byRoderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 4/2/2006) (Entered: 04/02/2006)

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04/03/2006 04/03/2006 04/03/2006
04/03/2006 04/03/2006 04/03/2006 04/04/2006 04/04/2006 04/06/2006 04/17/2006 04/17/2006
04/17/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006
04/17/2006 04/20/2006

123 Minute Entry: Off−Site hearing held on 3/30/2006 before Judge Jeremy Fogel (Date Filed: 4/3/2006). (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 4/3/2006) (Entered: 04/03/2006)
124 MOTION to Continue Hearing filed by Michael A. Morales. (Grele, John) (Filed on 4/3/2006) (Entered: 04/03/2006)
125 Declaration in Support of 124 MOTION to Continue Hearing filed byMichael A. Morales. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Proposed Order)(Related document(s) 124 ) (Grele, John) (Filed on 4/3/2006) (Entered: 04/03/2006)
126 PROTECTIVE ORDER by Judge Jeremy Fogel 104 112 (jfsec, COURT STAFF) (Filed on 4/3/2006) (Entered: 04/03/2006)
127 MOTION to Shorten Time to Hear Motion to Continue Hearing filed by Michael A. Morales. (Attachments: # 1 Proposed Order)(Grele, John) (Filed on 4/3/2006) (Entered: 04/03/2006)
128 Memorandum in Opposition re 124 MOTION to Continue Hearing Defendants' opposition to motion to continue evidentiary hearing filed byRoderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 4/3/2006) (Entered: 04/03/2006)
129 ORDER DEFERRING RULING ON PLAINTIFF'S MOTION TO CONTINUE HEARING by Judge Jeremy Fogel 127 (jfsec, COURT STAFF) (Filed on 4/4/2006) (Entered: 04/04/2006)
130 Reply to Opposition re 124 MOTION to Continue Hearing filed byMichael A. Morales. (Grele, John) (Filed on 4/4/2006) (Entered: 04/04/2006)
131 AMENDED COMPLAINT Second Amended Complaint against Roderick Q. Hickman, Steven Ornoski. Filed byMichael A. Morales. (Grele, John) (Filed on 4/6/2006) (Entered: 04/06/2006)
132 MOTION to Compel Discovery filed by Michael A. Morales. Motion Hearing set for 4/20/2006 02:00 PM in Courtroom #4, 5th Floor, San Jose. (Grele, John) (Filed on 4/17/2006) (Entered: 04/17/2006)
133 Declaration in Support of 132 MOTION to Compel Discovery filed byMichael A. Morales. (Attachments: # 1 Exhibit A to Declaration# 2 Exhibit B to Declaration# 3 Exhibit C to Declaration)(Related document(s) 132 ) (Grele, John) (Filed on 4/17/2006) (Entered: 04/17/2006)
134 Ex Parte MOTION for Leave to File Excess Pages in Support of Motion to Compel filed by Michael A. Morales. (Grele, John) (Filed on 4/17/2006) (Entered: 04/17/2006)
135 Ex Parte MOTION to Shorten Time to Hear Motion to Compel filed by Michael A. Morales. (Grele, John) (Filed on 4/17/2006) (Entered: 04/17/2006)
136 MOTION to Shorten Time filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 4/17/2006) (Entered: 04/17/2006)
137 MOTION to Shorten Time proposed order shortening time filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 4/17/2006) (Entered: 04/17/2006)
138 MOTION for Protective Order defendants' motion to clarify and/or modify protective order filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 4/17/2006) (Entered: 04/17/2006)
139 Declaration in Support of 138 MOTION for Protective Order defendants' motion to clarify and/or modify protective order filed byRoderick Q. Hickman, Steven Ornoski. (Related document(s) 138 ) (Gillette, Dane) (Filed on 4/17/2006) (Entered: 04/17/2006)
140 MOTION for Protective Order propopsed order clarifying protective order filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 4/17/2006) (Entered: 04/17/2006)
141 Memorandum in Opposition re 132 MOTION to Compel Discovery filed byRoderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 4/20/2006) (Entered:

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04/20/2006 04/21/2006 04/24/2006
04/24/2006 04/24/2006 04/26/2006 04/26/2006 04/27/2006 04/27/2006 04/28/2006 05/02/2006 05/09/2006 05/16/2006 05/17/2006
05/26/2006 06/01/2006 06/05/2006 06/09/2006

04/20/2006)
142 DECLARATION in support of opposition to motion to compel filed byRoderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 4/20/2006) (Entered: 04/20/2006)
143 ANSWER to Amended Complaint byRoderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 4/21/2006) (Entered: 04/21/2006)
144 DECLARATION of Dane R. Gillette in Opposition to 141 Memorandum in Opposition supplemental declaration in support of opposition to motion to compel filed byRoderick Q. Hickman, Steven Ornoski. (Related document(s) 141 ) (Gillette, Dane) (Filed on 4/24/2006) (Entered: 04/24/2006)
145 Reply to Opposition to Motion to Compel filed byMichael A. Morales. (Grele, John) (Filed on 4/24/2006) (Entered: 04/24/2006)
146 Declaration in Support of 145 Reply to Opposition to Motion to Compel filed byMichael A. Morales. (Attachments: # 1 # 2)(Related document(s) 145 ) (Grele, John) (Filed on 4/24/2006) (Entered: 04/24/2006)
147 Minute Entry: Motion Hearing held on 4/25/2006 before Judge Richard Seeborg (Date Filed: 4/26/2006). (Court Reporter Peter Torreano.) (mpb, COURT STAFF) (Date Filed: 4/26/2006) (Entered: 04/26/2006)
148 STIPULATION to Continue Hearing by Michael A. Morales. (Grele, John) (Filed on 4/26/2006) (Entered: 04/26/2006)
149 STIPULATION OF THE PARTIES TO CONTINUE HEARING TO SEPTEMBER 19, 2006 AND ORDER. Signed by Judge Jeremy Fogel on 4/27/06. (jfsec, COURT STAFF) (Filed on 4/27/2006) (Entered: 04/27/2006)
150 Declaration of John R Grele in Support of Motion to Compel filed byMichael A. Morales. (Attachments: # 1 Exhibit A to Supplemental Declaration)(Grele, John) (Filed on 4/27/2006) (Entered: 04/27/2006)
Set/Reset Hearings: Motion Hearing set for 9/19/2006 09:00 AM. (jfsec, COURT STAFF) (Filed on 4/28/2006) (Entered: 04/28/2006)
151 ORDER by Judge Richard Seeborg granting in part 132 Motion to Compel, granting 134 Motion for Leave to File Excess Pages, denying as moot 135 Motion to Shorten Time. (rssec, COURT STAFF) (Filed on 5/2/2006) (Entered: 05/02/2006)
152 Mail Returned as Undeliverable. Mail sent to California Appellate Project. (gm, COURT STAFF) (Filed on 5/9/2006) (mhpsec, COURT STAFF). (Entered: 05/15/2006)
153 MOTION for Reconsideration filed by Michael A. Morales. (Grele, John) (Filed on 5/16/2006) (Entered: 05/16/2006)
154 ORDER GRANTING MOTION FOR LEAVE TO MAKE MOTION FOR RECONSIDERATION OF ORDER GRANTING IN PART PLAINTIFF'S MOTION TO COMPEL. Signed by Judge Richard Seeborg on 5/17/06. (rssec, COURT STAFF) (Filed on 5/17/2006) (Entered: 05/17/2006)
155 TRANSCRIPT of Proceedings held on 4/25/2006 before Judge Richard Seeborg. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 5/26/2006) (Entered: 05/26/2006)
156 Memorandum in Opposition re 153 MOTION for Reconsideration Opposition to motion for reconsideration filed byRoderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 6/1/2006) (Entered: 06/01/2006)
157 Reply to Opposition to Motion to Clarify (Redacted) filed byMichael A. Morales. (Grele, John) (Filed on 6/5/2006) (Entered: 06/05/2006)
158 ORDER by Judge Richard Seeborg on 153 Plaintiff's Motion for Reconsideration or Clarification of May 2, 2006 Order. (rssec, COURT STAFF) (Filed on 6/9/2006) (Entered: 06/09/2006)

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07/18/2006
07/19/2006 08/11/2006
08/29/2006 09/03/2006 09/03/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006 09/05/2006
09/06/2006

159 ORDER DENYING WITHOUT PREJUDICE DEFENDANTS' MOTION TO CLARIFY AND/OR MODIFY PROTECTIVE ORDER by Judge Jeremy Fogel denying 138 140 Motion for Protective Order, (jfsec, COURT STAFF) (Filed on 7/18/2006) (Entered: 07/18/2006)
160 FINDINGS REGARDING EXECUTION SECURITY PLAN. Signed by Judge Richard Seeborg on 7/19/06. (rssec, COURT STAFF) (Filed on 7/19/2006) (Entered: 07/19/2006)
161 ORDER SCHEDULING EVIDENTIARY HEARING AND PRE−HEARING CONFERENCE Evidentiary Hearing set for 9/26/2006 09:00 AM. Prehearing Conference set for 9/13/2006 01:30 PM.. Signed by Judge Jeremy Fogel on 8/11/06. (jfsec, COURT STAFF) (Filed on 8/11/2006) (Entered: 08/11/2006)
162 ORDER SCHEDULING FILING OF JOINT PRE−HEARING CONFERENCE STATEMENT. Signed by Judge Jeremy Fogel on 8/28/06. (jfsec, COURT STAFF) (Filed on 8/29/2006) (Entered: 08/29/2006)
163 Pretrial Conference Statement by Roderick Q. Hickman, Steven Ornoski Joint pre−hearing conference statement redacted part 1. (Gillette, Dane) (Filed on 9/3/2006) (Entered: 09/03/2006)
164 Pretrial Conference Statement by Roderick Q. Hickman, Steven Ornoski continued pre−hearing statement. (Gillette, Dane) (Filed on 9/3/2006) (Entered: 09/03/2006)
165 MOTION in Limine exclude identifying information filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 9/5/2006) (Entered: 09/05/2006)
166 MOTION in Limine exclude witnesses filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 9/5/2006) (Entered: 09/05/2006)
167 MOTION in Limine exclude expert witness filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 9/5/2006) (Entered: 09/05/2006)
168 MOTION in Limine exclude personal information filed by Roderick Q. Hickman, Steven Ornoski. (Gillette, Dane) (Filed on 9/5/2006) (Entered: 09/05/2006)
169 Second MOTION to Compel Discovery − redacted filed by Michael A. Morales. Motion Hearing set for 9/13/2006 02:30 PM in Courtroom #4, 5th Floor, San Jose. (Grele, John) (Filed on 9/5/2006) (Entered: 09/05/2006)
170 Declaration of John R Grele in Support of 169 Second MOTION to Compel Discovery − redacted filed byMichael A. Morales. (Related document(s) 169 ) (Grele, John) (Filed on 9/5/2006) (Entered: 09/05/2006)
171 Proposed Order re 169 Second MOTION to Compel Discovery − redacted by Michael A. Morales. (Grele, John) (Filed on 9/5/2006) (Entered: 09/05/2006)
172 MOTION to Shorten Time to Hear Second Motion to Compel filed by Michael A. Morales. (Grele, John) (Filed on 9/5/2006) (Entered: 09/05/2006)
173 Proposed Order re 172 MOTION to Shorten Time to Hear Second Motion to Compel by Michael A. Morales. (Grele, John) (Filed on 9/5/2006) (Entered: 09/05/2006)
174 MOTION for Leave to File Excess Pages re Second Motion to Compel filed by Michael A. Morales. (Grele, John) (Filed on 9/5/2006) (Entered: 09/05/2006)
175 Proposed Order re 174 MOTION for Leave to File Excess Pages re Second Motion to Compel by Michael A. Morales. (Grele, John) (Filed on 9/5/2006) (Entered: 09/05/2006)
176 CERTIFICATE OF SERVICE by Michael A. Morales re 174 MOTION for Leave to File Excess Pages re Second Motion to Compel, 173 Proposed Order, 171 Proposed Order, 175 Proposed Order, 172 MOTION to Shorten Time to Hear Second Motion to Compel, 170 Declaration in Support, 169 Second MOTION to Compel Discovery − redacted (Grele, John) (Filed on 9/5/2006) (Entered: 09/05/2006)
177 ORDER SCHEDULING BRIEFING ON MOTIONS IN LIMINE. Signed by Judge Jeremy Fogel on 9/6/06. (jfsec, COURT STAFF) (Filed on 9/6/2006) (Entered: 09/06/2006)

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09/06/2006 09/06/2006 09/07/2006 09/07/2006 09/07/2006 09/07/2006 09/07/2006 09/07/2006 09/07/2006 09/07/2006 09/07/2006
09/08/2006 09/10/2006
09/10/2006 09/10/2006 09/10/2006

178 PRETRIAL MEMORANDUM of Remaining Discovery by Michael A. Morales. (Grele, John) (Filed on 9/6/2006) (Entered: 09/06/2006)
179 MOTION in Limine Re Operational Procedure 770, March 6, 2006 filed by Michael A. Morales. Motion Hearing set for 9/13/2006 01:30 PM in Courtroom 3, 5th Floor, San Jose. (Grele, John) (Filed on 9/6/2006) (Entered: 09/06/2006)
180 OBJECTIONS to re 173 Proposed Order, 171 Proposed Order, 172 MOTION to Shorten Time to Hear Second Motion to Compel by Office of the Inspector General. (Sheldon, Barbara) (Filed on 9/7/2006) (Entered: 09/07/2006)
181 CERTIFICATE OF SERVICE by Office of the Inspector General re 180 Objection (Sheldon, Barbara) (Filed on 9/7/2006) (Entered: 09/07/2006)
182 MEMORANDUM in Opposition to Plaintiff's Ex Parte Motion For Order Shortening Time filed bySchwarzennegger. (Cuomo, Diana) (Filed on 9/7/2006) (Entered: 09/07/2006)
183 AFFIDAVIT in Opposition to Plaintiff's Ex Parte Motion for Order Shortening Time filed bySchwarzennegger. (Cuomo, Diana) (Filed on 9/7/2006) (Entered: 09/07/2006)
184 CERTIFICATE OF SERVICE by Schwarzennegger to Opposition to Plaintiff's Ex Parte Motion for Order Shortening Time (Cuomo, Diana) (Filed on 9/7/2006) (Entered: 09/07/2006)
185 CERTIFICATE OF SERVICE by Schwarzennegger to Declaration of Diana L. Cuomo in Support of Opposition to Motion for Order Shortening Time (Cuomo, Diana) (Filed on 9/7/2006) (Entered: 09/07/2006)
186 ORDER by Judge Richard Seeborg granting 172 Motion to Shorten Time, granting 174 Motion for Leave to File Excess Pages. (rssec, COURT STAFF) (Filed on 9/7/2006) (Entered: 09/07/2006)
187 Reply to Opposition to Motion to Shorten Time filed byMichael A. Morales. (Grele, John) (Filed on 9/7/2006) (Entered: 09/07/2006)
188 MOTION to Intervene NOTICE OF MOTION AND MOTION OF NON−PARTY PRESS ORGANIZATIONS LOS ANGELES TIMES COMMUNICATIONS, LLC, SAN FRANCISCO CHRONICLE AND McCLATCHY NEWSPAPERS, INC. FOR LEAVE TO INTERVENE AND TO UNSEAL RECORDS; OPPOSITION TO CLOSURE OR RELOCATION OF HEARING, MOTION to Unseal Document 164 Pretrial Conference Statement filed by Roderick Q. Hickman,, Steven Ornoski,, 163 Pretrial Conference Statement filed by Roderick Q. Hickman,, Steven Ornoski, filed by Los Angeles Times Communications, LLC, McClatchy Newspapers, Inc., San Francisco Chronicle. Motion Hearing set for 9/13/2006 01:30 PM in Courtroom 3, 5th Floor, San Jose. (Olson, Karl) (Filed on 9/7/2006) (Entered: 09/07/2006)
189 ORDER SCHEDULING BRIEFING ON PLAINTIFF'S MOTION IN LIMINE AND NONPARTY PRESS ORGANIZATIONS' MOTION TO INTERVENE AND TO UNSEAL. Signed by Judge Jeremy Fogel on 9/7/06. (jfsec, COURT STAFF) (Filed on 9/8/2006) (Entered: 09/08/2006)
190 Memorandum in Opposition to Motion to Compel filed bySchwarzennegger. (Attachments: # 1 Declaration of Diana L. Cuomo in Support of Opposition to Motion to Compel (with Exhibits "A" through "C")# 2 Declaration of Andrea L. Hoch in Support of Opposition to Motion to Compel# 3 Declaration of Dane R. Gillette in Support of Opposition to Motion to Compel)(Cuomo, Diana) (Filed on 9/10/2006) (Entered: 09/10/2006)
191 Memorandum in Opposition re 169 Second MOTION to Compel Discovery − redacted filed byOffice of the Inspector General. (Sheldon, Barbara) (Filed on 9/10/2006) (Entered: 09/10/2006)
192 Declaration of Matthew L. Cate in Support of 191 Memorandum in Opposition filed byOffice of the Inspector General. (Related document(s) 191 ) (Sheldon, Barbara) (Filed on 9/10/2006) (Entered: 09/10/2006)
193 Declaration of Barbara L. Sheldon in Support of 191 Memorandum in Opposition filed byOffice of the Inspector General. (Related document(s) 191 ) (Sheldon, Barbara)

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09/11/2006 09/11/2006 09/11/2006
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09/11/2006 09/11/2006 09/11/2006 09/11/2006 09/11/2006
09/11/2006 09/11/2006 09/11/2006 09/12/2006

(Filed on 9/10/2006) (Entered: 09/10/2006)
194 Memorandum in Opposition to second motion to compel discovery filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 9/11/2006) (Entered: 09/11/2006)
195 AFFIDAVIT in Opposition to motion to compel discovery filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 9/11/2006) (Entered: 09/11/2006)
196 CERTIFICATE OF SERVICE by Schwarzennegger re 190 Memorandum in Opposition, Declaration of Diana L. Cuomo in Support of Opposition to Motion to Compel, Declaration of Andrea L. Hoch in Support of Opposition to Motion to Compel, and Declaration of Dane R. Gillette in Support of Opposition to Motion to Compel (Cuomo, Diana) (Filed on 9/11/2006) (Entered: 09/11/2006)
197 Memorandum in Opposition to Motion in Limine to Exclude Expert Testimony filed byMichael A. Morales. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Grele, John) (Filed on 9/11/2006) (Entered: 09/11/2006)
198 Memorandum in Opposition to Motion in Limine ot Exclude Witnesses filed byMichael A. Morales. (Attachments: # 1 Exhibit Stevens Declaration# 2 Exhibit Adcock Declaration# 3 Exhibit Wells Declaration)(Grele, John) (Filed on 9/11/2006) (Entered: 09/11/2006)
199 Reply to Opposition of Governor's Counsel to Motion to Compel filed byMichael A. Morales. (Grele, John) (Filed on 9/11/2006) (Entered: 09/11/2006)
200 Declaration in Support of 199 Reply to Opposition by Governor's Counsel to Motion to Compel filed byMichael A. Morales. (Attachments: # 1 Exhibit A Excerpts of Witn #1 Depo# 2 Exhibit B Ornoski Depo Excerpts# 3 Exhibit C Singler Depo Excerpts# 4 Exhibit D Anesthesiologist 2 Excerpts# 5 Exhibit E)(Related document(s) 199 ) (Grele, John) (Filed on 9/11/2006) (Entered: 09/11/2006)
201 Reply to Opposition to Motion to Compel by hte Inspector General filed byMichael A. Morales. (Attachments: # 1 Affidavit of John R Grele)(Grele, John) (Filed on 9/11/2006) (Entered: 09/11/2006)
202 CERTIFICATE OF SERVICE by Office of the Inspector General re 191 Memorandum in Opposition, 193 Declaration in Support, 192 Declaration in Support (Sheldon, Barbara) (Filed on 9/11/2006) (Entered: 09/11/2006)
203 Memorandum in Opposition to plaintiff's motion in limine filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 9/11/2006) (Entered: 09/11/2006)
204 Memorandum in Opposition defendants' response to press intervenor motion filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 9/11/2006) (Entered: 09/11/2006)
205 Declaration of Matthew L. Cate in Support of 191 Memorandum in Opposition, 192 Declaration in Support (Supplemental) filed byOffice of the Inspector General. (Related document(s) 191 , 192 ) (Sheldon, Barbara) (Filed on 9/11/2006) (Entered: 09/11/2006)
206 CERTIFICATE OF SERVICE by Office of the Inspector General re 205 Declaration in Support (Supplemental) (Sheldon, Barbara) (Filed on 9/11/2006) (Entered: 09/11/2006)
207 Reply to Opposition to Second Motion to Compel filed byMichael A. Morales. (Grele, John) (Filed on 9/11/2006) (Entered: 09/11/2006)
208 Declaration in Support of 207 Reply to Opposition to Second Motion to Compel filed byMichael A. Morales. (Related document(s) 207 ) (Grele, John) (Filed on 9/11/2006) (Entered: 09/11/2006)
210 Minute Entry: Motion Hearing held on 9/12/2006 before Judge Richard Seeborg (Date Filed: 9/12/2006). (Court Reporter Peter Torreano.) (mpb, COURT STAFF) (Date Filed: 9/12/2006) (Entered: 09/14/2006)

