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IN THE UNITED STATES DISTRlCT COURT FOR THE DISTRICT OF MONTANA HELENA DMSION

MONTANA ASSOCIATION OF CRIMINAL

Cause No. CV 06-35-H-DWM

DEFENSE LAWYERS; AMERICAN CIVIL

LIBERTIES UNION OF MONTANA; MONTANA

ASSOCIATION OF CHURCHES; MONTANA

CATHOLle CONFERE.NCE; SENATORS BRENT

CROMLEY, STEVE GALLUS, DAN HARRlNGTON,

DON RYAN, and DAN WEINBERG; REPRESENTATIVES

NORMA BIXBY, PAUL CLARK, GAlL GUTSCHE,

JOEY JAYNE, and JEANNE WINDHAM,

Plaintiffs J

VS.

ORDER

MIKE FERRITER, DlRECTOR; WARDEN MIKE MAHONEY; MlKF McGRATH, ATTORNEY GENERAL; and JOH1\T DOES l-iO,

Defendants.

Plaintiffs filed this action late in the day on Friday, August 4, 2006, seeking an injunction against all executions in the State of Montana. They request an injunction in order to have time to litigate the issue of whether lethal injection, the only statutorily prescribed method of capital punishment in Montana, is administered in a manner that is consistent with the Eighth Amendment
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to the United States Constitution.
Upon the filing of the Complaint,I an Order was issued setting a hearing for today, Monday,
August 7, at 1:00 p.m. The parties were directed to submit briefs and affidavits before the hearing
to facilitate their presentations in open court. Today, Plaintiffs filed a Filst Anlended Complaint,
and Defendants filed a motion to dismiss and a briefand affidavits in support. The Court also heard
argument. All of the parties' subnlissions have been carefully considered. The fundamental issue
in the case at this point is whether Plaintiffs have standing to assert a violation of the Eighth
Amendment.
Plaintiffs allege that lethal injection lnasqueracies as quick and painless death when, in tenus
of medical affidavit, it is beset by a risk that the condemned inmate will experience terrible pain but
be unable to signal his distress to anyone.2 The Declaration ofDr. Mark Heath is compelling. It has
I Pursuant to Standing Order DWM-43, Plaintiffs contacted the Clerk of Court the day before filing.
.2 State law calls for the administration of two drugs, an ultra-fast-acting barbiturate and a chemical paralytic agent. See Mont. Code Ann. § 46-19-103(3) (1999). The Department of Corrections carries out the law by using sodium pentothal as the barbiturate, pancuronium bromide as the paralytic agent, and a third, unlegislated chemical, potassium chloride, to cause carcliac arrest. The DOC chooses to administer potassium chloride because cardiac aiTest causes deatb. more quickly than would respiratory suffocation induced by pancuronium bromide. Although there may be drugs other than potassium chloride that could cause the same effect without risk of pain, see Heath Decl. at 8, ~ 15, it is dear that the DOC chooses to administer potassium chloride for humane reasons, that is, to cause death more quickly.
The irony is that, because sodium pentothal is an ultra-fast-actlng barbiturate and pancuronium bromide is a paralytic agent, and because the three-drug "cocktail" is administered by executioners who are not anesthesiologists and who are working under less than ideai conditions, potassiwn chloride may cause an inmate to feel, perhaps for a period of a full minute or more, the physical force of encroaching death until consciousness ends. At the same time, "regardless of whether the person is properly anesthetized or wide awake and paralyzed, he will appear serene and tranquil, because pancuronium relaxes all voluntary muscles including facial muscles. The prisoner could be chemically entombed by the paralytic effect of the pancuroniwn, desperate to cry out and to draw breath, but would appear to all witnesses to be comfortably sleeping.Ii Heath Decl. (doc. 5-
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not been subjected to adversarial testing at this point and may ultimately prove inaccurate or insubstantial. Nonetheless, it establishes that Plaintiffs Y concerns are serious. It also raises significant questions as to why the State would proceed with a State-sanctioned homicide) despite
serious constitutional issues that ultimately cannot be avoided.
The gravity of Plaintiffs , concerns cannot be ignored. Courts, however, are not empowered to change a law, or the manner of its enforcement, at the request of anyone who believes it to be bad
law or bad procedure, The justice and fitness of the law is the concern of the legislature and the
executive branch. A federal court may only consider a "case or controversy" within the meaning of Article III, § 2 of the United States Constitution. Under law that this Court is duty-bound to follow, Plaintiffs here cannot present a justiciable case or controversy. They have no standing.