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09/13/2006 09/13/2006 09/14/2006
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209 ORDER by Judge Richard Seeborg granting in part and denying in part 169 Motion to Compel. (rssec, COURT STAFF) (Filed on 9/13/2006) (Entered: 09/13/2006)
217 Minute Entry: Pre−Hearing Conference held on 9/13/2006. The motions are taken under submission. The case remains set for evidentiary hearing on 9/26/2006 at 9:00 a.m. (Date Filed: 9/13/2006). (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 9/13/2006) (Entered: 09/15/2006)
211 ORDER GRANTING IN PART NONPARTY PRESS ORGANIZATIONS' MOTION TO INTERVENE AND UNSEAL RECORDS re 188 MOTION to Intervene NOTICE OF MOTION AND MOTION OF NON−PARTY PRESS ORGANIZATIONS LOS ANGELES TIMES COMMUNICATIONS, LLC, SAN FRANCISCO CHRONICLE AND McCLATCHY NEWSPAPERS, INC. FOR LEAVE TO INTERVENE AND TO UNSEAL RECORDS; OPPOSITION TO CLOSURE OR RE MOTION to Unseal Document 164 Pretrial Conference Statement filed by Roderick Q. Hickman,, Steven Ornoski,, 163 Pretrial Conference Statement filed by Roderick Q. Hickman,, Steven Ornoski, MOTION to Unseal Document 164 Pretrial Conference Statement filed by Roderick Q. Hickman,, Steven Ornoski,, 163 Pretrial Conference Statement filed by Roderick Q. Hickman,, Steven Ornoski, MOTION to Unseal Document 164 Pretrial Conference Statement filed by Roderick Q. Hickman,, Steven Ornoski,, 163 Pretrial Conference Statement filed by Roderick Q. Hickman,, Steven Ornoski, filed by San Francisco Chronicle,, Los Angeles Times Communications, LLC,, McClatchy Newspapers, Inc.,. Signed by Judge Jeremy Fogel on 9/14/06. (jfsec, COURT STAFF) (Filed on 9/14/2006) (Entered: 09/14/2006)
212 ORDER SCHEDULING BRIEFING ON MOTIONS FOR STAYS OF AND OBJECTIONS TO MAGISTRATE JUDGE'S ORDER REGARDING PLAINTIFF'S SECOND MOTION TO COMPEL. Signed by Judge Jeremy Fogel on 9/15/06. (jfsec, COURT STAFF) (Filed on 9/15/2006) (Entered: 09/15/2006)
213 MOTION for Protective Order revised document 138 filed by James E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 9/15/2006) (Entered: 09/15/2006)
214 Declaration revised document 139 filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 9/15/2006) (Entered: 09/15/2006)
215 Pretrial Conference Statement by James E. Tilton, Robert L. Ayers, Jr revised document 163. (Gillette, Dane) (Filed on 9/15/2006) (Entered: 09/15/2006)
216 Pretrial Conference Statement by James E. Tilton, Robert L. Ayers, Jr revised document 164. (Gillette, Dane) (Filed on 9/15/2006) (Entered: 09/15/2006)
218 Second MOTION to Compel [Unredacted verison of document #169 filed pursuant to court order] filed by Michael A. Morales. Motion Hearing set for 9/12/2006 03:00 PM in Courtroom #4, 5th Floor, San Jose. (Grele, John) (Filed on 9/16/2006) (Entered: 09/16/2006)
219 Declaration of John R Grele [unredacted version of document #170 filed pursuant to court order] in Support of 218 Second MOTION to Compel [Unredacted verison of document #169 filed pursuant to court order] filed byMichael A. Morales. (Related document(s) 218 ) (Grele, John) (Filed on 9/16/2006) (Entered: 09/16/2006)
220 MOTION for Discovery defendants' objections to discovery order filed by James E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 9/17/2006) (Entered: 09/17/2006)
221 OBJECTIONS to re 210 Motion Hearing ; Office of the Governor's Objections to Magistrate Judge's Order re Plaintiff's Second Motion to Compel and Request for Stay by Schwarzennegger. (Attachments: # 1 Certificate of Service to Objection)(Cuomo, Diana) (Filed on 9/17/2006) (Entered: 09/17/2006)
222 NOTICE by Schwarzennegger re 221 Objection, Documents Submitted for In Camera Review (Attachments: # 1 Certficate of Service)(Cuomo, Diana) (Filed on 9/17/2006) (Entered: 09/17/2006)
223 CERTIFICATE OF SERVICE by Schwarzennegger re 221 Objection, Amended Certificate of Service to Reflect Correct Date of Mailing (Cuomo, Diana) (Filed on 9/17/2006) (Entered: 09/17/2006)

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09/18/2006 09/18/2006 09/18/2006 09/18/2006 09/18/2006 09/18/2006
09/18/2006 09/19/2006 09/19/2006
09/20/2006
09/20/2006 09/20/2006
09/20/2006 09/20/2006
09/20/2006 09/21/2006 09/21/2006

224 OBJECTIONS to Order Denying Discovery by Michael A. Morales. (Grele, John) (Filed on 9/18/2006) (Entered: 09/18/2006)
225 Declaration in Support of 224 Objection to Order Denying Discovery filed byMichael A. Morales. (Attachments: # 1 Exhibit b# 2 Exhibit A# 3 Exhibit C)(Related document(s) 224 ) (Grele, John) (Filed on 9/18/2006) (Entered: 09/18/2006)
226 Memorandum in Opposition defendants' response to objections to magistrate order filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 9/18/2006) (Entered: 09/18/2006)
227 DECLARATION in support of response to objections to magistrate order filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 9/18/2006) (Entered: 09/18/2006)
228 Memorandum in Opposition to Defendants' Objection to Discovery Order filed byMichael A. Morales. (Grele, John) (Filed on 9/18/2006) (Entered: 09/18/2006)
229 Declaration in Support of 228 Memorandum in Opposition to Defendants' Objection to Discovery Order filed byMichael A. Morales. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Related document(s) 228 ) (Grele, John) (Filed on 9/18/2006) (Entered: 09/18/2006)
230 Memorandum in Opposition to Governor's Counsel's Objection to Discovery Order filed byMichael A. Morales. (Grele, John) (Filed on 9/18/2006) (Entered: 09/18/2006)
231 Reply Memorandum to Response to Plaintiff's Objection to Magistrate's Order filed byMichael A. Morales. (Grele, John) (Filed on 9/19/2006) (Entered: 09/19/2006)
232 Reply Memorandum OFFICE OF THE GOVERNOR'S OBJECTIONS TO MAGISTRATE JUDGE'S ORDER RE PLAINTIFF'S SECOND MOTION TO COMPEL AND REQUEST FOR STAY filed bySchwarzennegger. (Attachments: # 1 Affidavit PROOF OF SERVICE)(Cuomo, Diana) (Filed on 9/19/2006) (Entered: 09/19/2006)
233 ORDER SCHEDULING HEARING ON OBJECTIONS TO MAGISTRATE JUDGE'S ORDER AND REQUESTS FOR STAYS Hearing set for 9/21/2006 03:00 PM.. Signed by Judge Jeremy Fogel on 9/19/06. (jfsec, COURT STAFF) (Filed on 9/20/2006) (Entered: 09/20/2006)
234 MOTION to Continue Hearing filed by Michael A. Morales. Motion Hearing set for 9/21/2006 03:00 PM in Courtroom #4, 5th Floor, San Jose. (Grele, John) (Filed on 9/20/2006) (Entered: 09/20/2006)
235 Declaration in Support of 234 MOTION to Continue Hearing filed byMichael A. Morales. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Related document(s) 234 ) (Grele, John) (Filed on 9/20/2006) (Entered: 09/20/2006)
236 Proposed Order re 234 MOTION to Continue Hearing by Michael A. Morales. (Grele, John) (Filed on 9/20/2006) (Entered: 09/20/2006)
237 MOTION to Shorten Time to Hear Motions to Continue and to Modify Redactions filed by Michael A. Morales. Motion Hearing set for 9/21/2006 03:00 PM in Courtroom #4, 5th Floor, San Jose. (Grele, John) (Filed on 9/20/2006) (Entered: 09/20/2006)
238 Proposed Order re 237 MOTION to Shorten Time to Hear Motions to Continue and to Modify Redactions by Michael A. Morales. (Grele, John) (Filed on 9/20/2006) (Entered: 09/20/2006)
239 Memorandum in Opposition defendants' opposition to second motion to continue hearing filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 9/21/2006) (Entered: 09/21/2006)
240 Declaration declaration in support of opposition to motion to continue hearing filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 9/21/2006) (Entered: 09/21/2006)

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09/21/2006 09/21/2006
09/22/2006 09/26/2006 09/26/2006 09/26/2006 09/27/2006 09/27/2006 09/27/2006
09/27/2006 09/28/2006 09/29/2006 10/02/2006 10/02/2006 10/02/2006

241 Reply to Opposition to Motion to Continue filed byMichael A. Morales. (Grele, John) (Filed on 9/21/2006) (Entered: 09/21/2006)
243 Minute Entry: Hearing on Motion to Continue and Objections to Magistrate Judge's Order held on 9/21/2006 before Judge Jeremy Fogel. The objections are taken under submission. The motion to continue the evidentiary hearing is denied. The case remains set for evidentiary hearing on 9/26/06 at 9:00 a.m. (Date Filed: 9/21/2006). (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 9/21/2006) (Entered: 09/25/2006)
242 ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE'S ORDER AND REQUESTS FOR STAYS; ORDER ON OTHER PENDING MOTIONS by Judge Jeremy Fogel 220 221 224 234 237 (jfsec, COURT STAFF) (Filed on 9/22/2006) (Entered: 09/22/2006)
245 ***DOCUMENT RETURNED TO NONPARTY DON BREWER PER JUDGES ORDER 252 *** EXHIBIT filed by Don Brewer party not known. (gm, COURT STAFF) (Filed on 9/26/2006) Modified on 10/3/2006 (gm, COURT STAFF). (Entered: 09/27/2006)
248 NOTICE of Appearance of Attorney Kelly McClease James E. Tilton, Robert L. Ayers, Jr (gm, COURT STAFF) (Filed on 9/26/2006) (mhpsec, COURT STAFF). (Entered: 09/28/2006)
249 Minute Entry: Evidentiary Hearing, Day 1, held on 9/26/2006 before Judge Jeremy Fogel. Continued to 9/27/2006 at 10:00 a.m. for further evidentiay hearing. (Date Filed: 9/26/2006). (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 9/26/2006) (Entered: 09/29/2006)
244 Exhibit List by Michael A. Morales.. (Grele, John) (Filed on 9/27/2006) (Entered: 09/27/2006)
246 NOTICE of Change In Counsel by Steven Mark Gevercer ; Designation of Counsel for Service (Attachments: # 1 Certificate of Service − conventional service# 2 Certificate of Service to Court's Staff)(Gevercer, Steven) (Filed on 9/27/2006) (Entered: 09/27/2006)
247 MOTION to Quash Subpoena of the Governor's Legal Affairs Secretary Andrea Hoch; Memorandum of Points & Authorities in Support Thereof filed by Schwarzennegger. Motion Hearing set for 9/28/2006 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Exhibit A# 2 Certificate of Service − conventional# 3 Certificate of Service − Court Staff)(Gevercer, Steven) (Filed on 9/27/2006) (Entered: 09/27/2006)
250 Minute Entry: Evidentiary Hearing, Day 2, held on 9/27/2006 before Judge Jeremy Fogel. Continued to 9/28/06 at 9:00 a.m. for further evidentiary hearing. (Date Filed: 9/27/2006). (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 9/27/2006) (Entered: 09/29/2006)
251 Minute Entry: Evidentiary Hearing, Day 3, held on 9/28/2006 before Judge Jeremy Fogel. Continued to 9/29/2006 at 9:00 a.m. for further evidentiary hearing. (Date Filed: 9/28/2006). (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 9/28/2006) (Entered: 09/29/2006)
253 Minute Entry: Evidentiary Hearing, Day 4, held on 9/29/2006 before Judge Jeremy Fogel. (Date Filed: 9/29/2006). (Court Reporter Peter Torreano.) (dlm, COURT STAFF) (Date Filed: 9/29/2006) (Entered: 10/02/2006)
252 ORDER TERMINATING MOTION TO QUASH AS MOOT AND STRIKING ERRONEOUSLY FILED EXHIBIT by Judge Jeremy Fogel 247 Motion to Quash (jfsec, COURT STAFF) (Filed on 10/2/2006) (Entered: 10/02/2006)
254 TRANSCRIPT of Proceedings held on 9/28/2006 − EKINS TESTIMONY before Judge Jeremy Fogel. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 10/2/2006) (Entered: 10/03/2006)
255 TRANSCRIPT of Proceedings held on 10/2/2006 − SINGLER TESTIMONY before Judge Jeremy Fogel. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 10/2/2006) (Entered: 10/03/2006)

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10/03/2006 10/06/2006 10/10/2006 10/11/2006 10/12/2006 10/13/2006
10/13/2006 10/13/2006 10/25/2006
10/25/2006
10/25/2006
10/26/2006 10/26/2006 11/09/2006 11/09/2006 11/09/2006 11/10/2006 11/13/2006

256 REQUEST FOR BRIEFING. Signed by Judge Jeremy Fogel on 10/3/06. (jfsec, COURT STAFF) (Filed on 10/3/2006) (Entered: 10/03/2006)
257 OBJECTIONS to exhibits by Michael A. Morales. (Grele, John) (Filed on 10/6/2006) (Entered: 10/06/2006)
258 EXHIBITS Defendants response and objections to exhibits filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 10/10/2006) (Entered: 10/10/2006)
259 TRANSCRIPT of Proceedings held on 9/28/2006; Volume 4 of 5, pp. 773−1067 before Judge Jeremy Fogel. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/12/2006)
260 TRANSCRIPT of Proceedings held on 9/29/2006 ; Volume 5 of 5 pp.1068−1219 ; before Judge Jeremy Fogel. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 10/12/2006) (Entered: 10/13/2006)
261 MOTION to Amend/Correct 131 Amended Complaint filed by Michael A. Morales. Motion Hearing set for 12/8/2006 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Exhibit Exhibit A: Third Amended Complaint)(Grele, John) (Filed on 10/13/2006) (Entered: 10/13/2006)
262 TRANSCRIPT of Proceedings held on 9/26/2006 (Volume 2 of 5 pp. 186−473) before Judge Jeremy Fogel. Court Reporter: Perer Torreano.. (gm, COURT STAFF) (Filed on 10/13/2006) (Entered: 10/17/2006)
263 TRANSCRIPT of Proceedings held on 9/27/2006 (Volume 3 of 5 pp. 474−772) before Judge Jeremy Fogel. Court Reporter: Peter Torreano.. (gm, COURT STAFF) (Filed on 10/13/2006) (Entered: 10/17/2006)
264 MOTION for Additional Time to File Brief; Declaration of John R Grele; Declaration of Richard Steinken; Declaration of David Senior; Declaration of Ginger Anders filed by Michael A. Morales. (Grele, John) (Filed on 10/25/2006) Modified on 10/30/2006 (sp, COURT STAFF). (Entered: 10/25/2006)
265 Proposed Order re 264 MOTION to Continue Briefing Date; Declaration of John R Grele; Declaration of Richard Steinken; Declaration of David Senior; Declaration of Ginger Anders by Michael A. Morales. (Grele, John) (Filed on 10/25/2006) (Entered: 10/25/2006)
266 Memorandum in Opposition 264 defendants' opposition to motion for additional time to file briefs and declaration in support filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 10/25/2006) Modified on 10/30/2006 (sp, COURT STAFF). (Entered: 10/25/2006)
267 Reply to Opposition 266 to Motion for Additional Time filed byMichael A. Morales. (Grele, John) (Filed on 10/26/2006) Modified on 10/30/2006 (sp, COURT STAFF). (Entered: 10/26/2006)
268 ORDER 264 . Signed by Judge Jeremy Fogel on 10/26/06. (jfsec, COURT STAFF) (Filed on 10/26/2006) Modified on 10/30/2006 (sp, COURT STAFF). (Entered: 10/26/2006)
269 TRIAL BRIEF Defendants' post−hearing brief by James E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 11/9/2006) (Entered: 11/09/2006)
270 Appendix Defendants' post−hearing brief appendix filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 11/9/2006) (Entered: 11/09/2006)
271 NOTICE by Michael A. Morales Notice of Filing Closing Brief with Court Clerk Via Electronic mail; Brief may not be filed publicly as stipulated facts referenced therein have not been released (Grele, John) (Filed on 11/9/2006) (Entered: 11/09/2006)
272 Request for Judicial Notice Request for Judicial Notice of Order to Show Cause and Findings of Fact issued in Plata v. Schwarzenegger filed byMichael A. Morales. (Grele, John) (Filed on 11/10/2006) (Entered: 11/10/2006)
273 CERTIFICATE OF SERVICE by James E. Tilton Amended Certificate of Service (McClease, Kelly) (Filed on 11/13/2006) (Entered: 11/13/2006)

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11/14/2006 11/21/2006 11/21/2006 11/27/2006 11/27/2006 11/27/2006 11/28/2006 11/28/2006
11/28/2006
11/28/2006 11/28/2006 12/06/2006
12/06/2006
12/06/2006

274 Memorandum in Opposition Defendants' opposition to motion to amend complaint filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 11/14/2006) (Entered: 11/14/2006)
275 ORDER DIRECTING FILING OF AMENDED JOINT PRE−HEARING CONFERENCE STATEMENT AND PLAINTIFF'S BRIEF SUBMITTED AFTER CONCLUSION OF EVIDENTIARY HEARING. Signed by Judge Jeremy Fogel on 11/20/06. (jfsec, COURT STAFF) (Filed on 11/21/2006) (Entered: 11/21/2006)
276 Reply to Opposition to Motion for Leave to Amend Complaint filed byMichael A. Morales. (Grele, John) (Filed on 11/21/2006) (Entered: 11/21/2006)
277 JOINT CASE MANAGEMENT STATEMENT Redacted amended statement of undisputed facts filed by James E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 11/27/2006) (Entered: 11/27/2006)
278 JOINT CASE MANAGEMENT STATEMENT redacted undisputed facts part 2 filed by James E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 11/27/2006) (Entered: 11/27/2006)
279 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 11/27/2006) (Entered: 11/27/2006)
280 TRIAL BRIEF (Plaintiff's Brief Submitted After Conclusion of Evidentiary Hearing −− Redacted Version) by Michael A. Morales. (Grele, John) (Filed on 11/28/2006) (Entered: 11/28/2006)
281 EXHIBITS re 280 Trial Brief Post−Trial Declaration of Dr. Mark Heath filed byMichael A. Morales. (Attachments: # 1 Exhibit Ex. 1 to Decl.# 2 Exhibit Ex. 2 to Decl.# 3 Exhibit Ex. 3 to Decl.# 4 Exhibit Ex. 4 to Decl.# 5 Exhibit Ex. 5 to Decl.# 6 Exhibit Ex. 6 to Decl.# 7 Exhibit Ex. 7 to Decl.# 8 Exhibit Ex. 8 to Decl.# 9 Exhibit Ex. 9 to Decl.# 10 Exhibit Ex. 9 to Decl.# 11 Exhibit Ex. 11 to Decl.# 12 Errata Ex. 12 to Decl.# 13 Exhibit Ex. 13 to Decl.# 14 Exhibit Ex. 14 to Decl.# 15 Errata Ex. 15 to Decl.# 16 Exhibit Ex. 16 to Decl.# 17 Exhibit Ex. 17 to Decl.# 18 Exhibit Ex. 18 to Decl.)(Related document(s) 280 ) (Grele, John) (Filed on 11/28/2006) (Entered: 11/28/2006)
282 EXHIBITS re 280 Trial Brief Post−Trial Declaration of Dr. Kevin Concannon filed byMichael A. Morales. (Attachments: # 1 Exhibit 1 to Decl., Part I# 2 Exhibit 1 to Decl., Part II# 3 Exhibit 1 to Decl., Part III# 4 Exhibit 2 to Decl.# 5 Exhibit 3 to Decl.)(Related document(s) 280 ) (Grele, John) (Filed on 11/28/2006) (Entered: 11/28/2006)
283 EXHIBITS re 280 Trial Brief Supplemental Declaration of William Ebling, Ph.D. filed byMichael A. Morales. (Related document(s) 280 ) (Grele, John) (Filed on 11/28/2006) (Entered: 11/28/2006)
284 EXHIBITS re 280 Trial Brief Declaration of Michael Loomis, DVM filed byMichael A. Morales. (Attachments: # 1 Exhibit CV attached to Declaration)(Related document(s) 280 ) (Grele, John) (Filed on 11/28/2006) (Entered: 11/28/2006)
285 ORDER REGARDING OBJECTIONS TO EVIDENCE AND REQUEST FOR JUDICIAL NOTICE re 258 Exhibits filed by Robert L. Ayers, Jr., James E. Tilton,, 272 Request for Judicial Notice filed by Michael A. Morales,, 257 Objection filed by Michael A. Morales, (jfsec, COURT STAFF) (Filed on 12/6/2006) (Entered: 12/06/2006)
286 ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO AMEND COMPLAINT re 258 Exhibits filed by Robert L. Ayers, Jr., James E. Tilton,, 272 Request for Judicial Notice filed by Michael A. Morales,, 257 Objection filed by Michael A. Morales,. Signed by Judge Jeremy Fogel on 12/5/06. (jfsec, COURT STAFF) (Filed on 12/6/2006) (Entered: 12/06/2006)
287 Memorandum in Opposition re Exhibit 78 filed byMichael A. Morales. (Grele, John) (Filed on 12/6/2006) (Entered: 12/06/2006)

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12/12/2006 12/14/2006 12/15/2006 01/16/2007 01/16/2007 01/16/2007 01/16/2007
01/16/2007 01/16/2007 01/16/2007 01/17/2007 01/31/2007 01/31/2007
01/31/2007 01/31/2007

288 Exhibit List second amended by Michael A. Morales.. (Grele, John) (Filed on 12/12/2006) (Entered: 12/12/2006)
289 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byMichael A. Morales. (Grele, John) (Filed on 12/14/2006) (Entered: 12/14/2006)
290 MEMORANDUM OF INTENDED DECISION; REQUEST FOR RESPONSE FROM DEFENDANTS. Signed by Judge Jeremy Fogel on 12/15/06. (jfsec, COURT STAFF) (Filed on 12/15/2006) (Entered: 12/15/2006)
291 Response re 290 Order bySchwarzennegger. (Attachments: # 1 Exhibit Exhibit "A" to Response)(Gevercer, Steven) (Filed on 1/16/2007) (Entered: 01/16/2007)
292 Response re 290 Order Defendants' response to 12−15 memorandum byJames E. Tilton, Robert L. Ayers, Jr. (Gillette, Dane) (Filed on 1/16/2007) (Entered: 01/16/2007)
293 MOTION to Shorten Time Pursuant to Local Rule 6−3; Supporting Declaration of Steven M. Gevercer filed by Schwarzennegger. Motion Hearing set for 3/9/2007 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Proposed Order Shortening Time)(Gevercer, Steven) (Filed on 1/16/2007) (Entered: 01/16/2007)
294 Joint MOTION for Protective Order filed by Defendants and filed by Schwarzennegger. Motion Hearing set for 3/9/2007 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 The Office of the Governor and the Defendants' Points and Authorities in Support of Joint Motion for a Protective Order Pursuant to FRCP 26 (c) 4# 2 Exhibit "A" to Points and Authorities# 3 Certification in Support of Joint Motion for Protective Order [FRCP Rule 26 (c)]# 4 Proposed Order for Protective Order Pursuant to FRCP 26 (c) 4 [Local Rule 7−2(c)])(Gevercer, Steven) (Filed on 1/16/2007) (Entered: 01/16/2007)
295 CERTIFICATE OF SERVICE by Schwarzennegger re 291 Response by the Governor's Office to the Court's Memorandum of Intended Decision dated December 15, 2006 (Gevercer, Steven) (Filed on 1/16/2007) (Entered: 01/16/2007)
296 CERTIFICATE OF SERVICE by Schwarzennegger re 293 MOTION to Shorten Time Pursuant to Local Rule 6−3; Supporting Declaration of Steven M. Gevercer and [Proposed] Order Shortening Time (Gevercer, Steven) (Filed on 1/16/2007) (Entered: 01/16/2007)
297 CERTIFICATE OF SERVICE by Schwarzennegger re 294 Joint MOTION for Protective Order filed by Defendants and Governor's Office and Supporting Documents (Gevercer, Steven) (Filed on 1/16/2007) (Entered: 01/16/2007)
298 ORDER SHORTENING TIME by Judge Jeremy Fogel granting 293 Motion to Shorten Time, Motion for Protective Order set for February 20, 2007 at 1:30 PM (jfsec, COURT STAFF) (Filed on 1/17/2007) (Entered: 01/17/2007)
299 Memorandum in Opposition re 294 Joint MOTION for Protective Order filed by Defendants and filed byLos Angeles Times Communications, LLC, McClatchy Newspapers, Inc., San Francisco Chronicle. (Olson, Karl) (Filed on 1/31/2007) (Entered: 01/31/2007)
300 DECLARATION in Opposition to 294 Joint MOTION for Protective Order filed by Defendants and in Support of News Media's Opposition filed byLos Angeles Times Communications, LLC, McClatchy Newspapers, Inc., San Francisco Chronicle. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 294 ) (Olson, Karl) (Filed on 1/31/2007) (Entered: 01/31/2007)
301 Memorandum in Opposition to the Government's and the Defendants' Joint 294 Motion for a Protective Order filed byPacific News Service. (Krishnan, Ajay) (Filed on 1/31/2007) Modified on 2/1/2007 (gm, COURT STAFF). (Entered: 01/31/2007)
302 Declaration of Ajay S. Krishnan in Support of 301 Memorandum in Opposition to the Government's and the Defendants' Joint Motion for a Protective Order filed byPacific News Service. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 301 ) (Krishnan, Ajay) (Filed on 1/31/2007) (Entered: 01/31/2007)