'"[T]he core component of standing is an essential and unchanging part of the case-Ofcontroversy requirement of Article J11,H § 2, of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The "irreducible constitutional minimum of standingH requires that a plaintiff show, among other things, that he has "suffered an injury in fact - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or inlI~jnent, not conjectural or hypotheticaL" Id. Plaintiffs here allege that the man..ner in which lethal injections are administered creates an unacceptable risk that an inmate will experience excruciating
pain and that this risk amounts to a violation of the Eighth Amendment. Since the ris.k is the
5) at 9, ~ 18. As a consequence, the people who do their best to ensure that an inmate does not endure gratuitous suffering will not Imow whether the inmate is experiencing pain that is literally unimaginable. In effect, the purpose of administering pancuronium bromide to the inmate is to anesthetize the wimesses. See also Dershwitz Decl. (doc. 5-6) at 8, ~ 25.
3 See CompI. App. Ex. 1 (doc. 5-2 at 13), Block 26 (death certificate of Terry Langford, executed on February 24, 1998, showing "cause of death" as "homicide").
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Plaintiffs' focus p the Court accepts, at least for present purposes, that the asserted injury is actual and imminent, not conjectural.
However, Plaintiffs cannot show that the manner of execution in Montana causes them a "concrete and particularized" injury. The Luian Court noted, "[bJy particularized, we mean that the
injury must affect the plaintiff in a personal and individual way." 504 U.S. at 560 n.l. "[AJn asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court," Allen v. Wright, 468 U.S. 737,754 (1984).
Allen is a close parallel to this case. There, the plaintiffs sued to compel the Internal
Revenue Service to deny tax exemptions to racially discriminatory private schools. Plaintiffs were
parents of African-American children who attended school in communities where racially
discriminatory schools were receiving the exemptions in question. They alleged that the exemptions
amounted to federal financial aid to the discriminatory schools and encouraged the schools in
resisting desegregation, thus denigrating their right "to have the Government avoid the violation of law" and creating a stigmatic injury "suffered by all members ofa racial group when the Government discriminates on the basis of race." 468 U.S. at 753-54. Nonetheless, the Court held that the
asserted injury was no greater than the injury suffered by anyone when the Govemment violates the law, U[S]uch inju.ry accords a basis for st::lnding only to those persons who are personally denied equal treatment by the challenged discriminatory conduct." Id. at 755. Because none ofthe plaintiffs
alleged that their children attended or wanted to attend a racially discriminatory school, id. at 746, the Court found that they lacked standing to proceed.
Similarly, here, Plaintiffs allege that the State must not violate the Eighth Amendment, and they allege that they have significant personal interest in this matter. However, conviction that the
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State must not implement cruel and unusual punishment, no matter how sincerely or personally held, does not confer standing on a person who is not facing cruel and unusual punishment at the hands of the State.4 Some people have sincere and personally held convictions on the other side of the issue. The Constitution's solution for that dilemma is not litigation but legislation. '"Vindicating the public interest (including the public interest in Govemment observance of the Constitution and laws) is the function of Congress and the Chief Executive." Lujan, 504 U.S. at 576. "The province ofthe court is, solely, to decide on the rights ofindividuals." Marburyv. Madison, 5 U.S. (1 Cranch) 137,170(1803).
The fact that some of the Plaintiffs are legislators does not support their case for standing. Legislators have standing to contest the enactment of legislation they voted against under two conditions: if their votes would have been sufficient to defeat the legislation in question and if, for some reason, their votes were not counted. See, e.g., Raines v. Byrd, 521 U.S. 811, 823 (1997). That narrowly circumscribed situation is not presented here, The legislators have made no showing that they voted against enactment of Mont. Code Ann. § 46-19-103(3) (1999)p much less that their votes would have defeated its enactment but were not counted.
Raines does; however, emphasize the contours of the general rule on standing: that "a plaintiff:must allege a personal injury fairly traceable to L1e defend8.J.'1t's al1egedlyunlawf..:t1 conduct and likely to be redressed by the requested relief" Id. at 818 (quoting Allen, 468 U.S. at 751)

'i In fact, even an inmate who is facing capital punishment would not have standing to stop another inmate's execution. See Whitmore v. Arkansas, 495 U.S. 149 (1990). Nonetheless, a death row inmate would be able to show a personal injury in support of standing to pursue this action.
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(internal quotation marks, brackets, and emphasis omitted).s Plaintiffs assert that their ability to
advocate on behalf of their causes will be diminished if they are not found to have standing in this
case. See First Am. Compi. at 2-4, ~ I. Since they may not litigate where they have no standing, their assertion is no doubt true. But harm to these organizations' ability to advocate their interests is not traceable to the Defendants' allegedly unlawful conduct in this case. The Defendants' conduct is not preventing Plaintiffs from advocating. Article III, § 2 of the Federal Constitution prevents theln from advocating their cause in this Court without a plaintiff who might be personally injured if the Defendants are violating the Eighth Amendment. They may advocate in the Montana Legislarure, they may go to the Department of Corrections itself, they may go to the Governorl they Inay air their views publicly, and they migbt even have standing to proceed in state court. Here, they
do not.
In sum, all Plaintiffs can allege in this case is a profoWld interest in ensuring that the ultimate punishment the State can impose, the punislunent of death, should be administered in a way that

5 The same general rule applies where an association seeks standing to sue: fui association has standing to bf.l11g suit on behalf of its members when: (a) its members would other~ise have standing to sue in their ov-m right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1109 (9th Cir. 2003) (quoting Hunt v. Washington
State Apple Adver. COillln'n. 432 U.S. 333~ 343 (1977) (internal quotation marks and brackets omitted)), While the third requirement is merely prudential in nature, the first two are constitutional and go to the heart of a federal court's power to hear a case. See United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555-57 (1996). There is no
indication that any member ofthe Montana Association ofCriminal Defense Lawyers, the American Civil Liberties Union of Montana, the· Montana Association of Churches, or the Montana Catholic
Conference currently faces sentence of death in Montana.
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honors the Eighth Amendment.6 That is not enough:
The uniqueness of the death penalty and society's interest in its proper inlposition, [Plaintiffs] mainta.in[], justify a relaxed application ofstanding principles. The short answer to this suggestion is that the requirement of an Art. III "case or controversy" is not merely a traditional "rule of practice," but rather is inlposed directly by the Constitution. It is not for this Court to employ untethered notions ofwhat might be good public policy to expand our jurisdiction in an appealing case. We have previously resisted the temptation to import profound differences ofopinion over the meaning ofthe Eighth Amendment to the United States Constitution into the donlain of administrative law, and restraint is even more important when the Inatter at issue is the constitutional source of the federal judicial power itself.
Whitmore v. Arkansas, 495 U.S. 149, 161 (1990).
At the conclusion of the hearing, Plaintiffs' counsel requested that a Notice of Appeal be
entered to expedite an appeal. The Court notes that the Clerk entered a Notice ofAppeal only as to
the oral Order. The Notice will be re-entered as to this Order.
Accordingly, IT IS HEREBY ORDERED as follows:
1. Plaintiffs First Amended Complaint (doc. 7) is DISMISSED for lack ofjurisdiction on
the grounds that Pla.intiffs lack standing;
2. All pending motions are DENIED AS MOOT;
3. The case is CLOSED and the Court will not entertain any motion to reopen or reconsider
or to enter a stay pending appeal;
Ii Plaintiffs v reference to First Amendment cases is unavailing. 1n that context, courts have relaxed the requirements of standing because the very fact ofthe State's restriction of the speech at issue may persuade persons who are directly affected to avoid conflict with the State. See, e.g., Secretary of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956-57 (1984) (referring to a "judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression."). There is nothing about capital punishment or the manner of its imposition that prevents the person who is sentenced to death from bringing a court cballenge. On the contrary, such a person has the greatest possible incentive to do so.
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4. The Clerk of Court shall immediately enter a Notice of Appeal that includes this Order
as well as the ora.l dismissal, DATED this 7th day of August, 2006, at 4:07 p.m.