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01/31/2007 01/31/2007 01/31/2007
02/01/2007 02/06/2007 02/14/2007 02/22/2007
02/23/2007
02/23/2007
03/06/2007 03/06/2007 04/09/2007 04/09/2007 04/30/2007 05/07/2007 05/15/2007 05/15/2007

303 Memorandum in Opposition to 294 Motion for Protective Order filed byMichael A. Morales. (Grele, John) (Filed on 1/31/2007) Modified on 2/1/2007 (gm, COURT STAFF). (Entered: 01/31/2007)
304 RESPONSE to Defendant's Post−Memorandum Submission by Michael A. Morales. (Grele, John) (Filed on 1/31/2007) (Entered: 01/31/2007)
305 Declaration of John R Grele in Support of 303 Memorandum in Opposition, 304 Response ( Non Motion ) filed byMichael A. Morales. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Related document(s) 303 , 304 ) (Grele, John) (Filed on 1/31/2007) (Entered: 01/31/2007)
306 ERRATA re 305 Declaration in Support, of Plaintiff's Opposition to Motion for Protective Order by Michael A. Morales. (Attachments: # 1 Exhibit D)(Grele, John) (Filed on 2/1/2007) (Entered: 02/01/2007)
307 Reply to Opposition re 294 Joint MOTION for Protective Order filed by Defendants and Ronald S. Matthias filed bySchwarzennegger. (Attachments: # 1 Declaration of Service)(Gevercer, Steven) (Filed on 2/6/2007) (Entered: 02/06/2007)
308 ORDER RESCHEDULING HEARING ON JOINT MOTION FOR A PROTECTIVE ORDER Motion Hearing set for 2/23/2007 01:30 PM.. Signed by Judge Jeremy Fogel on 2/14/07. (jfsec, COURT STAFF) (Filed on 2/14/2007) (Entered: 02/14/2007)
309 Declaration of John R Grele re 308 Court's Memorandum and Opposition to 294 Motion for Protective Order filed byMichael A. Morales. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Grele, John) (Filed on 2/22/2007) Modified on 2/23/2007 (gm, COURT STAFF). (Entered: 02/22/2007)
310 Minute Entry: Motion Hearing held on 2/23/2007 before Judge Jeremy Fogel (Date Filed: 2/23/2007) re 294 Joint MOTION for Protective Order filed by Defendants and filed by Schwarzennegger,. (Court Reporter Gina Colin.) (mpb, COURT STAFF) (Date Filed: 2/23/2007) (Entered: 02/26/2007)
311 Brief of Amicus Curiae Sally J. Lieber in Opposition to 294 Joint MOTION for Protective Order filed by Defendants and (Related document(s) 294 ) (gm, COURT STAFF) (Filed on 2/23/2007) Additional attachment(s) added on 3/7/2007 (jfsec, COURT STAFF). (Entered: 02/26/2007)
312 ORDER DENYING WITHOUT PREJUDICE 294 JOINT MOTION FOR PROTECTIVE ORDER. Signed by Judge Jeremy Fogel on 3/6/07. (jflc2, COURT STAFF) (Filed on 3/6/2007) (Entered: 03/06/2007)
313 TRANSCRIPT of Proceedings held on 2/23/2007 before Judge Jeremy Fogel. Court Reporter: Georgina Galvan Colin.. (gm, COURT STAFF) (Filed on 3/6/2007) (mhpsec, COURT STAFF). (Entered: 03/07/2007)
314 NOTICE of Change In Counsel by Michael James Quinn NOTICE OF REASSIGNMENT OF COUNSEL (Quinn, Michael) (Filed on 4/9/2007) (Entered: 04/09/2007)
315 CERTIFICATE OF SERVICE by James E. Tilton, Robert L. Ayers, Jr re 314 Notice of Change In Counsel DECLARATION OF SERVICE BY U.S. MAIL (Quinn, Michael) (Filed on 4/9/2007) (Entered: 04/09/2007)
316 ORDER SCHEDULING STATUS CONFERENCE Status Conference set for 6/1/2007 02:00 PM. Signed by Judge Jeremy Fogel on 4/30/07. (jfsec, COURT STAFF) (Filed on 4/30/2007) (Entered: 04/30/2007)
All exhibits are lodged in the exhibit room. (dlm, COURT STAFF) (Filed on 5/7/2007) (Entered: 05/07/2007)
317 NOTICE by James E. Tilton, Robert L. Ayers, Jr re 292 Response Report of Lethal Injection Protocol Review (Attachments: # 1)(Matthias, Ronald) (Filed on 5/15/2007) (Entered: 05/15/2007)
318 NOTICE by James E. Tilton, Robert L. Ayers, Jr re 292 Response SQ OP 770 REVISED (Attachments: # 1)(Matthias, Ronald) (Filed on 5/15/2007) (Entered: 05/15/2007)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 37 of 64

05/21/2007 06/01/2007
06/06/2007 06/08/2007 07/02/2007
07/17/2007 07/20/2007
07/27/2007 07/27/2007
08/02/2007 08/17/2007
08/17/2007
08/20/2007 09/11/2007 09/12/2007 09/14/2007

319 ORDER SETTING AGENDA FOR STATUS CONFERENCE. Signed by Judge Jeremy Fogel on 5/21/07. (jfsec, COURT STAFF) (Filed on 5/21/2007) (Entered: 05/21/2007)
320 Minute Entry: Status Conference held on 6/1/07. The Court grants plaintiffs leave to file amended complaints within 30 days. (Date Filed: 6/1/2007). Case is set for hearing and visit to San Quentin prison on 10/1/2007 and 10/2/2007 09:00 AM. (Court Reporter Jana Ridenour.) (dlm, COURT STAFF) (Date Filed: 6/1/2007) (Entered: 06/05/2007)
321 ORDER FOLLOWING STATUS CONFERENCE. Signed by Judge Jeremy Fogel on 6/6/07. (jfsec, COURT STAFF) (Filed on 6/6/2007) (Entered: 06/06/2007)
322 TRANSCRIPT of Proceedings held on 6/1/2007 before Judge Jeremy Fogel. Court Reporter: Jana Ridenour. (dhm, COURT STAFF) (Filed on 6/8/2007) (rcsS, COURT STAFF). (Entered: 06/09/2007)
323 THIRD AMENDED COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF [42 U.S.C. § 1983] against Robert L. Ayers, Jr. Filed by Michael A. Morales. (Weston, Benjamin) (Filed on 7/2/2007) Modified text on 7/2/2007 (cv, COURT STAFF). (Entered: 07/02/2007)
Summons Issued as to Arnold Schwarzengger. on 7/17/2007 (gm, COURT STAFF) (Filed on 7/17/2007) (Entered: 07/17/2007)
324 STIPULATION Stipulation for Extensions of Time to File an Answer to Plaintiff's Third Amended Complaint and to Serve Responses to Plaintiff's June 20, 2007 Request for Production of Documents by James E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Quinn, Michael) (Filed on 7/20/2007) (Entered: 07/20/2007)
325 ANSWER to Complaint Third Amended Comoplaint byJames E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Quinn, Michael) (Filed on 7/27/2007) (Entered: 07/27/2007)
326 STIPULATION for Extension of Time to to Serve Responses to Plaintiff's June 25, 2007 Interrogatories filed by James E. Tilton, Arnold Schwarzengger. (Quinn, Michael) (Filed on 7/27/2007) Modified on 10/5/2007 (dlm, COURT STAFF). (Entered: 07/27/2007)
327 CERTIFICATE OF SERVICE by Michael A. Morales on Governor Arnold Schwarzenegger (Weston, Benjamin) (Filed on 8/2/2007) (Entered: 08/02/2007)
328 Ex Parte Application to Continue Hearing Date filed by Michael A. Morales. (Attachments: # 1 Affidavit Declaration of David A. Senior# 2 Exhibit Exhibit A −− Interrogatory Responses# 3 Proposed Order)(Weston, Benjamin) (Filed on 8/17/2007) (Entered: 08/17/2007)
329 MEMORANDUM in Opposition Opposition to 328 Plaintiff's Ex Parte Application to Continue Hearing Date filed byJames E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Quinn, Michael) (Filed on 8/17/2007) Modified on 8/20/2007 (gm, COURT STAFF). (Entered: 08/17/2007)
330 Joinder re 328 Ex Parte Application to Continue Hearing Date by Pacific News Service. (Thurm, Wendy) (Filed on 8/20/2007) (Entered: 08/20/2007)
331 CLERK'S NOTICE Status Conference set for 9/14/2007 02:00 PM. (dlm, COURT STAFF) (Filed on 9/11/2007) (Entered: 09/11/2007)
332 AMENDED CLERK'S NOTICE Further Status Conference set for 9/14/2007 02:00 PM. (jfsec, COURT STAFF) (Filed on 9/12/2007) Additional attachment(s) added on 9/12/2007 (jfsec, COURT STAFF). (Entered: 09/12/2007)
334 Minute Entry: Hearing on ex parte request to continue hearing date re 328 held on 9/14/07. (Date Filed: 9/14/2007). Evidentiary Hearing reset for 12/10/2007 09:00 AM. The site visit to San Quentin prison is reset for 11/19/07. (Court Reporter Summer Clanton.) (dlm, COURT STAFF) (Date Filed: 9/14/2007) Modified on 10/5/2007 (dlm, COURT STAFF). (Entered: 09/21/2007)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 38 of 64

09/18/2007 09/27/2007 10/01/2007 10/01/2007 10/01/2007 10/01/2007 10/02/2007 10/08/2007 10/11/2007 10/11/2007
10/11/2007
10/11/2007 10/11/2007 10/11/2007 10/11/2007 10/11/2007

333 TRANSCRIPT of Proceedings held on 9/14/2007 Pages 1−48 before Judge Jeremy Fogel. Court Reporter: Summer Clanton.. (gm, COURT STAFF) (Filed on 9/18/2007) (mhpsec, COURT STAFF). (Entered: 09/19/2007)
335 ORDER FOLLOWING GRANT OF CERTIORARI IN BAZE V. REES. Signed by Judge Jeremy Fogel on 9/26/07. (jfsec, COURT STAFF) (Filed on 9/27/2007) (Entered: 09/27/2007)
336 Letter from Wendy J. Thurm to The Honorable Jeremy D. Fogel. (Thurm, Wendy) (Filed on 10/1/2007) (Entered: 10/01/2007)
337 *** FILED IN ERROR. PLEASE SEE DOCKET # 338 . *** Letter from Michael J. Quinn, Deputy Attorney General. (Quinn, Michael) (Filed on 10/1/2007) Modified on 10/2/2007 (ewn, COURT STAFF). (Entered: 10/01/2007)
338 Letter from Michael J. Quinn, Deputy Attorney General. (Quinn, Michael) (Filed on 10/1/2007) (Entered: 10/01/2007)
339 Letter Brief re Baze v. Rees filed byMichael A. Morales. (Grele, John) (Filed on 10/1/2007) (Entered: 10/01/2007)
340 Letter from Follow−up Letter Brief to Judge Fogel. (Quinn, Michael) (Filed on 10/2/2007) (Entered: 10/02/2007)
341 Ex Parte MOTION to Vacate Discovery Cut−off and Hearing Dates filed by Michael A. Morales. (Attachments: # 1 Affidavit Senior Declaration# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Proposed Order)(Weston, Benjamin) (Filed on 10/8/2007) (Entered: 10/08/2007)
342 Third MOTION to Compel Discovery filed by Michael A. Morales. (Grele, John) (Filed on 10/11/2007) (Entered: 10/11/2007)
343 MEMORANDUM in Support re 342 Third MOTION to Compel Discovery filed byMichael A. Morales. (Attachments: # 1 Exhibit A CDCR's Doc Response# 2 Exhibit B CDCR Response to Interrogatories# 3 Exhibit C CDCR Privilege Log# 4 Exhibit D Gov Response to RFD# 5 Exhibit E Gov Privilege Log# 6 Exhibit F Gov Response to Interrogatories# 7 Exhibit G List of Missing Attachments# 8 Exhibit G List of Dcouments not Provided)(Related document(s) 342 ) (Grele, John) (Filed on 10/11/2007) (Entered: 10/11/2007)
344 Declaration of John R Grele in Support of 342 Third MOTION to Compel Discovery filed byMichael A. Morales. (Attachments: # 1 Exhibit 1 (Gov Press Release)# 2 Exhibit 2 (McAuliffe Declaration)# 3 Exhibit 3 (Letter by Michael Quinn)# 4 Exhibit 4 (McAuliffe Deposition exerpts)# 5 Exhibit 5 (Prunty Depsoition exerpts)# 6 Exhibit 6 (Dershwitz Deposition exerpts)# 7 Exhibit 7 (Dull Notes)# 8 Exhibit 8# 9 Exhibit 9 (Tilton testimony))(Related document(s) 342 ) (Grele, John) (Filed on 10/11/2007) (Entered: 10/11/2007)
345 Proposed Order re 342 Third MOTION to Compel Discovery by Michael A. Morales. (Grele, John) (Filed on 10/11/2007) (Entered: 10/11/2007)
346 MOTION to Shorten Time to Hear Motion to Compel (#342) filed by Michael A. Morales. (Attachments: # 1 Proposed Order)(Grele, John) (Filed on 10/11/2007) (Entered: 10/11/2007)
347 MOTION for Leave to File Excess Pages re Memorandum(#343) filed by Michael A. Morales. (Attachments: # 1 Proposed Order)(Grele, John) (Filed on 10/11/2007) (Entered: 10/11/2007)
348 Memorandum in Opposition Opposition to Plaintiff's 341 Motion to Vacate Discovery Cut−Off and Hearing Dates filed byJames E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Quinn, Michael) (Filed on 10/11/2007) Modified on 10/12/2007 (gm, COURT STAFF). (Entered: 10/11/2007)
349 Declaration of Michael J. Quinn in Support of 348 Memorandum in Opposition filed byJames E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Attachments: # 1 Exhibit A# 2 Exhibit B to F)(Related document(s) 348 ) (Quinn, Michael) (Filed on 10/11/2007) (Entered: 10/11/2007)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 39 of 64

10/11/2007 10/11/2007 10/16/2007
10/16/2007 10/25/2007 10/25/2007 10/25/2007 10/25/2007 10/25/2007 10/25/2007
10/25/2007 10/25/2007 10/25/2007

350 ***FILED IN ERROR. PLEASE SEE DOCKET # 351 *** ORDER by Judge Richard Seeborg granting in part and denying in part 346 Motion to Shorten Time; granting 347 Motion for Leave to File Excess Pages (Geo. O. Kolombatovich, Court Staff Attorney) (Filed on 10/11/2007) Modified on 10/12/2007 (rssec, COURT STAFF). (Entered: 10/11/2007)
351 ORDER by Judge Richard Seeborg granting in part and denying in part 346 Motion to Shorten Time; granting 347 Motion for Leave to File Excess Pages. Motion Hearing set for 10/30/2007 02:00 PM in Courtroom #4, 5th Floor, San Jose. (rssec, COURT STAFF) (Filed on 10/11/2007) (Entered: 10/12/2007)
352 Reply to 348 Opposition to Motion to Vacate Hearing and Discovery Dates filed byMichael A. Morales. (Attachments: *** # 1 Exhibit 1 (CDCR Resp to Interrogs) FILED IN ERROR. PLEASE SEE DOCKET # 353 . *** # 2 Exhibit 2 (Larson Depo)# 3 Exhibit 3 (Prunty Depo))(Grele, John) (Filed on 10/16/2007) Modified on 10/17/2007 (ewn, COURT STAFF). Modified on 10/17/2007 (gm, COURT STAFF). (Entered: 10/16/2007)
353 EXHIBITS re 352 Reply to Opposition, Exhibit 1, Correction of Docket #[352−2] filed byMichael A. Morales. (Related document(s) 352 ) (Grele, John) (Filed on 10/16/2007) (Entered: 10/16/2007)
354 Memorandum in Opposition Defendants' Opposition to Plaintiff's 342 Third Motion to Compel Discovery filed byJames E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Quinn, Michael) (Filed on 10/25/2007) Modified on 10/26/2007 (gm, COURT STAFF). (Entered: 10/25/2007)
355 Declaration of Kelly L. McClease in Support of 354 Memorandum in Opposition filed byJames E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Related document(s) 354 ) (Quinn, Michael) (Filed on 10/25/2007) (Entered: 10/25/2007)
356 Declaration of John W. McAuliffe in Support of 354 Memorandum in Opposition filed byJames E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Related document(s) 354 ) (Quinn, Michael) (Filed on 10/25/2007) (Entered: 10/25/2007)
357 Declaration of Michael J. Quinn in Support of 354 Memorandum in Opposition filed byJames E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 354 ) (Quinn, Michael) (Filed on 10/25/2007) (Entered: 10/25/2007)
358 MOTION for Protective Order [NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER] filed by James E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Quinn, Michael) (Filed on 10/25/2007) (Entered: 10/25/2007)
359 MEMORANDUM in Support re 358 MOTION for Protective Order [NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER] [DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER] filed byJames E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Related document(s) 358 ) (Quinn, Michael) (Filed on 10/25/2007) (Entered: 10/25/2007)
360 Declaration of MICHAEL J. QUINN in Support of 359 Memorandum in Support, 358 MOTION for Protective Order [NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER] filed byJames E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 359 , 358 ) (Quinn, Michael) (Filed on 10/25/2007) (Entered: 10/25/2007)
361 Declaration of SCOTT M. KERNAN in Support of 360 Declaration in Support, 359 Memorandum in Support, 358 MOTION for Protective Order [NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER] filed byJames E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Related document(s) 360 , 359 , 358 ) (Quinn, Michael) (Filed on 10/25/2007) (Entered: 10/25/2007)
362 Proposed Order re 360 Declaration in Support, 359 Memorandum in Support, 358 MOTION for Protective Order [NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER], 361 Declaration in Support, PURSUANT TO FRCP 26(c)4 by James E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Quinn, Michael) (Filed on 10/25/2007) (Entered: 10/25/2007)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 40 of 64

10/25/2007
10/25/2007
10/26/2007 10/29/2007
10/31/2007
11/02/2007 11/05/2007 11/06/2007
11/06/2007 11/06/2007 11/19/2007 12/21/2007 01/04/2008 01/15/2008 01/17/2008 04/15/2008 05/28/2008

363 MOTION to Shorten Time UNDER LOCAL RULE 6−3; SUPPORTING DECLARATION OF MICHAEL J. QUINN filed by James E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Quinn, Michael) (Filed on 10/25/2007) (Entered: 10/25/2007)
364 Proposed Order re 363 MOTION to Shorten Time UNDER LOCAL RULE 6−3; SUPPORTING DECLARATION OF MICHAEL J. QUINN by James E. Tilton, Robert L. Ayers, Jr, Arnold Schwarzengger. (Quinn, Michael) (Filed on 10/25/2007) (Entered: 10/25/2007)
365 ORDER by Judge Richard Seeborg granting 363 Motion to Shorten Time (rssec, COURT STAFF) (Filed on 10/26/2007) (Entered: 10/26/2007)
366 Memorandum in Opposition to Defendants' 358 Motion for Protective Order, filed byMichael A. Morales. (Attachments: # 1 Affidavit Senior Declaration# 2 Exhibit Ex. A# 3 Exhibit Ex. B, part 1# 4 Exhibit Ex. B, part 2# 5 Errata Ex. C# 6 Exhibit Ex. D# 7 Exhibit Ex. E# 8 Exhibit Ex. F# 9 Errata Ex. G)(Weston, Benjamin) (Filed on 10/29/2007) Modified on 10/30/2007 (gm, COURT STAFF). (Entered: 10/29/2007)
367 Minute Entry: Motion Hearing held on 10/30/2007 before Judge Richard Seeborg (Date Filed: 10/31/2007) re (358 in 5:06−cv−00219−JF) MOTION for Protective Order [NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER] filed by James E. Tilton, Arnold Schwarzengger, Robert L. Ayers, Jr., (342 in 5:06−cv−00219−JF) Third MOTION to Compel Discovery filed by Michael A. Morales. (Court Reporter Irene Rodriguez.) (mpb, COURT STAFF) (Date Filed: 10/31/2007) (Entered: 10/31/2007)
368 STATUS REPORT /Joint Statement by Michael A. Morales. (Grele, John) (Filed on 11/2/2007) (Entered: 11/02/2007)
369 Letter from John R Grele re Defendant's Discovery Response. (Grele, John) (Filed on 11/5/2007) (Entered: 11/05/2007)
370 ORDER GRANTING PARTIES' JOINT REQUEST TO VACATE CASE MANAGEMENT SCHEDULE by Judge Jeremy Fogel granting 341 Motion to Vacate 341 Ex Parte MOTION to Vacate Discovery Cut−off and Hearing Dates, 368 Status Report (jfsec, COURT STAFF) (Filed on 11/6/2007) (Entered: 11/06/2007)
371 ORDER by Judge Richard Seeborg denying 358 Motion for Protective Order; denying 342 Motion to Compel (rssec, COURT STAFF) (Filed on 11/6/2007) (Entered: 11/06/2007)
Set/Reset Hearings: Status Conference set for 1/17/2008 02:00 AM. (jfsec, COURT STAFF) (Filed on 11/6/2007) (Entered: 11/06/2007)
372 NOTICE of Change of Address by Benjamin David Weston for McBreen & Senior (Weston, Benjamin) (Filed on 11/19/2007) (Entered: 11/19/2007)
373 NOTICE of Change of Address by Michael David Laurence Habeas Corpus Resource Center (Laurence, Michael) (Filed on 12/21/2007) (Main Document 373 replaced on 5/17/2019) (rcsS, COURT STAFF). (Entered: 12/21/2007)
374 ORDER RESCHEDULING STATUS CONFERENCE TO JANUARY 15, 2008 AT 2:00 PM. Signed by Judge Jeremy Fogel on 1/3/08. (jfsec, COURT STAFF) (Filed on 1/4/2008) (Entered: 01/04/2008)
375 Minute Entry: Status Conference held on 1/15/2008. (Date Filed: 1/15/2008). Further Status Conference set for 4/15/2008 02:00 PM. (Court Reporter Summer Clanton.) (dlm, COURT STAFF) (Date Filed: 1/15/2008) (Entered: 01/16/2008)
376 TRANSCRIPT of Proceedings held on 1/15/2008 before Judge Jeremy Fogel. Court Reporter: Summer Clanton.. (gm, COURT STAFF) (Filed on 1/17/2008) (mhpsec, COURT STAFF). (Entered: 01/18/2008)
377 CLERK'S NOTICE Status Conference set for 4/15/2008 is continued to 6/12/2008 02:00 PM. (dlm, COURT STAFF) (Filed on 4/15/2008) (Entered: 04/15/2008)
378 SCHEDULING ORDER. Signed by Judge Jeremy Fogel on 5/28/08. (jfsec, COURT STAFF) (Filed on 5/28/2008) (Entered: 05/28/2008)

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05/28/2008 02/13/2009 01/11/2010 08/06/2010 08/30/2010 08/30/2010 08/31/2010 09/02/2010 09/15/2010 09/15/2010 09/16/2010 09/17/2010 09/17/2010
09/17/2010 09/17/2010
09/20/2010