ORDER I PAGE 8

 
 Ronald F. Watennan, Esq. Julie A. Johnson, Esq. GOUGH, SHANAHAN, JOHNSON & WATERMAN P.O. Box 1715 Helena, MT 59624 406/442-8560

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION

MONTANA ASSOCIATION OF CRIMINAL )

DEFENSE LAWYERS; AMERICAN CIVIL )

LIBERTIES UNION OF MONTANA;

)

MONTANA ASSOCIATION OF CHURCHES;)

MONTANA CATHOLIC CONFERENCE; )

GORDON BENNETT; JOHN C. SHEEHY; )

SENATORS BRENT CROMLEY, STEVE )

GALLUS, DAN HARRINGTON, DON RYAN )

AND DAN WEINBERG;

)

REPRESENTATIVES NORMA BIXBY;

)

PAUL CLARK, GAIL GUTSCHE, JOEY

)

JAYNE, AND JEANNE WINDHAM;

)

MARIETTA JAEGAR LANE; EVE MALLO )

)

Plaintiffs.

)

)

v.

)

)

STATE OF MONTANA; DEPARTMENT OF )

CORRECTIONS; DIRECTOR MII(E

)

FERRITER; WARDEN MIKE MAHONEY; )

ATTORNEY GENERAL Mll(E McGRATH; )

JOHN DOES 1-10,

)

)

Defendants

)

)

Civil No. CV-06-35-H-DWM COMPLAINT

COME NOW Plaintiffs naIned above and allege and plead as follows:

I.

Complaint

Page I

Plaintiffs are a collection of organizational and individual persons who either function within or are residents of the State of Montana. On July 11, 2006, Plaintiffs filed an original proceeding in the Montana Suprenle Couli seeking injunctive relief prohibiting the defendants nmned herein froln executing any person under a sentence of death. (Verified Petition, Exhibit 1, attached hereto). The request for this injunction rested on the general allegation that under existing circunlstances there is a high degree of probability that Montana's lethal injection protocol violates the Eighth Amendlnent's prohibition against cruel and unusual punishlnent.
II. On July 25, 2006 the Montana Suprelne Court issued an order denying the relief requested; however, before relief was denied the Montana Court issued an order requiring that all the papers in the case be forwarded to and served on Montana death row inmate David Dawson and his attorney Ed Sheehy so that they might have the opportunity to respond. Moreover, in the July 25, 2006 dislnissal Order at page 4, (Order, Exhibit 2 attached) the l\t1ontana Suprenle Court states that "of course, 111'. Davvson's right must be weighed into our detelmination of -vvhether to exercise original jurisdiction." This reference to Mr. Dawson and his lights involves his execution by lethal injection currently scheduled for August iI, 2006 at the Montana State Prison in Deer Lodge, over which Defendant Warden Mike Mahoney and S0111e of the other named Defendants will preside.
III. On August 1, 2006 Plaintiffs filed a lnotion for reconsideration of the July 25, 2006 Order dismissing Plaintiffs' petition. The request for reconsideration centered on the Montana Suprelne Court's decision to take full account ofMr. Dawson's "rights" to drop all his appeals

Complaint

Page 2

and delnand execution. Plaintiffs contended that the Eighth Amendment problems with Montana's Lethal Injection Protocol were categorically not subject to individual waiver by Mr. Dawson or any other single defendant. IInportantly, the Eighth Amendlnent serves as a restraint on the exercise of State power which inures both to the community at large as well as a criminal defendant.
IV. In the Order dated August 2, 2006, the Montana Suprelne Court denied Plaintiffs reconsideration request. (Order, Exhibit 3, attached). The Montana Court reinforced its July 25th decision and said that "after consideration of. ... the opinions expressed by Mr. Dawson in his response, we detennined that this case was not appropriate for the exercise of original jurisdiction to entertain such issues." Plaintiffs' opportunities to obtain immediate relief from the Supren1e Court of Montana has been exhausted.
V. The parties filed cOlnpeting declarations from experts knowledgeable in the field of anesthesiology with the Montana Suprelne Court. Those declarations of Dr. Heath (Exhibit 4) and Dr. Dershwitz (Exhibit 5) are attached hereto. Plaintiffs allege that at any hearing on the Eighth Amendlnent validity of Montana's Lethal Injection Protocol, the Couli would be persuaded by the aInount of proof required in the circumstances. The lnatters outlined in the declaration, supporting Plaintiffs' position (See Dr. Heath's Declaration,) are factually correct and warrant the finding that Montana's Lethal Injection Protocol violates the Eighth and Fourteenth An1endments to the United States Constitution.
VI.

Complaint

Page 3

Plaintiffs allege that this Couli has jurisdiction to decide this case and enter a telnporary injunction prohibiting all executions until this lnatter is decided under 42 U.S.C. § 1983 and/or 28 U.S.C. § 2201 and/or 28 lJ.S.C. § 1331.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court will aSSUlne jurisdiction over this matter and enter any and all appropriate temporary and/or pennanent Orders or JudgInents in favor of Plaintiffs. Respectfully sublnitted this 4th day of August 2006.
Gough, Shanahan, Johnson and Watennan
/s/ Ronald F. Waterman Ronald F. Waterman, Esq. Julie A. Johnson, Esq. Attorneys for Plaintiffs

Complaint

Page 4

CERTIFICATE OF SERVICE
I hereby certify that on the 4th day of August 2006, the foregoing with attachment was duly served upon counsel via hand-delivery:
Mike McGrath Attorney General Montana Attorney General's Office P.o. Box 201401 Helena, MT 59620-1401
Diana Koch Chief Legal Counsel Montana Depmilnent of Corrections P.O. Box 201301 Helena, MT 59620-1301
The foregoing with attachment was also duly served upon the following by Inailing a true
and correct copy, u.s. Mail, first class and postage prepaid, and addressed as follows:
David Dawson A.O. #25284 700 Conley Lake Road Deer Lodge, MT 59722
Edlnund F. Sheehy Cannon and Sheehy P.O. Box 5717 Helena, MT 59604-5717
/s/ Ronald F. Waterman

Complaint

Page 5

 
 Ronald F. Watennan, Esq. Julie A. Johnson, Esq. GOUGH, SHANAHAN, JOHNSON & WATERMAN P.O. Box 1715 Helena, MT 59624 406/442-8560

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION

MONTANA ASSOCIATION OF CRIMINAL )

DEFENSE LAWYERS; AMERICAN CIVIL )

LIBERTIES UNION OF MONTANA;

)

MONTANA ASSOCIATION OF CHURCHES;)

MONTANA CATHOLIC CONFERENCE; )

GORDON BENNETT; JOHN C. SHEEHY; )

SENATORS BRENT CROMLEY, STEVE )

GALLUS, DAN HARRINGTON, DON RYAN )

AND DAN WEINBERG;

)

REPRESENTATIVES NORMA BIXBY;

)

PAUL CLARK, GAIL GUTSCHE, JOEY

)

JAYNE, AND JEANNE WINDHAM;

)

MARIETTA JAEGAR LANE; EVE MALO )

)

Plaintiffs.

)

)

v.

)

)

STATE OF MONTANA; DEPARTMENT OF )

CORRECTIONS; DIRECTOR MIKE

)

FERRITER; WARDEN MIKE MAHONEY; )

ATTORNEY GENERAL MIK.E McGRATH; )

JOHN DOES 1-10,

)

)

Defendants

)

)

Civil No. CV-06-35-H-DWM
MOTION AND INCORPORATED MEMORANDUM FOR TEMPORARY INJUNCTION BARRING ALL DEATH
PENALTY EXECUTIONS BY THE STATE OF MONTANA