Set/Reset Hearings: Status Conference set for 6/12/2008 02:00 PM. is vacated. (dlm, COURT STAFF) (Filed on 5/28/2008) (Entered: 06/12/2008)
379 TRIAL EXHIBIT LOCATOR. (gm, COURT STAFF) (Filed on 2/13/2009) (Entered: 02/13/2009)
380 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Howard R. Lloyd for all further discovery matters. Magistrate Judge Richard Seeborg no longer assigned to the case.Signed by The Executive Committee on 01/11/10. (tsh, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/11/2010)
381 ORDER FOLLOWING REGULATORY ACTION. Signed by Judge Jeremy Fogel on 8/4/10. (dlm, COURT STAFF) (Filed on 8/6/2010) (Entered: 08/06/2010)
382 Statement of Pacific News Services Position In Response To Courts August 6, 2010 Order by Pacific News Service. (Krishnan, Ajay) (Filed on 8/30/2010) (Entered: 08/30/2010)
383 Statement of Plaintiff's Position In Response To Courts August 6, 2010 Order by Michael A. Morales. (Tria, Ann−Kathryn) (Filed on 8/30/2010) (Entered: 08/30/2010)
384 Statement FOLLOWING REGULATORY ACTION by Arnold Schwarzengger, Cate Mathew, Vincent Cullen. (Quinn, Michael) (Filed on 8/31/2010) (Entered: 08/31/2010)
385 ORDER SETTING JOINT STATUS CONFERENCE. A Status Conference is set for 9/21/2010 at 3:00 PM in Courtroom 3, 5th Floor, San Jose. Signed by Judge Jeremy Fogel on 9/2/2010. (jflc2, COURT STAFF) (Filed on 9/2/2010) (Entered: 09/02/2010)
386 MOTION to Shorten Time for Motion to Intervene and Motion for Stay of Execution filed by Albert Greenwood Brown. Motion Hearing set for 9/21/2010 03:00 PM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Proposed Order)(Tria, Ann−Kathryn) (Filed on 9/15/2010) (Entered: 09/15/2010)
387 MOTION to Intervene and Motion to Stay Execution filed by Albert Greenwood Brown. Motion Hearing set for 9/21/2010 03:00 PM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Tria, Ann−Kathryn) (Filed on 9/15/2010) (Entered: 09/15/2010)
388 ORDER GRANTING 386 MOTION TO SHORTEN TIME FOR MOTION TO INTERVENE AND FOR MOTION FOR STAY OF EXECUTION. Signed by Judge Jeremy Fogel on 9/16/2010. (jflc2, COURT STAFF) (Filed on 9/16/2010) (Entered: 09/16/2010)
389 *** FILED IN ERROR. PLEASE SEE DOCKET # 392 . *** MOTION to Intervene, MOTION to Stay filed by Vincent Cullen, Cate Mathew, James E. Tilton. (Attachments: # 1 Attachment)(Quinn, Michael) (Filed on 9/17/2010) Modified on 9/20/2010 (ewn, COURT STAFF). (Entered: 09/17/2010)
390 *** FILED IN ERROR. PLEASE SEE DOCKET # 392 . *** MOTION to Intervene, MOTION to Stay filed by Vincent Cullen, Cate Mathew, Arnold Schwarzengger. Motion Hearing set for 9/21/2010 03:00 PM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Attachment)(Quinn, Michael) (Filed on 9/17/2010) Modified on 9/20/2010 (ewn, COURT STAFF). (Entered: 09/17/2010)
391 Declaration of John W. McAuliffe in Support of 390 MOTION to Intervene MOTION to Stay filed byVincent Cullen, Cate Mathew, Arnold Schwarzengger. (Related document(s) 390 ) (Quinn, Michael) (Filed on 9/17/2010) (Entered: 09/17/2010)
392 Memorandum in Opposition re 387 MOTION to Intervene and Motion to Stay Execution Defendants' Opposition to Albert G. Brown's Motion to Intervene and for Stay of Execution filed byVincent Cullen, Cate Mathew, Arnold Schwarzengger. (Attachments: # 1 Attachment)(Quinn, Michael) (Filed on 9/17/2010) (Entered: 09/17/2010)
393 Reply to Opposition re 387 MOTION to Intervene and Motion to Stay Execution filed byAlbert Greenwood Brown. (Tria, Ann−Kathryn) (Filed on 9/20/2010) (Entered: 09/20/2010)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 42 of 64

09/21/2010
09/22/2010 09/22/2010
09/23/2010 09/23/2010 09/23/2010 09/24/2010 09/24/2010 09/24/2010 09/25/2010 09/25/2010 09/25/2010 09/25/2010 09/26/2010

398 Minute Entry: Motion Hearing and Status Conference held on 9/21/2010 before Judge Jeremy Fogel (Date Filed: 9/23/2010) re 387 MOTION to Intervene and Motion to Stay Execution filed by Albert Greenwood Brown. The motions are taken under submission. (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 9/23/2010) (Entered: 09/23/2010)
394 RESPONSE to Defendants' Responses to Court's Inquiries by Vincent Cullen, Cate Mathew, Arnold Schwarzengger. (Quinn, Michael) (Filed on 9/22/2010) (Entered: 09/22/2010)
395 Transcript of Proceedings held on 09/21/2010, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/21/2010. (Fisher, Summer) (Filed on 9/22/2010) (Entered: 09/22/2010)
396 MOTION for Leave to File Reply filed by Albert Greenwood Brown. (Attachments: # 1 Proposed Order)(Grele, John) (Filed on 9/23/2010) (Entered: 09/23/2010)
397 ORDER GRANTING 396 PROPOSED INTERVENOR BROWN'S REQUEST TO FILE REPLY TO DEFENDANTS' RESPONSE TO COURT QUESTIONS. Signed by Judge Jeremy Fogel on 9/23/2010. (jflc2, COURT STAFF) (Filed on 9/23/2010) (Entered: 09/23/2010)
399 Reply Memorandum Reply of Proposed Intervenor Brown to Defendants' Response to Court's Questions filed byAlbert Greenwood Brown. (Tria, Ann−Kathryn) (Filed on 9/23/2010) (Entered: 09/23/2010)
400 Minute Entry: Status Conference held on 9/24/2010. (Date Filed: 9/24/2010). (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 9/24/2010) (Entered: 09/24/2010)
401 ORDER GRANTING MOTION FOR LEAVE TO INTERVENE; AND DENYING CONDITIONALLY INTERVENOR'S MOTION FOR A STAY OF EXECUTION. Signed by Judge Jeremy Fogel on 9/24/2010. (jflc2, COURT STAFF) (Filed on 9/24/2010) (Entered: 09/24/2010)
402 MOTION for Leave to File Motion for Reconsideration filed by Albert Greenwood Brown. (Tria, Ann−Kathryn) (Filed on 9/24/2010) (Entered: 09/24/2010)
403 ORDER by Judge Jeremy Fogel denying (402) Plaintiff Brown's Request for Leave to File a Motion for Reconsideration in case 5:06−cv−00219−JF. (sp, COURT STAFF) (Filed on 9/25/2010) (Entered: 09/25/2010)
404 Statement re 394 Response ( Non Motion ) Defendants' Statement in Amplification of Earlier Submission by Vincent Cullen, Cate Mathew, Arnold Schwarzengger. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Quinn, Michael) (Filed on 9/25/2010) (Entered: 09/25/2010)
405 MOTION for Reconsideration filed by Albert Greenwood Brown. (Attachments: # 1 Affidavit)(Senior, David) (Filed on 9/25/2010) (Entered: 09/25/2010)
406 ORDER by Judge Jeremy Fogel denying (405) Plaintiff Brown's Second Request for Leave to File a Motion for Reconsideration in case 5:06−cv−00219−JF (sp, COURT STAFF) (Filed on 9/25/2010) (Entered: 09/25/2010)
407 ***DUPLICATE ENTRY. PLEASE SEE DOCKET #408***

09/26/2010

NOTICE by Albert Greenwood Brown Notice of Appeal (Senior, David) (Filed on 9/26/2010) Modified on 9/27/2010 (gm, COURT STAFF). (Entered: 09/26/2010)
408 NOTICE OF APPEAL as to (401 in 5:06−cv−00219−JF, 401 in 5:06−cv−00219−JF, 43 in 5:06−cv−00926−JF, 43 in 5:06−cv−00926−JF) Order, Terminate Motions, (403 in 5:06−cv−00219−JF, 44 in 5:06−cv−00926−JF) Order on Motion for Leave to File by Albert Greenwood Brown. Appeal Record due by 10/26/2010. (gm, COURT

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 43 of 64

09/26/2010 09/27/2010 09/27/2010
09/27/2010 09/28/2010 09/28/2010 09/28/2010 09/28/2010 09/28/2010
09/28/2010 09/28/2010
09/28/2010 09/28/2010 09/28/2010 09/28/2010

STAFF) (Filed on 9/26/2010) (Entered: 09/27/2010)
412 USCA Case Number 10−99019 USCA for the Ninth Circuit for 408 Notice of Appeal, filed by Albert Greenwood Brown. (gm, COURT STAFF) (Filed on 9/26/2010) (Entered: 09/28/2010)
409 NOTICE OF APPEAL NOTIFICATION FORM (gm, COURT STAFF) (Filed on 9/27/2010) (Entered: 09/27/2010)
410 Transcript of Proceedings held on 09/24/2010, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/27/2010. (Fisher, Summer) (Filed on 9/27/2010) (Entered: 09/27/2010)
411 USCA ORDER OF REMAND TO THE DISTRICT COURT (sp, COURT STAFF) (Filed on 9/27/2010). (Entered: 09/28/2010)
413 ORDER DIRECTING BRIEFING FOLLOWING REMAND re 411 USCA Order. Signed by Judge Jeremy Fogel on 09/28/2010. (gm, COURT STAFF) (Filed on 9/28/2010) (Additional attachment(s) added on 9/28/2010: # 1 Order with signature) (dlm, COURT STAFF). (Entered: 09/28/2010)
414 NOTICE by Cate Matthew Defendants' Briefing Foallowing Remand (Matthias, Ronald) (Filed on 9/28/2010) (Entered: 09/28/2010)
415 NOTICE by Cate Matthew re 414 Notice (Other) Exhibit A (Part 1) (Attachments: # 1 Exhibit A (Part 2), # 2 Exhibit B, # 3 Exhibit C)(Matthias, Ronald) (Filed on 9/28/2010) (Entered: 09/28/2010)
416 Statement re 413 Order Statement in Response to Court's Order Directing Briefing Following Remand by Pacific News Service. (Thurm, Wendy) (Filed on 9/28/2010) (Entered: 09/28/2010)
417 Declaration of Ajay S. Krishnan in Support of 416 Statement in Response to Court's Order Directing Briefing Following Remand filed byPacific News Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Supplement G)(Related document(s) 416 ) (Krishnan, Ajay) (Filed on 9/28/2010) (Entered: 09/28/2010)
418 Statement re 413 Order Plaintiff Brown's Briefing Following Remand by Albert Greenwood Brown. (Senior, David) (Filed on 9/28/2010) (Entered: 09/28/2010)
419 NOTICE by Albert Greenwood Brown re 418 Statement Plaintiff Brown's Exhibits − Exhibit AG Doc 14954 (Attachments: # 1 Exhibit Exhibit AG Doc 04261−62 Ayers letter, # 2 Exhibit Heath Letter 6−25−09, # 3 Exhibit Larson Depo Excerpts, # 4 Exhibit McAuliffe Depo Excerpts, # 5 Exhibit Prunty Depo Excerpts)(Senior, David) (Filed on 9/28/2010) (Entered: 09/28/2010)
420 AMENDED ORDER of USCA OF REMAND TO THE DISCTICT COURT as to 408 Notice of Appeal, filed by Albert Greenwood Brown (gm, COURT STAFF) (Filed on 9/28/2010) (Entered: 09/28/2010)
421 FINAL ORDER of USCA as to 408 Notice of Appeal, filed by Albert Greenwood Brown (gm, COURT STAFF) (Filed on 9/28/2010) (Entered: 09/28/2010)
422 NOTICE by Albert Greenwood Brown re 419 Notice (Other), Notice (Other) DECLARATION OF JOHN R GRELE AND SUPPLEMENTAL EXHIBITS TO STATEMENT IN RESPONSE TO REMAND (Senior, David) (Filed on 9/28/2010) (Entered: 09/28/2010)
423 EXHIBITS re 418 Statement filed byAlbert Greenwood Brown. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit)(Related document(s) 418 ) (Grele, John) (Filed on 9/28/2010) (Entered: 09/28/2010)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 44 of 64

09/28/2010 10/05/2010 10/06/2010 10/07/2010 10/08/2010 10/18/2010
10/25/2010 10/25/2010 10/25/2010 10/26/2010 11/04/2010 11/04/2010 11/04/2010 11/04/2010

424 ORDER FOLLOWING REMAND. Signed by Judge Jeremy Fogel on 9/28/2010. (jflc2, COURT STAFF) (Filed on 9/28/2010) (Entered: 09/28/2010)
425 SCHEDULING ORDER. Signed by Judge Jeremy Fogel on 10/5/2010. (jflc2, COURT STAFF) (Filed on 10/5/2010) (Entered: 10/05/2010)
426 NOTICE by Vincent Cullen, Cate Matthew, Arnold Schwarzengger Defendants' Notice Regarding Acquisition of Sodium Thiopental (Attachments: # 1 certificate of service)(Quinn, Michael) (Filed on 10/6/2010) (Entered: 10/06/2010)
427 AMENDED DOCUMENT by Vincent Cullen, Cate Matthew, Arnold Schwarzengger. Amendment to 426 Notice (Other) Amended Certificate of Service. (Quinn, Michael) (Filed on 10/7/2010) (Entered: 10/07/2010)
428 AMENDED COMPLAINT Fourth Amended Complaint against Robert L. Ayers, Jr, Vincent Cullen, Cate Matthew, Arnold Schwarzengger. Filed byMichael A. Morales, Albert Greenwood Brown. (Senior, David) (Filed on 10/8/2010) (Entered: 10/08/2010)
429 Transcript of Proceedings held on 10/30/2007, before Judge Seeborg. Court Reporter/Transcriber Irene L. Rodriguez, Telephone number (408)947−8160. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 11/8/2010. Redacted Transcript Deadline set for 11/18/2010. Release of Transcript Restriction set for 1/18/2011. (Rodriguez, Irene) (Filed on 10/18/2010) (Entered: 10/18/2010)
430 MOTION to Dismiss FOR FAILURE TO STATE A CLAIM filed by Vincent Cullen, Cate Matthew, Arnold Schwarzengger. Motion Hearing set for 12/2/2010 01:30 PM in Courtroom 3, 5th Floor, San Jose. (Goldman, Jay) (Filed on 10/25/2010) (Entered: 10/25/2010)
431 Proposed Order re 430 MOTION to Dismiss FOR FAILURE TO STATE A CLAIM by Vincent Cullen, Cate Matthew, Arnold Schwarzengger. (Goldman, Jay) (Filed on 10/25/2010) (Entered: 10/25/2010)
432 Request for Judicial Notice re 430 MOTION to Dismiss FOR FAILURE TO STATE A CLAIM filed byVincent Cullen, Cate Matthew, Arnold Schwarzengger. (Attachments: # 1 Exhibit A)(Related document(s) 430 ) (Goldman, Jay) (Filed on 10/25/2010) (Entered: 10/25/2010)
433 ORDER SCHEDULING BRIEFING OF DEFENDANTS' MOTIONS TO DISMISS. Motion Hearing set for 12/2/2010 01:30 PM in Courtroom 3, 5th Floor, San Jose. Signed by Judge Jeremy Fogel on 10/26/2010. (jflc2, COURT STAFF) (Filed on 10/26/2010) (Entered: 10/26/2010)
434 MOTION to Shorten Time ; SUPPORTING DECLARATION filed by Vincent Cullen, Cate Matthew, Arnold Schwarzengger. Motion Hearing set for 11/16/2010 04:30 PM in Courtroom 3, 5th Floor, San Jose. (Goldman, Jay) (Filed on 11/4/2010) (Entered: 11/04/2010)
435 Proposed Order re 434 MOTION to Shorten Time ; SUPPORTING DECLARATION by Vincent Cullen, Cate Matthew, Arnold Schwarzengger. (Goldman, Jay) (Filed on 11/4/2010) (Entered: 11/04/2010)
436 MOTION to Stay DISCOVERY, MOTION for Protective Order STAYING DISCOVERY filed by Vincent Cullen, Cate Matthew, Arnold Schwarzengger. Motion Hearing set for 11/16/2010 04:30 PM in Courtroom 3, 5th Floor, San Jose. (Goldman, Jay) (Filed on 11/4/2010) (Entered: 11/04/2010)
437 Declaration of MICHAEL J. QUINN in Support of 436 MOTION to Stay DISCOVERY MOTION for Protective Order STAYING DISCOVERY filed byVincent Cullen, Cate Matthew, Arnold Schwarzengger. (Attachments: # 1 Exhibit A−C)(Related document(s) 436 ) (Goldman, Jay) (Filed on 11/4/2010) (Entered: 11/04/2010)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 45 of 64

11/04/2010 11/08/2010 11/08/2010 11/08/2010 11/09/2010
11/10/2010 11/10/2010 11/10/2010 11/10/2010
11/11/2010 11/12/2010 11/12/2010 11/12/2010
11/15/2010 11/15/2010
11/16/2010

438 Proposed Order re 436 MOTION to Stay DISCOVERY MOTION for Protective Order STAYING DISCOVERY by Vincent Cullen, Cate Matthew, Arnold Schwarzengger. (Goldman, Jay) (Filed on 11/4/2010) (Entered: 11/04/2010)
439 ORDER SHORTENING TIME. Motion Hearing set for 11/16/2010 at 4:30 PM in Courtroom 3, 5th Floor, San Jose. Signed by Judge Jeremy Fogel on 11/4/2010. (jflc2, COURT STAFF) (Filed on 11/8/2010) (Entered: 11/08/2010)
440 Memorandum in Opposition re 430 MOTION to Dismiss FOR FAILURE TO STATE A CLAIM filed byAlbert Greenwood Brown, Michael A. Morales. (Senior, David) (Filed on 11/8/2010) (Entered: 11/08/2010)
441 MOTION for Entry of Default filed by Albert Greenwood Brown, Michael A. Morales. (Attachments: # 1 Declaration)(Senior, David) (Filed on 11/8/2010) (Entered: 11/08/2010)
442 Statement of Non−Opposition re 436 MOTION to Stay DISCOVERY MOTION for Protective Order STAYING DISCOVERY and Opposition filed byAlbert Greenwood Brown, Michael A. Morales. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Declaration)(Related document(s) 436 ) (Senior, David) (Filed on 11/9/2010) (Entered: 11/09/2010)
443 AFFIDAVIT in Opposition TO PLAINTIFFS' 441 REQUEST TO ENTER DEFAULT filed byVincent Cullen, Cate Matthew, Arnold Schwarzengger. (Patterson, Thomas) (Filed on 11/10/2010) Modified on 11/12/2010 (gm, COURT STAFF). (Entered: 11/10/2010)
444 NOTICE by Vincent Cullen, Cate Matthew, Arnold Schwarzengger DEFENDANTS' WAIVER OF REPLY (Patterson, Thomas) (Filed on 11/10/2010) (Entered: 11/10/2010)
445 ORDER REGARDING PLAINTIFFS' REQUEST TO ENTER DEFAULT. Signed by Judge Jeremy Fogel on 11/10/2010. (jflc2, COURT STAFF) (Filed on 11/10/2010) (Entered: 11/10/2010)
446 Reply Memorandum Defendant's Reply in Response to Plaintiff's 442 Statement of Nonopposition and Opposition to Defendant's Motion for Protective Order Staying Discovery filed byVincent Cullen, Cate Matthew, Arnold Schwarzengger. (Attachments: # 1 Proposed Order)(Goldman, Jay) (Filed on 11/10/2010) Modified on 11/12/2010 (gm, COURT STAFF). (Entered: 11/10/2010)
447 NOTICE of Substitution of Counsel by Richard P. Steinken (Steinken, Richard) (Filed on 11/11/2010) (Entered: 11/11/2010)
448 ORDER GRANTING 447 PLAINTIFF'S REQUEST FOR SUBSTITUTION OF COUNSEL. Signed by Judge Jeremy Fogel on 11/12/2010. (jflc2, COURT STAFF) (Filed on 11/12/2010) (Entered: 11/12/2010)
449 DEFENDANTS' REPLY IN SUPPORT OF 430 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed byVincent Cullen, Cate Matthew, Arnold Schwarzengger. (Goldman, Jay) (Filed on 11/12/2010) Modified on 11/15/2010 (gm, COURT STAFF). (Entered: 11/12/2010)
450 Request for Judicial Notice re 449 Reply to Opposition DEFENDANTS' REPLY IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed byVincent Cullen, Cate Matthew, Arnold Schwarzengger. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D)(Related document(s) 449 ) (Goldman, Jay) (Filed on 11/12/2010) (Entered: 11/12/2010)
451 Clerks DECLINATION OF DEFAULT (Attachments: # 1 Default declined) (gm, COURT STAFF) (Filed on 11/15/2010) (Entered: 11/15/2010)
452 Fourth MOTION to Compel Discovery filed by Albert Greenwood Brown, Michael A. Morales. Motion Hearing set for 12/21/2010 10:00 AM in Courtroom 2, 5th Floor, San Jose. (Attachments: # 1 Exhibit A, B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Declaration of J. Grele, # 7 Exhibit 1−4, # 8 Exhibit 5−10, # 9 Proposed Order)(Steinken, Richard) (Filed on 11/15/2010) (Entered: 11/15/2010)
454 Minute Entry: Motion Hearing held on 11/16/2010 before Judge Jeremy Fogel (Date Filed: 11/16/2010) re (436 in 5:06−cv−00219−JF, 436 in 5:06−cv−00219−JF)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 46 of 64

11/17/2010 11/22/2010 12/01/2010 12/02/2010
12/03/2010 12/07/2010 12/09/2010
12/10/2010 12/16/2010 12/16/2010 12/17/2010 12/22/2010
12/23/2010

MOTION to Stay DISCOVERY MOTION for Protective Order STAYING DISCOVERY filed by Vincent Cullen, Arnold Schwarzengger, Cate Matthew, (90 in 5:06−cv−01793−JF) MOTION to Stay DISCOVERY filed by Vincent Cullen, Mathew L. Cate, Arnold Schwarzenegger, (452 in 5:06−cv−00219−JF) Fourth MOTION to Compel Discovery filed by Albert Greenwood Brown, Michael A. Morales. The motions are taken under submission. (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 11/16/2010) (Entered: 11/17/2010)
453 ORDER GRANTING DEFENDANTS' MOTION TO STAY DISCOVERY AND DENYING WITHOUT PREJUDICE PLAINTIFFS' FOURTH MOTION TO COMPEL DISCOVERY. Signed by Judge Jeremy Fogel on 11/17/2010. (jflc2, COURT STAFF) (Filed on 11/17/2010) (Entered: 11/17/2010)
455 NOTICE by Vincent Cullen, Cate Matthew, Arnold Schwarzengger REGARDING ACQUISITION OF SODIUM THIOPENTAL (Quinn, Michael) (Filed on 11/22/2010) (Entered: 11/22/2010)
456 Statement of Additional Authority by Albert Greenwood Brown, Michael A. Morales. (Grele, John) (Filed on 12/1/2010) (Entered: 12/01/2010)
458 Minute Entry: Motion Hearing held on 12/2/2010 before Jeremy Fogel (Date Filed: 12/2/2010) re (80 in 5:06−cv−01793−JF) MOTION to Dismiss, (430 in 5:06−cv−00219−JF) MOTION to Dismiss. The motions are taken under submission. Status Conference set for 12/17/2010 10:30 AM in Courtroom 3, 5th Floor, San Jose. (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 12/2/2010) (Entered: 12/07/2010)
457 OBJECTIONS to 432 JUDICIAL NOTICE by Michael A. Morales. (Grele, John) (Filed on 12/3/2010) Modified on 12/6/2010 (gm, COURT STAFF). (Entered: 12/03/2010)
459 RESPONSE to plaintiffs' 457 objection to judicial notice by Vincent Cullen, Cate Matthew, Arnold Schwarzengger. (Goldman, Jay) (Filed on 12/7/2010) Modified on 12/8/2010 (gm, COURT STAFF). (Entered: 12/07/2010)
460 Transcript of Proceedings held on 12/02/2010, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/9/2011. (Fisher, Summer) (Filed on 12/9/2010) (Entered: 12/09/2010)
461 ORDER RE 430 PARTIAL MOTION TO DISMISS. Signed by Judge Jeremy Fogel on 12/10/2010. (jflc2, COURT STAFF) (Filed on 12/10/2010) (Entered: 12/10/2010)
462 STATUS REPORT − Plaintiffs' Status Conference Report by Michael A. Morales. (Grele, John) (Filed on 12/16/2010) (Entered: 12/16/2010)
463 Statement Of Plaintiff Pacific News Service In Advance Of December 17, 2010 Status Conference by Pacific News Service. (Attachments: # 1 Exhibit A)(Krishnan, Ajay) (Filed on 12/16/2010) (Entered: 12/16/2010)
464 Minute Entry: Status Conference held on 12/17/2010 (Date Filed: 12/17/2010). Status Conference set for 2/11/2011 10:30 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 12/17/2010) (Entered: 12/21/2010)
465 SCHEDULING ORDER: Status Conference set for 2/11/2011 11:00 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. Signed by Judge Jeremy Fogel on 12/22/10. (sp, COURT STAFF) (Filed on 12/22/2010) (Additional attachment(s) added on 12/23/2010: # 1 Certificate of Service) (sp, COURT STAFF). (Entered: 12/23/2010)
466 NOTICE by Vincent Cullen, Cate Matthew, Arnold Schwarzengger DEFENDANTS NOTICE REGARDING DATE FOR ON−SITE PORTION OF EVIDENTIARY

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 47 of 64

12/29/2010
12/29/2010 01/03/2011 01/04/2011 01/04/2011 01/14/2011
01/19/2011 01/21/2011 01/28/2011 01/31/2011
01/31/2011
01/31/2011 01/31/2011 02/01/2011 02/01/2011 02/02/2011

HEARING (Attachments: # 1 Signature Page (Declarations/Stipulations) Certificate of Service)(Quinn, Michael) (Filed on 12/23/2010) (Entered: 12/23/2010)
467 MOTION to Intervene by Mitchell Carlton Sims and Stevie Lamar Fields filed by Habeas Corpus Resource Center. Motion Hearing set for 2/4/2011 09:00 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Cohbra, Sara) (Filed on 12/29/2010) (Entered: 12/29/2010)
468 Intervenor COMPLAINT by Mitchell Carlton Sims and Stevie Lamar Fields. Filed byHabeas Corpus Resource Center. (Cohbra, Sara) (Filed on 12/29/2010) (Entered: 12/29/2010)
469 ORDER DIRECTING ELECTRONIC FILING OF DOCUMENTS UNDER SEAL. Signed by Judge Jeremy Fogel on 12/30/2010. (jflc2, COURT STAFF) (Filed on 1/3/2011) (Entered: 01/03/2011)
470 NOTICE by Vincent Cullen, Cate Matthew, Arnold Schwarzengger SECOND NOTICE REGARDING DATE FOR ON−SITE PORTION OF EVIDENTIARY HEARING (Quinn, Michael) (Filed on 1/4/2011) (Entered: 01/04/2011)
471 ORDER SCHEDULING PORTION OF EVIDENTIARY HEARING AT SAN QUENTIN STATE PRISON. Signed by Judge Jeremy Fogel on 1/4/2011. (jflc2, COURT STAFF) (Filed on 1/4/2011) (Entered: 01/04/2011)
472 MEMORANDUM in Opposition re 467 MOTION to Intervene by Mitchell Carlton Sims and Stevie Lamar Fields filed byVincent Cullen, Cate Matthew, Edmund G. Brown, Jr. (Attachments: # 1 Exhibit A−B)(Related document(s) 467 ) (Quinn, Michael) (Filed on 1/14/2011) (Entered: 01/14/2011)
473 ORDER GRANTING MOTION TO INTERVENE. Signed by Judge Jeremy Fogel on 1/19/2011. (jflc2, COURT STAFF) (Filed on 1/19/2011) (Entered: 01/19/2011)
474 NOTICE by Edmund G. Brown, Jr, Vincent Cullen, Cate Matthew REGARDING ACQUISITION OF SODIUM THIOPENTAL (Quinn, Michael) (Filed on 1/21/2011) (Entered: 01/21/2011)
475 ORDER REGARDING MEDIA ACCESS TO EVIDENTIARY HEARING AT SAN QUENTIN STATE PRISON. Signed by Judge Jeremy Fogel on 1/26/2011. (jflc2, COURT STAFF) (Filed on 1/28/2011) (Entered: 01/28/2011)
476 *** FILED IN ERROR. PLEASE SEE DOCKET # 478 . *** MOTION for Protective Order filed by Edmund G. Brown, Jr, Vincent Cullen, Cate Matthew. (Goldman, Jay) (Filed on 1/31/2011) Modified on 2/2/2011 (ewn, COURT STAFF). (Entered: 01/31/2011)
477 Declaration of JAY M. GOLDMAN in Support of 476 MOTION for Protective Order ; EXHIBITS A−G filed byEdmund G. Brown, Jr, Vincent Cullen, Cate Matthew. (Attachments: # 1 Exhibit A−G)(Related document(s) 476 ) (Goldman, Jay) (Filed on 1/31/2011) (Entered: 01/31/2011)
478 MOTION for Protective Order WITH PROOF OF SERVICE filed by Edmund G. Brown, Jr, Vincent Cullen, Cate Matthew. (Goldman, Jay) (Filed on 1/31/2011) (Entered: 01/31/2011)
479 Proposed Order re 478 MOTION for Protective Order WITH PROOF OF SERVICE by Edmund G. Brown, Jr, Vincent Cullen, Cate Matthew. (Goldman, Jay) (Filed on 1/31/2011) (Entered: 01/31/2011)
480 ORDER REGARDING MEDIA REQUESTS. Signed by Judge Jeremy Fogel on 2/1/2011. (jflc2, COURT STAFF) (Filed on 2/1/2011) (Entered: 02/01/2011)
481 NOTICE of Substitution of Counsel by Richard P. Steinken (Steinken, Richard) (Filed on 2/1/2011) (Entered: 02/01/2011)
482 MOTION for order permitting Plaintiffs counsel and expert to attend San Quentin tour filed by Albert Greenwood Brown. (Attachments: # 1 Proposed Order)(Grele, John) (Filed on 2/2/2011) (Entered: 02/02/2011)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 48 of 64

02/03/2011 02/03/2011 02/03/2011 02/03/2011 02/04/2011 02/08/2011 02/08/2011
02/08/2011 02/09/2011 02/10/2011 02/11/2011 02/11/2011 02/14/2011

483 Reply Memorandum re 482 MOTION for order permitting Plaintiffs counsel and expert to attend San Quentin tour Defendants' Response to Plaintiffs' Motion for Administrative Relief filed byEdmund G. Brown, Jr, Vincent Cullen, Cate Matthew. (Attachments: # 1 Certificate of Service)(Quinn, Michael) (Filed on 2/3/2011) (Entered: 02/03/2011)
484 MOTION to Strike Defendants' Notice of Motion and Motion to Strike Portions of Plaintiffs Morales and Brown's Fourth Amended Complaint, and Plaintiffs Sims And Fields's Complaint in Intervention filed by Edmund G. Brown, Jr, Vincent Cullen, Cate Matthew. (Quinn, Michael) (Filed on 2/3/2011) (Entered: 02/03/2011)
485 Proposed Order re 484 MOTION to Strike Defendants' Notice of Motion and Motion to Strike Portions of Plaintiffs Morales and Brown's Fourth Amended Complaint, and Plaintiffs Sims And Fields's Complaint in Intervention by Edmund G. Brown, Jr, Vincent Cullen, Cate Matthew. (Quinn, Michael) (Filed on 2/3/2011) (Entered: 02/03/2011)
486 ANSWER to Amended Complaint Answer to Fourth Amended Complaint byEdmund G. Brown, Jr, Vincent Cullen, Cate Matthew. (Quinn, Michael) (Filed on 2/3/2011) (Entered: 02/03/2011)
487 ORDER SCHEDULING BRIEFING ON DEFENDANTS' MOTIONS. Motion Hearing set for 3/4/2011 at 1:30 PM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. Signed by Judge Jeremy Fogel on 2/4/2011. (jflc2, COURT STAFF) (Filed on 2/4/2011) (Entered: 02/04/2011)
488 ORDER of USCA: The court sua sponte grants appellant leave to proceed in forma pauperis. Counsel's appointment is deemed applicable to representation of appellant on appeal. (gm, COURT STAFF) (Filed on 2/8/2011) (Entered: 02/08/2011)
489 ***E−FILED IN ERROR***SEE DOCKET# 490 Transcript of Proceedings held on 02/08/2011, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/9/2011. (Fisher, Summer) (Filed on 2/8/2011) Modified on 2/9/2011 (cfeS, COURT STAFF). (Entered: 02/08/2011)
492 Minute Entry: Off−Site Hearing held at San Quentin Prison on 2/8/2011 before Judge Jeremy Fogel (Date Filed: 2/8/2011). (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 2/8/2011) (Entered: 02/10/2011)
490 Transcript of Proceedings held on 02/08/2011, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. (Fisher, Summer) (Filed on 2/9/2011) Modified on 2/14/2011 (jflc2, COURT STAFF). (Entered: 02/09/2011)
491 CLERKS NOTICE The Status Conference set for 2/11/2011 at 10:30 AM has been RESET for 2/11/2011 at 9:45 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. (jflc2, COURT STAFF) (Filed on 2/10/2011) (Entered: 02/10/2011)
493 ORDER REDIRECTING PUBLIC RELEASE OF TRANSCRIPT. Signed by Judge Jeremy Fogel on 2/10/2011. (jflc2, COURT STAFF) (Filed on 2/11/2011) (Entered: 02/11/2011)
496 Minute Entry: Status Conference held on 2/11/2011 (Date Filed: 2/11/2011). (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 2/11/2011) (Entered: 02/17/2011)
494 Transcript of Proceedings held on 02/11/2011, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 49 of 64

02/16/2011 02/18/2011 02/18/2011 02/18/2011 02/18/2011 02/18/2011 02/23/2011 02/23/2011 02/23/2011 02/28/2011 02/28/2011 03/01/2011
03/02/2011

Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/16/2011. (Fisher, Summer) (Filed on 2/14/2011) (Entered: 02/14/2011)
495 Letter from Sara Cohbra. (gm, COURT STAFF) (Filed on 2/16/2011) (Entered: 02/16/2011)
497 Letter Brief filed byEdmund G. Brown, Jr, Vincent Cullen, Cate Matthew. (Quinn, Michael) (Filed on 2/18/2011) (Entered: 02/18/2011)
498 Letter Brief in Response to 493 Court Order of February 11, 2011 filed byPacific News Service. (Krishnan, Ajay) (Filed on 2/18/2011) Modified on 2/23/2011 (gm, COURT STAFF). (Entered: 02/18/2011)
499 Declaration of Ajay S. Krishnan in Support of 498 Letter Brief in Response to Court Order of February 11, 2011 filed byPacific News Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 498 ) (Krishnan, Ajay) (Filed on 2/18/2011) (Entered: 02/18/2011)
500 Letter Brief in Response to 493 Court Order of February 11, 2011 filed byAlbert Greenwood Brown, Stevie Lamar Fields, Michael A. Morales, Mitchell Carlton Sims. (Attachments: # 1 Exhibit)(Steinken, Richard) (Filed on 2/18/2011) Modified on 2/23/2011 (gm, COURT STAFF). (Entered: 02/18/2011)
501 Administrative Motion to File Under Seal Exhibit 3 to Letter Brief of Plaintiffs Michael A. Morales, Albert G. Brown, Mitchell Sims, and Stevie Fields Regarding Impact of Dickens v. Brewer filed by Albert Greenwood Brown, Michael A. Morales. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Proof of Service)(Steinken, Richard) (Filed on 2/18/2011) (Entered: 02/18/2011)
502 RESPONSE (re 484 MOTION to Strike Defendants' Notice of Motion and Motion to Strike Portions of Plaintiffs Morales and Brown's Fourth Amended Complaint, and Plaintiffs Sims And Fields's Complaint in Intervention ) filed byStevie Lamar Fields. (Cohbra, Sara) (Filed on 2/23/2011) (Entered: 02/23/2011)
503 RESPONSE (re 484 MOTION to Strike Defendants' Notice of Motion and Motion to Strike Portions of Plaintiffs Morales and Brown's Fourth Amended Complaint, and Plaintiffs Sims And Fields's Complaint in Intervention ) filed byAlbert Greenwood Brown, Michael A. Morales. (Tria, Ann−Kathryn) (Filed on 2/23/2011) (Entered: 02/23/2011)
504 RESPONSE (re 478 MOTION for Protective Order WITH PROOF OF SERVICE ) filed byAlbert Greenwood Brown, Michael A. Morales. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Tria, Ann−Kathryn) (Filed on 2/23/2011) (Entered: 02/23/2011)
505 RESPONSE (re 478 MOTION for Protective Order WITH PROOF OF SERVICE ) DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER filed byEdmund G. Brown, Jr, Cate Matthew, Michael Martel. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Signature Page (Declarations/Stipulations) Certificate of Service)(Goldman, Jay) (Filed on 2/28/2011) (Entered: 02/28/2011)
506 REPLY (re 484 MOTION to Strike Defendants' Notice of Motion and Motion to Strike Portions of Plaintiffs Morales and Brown's Fourth Amended Complaint, and Plaintiffs Sims And Fields's Complaint in Intervention ) filed byEdmund G. Brown, Jr, Michael Martel, Cate Matthew. (Quinn, Michael) (Filed on 2/28/2011) (Entered: 02/28/2011)
507 ORDER GRANTING 501 PLAINTIFFS' ADMINISTRATIVE MOTION TO PERMIT PLAINTIFFS TO FILE UNDER SEAL EXHIBIT 3 TO LETTER BRIEF OF PLAINTIFFS MICHAEL A. MORALES, ALBERT G. BROWN, MITCHELL SIMS, AND STEVIE FIELDS REGARDING IMPACT OF DICKENS V. BREWER. Signed by Judge Jeremy Fogel on 2/28/2011. (jflc2, COURT STAFF) (Filed on 3/1/2011) (Entered: 03/01/2011)
508 Administrative Motion to File Under Seal filed by Albert Greenwood Brown. (Attachments: # 1 Proposed Order, # 2 Affidavit of Service)(Grele, John) (Filed on 3/2/2011) (Entered: 03/02/2011)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 50 of 64

03/03/2011 03/04/2011 03/04/2011 03/04/2011
03/11/2011 03/15/2011 03/21/2011 03/21/2011 03/25/2011 04/06/2011 04/29/2011 04/29/2011
04/29/2011 05/10/2011 05/12/2011 05/16/2011

509 STATUS REPORT Plaintiffs Discovery Hearing Conference Report by Albert Greenwood Brown, Michael A. Morales. (Attachments: # 1 Exhibit 1)(Senior, David) (Filed on 3/3/2011) (Entered: 03/03/2011)
510 RESPONSE to re 509 Status Report by Edmund G. Brown, Jr, Michael Martel, Cate Matthew. (Goldman, Jay) (Filed on 3/4/2011) (Entered: 03/04/2011)
511 STIPULATION For David A. Raley To Intervene As A Plaintiff and Proposed Order by Albert Greenwood Brown, Michael A. Morales. (Senior, David) (Filed on 3/4/2011) Modified on 3/7/2011 (gm, COURT STAFF). (Entered: 03/04/2011)
512 Minute Entry: Motion Hearing held on 3/4/2011 before Judge Jeremy Fogel (Date Filed: 3/4/2011) re 478 MOTION for Protective Order, 484 MOTION to Strike. The motions are taken under submission. Evidentiary Hearing set for 6/20/2011 09:00 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 3/4/2011) (Entered: 03/09/2011)
513 ORDER RE DISCOVERY AND DEFENDANTS' MOTION TO STRIKE. Signed by Judge Jeremy Fogel on 3/11/2011. (jflc2, COURT STAFF) (Filed on 3/11/2011) (Entered: 03/11/2011)
514 ORDER by Judge Jeremy Fogel granting 508 Administrative Motion to File Under Seal (dlm, COURT STAFF) (Filed on 3/15/2011) (Entered: 03/15/2011)
515 AMENDED ANSWER to 428 Amended Complaint byEdmund G. Brown, Jr, Michael Martel, Cate Matthew. (Quinn, Michael) (Filed on 3/21/2011) (Entered: 03/21/2011)
516 ANSWER to Intervenor Complaint byEdmund G. Brown, Jr, Michael Martel, Cate Matthew. (Quinn, Michael) (Filed on 3/21/2011) (Entered: 03/21/2011)
517 STIPULATION Joint Proposed Schedule for Completing Discovery and Proposed Order by Albert Greenwood Brown, Michael A. Morales. (Senior, David) (Filed on 3/25/2011) (Entered: 03/25/2011)
518 ORDER SETTING STATUS CONFERENCE. Status Conference set for 4/29/2011 at 2:00 PM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. Signed by Judge Jeremy Fogel on 4/6/2011. (jflc2, COURT STAFF) (Filed on 4/6/2011) (Entered: 04/06/2011)
519 ORDER DIRECTING PUBLIC RELEASE OF TRANSCRIPT OF STATUS CONFERENCE HELD APRIL 29, 2011. Signed by Judge Jeremy Fogel on 4/29/2011. (jflc2, COURT STAFF) (Filed on 4/29/2011) (Entered: 04/29/2011)
520 Transcript of Proceedings held on 04/29/2011, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 7/28/2011. (Fisher, Summer) (Filed on 4/29/2011) (Entered: 04/29/2011)
521 Minute Entry: Status Conference held on 4/29/2011. (Date Filed: 4/29/2011). (Court Reporter Summer Fisher.) (dlm, COURT STAFF) (Date Filed: 4/29/2011) (Entered: 05/04/2011)
522 STIPULATION Joint Proposed Schedule for Completing Discovery and Proposed Order by Albert Greenwood Brown, Michael A. Morales. (Senior, David) (Filed on 5/10/2011) (Entered: 05/10/2011)
523 CLERKS NOTICE The Evidentiary Hearing set on June 20, 2011 is vacated. (dlm, COURT STAFF) (Filed on 5/12/2011) (Entered: 05/12/2011)
524 ORDER APPROVING JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY. Signed by Judge Jeremy Fogel on 5/13/2011. (jflc2, COURT STAFF) (Filed on 5/16/2011) (Entered: 05/16/2011)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 51 of 64

06/28/2011
07/29/2011 09/01/2011
09/07/2011 10/05/2011 11/02/2011 11/03/2011 11/17/2011 04/03/2012
04/05/2012 05/16/2012
05/17/2012 05/21/2012 05/21/2012
05/23/2012 05/24/2012 05/29/2012

525 STIPULATION TO EXTEND DEADLINES SET IN THE COURTS MAY 13, 2011 ORDER RE JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY by Albert Greenwood Brown, Michael Martel, Cate Matthew. (Quinn, Michael) (Filed on 6/28/2011) (Entered: 06/28/2011)
526 NOTICE of Change of Address by Ajay Krishnan (Krishnan, Ajay) (Filed on 7/29/2011) (Entered: 07/29/2011)
527 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Richard Seeborg for all further proceedings. Judge Hon. Jeremy Fogel no longer assigned to the case. Signed by Executive Committee on 09/01/11. (mab, COURT STAFF) (Filed on 9/1/2011) (Entered: 09/01/2011)
528 NOTICE by Edmund G. Brown, Jr, Michael Martel, Cate Matthew re: selection of new execution team and alternates (Quinn, Michael) (Filed on 9/7/2011) (Entered: 09/07/2011)
529 NOTICE by Edmund G. Brown, Jr, Michael Martel, Cate Matthew REGARDING SELECTION OF NEW EXECUTION TEAM AND ALTERNATES (Quinn, Michael) (Filed on 10/5/2011) (Entered: 10/05/2011)
530 STIPULATION Joint Proposed Schedule for Completing Discovery and Proposed Order by Albert Greenwood Brown, Michael A. Morales. (Senior, David) (Filed on 11/2/2011) (Entered: 11/02/2011)
531 STIPULATION AND ORDER SCHEDULE FOR COMPLETING DISCOVERY. Signed by Judge Richard Seeborg on 11/3/11. (cl, COURT STAFF) (Filed on 11/3/2011) (Entered: 11/03/2011)
532 NOTICE of Change of Address by David Andrew Senior (Senior, David) (Filed on 11/17/2011) (Entered: 11/17/2011)
533 MOTION L.R. 7−11 ADMINISTRATIVE MOTION TO VACATE DISCOVERY CUT−OFF AND JOINT STATEMENT FILING DATES filed by Albert Greenwood Brown, Michael A. Morales. Responses due by 4/9/2012. Replies due by 4/9/2012. (Attachments: # 1 Declaration, # 2 Proposed Order)(Senior, David) (Filed on 4/3/2012) (Entered: 04/03/2012)
534 ORDER DENYING PLAINTIFFS' MOTION TO VACATE. Signed by Judge Richard Seeborg on 4/5/12. (cl, COURT STAFF) (Filed on 4/5/2012) (Entered: 04/05/2012)
535 MOTION to Intervene and for a Stay filed by Tiequon A. Cox. Responses due by 5/18/2012. Replies due by 5/21/2012. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Proposed Order)(Grele, John) (Filed on 5/16/2012) (Entered: 05/16/2012)
536 ORDER SCHEDULING BRIEFING ON COX'S MOTION. Signed by Judge Richard Seeborg on 5/16/12. (cl, COURT STAFF) (Filed on 5/17/2012) (Entered: 05/17/2012)
537 RESPONSE (re 535 MOTION to Intervene and for a Stay ) filed byEdmund G. Brown, Jr, Cate Matthew, KEVIN CHAPELLE. (Kirschenbauer, Marisa) (Filed on 5/21/2012) (Entered: 05/21/2012)
538 Declaration of Marisa Kirschenbauer in Support of 537 Opposition/Response to Motion filed byEdmund G. Brown, Jr, KEVIN CHAPELLE, Cate Matthew. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 537 ) (Kirschenbauer, Marisa) (Filed on 5/21/2012) (Entered: 05/21/2012)
539 REPLY (re 535 MOTION to Intervene and for a Stay ) filed byTiequon A. Cox. (Senior, David) (Filed on 5/23/2012) (Entered: 05/23/2012)
542 MOTION to Intervene filed by Los Angeles County District Attorneys Office, Steve Cooley. Responses due by 6/7/2012. Replies due by 6/14/2012. (gba, COURT STAFF) (Filed on 5/24/2012) (Entered: 06/04/2012)
540 Transcript of Proceedings held on 11/16/2010, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 52 of 64