Page J

MOTION COME NOW Plaintiffs and by this motion respectfully request that the Court bar the State of Montana through its agents and assigns named herein as defendants from executing any person under color of law until such time as the Court has had an opportunity to determine the Inelits of plaintiffs , cOlnplaint for relief which has been filed concurrently with this motion.
MEMORANDUM Under our system of government, the balance of power between the state and the federal sovereignty is delicate. Therefore special rules apply when a plaintiffs come to federal couli seeking to enjoin state court proceedings. See e.g. Sandpiper Village Condo. Ass 'n, Inc. v. Louisiana Pacific COJp., 428 F.3d 831 (9th Cif. 2005) (request for injunction barred by AntiInjunction Act). The Supreme Court has held, however, that 42 U.S.C. Section 1983 expressly authorizes federal courts to enjoin state proceedings. See Mitchum v Foster, 407 U.S. 225, 242 (1972). Since plaintiffs herein bring their clailn, in part, for relief under the aegis of Section 1983 the Anti-Injunction Act poses no barrier to the Court entering a temporary and/or a pennanent Injunction in this case. Nevertheless, Plaintiffs are mindful that the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), requires federal courts to abstain from interfering in pending state court prosecutions unless the party seeking the injunction can demonstrate that the danger of irreparable loss is both great and immediate. A plaintiff can satisfy the irreparable injury requirelnent by showing that 1) the state law being enforced is flagrantly and patently violative of express constitutional provisions; 2) the prosecution is being undertaken in bad faith; or 3) other "extraordinary circumstances" exist that justify granting injunctive relief. Mitchum, 407 U.S. at

Motion for Injunction

2

230 (citing Younger, 401 U.S. at 46, 53-54 and Perez v Ledesma, 401 U.S. 82, 85 (1971).
The Montana Supreme Court, in denying to exercise original jurisdiction over Plaintiffs'
petition, considered the wishes of David Dawson, a volunteer capital inmate whose execution is
scheduled for August 11, 2006, stating:
In the present case, of course, Mr. Dawson's rights must be weighed into our detell11ination of whether to exercise original jurisdiction. We conclude that we will not Hundo" years of effort by Mr. Dawson in attempting to stop further delays in the imposition of his death sentence....

In essence, the Montana Supreme Court ruling has allowed Mr. Dawson to waive his Eighth Amendment right to be free from cruel and unusual punishment. The Court presupposed that Mr. Dawson has the personal "right" to submit to an unconstitutional method of execution; however, the Eighth Alllendl11ent to the United States Constitution does not suppOli the view that unconstitutional state action can be condoned by an individual citizen defendant.
Under our democratic f01111s of government, state and federal constitutions fulfill two essential and related purposes, protecting the rights of the individual and protecting the integrity of the government against unlawful state action. Often these purposes, and the interests they serve, are indivisible and therefore indistinguishable. However, in rare situations, the rights of the individual and the people's right to good government are not identical.
Petitioners acknowledge that certain rights, such as personal trial and appellate rights of the accused, can be waived by the individual defendant, certain fundamental rights cannot. See e.g., Wheat v. United States, 486 U.S. 153,162 (1988) (stating that a court may decline a defendant's waiver of his right to conflict free counsel). See also, Bustamante v. Eyman, 456 F.2d 269,274 (9th Cir. 1972) (concluding that a capital defendant could not waive his right to be

Motion/or Injunction

3

present in the courtroom at trial inasmuch as the defendant's right to be present at trial also rests

upon society's interest in due process).

The Supreme Court's decision in Hopt v. Utah, 110 U.S. 574 (1884) demonstrates that

certain rights cannot be waived. In Hopt (which has since been abrogated on grounds not

pertinent

here,

see

e.g.

Campbell

v.

Blodgett,

978

F.2d

1502,

1509,

(9th

Cif.

1

992

1 ))

the

Couli

addressed topically the subject of non-waivable rights:

We are of opinion that it was not within the power of the accused or his counsel to dispense with statutory requirelnent as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the Inode by which he ll1ay be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crilne charged. But this is a lnistaken view as well of the relations which the accused holds to the public as of the end of human punishment. The natural life, says Blackstone, 'cannot legally be disposed of or destroyed by an individual, neither by the person himself, nor by any other of his fellow creatures merely upon their own authority.' 1 Bl. Comm. 133. The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law.