05/29/2012
06/06/2012 06/07/2012 06/11/2012 06/21/2012 06/21/2012 06/27/2012
06/28/2012 07/02/2012
07/06/2012 07/16/2012 08/10/2012 08/10/2012 08/23/2012 08/23/2012

Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/27/2012. (Fisher, Summer) (Filed on 5/29/2012) (Entered: 05/29/2012)
541 Transcript of Proceedings held on 03/04/2011, before Judge Jeremy Fogel. Court Reporter/Transcriber Summer Fisher, Telephone number 408−288−6150. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/27/2012. (Fisher, Summer) (Filed on 5/29/2012) (Entered: 05/29/2012)
543 MOTION for Extension of Time to File Response/Reply filed by Michael A. Morales. (Attachments: # 1 Proposed Order)(Grele, John) (Filed on 6/6/2012) (Entered: 06/06/2012)
544 RESPONSE (re 542 MOTION to Intervene ) filed byEdmund G. Brown, Jr, KEVIN CHAPELLE, Cate Matthew. (Quinn, Michael) (Filed on 6/7/2012) (Entered: 06/07/2012)
545 ORDER GRANTING MOTION. by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 6/11/2012) (Entered: 06/11/2012)
546 RESPONSE (re 542 MOTION to Intervene ) filed byMichael A. Morales. (Senior, David) (Filed on 6/21/2012) (Entered: 06/21/2012)
547 REPLY (re 542 MOTION to Intervene ) filed byTiequon A. Cox. (Grele, John) (Filed on 6/21/2012) (Entered: 06/21/2012)
548 MOTION to Intervene filed by Scott Lynn Pinholster. Motion Hearing set for 8/9/2012 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 7/11/2012. Replies due by 7/18/2012. (Attachments: # 1 Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Kennedy, Sean) (Filed on 6/27/2012) (Entered: 06/27/2012)
549 REPLY (re 542 MOTION to Intervene ) Reply to Opposition to LADA's Motion to INtervene filed bySteve Cooley. (Lach, Jo) (Filed on 6/28/2012) (Entered: 06/28/2012)
550 Appendix re 549 Reply to Opposition/Response Appendix to Reply to Opposition filed bySteve Cooley. (Attachments: # 1 Exhibit Exhibits A to C of Appendix, # 2 Exhibit Exhibits D to Q of Appendix)(Related document(s) 549 ) (Lach, Jo) (Filed on 7/2/2012) (Entered: 07/02/2012)
551 Notice of Withdrawal of Motion to Intervene by Scott Pinholster (Kennedy, Sean) (Filed on 7/6/2012) (Entered: 07/06/2012)
552 Statement Joint Statement Containing Proposed Schedule or Schedules by Edmund G. Brown, Jr. (Quinn, Michael) (Filed on 7/16/2012) (Entered: 07/16/2012)
553 ORDER REGARDING LOS ANGELES DISTRICT ATTORNEY'S OFFICE'S MOTION TO INTERVENE. Signed by Judge Richard Seeborg on 8/10/12. (cl, COURT STAFF) (Filed on 8/10/2012) (Entered: 08/10/2012)
554 SCHEDULING ORDER. Signed by Judge Richard Seeborg on 8/10/12. (cl, COURT STAFF) (Filed on 8/10/2012) (Entered: 08/10/2012)
555 MOTION to Intervene filed by Robert G. Fairbank. Responses due by 9/6/2012. Replies due by 9/13/2012. (Drozdowski, Mark) (Filed on 8/23/2012) (Entered: 08/23/2012)
556 Declaration of Mark R. Drozdowski in Support of 555 MOTION to Intervene filed byRobert G. Fairbank. (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. B, # 3 Exhibit Ex. C, # 4 Exhibit Ex. D, # 5 Exhibit Ex. E)(Related document(s) 555 ) (Drozdowski, Mark) (Filed on 8/23/2012) (Entered: 08/23/2012)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 53 of 64

08/23/2012
08/23/2012 08/23/2012 08/23/2012 09/06/2012 09/13/2012 11/21/2012 04/05/2013
04/05/2013 04/05/2013 04/05/2013 04/05/2013 04/05/2013 04/05/2013
04/08/2013 04/08/2013 04/08/2013 04/08/2013

557 EXHIBITS re 556 Declaration in Support, filed byRobert G. Fairbank. (Attachments: # 1 Exhibit Ex. F, # 2 Exhibit Ex. G, # 3 Exhibit Ex. H, # 4 Exhibit Ex. I, # 5 Exhibit Ex. J)(Related document(s) 556 ) (Drozdowski, Mark) (Filed on 8/23/2012) (Entered: 08/23/2012)
558 EXHIBITS re 556 Declaration in Support, filed byRobert G. Fairbank. (Attachments: # 1 Exhibit Ex. K)(Related document(s) 556 ) (Drozdowski, Mark) (Filed on 8/23/2012) (Entered: 08/23/2012)
559 EXHIBITS re 556 Declaration in Support, filed byRobert G. Fairbank. (Attachments: # 1 Ex. L)(Related document(s) 556 ) (Drozdowski, Mark) (Filed on 8/23/2012) (Entered: 08/23/2012)
560 EXHIBITS re 556 Declaration in Support, filed byRobert G. Fairbank. (Attachments: # 1 Exhibit Ex. M, # 2 Exhibit Ex. N, # 3 Exhibit Ex. O, # 4 Proposed Order)(Related document(s) 556 ) (Drozdowski, Mark) (Filed on 8/23/2012) (Entered: 08/23/2012)
561 RESPONSE (re 555 MOTION to Intervene ) filed byEdmund G. Brown, Jr, KEVIN CHAPELLE, Cate Matthew. (Quinn, Michael) (Filed on 9/6/2012) (Entered: 09/06/2012)
562 REPLY (re 555 MOTION to Intervene ) filed byRobert G. Fairbank. (Attachments: # 1 Declaration of Elizabeth Richardson−Royer)(Richardson−Royer, Elizabeth) (Filed on 9/13/2012) (Entered: 09/13/2012)
563 ORDER RESOLVING MOTIONS TO INTERVENE AND TO STAY EXECUTIONS. Signed by Judge Richard Seeborg on 11/21/12. (cl, COURT STAFF) (Filed on 11/21/2012) (Entered: 11/21/2012)
564 MOTION to Intervene and Stay Execution filed by Kevin Cooper. Motion Hearing set for 7/25/2013 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 4/19/2013. Replies due by 4/26/2013. (DeWitt, Katie) (Filed on 4/5/2013) (Entered: 04/05/2013)
565 Declaration of Norman C. Hile In Support of Motion to Intervene and Motion to Stay Execution filed byKevin Cooper. (Attachments: # 1 Exhibit A−D, # 2 Exhibit E)(DeWitt, Katie) (Filed on 4/5/2013) (Entered: 04/05/2013)
566 Request for Judicial Notice re 564 MOTION to Intervene and Stay Execution filed byKevin Cooper. (Related document(s) 564 ) (DeWitt, Katie) (Filed on 4/5/2013) (Entered: 04/05/2013)
567 Proposed Order re 564 MOTION to Intervene and Stay Execution by Kevin Cooper. (DeWitt, Katie) (Filed on 4/5/2013) (Entered: 04/05/2013)
568 Certificate of Interested Entities by Kevin Cooper re 564 MOTION to Intervene and Stay Execution (DeWitt, Katie) (Filed on 4/5/2013) (Entered: 04/05/2013)
569 EXHIBITS re 564 MOTION to Intervene and Stay Execution [Proposed] Complaint in Intervention filed byKevin Cooper. (Related document(s) 564 ) (DeWitt, Katie) (Filed on 4/5/2013) (Entered: 04/05/2013)
570 CERTIFICATE OF SERVICE by Kevin Cooper re 569 Exhibits, 568 Certificate of Interested Entities, 567 Proposed Order, 564 MOTION to Intervene and Stay Execution, 566 Request for Judicial Notice, 565 Declaration in Support (DeWitt, Katie) (Filed on 4/5/2013) (Entered: 04/05/2013)
571 CERTIFICATE OF SERVICE by Kevin Cooper re 564 MOTION to Intervene and Stay Execution (Hile, Norman) (Filed on 4/8/2013) (Entered: 04/08/2013)
572 NOTICE of Appearance by Moniz Leo (Leo, Moniz) (Filed on 4/8/2013) (Entered: 04/08/2013)
573 NOTICE of Appearance by Norman C. Hile (Hile, Norman) (Filed on 4/8/2013) (Entered: 04/08/2013)
574 NOTICE of Appearance by Katie Christine DeWitt (DeWitt, Katie) (Filed on 4/8/2013) (Entered: 04/08/2013)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 54 of 64

04/08/2013 04/19/2013 04/19/2013 04/26/2013 04/26/2013 04/26/2013 06/19/2013
06/20/2013 08/16/2013
08/30/2013 09/09/2013 09/17/2013 12/18/2014 01/12/2016 11/09/2016 11/10/2016 11/18/2016 11/18/2016 11/22/2016

575 CERTIFICATE OF SERVICE by Kevin Cooper re 572 Notice of Appearance, 574 Notice of Appearance, 573 Notice of Appearance (Hile, Norman) (Filed on 4/8/2013) (Entered: 04/08/2013)
576 RESPONSE (re 564 MOTION to Intervene and Stay Execution ) filed byEdmund G. Brown, Jr, KEVIN CHAPELLE. (Quinn, Michael) (Filed on 4/19/2013) (Entered: 04/19/2013)
577 MANDATE of USCA as to 408 Notice of Appeal, filed by Albert Greenwood Brown (gmS, ) (Filed on 4/19/2013) (Entered: 04/23/2013)
578 REPLY (re 564 MOTION to Intervene and Stay Execution ) filed byKevin Cooper. (Hile, Norman) (Filed on 4/26/2013) (Entered: 04/26/2013)
579 Declaration of Norman C. Hile in Support of 564 MOTION to Intervene and Stay Execution Supplemental Declaration filed byKevin Cooper. (Related document(s) 564 ) (Hile, Norman) (Filed on 4/26/2013) (Entered: 04/26/2013)
580 CERTIFICATE OF SERVICE by Kevin Cooper re 578 Reply to Opposition/Response, 579 Declaration in Support (Hile, Norman) (Filed on 4/26/2013) (Entered: 04/26/2013)
581 ORDER GRANTING KEVIN COOPER'S MOTION TO INTERVENE AND TO STAY EXECUTION. (564 in 3:06−cv−00219−RS) Signed by Judge Richard Seeborg on 6/19/13. (cl, COURT STAFF) (Filed on 6/19/2013) (Entered: 06/19/2013)
582 NOTICE by Kevin Cooper re 581 Order, Terminate Motions, Set Hearings Of Entry of Order (DeWitt, Katie) (Filed on 6/20/2013) (Entered: 06/20/2013)
583 MOTION to Intervene and Stay of Execution filed by Scott Lynn Pinholster, William C Payton. Responses due by 8/30/2013. Replies due by 9/6/2013. (Attachments: # 1 Declaration of Margo Rocconi, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Proposed Order)(Rocconi, Margo) (Filed on 8/16/2013) (Entered: 08/16/2013)
584 RESPONSE (re 583 MOTION to Intervene and Stay of Execution ) filed byJeffrey A. Beard, Edmund G. Brown, Jr, Kevin Chapelle. (Quinn, Michael) (Filed on 8/30/2013) (Entered: 08/30/2013)
585 REPLY (re 583 MOTION to Intervene and Stay of Execution ) filed byWilliam C Payton, Scott Lynn Pinholster. (Rocconi, Margo) (Filed on 9/9/2013) (Entered: 09/09/2013)
586 ORDER granting (583) Motion to Intervene. by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 9/17/2013) (Entered: 09/17/2013)
587 NOTICE of Change In Counsel by Ajay Krishnan (Notice of Withdrawal of Jon Streeter as Counsel for Plaintiff Pacific News Service) (Krishnan, Ajay) (Filed on 12/18/2014) (Entered: 12/18/2014)
588 NOTICE of Change of Address by Kelly Marie Morrison (Morrison, Kelly) (Filed on 1/12/2016) (Entered: 01/12/2016)
589 Ex Parte Application to set conference filed by Albert Greenwood Brown. (Grele, John) (Filed on 11/9/2016) (Entered: 11/09/2016)
590 ORDER CALLING FOR RESPONSE FROM DEFENDANTS. Signed by Judge Richard Seeborg on 11/10/16. (cl, COURT STAFF) (Filed on 11/10/2016) (Entered: 11/10/2016)
591 NOTICE of Appearance by Robert Lawrence Bragg (Bragg, Robert) (Filed on 11/18/2016) (Entered: 11/18/2016)
592 RESPONSE to re 590 Order Defendants' Response to Request to Set Status Conference by Jeffrey A. Beard, Edmund G. Brown, Jr. (Attachments: # 1 Exhibit A)(Bragg, Robert) (Filed on 11/18/2016) (Entered: 11/18/2016)
593 ORDER DENYING REQUEST FOR CASE MANAGEMENT CONFERENCE AND SETTING STATUS REPORT SCHEDULE. Signed by Judge Richard

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 55 of 64

01/19/2017
01/19/2017 01/30/2017
02/02/2017 02/02/2017 02/02/2017 02/03/2017 02/09/2017
02/22/2017 03/08/2017 03/15/2017 04/17/2017 04/18/2017 04/19/2017

Seeborg on 11/22/16. (cl, COURT STAFF) (Filed on 11/22/2016) (Entered: 11/22/2016)
594 MOTION to Intervene filed by Fernando Belmontes, Jr., Royal Kenneth Hayes, Richard Delmer Boyer, Ron Deere, Harvey Lee Heishman, Anthony Jack Sully, Albert Cunningham, Douglas Mickey, Hector Ayala, Richard Samayoa. Motion Hearing set for 2/23/2017 01:30 PM before Hon. Richard Seeborg. Responses due by 2/2/2017. Replies due by 2/9/2017. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Tria, Ann−Kathryn) (Filed on 1/19/2017) (Entered: 01/19/2017)
595 Certificate of Interested Entities by Hector Ayala, Fernando Belmontes, Jr., Richard Delmer Boyer, Albert Cunningham, Ron Deere, Royal Kenneth Hayes, Harvey Lee Heishman, Douglas Mickey, Richard Samayoa, Anthony Jack Sully (Tria, Ann−Kathryn) (Filed on 1/19/2017) (Entered: 01/19/2017)
596 CLERK'S NOTICE THE MOTION TO INTERVENE AND MOTION TO STAY EXECUTIONS SCHEDULED FOR HEARING ON FEBRUARY 23, 2017 AT 1:30 P.M. SHALL BE SUBMITTED WITHOUT ORAL ARGUMENT PURSUANT TO CIVIL LOCAL RULE 7−1(b). ACCORDINGLY, THE MOTION HEARING IS VACATED. (This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Filed on 1/30/2017) (Entered: 01/30/2017)
597 OPPOSITION/RESPONSE (re 594 MOTION to Intervene ) filed byEdmund G. Brown, Jr. (Goldman, Jay) (Filed on 2/2/2017) (Entered: 02/02/2017)
598 Request for Judicial Notice re 597 Opposition/Response to Motion filed byEdmund G. Brown, Jr. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 597 ) (Goldman, Jay) (Filed on 2/2/2017) (Entered: 02/02/2017)
599 Declaration of R. Lawrence Bragg in Support of 597 Opposition/Response to Motion filed byEdmund G. Brown, Jr. (Attachments: # 1 Exhibit A)(Related document(s) 597 ) (Goldman, Jay) (Filed on 2/2/2017) (Entered: 02/02/2017)
600 CERTIFICATE OF SERVICE by Edmund G. Brown, Jr re 597 Opposition/Response to Motion (Goldman, Jay) (Filed on 2/3/2017) (Entered: 02/03/2017)
601 REPLY (re 594 MOTION to Intervene ) filed byHector Ayala, Fernando Belmontes, Jr., Richard Delmer Boyer, Albert Cunningham, Ron Deere, Royal Kenneth Hayes, Harvey Lee Heishman, Douglas Mickey, Richard Samayoa, Anthony Jack Sully. (Attachments: # 1 Exhibit A)(Tria, Ann−Kathryn) (Filed on 2/9/2017) (Entered: 02/09/2017)
602 MOTION to Intervene and for Stay of Execution filed by RAYNARD PAUL CUMMINGS. Responses due by 3/8/2017. Replies due by 3/15/2017. (Attachments: # 1 Declaration of K. Elizabeth Dahlstrom, # 2 Exhibit A, # 3 Exhibit B)(Richardson−Royer, Elizabeth) (Filed on 2/22/2017) (Entered: 02/22/2017)
603 OPPOSITION/RESPONSE (re 602 MOTION to Intervene and for Stay of Execution ) Defendants' Opposition to Cummingss Motion to Intervene and for Stay of Execution filed byEdmund G. Brown, Jr. (Goldman, Jay) (Filed on 3/8/2017) (Entered: 03/08/2017)
604 REPLY (re 602 MOTION to Intervene and for Stay of Execution ) filed byRAYNARD PAUL CUMMINGS. (Richardson−Royer, Elizabeth) (Filed on 3/15/2017) (Entered: 03/15/2017)
605 NOTICE of Change In Counsel by Norman C. Hile Pursuant to Civil L.R. 5−1(c)(2)(C) (Hile, Norman) (Filed on 4/17/2017) (Entered: 04/17/2017)
606 ORDER GRANTING MOTIONS TO INTERVENE AND MOTIONS TO STAY EXECUTIONS 594 602]. Stayed until the conclusion of this litigation. (afmS, COURT STAFF) (Filed on 4/18/2017) (Entered: 04/18/2017)
607 NOTICE of Appearance by Kelly Elizabeth Dahlstrom (Dahlstrom, Kelly) (Filed on 4/19/2017) (Entered: 04/19/2017)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 56 of 64

05/02/2017 05/26/2017 05/26/2017 07/18/2017 09/21/2017
09/21/2017 10/05/2017
10/12/2017 10/18/2017 10/18/2017 10/20/2017 10/23/2017
10/23/2017 11/02/2017
11/02/2017 11/06/2017
11/07/2017

608 NOTICE of Appearance by Statia Peakheart for Intervenor−Plaintiff Raynard Cummings (Peakheart, Statia) (Filed on 5/2/2017) (Entered: 05/02/2017)
609 NOTICE by RAYNARD PAUL CUMMINGS Notice of Withdrawal of Counsel (Dahlstrom, Kelly) (Filed on 5/26/2017) (Entered: 05/26/2017)
610 NOTICE by Robert G. Fairbank OF WITHDRAWAL OF COUNSEL (Drozdowski, Mark) (Filed on 5/26/2017) (Entered: 05/26/2017)
611 NOTICE of Substitution of Counsel by Cliona R Plunkett for Intervenor Mitchell Carlton Sims (Plunkett, Cliona) (Filed on 7/18/2017) (Entered: 07/18/2017)
612 MOTION to Intervene and For Stay of Execution filed by Conrad Jess Zapien. Motion Hearing set for 10/26/2017 01:30 PM before Hon. Richard Seeborg. Responses due by 10/5/2017. Replies due by 10/12/2017. (Attachments: # 1 Exhibit A −− Fourth Amended Complaint, # 2 Proposed Order)(Tria, Ann−Kathryn) (Filed on 9/21/2017) (Entered: 09/21/2017)
613 Certificate of Interested Entities by Conrad Jess Zapien (Tria, Ann−Kathryn) (Filed on 9/21/2017) (Entered: 09/21/2017)
614 OPPOSITION/RESPONSE (re 612 MOTION to Intervene and For Stay of Execution ) filed byEdmund G. Brown, Jr, Kernan, Davis. (Attachments: # 1 Declaration of Jay M. Goldman, # 2 Exhibit A to Jay M. Goldman Declaration, # 3 Request for Judicial Notice, # 4 Exhibit A to F to Request for Judicial Notice)(Goldman, Jay) (Filed on 10/5/2017) (Entered: 10/05/2017)
615 REPLY (re 612 MOTION to Intervene and For Stay of Execution ) filed byConrad Jess Zapien. (Attachments: # 1 Exhibit A)(Tria, Ann−Kathryn) (Filed on 10/12/2017) (Entered: 10/12/2017)
616 Statement of Recent Decision by Edmund G. Brown, Jr, Davis, Kernan. (Attachments: # 1 Exhibit A)(Goldman, Jay) (Filed on 10/18/2017) (Entered: 10/18/2017)
617 NOTICE of Appearance by Susel Beatriz Carrillo−Orellana (Carrillo−Orellana, Susel) (Filed on 10/18/2017) (Entered: 10/18/2017)
618 NOTICE of Appearance by Sara Melissa Cohbra (Cohbra, Sara) (Filed on 10/20/2017) (Entered: 10/20/2017)
619 CLERK'S NOTICE THE MOTION [#612] SCHEDULED FOR HEARING ON OCTOBER 26, 2017 AT 1:30 P.M. SHALL BE SUBMITTED WITHOUT ORAL ARGUMENT PURSUANT TO CIVIL LOCAL RULE 7−1(b). ACCORDINGLY, THE MOTION HEARING IS VACATED. (This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Filed on 10/23/2017) (Entered: 10/23/2017)
620 ORDER by Judge Richard Seeborg granting 612 Motion to Intervene and Motion to Stay. (cl, COURT STAFF) (Filed on 10/23/2017) (Entered: 10/23/2017)
621 MOTION to Intervene and For Stay of Execution filed by Ronaldo Ayala. Motion Hearing set for 12/7/2017 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Judge Richard Seeborg. Responses due by 11/16/2017. Replies due by 11/24/2017. (Attachments: # 1 Exhibit A −− Fourth Amended Complaint, # 2 Proposed Order)(Tria, Ann−Kathryn) (Filed on 11/2/2017) (Entered: 11/02/2017)
622 Certificate of Interested Entities by Ronaldo Ayala (Tria, Ann−Kathryn) (Filed on 11/2/2017) (Entered: 11/02/2017)
623 CLERK'S NOTICE THE MOTION [#621] SCHEDULED FOR HEARING ON DECEMBER 7, 2017 AT 1:30 P.M. SHALL BE SUBMITTED WITHOUT ORAL ARGUMENT PURSUANT TO CIVIL LOCAL RULE 7−1(b). ACCORDINGLY, THE MOTION HEARING IS VACATED. (This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Filed on 11/6/2017) (Entered: 11/06/2017)
624 NOTICE of Change In Counsel by Kate Tainsky Spelman (Spelman, Kate) (Filed on 11/7/2017) (Entered: 11/07/2017)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 57 of 64

11/07/2017 11/07/2017 11/08/2017 11/16/2017 11/16/2017 11/22/2017 12/04/2017 12/07/2017 01/18/2018 01/29/2018 03/08/2018 03/09/2018 03/12/2018 03/30/2018 04/02/2018 04/05/2018
04/16/2018 04/17/2018 04/17/2018

625 NOTICE by Albert Greenwood Brown, Davis, Kernan Notice Re Status of Proposition 66 (Quinn, Michael) (Filed on 11/7/2017) (Entered: 11/07/2017)
626 NOTICE by Edmund G. Brown, Jr, Davis, Kernan CORRECTION OF DOCKET 625 (Quinn, Michael) (Filed on 11/7/2017) (Entered: 11/07/2017)
627 NOTICE of Appearance by Michael Lawrence Parente (Parente, Michael) (Filed on 11/8/2017) (Entered: 11/08/2017)
628 OPPOSITION/RESPONSE (re 621 MOTION to Intervene and For Stay of Execution ) filed byEdmund G. Brown, Jr, Davis, Kernan. (Bragg, Robert) (Filed on 11/16/2017) (Entered: 11/16/2017)
629 Request for Judicial Notice re 628 Opposition/Response to Motion filed byEdmund G. Brown, Jr, Davis, Kernan. (Related document(s) 628 ) (Bragg, Robert) (Filed on 11/16/2017) (Entered: 11/16/2017)
630 REPLY (re 621 MOTION to Intervene and For Stay of Execution ) filed byRonaldo Ayala. (Attachments: # 1 Exhibit A)(Tria, Ann−Kathryn) (Filed on 11/22/2017) (Entered: 11/22/2017)
631 ORDER by Judge Richard Seeborg Granting 621 Motions to Intervene and to stay execution and granting motion for judicial notice. (cl, COURT STAFF) (Filed on 12/4/2017) (Entered: 12/04/2017)
632 NOTICE of Voluntary Dismissal of Related Case by Pacific News Service (Krishnan, Ajay) (Filed on 12/7/2017) (Entered: 12/07/2017)
633 NOTICE of Appearance by Joanna Breiden Hood of Counsel for Defendants (Hood, Joanna) (Filed on 1/18/2018) (Entered: 01/18/2018)
634 NOTICE by Edmund G. Brown, Jr, Davis, Kernan re 593 Order (Hood, Joanna) (Filed on 1/29/2018) (Entered: 01/29/2018)
635 NOTICE by Edmund G. Brown, Jr, Davis, Kernan re 593 Order Notice re: Finalization of Lethal Injection Protocol (Bragg, Robert) (Filed on 3/8/2018) (Entered: 03/08/2018)
636 NOTICE by Edmund G. Brown, Jr, Davis, Kernan of Change of Contact Information (Goldman, Jay) (Filed on 3/9/2018) (Entered: 03/09/2018)
637 STATUS REPORT by Michael A. Morales. (Tria, Ann−Kathryn) (Filed on 3/12/2018) (Entered: 03/12/2018)
638 NOTICE by Edmund G. Brown, Jr, Davis, Kernan re 552 Statement Defendants' Proposed Litigation Schedule (Bragg, Robert) (Filed on 3/30/2018) (Entered: 03/30/2018)
639 OBJECTIONS to re 638 Notice (Other) Plaintiffs' Response to Defendants' Proposed Schedule by Michael A. Morales. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Grele, John) (Filed on 4/2/2018) (Entered: 04/02/2018)
640 ORDER. Parties are ORDERED to meet and confer within sixty (60) days and submit a joint statement outlining a proposed litigation schedule.. Signed by Judge Richard Seeborg on 4/4/18. (klhS, COURT STAFF) (Filed on 4/5/2018) (Entered: 04/05/2018)
641 MOTION to Relate Case filed by San Francisco Progressive Media Center. (Attachments: # 1 Declaration Ajay S. Krishnan, # 2 Proposed Order)(Krishnan, Ajay) (Filed on 4/16/2018) (Entered: 04/16/2018)
642 MOTION to Intervene By John Louis Visciotti filed by Michael A. Morales. Responses due by 5/1/2018. Replies due by 5/8/2018. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dahlstrom, Kelly) (Filed on 4/17/2018) (Entered: 04/17/2018)
643 Declaration of K. Elizabeth Dahlstrom in Support of 642 MOTION to Intervene By John Louis Visciotti filed byMichael A. Morales. (Related document(s) 642 ) (Dahlstrom, Kelly) (Filed on 4/17/2018) (Entered: 04/17/2018)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 58 of 64

04/17/2018 04/18/2018 04/19/2018
04/20/2018 04/26/2018
04/30/2018 05/01/2018 05/01/2018 05/01/2018 05/08/2018
05/08/2018 05/14/2018
06/04/2018 06/05/2018 06/11/2018 06/12/2018

644 NOTICE of Appearance by Kelly Elizabeth Dahlstrom and Statia Peakheart (Dahlstrom, Kelly) (Filed on 4/17/2018) (Entered: 04/17/2018)
645 ORDER by Judge Richard Seeborg granting 641 Motion to Relate Cases 06−00219 RS and 18−02146 LB. (cl, COURT STAFF) (Filed on 4/18/2018) (Entered: 04/18/2018)
646 First ADMINISTRATIVE MOTION re 645 Order on Motion to Relate Case filed by Edmund G. Brown, Jr, Davis, Kernan. Responses due by 4/23/2018. (Attachments: # 1 Proposed Order Granting Administrative Motion for Leave to File Motion for Reconsideration of Related Cse Order, # 2 Proposed Order Granting Motion for Reconsideration of Related Case Order, # 3 Certificate/Proof of Service)(Bragg, Robert) (Filed on 4/19/2018) (Entered: 04/19/2018)
647 ORDER by Judge Richard Seeborg granting 646 Administrative Motion and denying Motion to Reconsider. (cl, COURT STAFF) (Filed on 4/20/2018) (Entered: 04/20/2018)
648 ADMINISTRATIVE MOTION Coordinate Case Scheduling filed by San Francisco Progressive Media Center. Responses due by 4/30/2018. (Attachments: # 1 Declaration Ajay S. Krishnan, # 2 Proposed Order)(Krishnan, Ajay) (Filed on 4/26/2018) (Entered: 04/26/2018)
649 OPPOSITION/RESPONSE (re 648 ADMINISTRATIVE MOTION Coordinate Case Scheduling ) filed byEdmund G. Brown, Jr, Davis, Kernan. (Attachments: # 1 Proposed Order)(Bragg, Robert) (Filed on 4/30/2018) (Entered: 04/30/2018)
650 NOTICE of Change In Counsel by Kelly Marie Morrison (Morrison, Kelly) (Filed on 5/1/2018) (Entered: 05/01/2018)
651 OPPOSITION/RESPONSE (re 642 MOTION to Intervene By John Louis Visciotti ) filed byEdmund G. Brown, Jr, Davis, Kernan. (Bragg, Robert) (Filed on 5/1/2018) (Entered: 05/01/2018)
652 Request for Judicial Notice re 651 Opposition/Response to Motion filed byEdmund G. Brown, Jr, Davis, Kernan. (Related document(s) 651 ) (Bragg, Robert) (Filed on 5/1/2018) (Entered: 05/01/2018)
653 ORDER by Judge Richard Seeborg denying (648) without prejudice motion to coordinate case scheduling in case 3:06−cv−00219−RS; denying (11) without prejudice motion to coordinate case scheduling in case 3:18−cv−02146−RS. (cl, COURT STAFF) (Filed on 5/8/2018) (Entered: 05/08/2018)
654 REPLY (re 642 MOTION to Intervene By John Louis Visciotti ) and For Stay of Execution filed byJohn Louis Visciotti. (Attachments: # 1 Proposed Order)(Dahlstrom, Kelly) (Filed on 5/8/2018) (Entered: 05/08/2018)
655 ORDER GRANTING 642 MOTIONS TO INTERVENE AND TO STAY EXECUTION AND GRANTING MOTION FOR JUDICIAL NOTICE. Signed by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 5/14/2018) (Entered: 05/14/2018)
656 STIPULATION WITH PROPOSED ORDER for extension of time to file joint statement re litigation schedule filed by Michael A. Morales. (Tria, Ann−Kathryn) (Filed on 6/4/2018) (Entered: 06/04/2018)
657 ORDER by Judge Richard Seeborg granting 656 Stipulation for extension of time to file joint statement of parties re: litigation schedule. (cl, COURT STAFF) (Filed on 6/5/2018) (Entered: 06/05/2018)
658 Statement Joint Statement of Parties re Litigation Schedule by Michael A. Morales. (Tria, Ann−Kathryn) (Filed on 6/11/2018) (Entered: 06/11/2018)
659 ORDER setting status conference. Status Conference set for 9/7/2018 at 10:00 AM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Signed by Judge Richard Seeborg on 6/12/18. (cl, COURT STAFF) (Filed on 6/12/2018) (Entered: 06/12/2018)

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 59 of 64

06/26/2018
06/26/2018 07/02/2018 07/05/2018
07/05/2018 07/05/2018 07/05/2018 07/09/2018 07/09/2018
07/10/2018 07/10/2018 07/10/2018
07/12/2018 07/12/2018 07/13/2018 07/17/2018 07/17/2018 07/18/2018 08/14/2018

660 MOTION to Intervene filed by San Bernardino County District Attorney's Office. Motion Hearing set for 8/9/2018 01:30 PM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Responses due by 7/10/2018. Replies due by 7/17/2018. (Brown, Robert) (Filed on 6/26/2018) (Entered: 06/26/2018)
661 NOTICE of Appearance by Robert Paul Brown (Brown, Robert) (Filed on 6/26/2018) (Entered: 06/26/2018)
662 NOTICE of Appearance by James R Secord (Secord, James) (Filed on 7/2/2018) (Entered: 07/02/2018)
663 First MOTION to Intervene to Vacate Stays of Execution in Whole or in Part, and for Confirmation of Expiration and Automatic Stay filed by San Mateo Co. District Attorney, Riverside District Attorney. Motion Hearing set for 8/9/2018 01:30 PM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Responses due by 7/19/2018. Replies due by 7/26/2018. (Fitzpatrick, Ivy) (Filed on 7/5/2018) (Entered: 07/05/2018)
664 NOTICE of Appearance by Ivy Bridgett Fitzpatrick (Fitzpatrick, Ivy) (Filed on 7/5/2018) (Entered: 07/05/2018)
665 NOTICE of Appearance by Sean Ward Daugherty (Daugherty, Sean) (Filed on 7/5/2018) (Entered: 07/05/2018)
666 NOTICE of Appearance by Jonathan Charles Aminoff (Aminoff, Jonathan) (Filed on 7/5/2018) (Entered: 07/05/2018)
667 NOTICE by Albert Greenwood Brown [of Attorney Withdrawal] (Aminoff, Jonathan) (Filed on 7/9/2018) (Entered: 07/09/2018)
668 ADMINISTRATIVE MOTION to continue status conference to October 15, 2018 re 659 Order, Set Hearings filed by Michael A. Morales. Responses due by 7/13/2018. (Attachments: # 1 Declaration, # 2 Proposed Order)(Tria, Ann−Kathryn) (Filed on 7/9/2018) (Entered: 07/09/2018)
669 OPPOSITION/RESPONSE (re 660 MOTION to Intervene ) filed byMichael A. Morales. (Tria, Ann−Kathryn) (Filed on 7/10/2018) (Entered: 07/10/2018)
670 OPPOSITION/RESPONSE (re 660 MOTION to Intervene ) filed byEdmund G. Brown, Jr, Davis, Kernan. (Goldman, Jay) (Filed on 7/10/2018) (Entered: 07/10/2018)
671 OPPOSITION/RESPONSE (re 660 MOTION to Intervene ) filed byKevin Cooper. (Attachments: # 1 Declaration of Norman Hile ISO Opposition, # 2 Exhibit Request for Judicial Notice ISO Opposition)(Hile, Norman) (Filed on 7/10/2018) (Entered: 07/10/2018)
672 ORDER by Judge Richard Seeborg granting 668 Administrative Motion. (cl, COURT STAFF) (Filed on 7/12/2018) (Entered: 07/12/2018)
Set/Reset Hearing Status Conference previously set for 9/7/2018 has been continued to 10/15/2018 at 10:00 AM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. (cl, COURT STAFF) (Filed on 7/12/2018) (Entered: 07/12/2018)
673 NOTICE of Appearance by Stephen Martin Wagstaffe (Wagstaffe, Stephen) (Filed on 7/13/2018) (Entered: 07/13/2018)
674 REPLY (re 660 MOTION to Intervene ) filed bySan Bernardino County District Attorney's Office. (Brown, Robert) (Filed on 7/17/2018) (Entered: 07/17/2018)
675 ANSWER to Amended Complaint bySan Bernardino County District Attorney's Office. (Brown, Robert) (Filed on 7/17/2018) (Entered: 07/17/2018)
676 ORDER DENYING MOTIONS TO INTERVENE AND DENYING REQUEST FOR JUDICIAL NOTICE. Signed by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 7/18/2018) (Entered: 07/18/2018)
677 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Riverside District Attorney, San Bernardino County District Attorney's Office, San Mateo Co. District Attorney. Appeal of Order on Motion to Intervene, 676 (Appeal fee of $505 receipt number 0971−12594830 paid.) ***18−16547*** (Attachments: # 1

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 60 of 64

08/23/2018
09/12/2018 09/24/2018 10/03/2018 10/04/2018 10/10/2018
10/11/2018
10/15/2018

Supplement)(Brown, Robert) (Filed on 8/14/2018) Modified on 8/23/2018 (gbaS, COURT STAFF). (Entered: 08/14/2018)
678 USCA Case Number 18−16547 for 677 Notice of Appeal, filed by San Mateo Co. District Attorney, San Bernardino County District Attorney's Office, Riverside District Attorney. (gbaS, COURT STAFF) (Filed on 8/23/2018) (Entered: 08/23/2018)
679 NOTICE of Appearance by Jennifer Lopez Molayem (Molayem, Jennifer) (Filed on 9/12/2018) (Entered: 09/12/2018)
680 Transcript Designation Form (Brown, Robert) (Filed on 9/24/2018) (Entered: 09/24/2018)
681 NOTICE by Edmund G. Brown, Jr, Davis, Kernan Request for Substitution of Party (Hood, Joanna) (Filed on 10/3/2018) (Entered: 10/03/2018)
682 ORDER SUBSTITUTING PARTY. Signed by Judge Richard Seeborg on 10/3/18. (cl, COURT STAFF) (Filed on 10/4/2018) (Entered: 10/04/2018)
683 ORDER REQUIRING CASE MANAGEMENT CONFERENCE STATEMENT. Signed by Judge Richard Seeborg on 10/10/18. (cl, COURT STAFF) (Filed on 10/10/2018) (Entered: 10/10/2018)
684 Statement Joint Statement of Parties re: Litigation Schedule by Edmund G. Brown, Jr, Davis, Ralph Diaz. (Attachments: # 1 Attachment)(Goldman, Jay) (Filed on 10/11/2018) (Entered: 10/11/2018)
685 Minute Entry for proceedings held before Judge Richard Seeborg: Status Conference held on 10/15/2018. Total Time in Court: 1 hour 30 minutes. Court Reporter: Kathy Sullivan.

Plaintiff Attorney: John Grele, David Senior. Defendant Attorney: Michael Quinn, Jay Goldman.

10/15/2018 10/29/2018 10/30/2018 10/31/2018
10/31/2018 10/31/2018 11/05/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Date Filed: 10/15/2018) (Entered: 10/15/2018)
686 ORDER REQUIRING JOINT LITIGATION SCHEDULE AND BUDGET SUBMISSION. Signed by Judge Richard Seeborg on 10/15/18. (cl, COURT STAFF) (Filed on 10/15/2018) (Entered: 10/15/2018)
687 JOINT CASE MANAGEMENT STATEMENT Joint Litigation Schedule filed by Edmund G. Brown, Jr, Davis, Ralph Diaz. (Goldman, Jay) (Filed on 10/29/2018) (Entered: 10/29/2018)
688 ORDER SETTING BRIEFING SCHEDULE. Signed by Judge Richard Seeborg on 10/30/18. (cl, COURT STAFF) (Filed on 10/30/2018) (Entered: 10/30/2018)
689 MOTION to Intervene and For Stay of Execution filed by Guy Rowland. Motion Hearing set for 12/6/2018 01:30 PM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Responses due by 11/14/2018. Replies due by 11/21/2018. (Attachments: # 1 Exhibit A −− Fourth Amended Complaint, # 2 Proposed Order)(Tria, Ann−Kathryn) (Filed on 10/31/2018) (Entered: 10/31/2018)
690 Certificate of Interested Entities by Guy Rowland (Tria, Ann−Kathryn) (Filed on 10/31/2018) (Entered: 10/31/2018)
691 TRANSCRIPT ORDER for proceedings held on 10/15/18 before Judge Richard Seeborg by Edmund G. Brown, Jr, Davis, Ralph Diaz, for Court Reporter Katherine Sullivan. (Goldman, Jay) (Filed on 10/31/2018) (Entered: 10/31/2018)
692 Transcript of Proceedings held on 10/15/18, before Judge Richard Seeborg. Court Reporter/Transcriber Katherine Sullivan, Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 61 of 64

11/06/2018 11/08/2018 11/14/2018
11/14/2018 11/14/2018 11/16/2018 11/19/2018
11/20/2018 11/21/2018 11/21/2018
11/26/2018 11/27/2018 11/30/2018 01/24/2019 01/28/2019

691 Transcript Order ) Redaction Request due 11/26/2018. Redacted Transcript Deadline set for 12/6/2018. Release of Transcript Restriction set for 2/4/2019. (Related documents(s) 691 ) (Sullivan, Katherine) (Filed on 11/5/2018) (Entered: 11/05/2018)
693 MOTION to Intervene filed by Tracy D Cain. Motion Hearing set for 12/13/2018 01:30 PM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Responses due by 11/20/2018. Replies due by 11/27/2018. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Aminoff, Jonathan) (Filed on 11/6/2018) (Entered: 11/06/2018)
694 TRANSCRIPT ORDER − CJA (10/15/2018) for Court Reporter Katherine Sullivan. (lkn, COURT STAFF) (Filed on 11/08/2018) (Entered: 11/08/2018)
695 ADMINISTRATIVE MOTION Leave to file amicus brief re 689 MOTION to Intervene and For Stay of Execution filed by Kermit Alexander, Bradley Winchell. Responses due by 11/19/2018. (Attachments: # 1 Declaration Declaration per L.R. 7−11(a), # 2 Proposed Order, # 3 Proposed Amicus Brief in Opposition to Stay)(Scheidegger, Kent) (Filed on 11/14/2018) (Entered: 11/14/2018)
696 NOTICE of Appearance by Kent Stephen Scheidegger for Amici Curiae Kermit Alexander and Bradley Winchell (Scheidegger, Kent) (Filed on 11/14/2018) (Entered: 11/14/2018)
697 OPPOSITION/RESPONSE (re 689 MOTION to Intervene and For Stay of Execution ) filed byEdmund G. Brown, Jr, Davis, Ralph Diaz. (Attachments: # 1 Declaration of A. Andres, # 2 Exhibit A to Andres Decl, # 3 Declaration of M. Hodges, # 4 Exhibit A to Hodges Decl)(Goldman, Jay) (Filed on 11/14/2018) (Entered: 11/14/2018)
698 OPPOSITION/RESPONSE (re 695 ADMINISTRATIVE MOTION Leave to file amicus brief re 689 MOTION to Intervene and For Stay of Execution ) filed byGuy Rowland. (Grele, John) (Filed on 11/16/2018) (Entered: 11/16/2018)
699 REPLY (re 695 ADMINISTRATIVE MOTION Leave to file amicus brief re 689 MOTION to Intervene and For Stay of Execution ) filed byKermit Alexander, Bradley Winchell. (Attachments: # 1 Declaration Declaration of Kent Scheidegger, # 2 Exhibit Exhibit A to Scheidegger Declaration)(Scheidegger, Kent) (Filed on 11/19/2018) (Entered: 11/19/2018)
700 OPPOSITION/RESPONSE (re 693 MOTION to Intervene ) filed byEdmund G. Brown, Jr, Davis, Ralph Diaz. (Goldman, Jay) (Filed on 11/20/2018) (Entered: 11/20/2018)
701 REPLY (re 689 MOTION to Intervene and For Stay of Execution ) filed byGuy Rowland. (Tria, Ann−Kathryn) (Filed on 11/21/2018) (Entered: 11/21/2018)
702 MOTION to Intervene filed by Ricky Lee Earp. Motion Hearing set for 12/27/2018 01:30 PM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Responses due by 12/5/2018. Replies due by 12/12/2018. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Groendyke, Emily) (Filed on 11/21/2018) (Entered: 11/21/2018)
703 NOTICE by Ricky Lee Earp re 702 MOTION to Intervene Errata (Groendyke, Emily) (Filed on 11/26/2018) (Entered: 11/26/2018)
704 REPLY (re 693 MOTION to Intervene ) filed byTracy D Cain. (Aminoff, Jonathan) (Filed on 11/27/2018) (Entered: 11/27/2018)
705 ORDER DENYING MOTION TO FILE AMICUS BRIEF AND DENYING WITHOUT PREJUDICE MOTIONS TO INTERVENE. Signed by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 11/30/2018) (Entered: 11/30/2018)
706 USCA Case Number 19−70232 for the Petition for Writ of Mandamus. (gbaS, COURT STAFF) (Filed on 1/24/2019) (Entered: 01/24/2019)
707 MOTION Substitution of Party filed by Edmund G. Brown, Jr, Davis, Ralph Diaz. Responses due by 2/11/2019. Replies due by 2/19/2019. (Quinn, Michael) (Filed on 1/28/2019) (Entered: 01/28/2019)

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01/29/2019 02/07/2019
02/27/2019
03/19/2019 03/20/2019 03/20/2019 03/25/2019 04/12/2019 04/16/2019 04/18/2019 05/20/2019 05/20/2019 06/28/2019
08/13/2019 08/14/2019 09/11/2019
09/13/2019

708 ORDER by Judge Richard Seeborg granting 707 request for substitution of party. (cl, COURT STAFF) (Filed on 1/29/2019) (Entered: 01/29/2019)
709 ORDER of USCA as to (91 in 3:06−cv−00926−RS) USCA Case Number, (677 in 3:06−cv−00219−RS) Notice of Appeal, filed by San Mateo Co. District Attorney, San Bernardino County District Attorney's Office, Riverside District Attorney. (gbaS, COURT STAFF) (Filed on 2/7/2019) (Entered: 02/07/2019)
710 AMENDED COMPLAINT Fifth Amended Complaint against Davis, Ralph Diaz, Gavin C. Newsom. Filed byRichard Samayoa, Michael A. Morales, Ron Deere, Richard Delmer Boyer, Albert Cunningham, Conrad Jess Zapien, Douglas Mickey, Tiequon A. Cox, Hector Ayala, Anthony Jack Sully, Harvey Lee Heishman, Ronaldo Ayala, Guy Rowland, Albert Greenwood Brown, David Raley, Ricardo Sanders. (Tria, Ann−Kathryn) (Filed on 2/27/2019) (Entered: 02/27/2019)
711 NOTICE of Appearance by Aseil H Mohmoud (Mohmoud, Aseil) (Filed on 3/19/2019) (Entered: 03/19/2019)
712 ORDER of USCA as to 706 USCA Case Number 19−70232 for Petition for Mandamus. (gbaS, COURT STAFF) (Filed on 3/20/2019) (Entered: 03/20/2019)
713 ORDER of USCA as to 706 USCA Case Number 19−70232 Petition for Mandamus. (gbaS, COURT STAFF) (Filed on 3/20/2019) (Entered: 03/20/2019)
714 Exhibit Location for 1 box trial exhibits containing binders (Shelf 100). (gbaS, COURT STAFF) (Filed on 3/25/2019) (Entered: 03/25/2019)
715 ORDER of USCA as to 677 Notice of Appeal, filed by San Mateo Co. District Attorney, San Bernardino County District Attorney's Office, Riverside District Attorney. (gbaS, COURT STAFF) (Filed on 4/12/2019) (Entered: 04/12/2019)
716 STIPULATION WITH PROPOSED ORDER to Extend Time to File a Response to Fifth Amended Complaint filed by Davis, Ralph Diaz, Gavin C. Newsom. (Quinn, Michael) (Filed on 4/16/2019) (Entered: 04/16/2019)
717 Order Granting 716 Stipulation to Extend time to File A Response to the Fifth Amended Complaint by Judge Richard Seeborg.(mllS, COURT STAFF) (Filed on 4/18/2019) (Entered: 04/18/2019)
718 STIPULATION WITH PROPOSED ORDER filed by Davis, Ralph Diaz, Gavin C. Newsom. (Goldman, Jay) (Filed on 5/20/2019) (Entered: 05/20/2019)
719 ORDER by Judge Richard Seeborg granting 718 Stipulation. (cl, COURT STAFF) (Filed on 5/20/2019) (Entered: 05/20/2019)
720 MOTION to Dismiss ; Memorandum of Points and Authorities in Support filed by Davis, Ralph Diaz, Gavin C. Newsom. Responses due by 7/12/2019. Replies due by 7/19/2019. (Attachments: # 1 Request for Judicial Notice in Support of Defendants' Motion to Dismiss, # 2 Proposed Order)(Goldman, Jay) (Filed on 6/28/2019) (Entered: 06/28/2019)
721 STIPULATION WITH PROPOSED ORDER FOR EXTENSION OF TIME TO FILE OPPOSITION TO MOTION TO DISMISS FIFTH AMENDED COMPLAINT filed by Michael A. Morales. (Tria, Ann−Kathryn) (Filed on 8/13/2019) (Entered: 08/13/2019)
722 ORDER by Judge Richard Seeborg granting 721 Stipulation. (cl, COURT STAFF) (Filed on 8/14/2019) (Entered: 08/14/2019)
723 MOTION for Summary Judgment filed by Hector Ayala, Ronaldo Ayala, Richard Delmer Boyer, Albert Greenwood Brown, Tiequon A. Cox, Albert Cunningham, Ron Deere, Harvey Lee Heishman, Douglas Mickey, Michael A. Morales, David Raley, Guy Rowland, Richard Samayoa, Ricardo Sanders, Anthony Jack Sully, Conrad Jess Zapien. Motion Hearing set for 11/7/2019 01:30 PM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Responses due by 9/25/2019. Replies due by 10/2/2019. (Attachments: # 1 Proposed Order)(Tria, Ann−Kathryn) (Filed on 9/11/2019) (Entered: 09/11/2019)
724 NOTICE of Change of Address by Ann−Kathryn Rose Tria (Tria, Ann−Kathryn) (Filed on 9/13/2019) (Entered: 09/13/2019)

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09/13/2019 09/17/2019 09/17/2019 09/18/2019 09/23/2019
09/30/2019
10/01/2019 11/15/2019 12/13/2019

725 ADMINISTRATIVE MOTION FOR REFERRAL TO SETTLEMENT CONFERENCE filed by Hector Ayala, Ronaldo Ayala, Richard Delmer Boyer, Albert Greenwood Brown, Tiequon A. Cox, Albert Cunningham, Ron Deere, Harvey Lee Heishman, Douglas Mickey, Michael A. Morales, David Raley, Guy Rowland, Richard Samayoa, Ricardo Sanders, Anthony Jack Sully, Conrad Jess Zapien. Responses due by 9/17/2019. (Attachments: # 1 Declaration of David A. Senior, # 2 Proposed Order)(Tria, Ann−Kathryn) (Filed on 9/13/2019) (Entered: 09/13/2019)
726 STIPULATION WITH PROPOSED ORDER filed by Davis, Ralph Diaz, Gavin C. Newsom. (Bragg, Robert) (Filed on 9/17/2019) (Entered: 09/17/2019)
727 ORDER by Judge Richard Seeborg granting 726 Stipulation for Settlement Conference. (cl, COURT STAFF) (Filed on 9/17/2019) Modified on 9/17/2019 (cl, COURT STAFF). The deputy clerk hereby certifies that on 9/17/19 a copy of this order was served by sending it via first−class mail to the address of each non−CM/ECF user listed on the Notice of Electronic Filing. (Entered: 09/17/2019)
CASE REFERRED to Magistrate Judge Donna M. Ryu for Settlement (ahm, COURT STAFF) (Filed on 9/18/2019) (Entered: 09/18/2019)
728 CLERK'S NOTICE: Notice is hereby given to all parties that Magistrate Judge Donna M. Ryu will convene a pre−settlement conference call to discuss timing and preparation for an in−person settlement conference. Judge Ryu anticipates that the phone call will last approximately 45 minutes. The conference call shall take place on 9/30/2019 09:30 AM. Lead Counsel for all parties shall participate. Counsel will receive the call−in information via e−mail from Judge Ryu's courtroom deputy. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 9/23/2019) (Entered: 09/23/2019)
729 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Planning call held on 9/30/2019 in advance of 12/13/2019 settlement conference. Results: By 10/4/2019, defense counsel shall notify plaintiffs' counsel and Judge Ryu (via email to DMRsettlement@cand.uscourts.gov) whether Defendants agree to include attorneys' fees and costs within the scope of the settlement discussions. Plaintiffs shall include a written demand in their settlement papers, which are due 11/15/2019, with the expectation that Defendants will provide a full counterdemand in−person at the settlement conference. If Defendants agree to include fees and costs in the discussion, then Plaintiffs' written demand shall include an explanation of their entitlement to a fee and cost award, as well as a detailed explanation of their fee and cost demand. FTR Time: Not Recorded For Plaintiffs: David Senior; John Grele; Richard Steinken; Susan Garvey; Margo Rocconi For Defendants: Jay Goldman; Lawrence Bragg; Joanna Hood; Michael Quinn (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Date Filed: 9/30/2019) (Entered: 10/01/2019)
730 NOTICE OF SETTLEMENT CONFERENCE AND SETTLEMENT CONFERENCE ORDER: Settlement Conference set for 12/13/2019 11:30 AM before Magistrate Judge Donna M. Ryu in Oakland, Courtroom 4, 3rd Floor. Signed by Magistrate Judge Donna M. Ryu on 10/1/19. (ig, COURT STAFF) (Filed on 10/1/2019) (Entered: 10/01/2019)
731 NOTICE by Davis, Ralph Diaz, Gavin C. Newsom re 730 Order Setting Settlement Conference, (Hood, Joanna) (Filed on 11/15/2019) (Entered: 11/15/2019)
732 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Settlement Conference held on 12/13/2019. Results: Defendants committed to send an updated input draft to Plaintiffs by no later than 12/19/2019 09:00 AM, and sooner if possible. Plaintiffs committed to responding by 12/20/2019. Thereafter, the parties will continue direct negotiations. Judge Ryu will host a confidential settlement status call on 1/6/2020 01:00 PM. By this court order, only parties and their counsel may attend. Call−in credentials will be provided by the court. The parties are instructed to provide Judge Ryu with the latest version of the draft by 1/4/2020 via email at DMRsettlement@cand.uscourts.gov.

Case: 3:06-cv-219 As of: 02/02/2020 08:08 AM PST 64 of 64

01/06/2020 01/07/2020 01/22/2020

FTR Time: Not Recorded For Plaintiffs: David Senior; John Grele; and Richard Steinken For Defendants: Jay Goldman; Joanna Hood; Michael Quinn; Kelli Evans; Jennifer Neill; Simone Renteria; Stephanie Clauss; Ralph Diaz; and Ron Davis (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Date Filed: 12/13/2019) (Entered: 12/16/2019)
733 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further telephonic settlement discussions held on 1/6/2020. Results: By 1/7/2020 05:00 PM, each side shall reply to the existing email chain to indicate that side's availability for an in−person settlement conference on 1/14/2020 12:00 PM and 3/23/2020 11:30 AM. FTR Time: Not Recorded For Plaintiffs: David Senior; John Grele; and Richard Steinken For Defendants: Jay Goldman; Michael Quinn; Kelli Evans; Jennifer Neill; Simone Renteria; and Stephanie Clauss (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Date Filed: 1/6/2020) (Entered: 01/06/2020)
734 ORDER: The parties have indicated that they are available for a further settlement conference on 3/23/2020 11:30 AM in the Oakland courthouse. The parties are instructed to continue to negotiate directly to reach tentative agreement on as many points as possible, and email the latest draft to Judge Ryu by 3/18/2020. For disputed points, the draft should lay out each side's competing proposals, including proposed language. Signed by Magistrate Judge Donna M. Ryu on 1/7/20. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 1/7/2020) (Entered: 01/07/2020)
735 ORDER of USCA as to 709 USCA Order, "In light of settlement discussions in the district court, a deputy clerk stayedthis appeal through January 9, 2020. See October 7, 2019 Order (DE 61). As thestay of the appeal has already expired, Appellants opposed Motion To ReconsiderOrder Granting Construed Stay Request (DE 62) is denied as moot.Defendants−Appellees opposed Motion to Extend Stay (DE 66) of thisappeal is denied. The Clerk shall calendar this appeal as soon as practicable." (msrS, COURT STAFF) (Filed on 1/22/2020) (Entered: 01/23/2020)

 
 438 F.3d 926 (2006)
Michael Angelo MORALES, Plaintiff-Appellant, v.
Roderick Q. HICKMAN, Warden, Secretary of the California Department of Corrections; Steven W. Ornoski, Acting Warden, for the California State Prison at San Quentin, Defendants-Appellees.
No. 06-99002.
United States Court of Appeals, Ninth Circuit.
February 19, 2006.
David A. Senior, McBreen & Senior, Los Angeles, California, for the plaintiff-appellant.
Dane R. Gillette, Senior Assistant Attorney General, San Francisco, California, for the defendants-appellees.
927 *927 Before KLEINFELD, McKEOWN and FISHER, Circuit Judges.
PER CURIAM.
Michael Angelo Morales ("Morales") is a California death row inmate scheduled to be executed by lethal injection on February 21, 2006 at 12:01 a.m. He brought a 42 U.S.C. § 1983 action in the United States District Court seeking to enjoin the State from executing him by lethal injection under the procedures set forth in San Quentin Operational Procedure No. 770 ("Protocol No. 770"). Specifically, Morales contended that a combination of circumstances, including the specific drugs chosen, the procedure by which the drugs are administered and the absence of medically trained personnel overseeing the execution, creates a foreseeable and undue risk that he will experience unnecessary and wanton pain constituting cruel and unusual punishment under the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (holding that the Eighth Amendment prohibits punishments that "involve the unnecessary and wanton infliction of pain.").
After reviewing evidence Morales presented regarding the circumstances of the 13 lethal injection executions California has carried out to date under Protocol No. 770, the district court found that Morales "raised . . . substantial questions" about the implementation of Protocol No. 770, District Court Order of Feb. 14 at 12 ("Order 1"), including whether the State's administration of Protocol No. 770 "creates an undue risk that [Morales] will suffer excessive pain when he is executed," Order 1 at 13, and "whether a person rendered unconscious by sodium thiopental might regain consciousness during administration of pancuronium bromide or potassium chloride." Order 1 at 14. Responding to these concerns, and applying the standard for a stay of execution we articulated in Beardslee v. Woodford, 395 F.3d 1064, 1067-68 (9th Cir.2005),[1] the district court conditioned its denial of Morales' request for a stay of execution on the State's compliance with certain amendments to Protocol No. 770. The court proposed two alternative conditions to address the risk of an unconstitutionally cruel and painful execution.[2] The State agreed to comply with the court's second alternative condition 0907 having a qualified anesthesiologist present to ensure that Morales is indeed unconscious during the second and third stages of the lethal injection process 0907 and the court issued a final order permitting the execution to proceed as scheduled. Morales now appeals the court's two orders (which we will refer to collectively as the "Orders"). We review for an abuse of discretion, Beardslee, 395 F.3d at 1068, and affirm subject to the interpretation of the Orders as set forth in this opinion.
928 *928 I.
Morales was tried for the rape and murder of Terri Winchell, a seventeen-year old girl. A jury convicted Morales of murder, found special circumstances and sentenced him to death. After the California Supreme Court affirmed his

conviction, and the United States Supreme Court denied certiorari, Morales' conviction became final in 1989. Morales unsuccessfully sought habeas review in both the federal district court and this court. The Supreme Court again denied certiorari after we refused to grant Morales habeas relief. See generally Morales v. Woodford, 388 F.3d 1159, 1163-1167 (9th Cir.2004), cert. denied, ___ U.S. ___, 126 S.Ct. 420, 163 L.Ed.2d 320 (2005) (describing in detail the crime, the trial and the case's procedural history). In addition to his § 1983 claim, Morales again seeks post-conviction relief through an application to file a second or successive habeas petition. See 28 U.S.C. § 2244(b). We address that application in a separate order. See Morales v. Hickman, 2006 WL 391604 (9th Cir.2006). Here we address only Morales' § 1983 appeal.
II.
To understand the basis of Morales' claim, we must first describe in some detail the actual implementation of Protocol No. 770, both in its original form and as modified by the district court. After the condemned is placed in the execution chamber, "[a] person qualified . . . or otherwise authorized by law" inserts two intravenous lines into the inmate's veins.[3] After saline begins flowing through one of the IV lines, all "injection team members vacate the chamber," seal the door and leave the condemned alone in the room. At this point, the warden orally commands the commencement of the execution. The injection team members, positioned outside the execution chamber, begin administering the lethal drug cocktail through the extended IV lines.
First, the condemned receives five grams of sodium thiopental (also known as sodium pentothal), which, if administered properly, will render him unconscious and therefore insensible to pain.[4] Next, the injection team administers 100 milligrams of pancuronium bromide (also known as Pavulon), paralyzing the inmate's voluntary muscles. Finally, 100 milligrams of potassium chloride are injected, resulting in cardiac arrest and death.[5] A physician is on hand to pronounce the time of death.
There is no dispute that in the absence of a properly administered anesthetic, Morales would experience the sensation of suffocation as a result of the pancuronium bromide and excruciating pain from the potassium chloride activating nerve endings in Morales' veins. See Order 1 at 3; see also Beardslee, 395 F.3d at 1071, 1074 929 . *929 Both parties further agree that if the sodium thiopental is properly administered, virtually all persons would be unconscious within 60 seconds and would not experience these sensations. Order 1 at 8.
Before the district court, Morales challenged the assumption that the sodium thiopental will be properly administered. He claimed that there exists a very real and foreseeable risk that he will be conscious and fully experience the effects of the second two drugs. Among his contentions are that (1) the sodium thiopental will not have its desired effect because it is being administered and monitored by unqualified individuals; (2) the paralytic drug will prevent him from communicating his conscious state and distress; (3) no officials remain in the execution room to ensure that he is indeed unconscious and remains so until death; and (4) Protocol No. 770 does not adequately account for other foreseeable contingencies that could produce unnecessary suffering.
The district court's February 14 order found that Morales "raised . . . substantial questions" about Protocol No. 770, as implemented. Order 1 at 12. Relying on a detailed review of California's execution logs that suggest "that the inmates' breathing may not have ceased as expected in at least six out of 13 executions by lethal injection," the court found that there exists "at least some doubt as to whether the protocol actually is functioning as intended." Order 1 at 11. The district court accepted the State's expert testimony that, when properly administered, the five gram dose of sodium thiopental "should both stop breathing and cause unconsciousness within a minute." Order 1 at 11. Nonetheless, it concluded that "evidence from eyewitnesses tending to show that many inmates continue to breathe long after they should have ceased to do so cannot simply be disregarded on its face." Order 1 at 11. These findings of fact led the district court to impose its two alternate conditions on Protocol No. 770 to preserve what the district court characterized as Morales' "constitutional right not to be subject to an undue risk of extreme pain." Order 1 at 12.
Upon the State's acceptance of the anesthesiologist option, the district court in its February 16, 2006 final order modified Protocol No. 770 to ensure the presence of a medically qualified anesthesiologist during the execution procedure. (The State has agreed to have two anesthesiologists on hand, one inside the execution chamber and

one in reserve.) In all other respects, Protocol No. 770 remains unchanged. District Court Order of Feb. 16 at 4 n. 3, ("Order 2") (citing Slavin declaration).
III.
The issue presented in this case is a narrow one. Morales does not challenge the constitutionality of the death penalty in general nor even the constitutionality of lethal injections in particular. His only claim is that Protocol No. 770 as currently implemented in California, and as modified by the district court, violates the Eighth and Fourteenth Amendments. However, we need not decide this broad issue, but need only determine whether the district court's modification of Protocol No. 770 was an abuse of discretion in light of the court's findings of fact.[6]
930 *930 "The district court abuses its discretion when its equitable decision is based on an error of law or a clearly erroneous factual finding." United States v. Washington, 157 F.3d 630, 642 (9th Cir.1998). "An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found." Int'l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993) (internal quotations and citation omitted).
Challenges to Protocol No. 770 have recently come before us, and in both cases we rejected the inmates' assertions that the district court abused its discretion in upholding the Protocol. See Beardslee, 395 F.3d at 1076; Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir.2004). In Cooper, we declined a stay of execution in large part because Cooper raised his Eighth Amendment claim "at the eleventh hour," and moreover "Cooper [fell] short of showing that he is subject to an unnecessary risk of unconstitutional pain or suffering such that his execution by lethal injection under California's protocol must be restrained." Cooper, 379 F.3d at 1031, 1033. But as the district court found in this case, Morales' diligence allowed the court to more thoroughly consider the relevant legal and factual issues that ultimately bore on its conclusion. Order 1 at 6.
In Beardslee, we held that although Beardslee had acted "promptly," 395 F.3d at 1069, we could not, given our deferential standard of review and based on the "limited record" in that case, conclude that the district court had abused its discretion in denying a stay of execution. 395 F.3d at 1076. Nonetheless, we acknowledged that Beardslee's limited evidence for the potential of his being conscious during his execution "raises extremely troubling questions about the protocol." Id. at 1075. In contrast, as the district court found, Morales "raise[s] more substantial questions than his counterparts in Cooper and Beardslee." Order 1 at 12. Unlike the earlier challenges to Protocol No. 770, in this case the district court had a more developed record, including evidence from executions subsequent to and including Beardslee's. Based on that record, the district court has, in Beardslee's terms, found that Morales has "shown sufficient likelihood that the administration [of the sodium thiopental] will be improper in his case, or that there are specific risks unique to him that require modification of the protocol." Beardslee, 395 F.3d at 1076.
IV.
The district court's modification of Protocol No. 770, relying in large part on the testimony of Morales' own expert, attempted to accommodate Morales' objections and cure the perceived constitutional infirmities. The district court exercised its equitable powers to "preserve[] both the State's interest in proceeding with [Morales'] execution and [Morales'] constitutional right not to be subject to an undue risk of extreme pain." Order 1 at 12. Morales continues, however, to express concern that the precise nature and scope of the anesthesiologists' role in the execution is uncertain, and the modifications are therefore deficient. Specifically, Morales claims that the State has "made no commitment as to how the new procedure will work and what the anesthesiologist [present in the execution chamber] will do, other than to monitor Mr. Morales' level of unconsciousness." Morales § 1983 Opening Brief at 20 ("Opening Brief"). Further, Morales asserts that the anesthesiologists' role is limited and 931 therefore they *931 "will not be able meaningfully to ensure that the execution is performed humanely." Opening Brief at 21. Essentially, we consider Morales' principal challenge to the amended protocol to be: "[t]he presence of the monitor will serve no purpose if the doctor is powerless to act on, or cause the injection team to act on, his awareness that Mr. Morales is in fact conscious and in pain." Opening Brief at 21.

The district court's Orders adequately address Morales' concerns. The Orders provide specifically that an anesthesiologist will "independent[ly] verif[y], through direct observation and examination . . ., in a manner comparable to that normally used in medical settings where a combination of sedative and paralytic medications is administered, that [Morales] in fact is unconscious before either pancuronium bromide or potassium chloride is injected." Order 1 at 14. Further,
at least one of the anesthesiologists [shall] be present in the execution chamber and . . . the anesthesiologists' duties [shall] be performed in accordance with current professional medical standards. In particular, the anesthesiologists may use and would be expected to use whatever monitoring equipment a board-certified anesthesiologist would deem necessary to ensure that a patient to whom a combination of a barbiturate and a paralytic have been administered is fully unconscious at all times following the administration of sodium thiopental.
Order 2 at 4.
In addressing Morales' concerns about the scope of the anesthesiologists' monitoring role, the court explicitly clarified that the anesthesiologists will "take all medically appropriate steps necessary to ensure that [Morales] is and remains unconscious," Order 2 at 4, n. 3 (emphasis added), meaning that he must be unconscious before and after he is injected with pancuronium bromide or potassium chloride. Thus if the anesthesiologists are unable to ensure that Morales "is [or] remains unconscious," we construe the order as clearly contemplating that they have the authority to take "all medically appropriate steps" 0907 either alone or in conjunction with the injection team 0907 to immediately place or return Morales into an unconscious state or to otherwise alleviate the painful effects of either or both the pancuronium bromide or potassium chloride. We also construe the "take all medically appropriate steps" language to require that the anesthesiologists have available the medical supplies and medications a board-certified anesthesiologist would deem necessary to carry out his or her responsibilities to "ensure" Morales is and remains unconscious.
The district court did not abuse its discretion in fashioning a remedy that would alleviate the substantial concerns it found with the way Protocol No. 770 was being implemented. In light of the district court's thorough response to Morales' objections and our understanding of the district court's Orders, Morales' appeal from the district court's denial of injunctive relief is denied.
PETITION FOR STAY OF EXECUTION DENIED.
[1] "[B]efore granting a stay of execution, courts `must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim.'" Beardslee, 395 F.3d at 1068 (quoting Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004)).
[2] The court's two alternative conditions were: (1) the State would "use only sodium thiopental or another barbiturate or combination of barbiturates in [Morales'] execution," thereby avoiding the concern that one of the other two drugs would cause Morales pain; (2) the State would agree to allow an anesthesiologist to monitor and verify that Morales is and remains unconscious throughout the execution procedure. Order 1 at 13-14.
[3] The second IV line is to "be held in reserve as a contingency line in case of a malfunction or blockage in the first line."
[4] Protocol No. 770 lists, as part of the "chemicals needed for execution," two five-gram doses of sodium thiopental. However, the text of Protocol No. 770 provides that only one five-gram dose is prepared in anticipation of the execution, while the other remains "unopened" and therefore, perhaps not immediately administrable should something go wrong with the first five-gram dose. Notably, the State claims that Protocol No. 770 has been modified in practice to provide for the preparation of "an extra syringe containing 1.25 grams [of sodium thiopental] . . . as a backup." State's § 1983 Response Brief at 6 ("Response Brief").

[5] Three syringes containing 50 milligrams of pancuronium bromide and three syringes containing 50 milligrams of potassium chloride are prepared, "even though the injection procedure only calls for two of each. The extra syringes are to be prepared as `standbys.'"
[6] The State has not appealed the district court's findings of fact or the district court's imposition of conditions on the implementation of Protocol No. 770. The State does continue to argue that not all the evidence the district court considered troubling suggests consciousness. For example, the State asserts that "[a]lthough chest wall movement may be observed after delivery of thiopental, such movement is not associated with breathing, nor is it reflective of the subject's state of consciousness." Response Brief at 8.
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 Morales v. Hickman, 546 U.S. 1163 (2006)
126 S.Ct. 1314 Supreme Court of the United States Michael A. MORALES, petitioner,
v. Roderick Q. HICKMAN, Secretary, California
Department of Corrections, et al. No. 05-9291 (05A763). | Feb. 20, 2006.
Case below, 438 F.3d 926.
Opinion

Application for stay of execution of sentence of death presented to Justice KENNEDY and by him referred to the Court denied. Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied.
Parallel Citations
126 S.Ct. 1314 (Mem), 163 L.Ed.2d 1148, 74 USLW 3467
	  

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