Hopt v. Utah, supra, 110 U.S. at 579.

The plinciple that SOlne rights cannot be waived has also been colorfully illustrated in

United States v. Josejik, 753 F.2d 585 (7th Cir. 1985). In Josejik, a juror member sent a note to

the judge requesting to be excused after the jury had retired to deliberate. ld. After questioning

the juror, the judge deten11ined that the juror had had trouble hearing during the trial and excused

her. Id. Rather than call a n1istlial, the judge, with the consent of counsel, replaced the excused

1 Campbell, infra, like Hopt, addressed a defendant's right of confrontation. Campbell properly noted that subsequent decisions have found a waiver of this right can occur by consent or misconduct. However, the broader holding ofHopt, that an individual's life cannot be taken, except as prescribed by law and limited by the Constitutions has never been rejected by any Court.

Motion for Injunction

4

juror with an alternate who had previously been discharged. ld. On appeal, the Court ruled that a single defendant could not waive statutory rights
governing the use of altelnate jurors, explaining: No doubt there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant's conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept. But nothing in the procedure used in this case shocks our consciences.
United States v. losefik, 753 F.2d at 588 (emphasis added). Clearly, some rights are simply non-waivable because the right in question is not an
individual one subject to waiver by a single litigant. This is especially true in circumstances where the public interest in the outcOlne of the litigation is compelling. Citizens of every political stripe have an unqualified right to executions that satisfy the Eighth Amendment of the United States Constitution which in part provides that no "cruel and unusual punislunent [shall be] inflicted." This restraint on state power does not inure to the benefit of any defendant particularly such that he can waive its protections.
The Montana Suprelne Court's Order, which apparently vindicated Mr. Dawson's right to submit to an unconstitutional execution, comes at the expense of the right of every Montana citizen to have eve1:Y execution carried out in a constitutional manner. The Montana Suprelne Court utilized a balancing test and ultimately deferred to Mr. Dawson's desire to waive his Eighth Amendment rights, over the public's Eighth Amendment light to have state govemnlent act in confonnity with the applicable provisions of the United States Constitution, in this case Amendlnents Eight and Fourteen. In fact, Justice Nelson in his opinion concurring in the

Motion for Injunction

5

dismissal of Plaintiffs' petition in the Montana Supreme Court recognized this important point:
....any implication that capital execution and the manner in which it is conducted is simply the particular defendant's problem is misplaced. The people of this State, acting through their elected representatives in the Legislature, have willed that capital executions take place in SOlne cases. The manner of execution is not purely the capital defendant's issue. it is an issue that is owned by every adult in this State. Indeed, by law, capital executions in Montana must be witnessed by members of the media and the public. Section 46-19-103(6)(b), MCA .....the public and media witness executions, not only to determine that the public's will and the peoples' sentence of death was carried out as ordered, but also that the execution was done in a manner consistent with the values of a civilized society.
Order, Montana Suprelne Court dismissing Plaintiffs' petition dated July 25 th, 2006 at 6-7
This core idea expressed by Justice Nelson in his concunence was born in Trap v. Dulles,
356 U.S. 86 (1958) where the Supreme Court declared that the Eighth Amendment "must draw
its meaning from the evolving standards of decency that Inark the progress of a lnaturing
society." ld. at 101. Although Trap v. Dulles was not itself a capital case, this principle of
constitutional law has become an enduring and critical element of capital punishInent
jurisprudence. See e.g. Atkins v. Virginia, 536 U.S. 304 (2002). Moreover, Trap v. Dulles
explains in no uncertain tenns that although the State has the power to punish, "the [Eighth]
Alnendment stands to assure that this power be exercised within the lilnits of civilized
standards." Id. at 100.
Thus, the issue squarely raised in the instant case is whether the Montana Supreme Couli
elTed by allowing Mr. Dawson's waiver of his Eighth Amendment rights and demands for
execution to trump society'S right to have all executions carried out in conformity with the

Motion for Injunction

6

Eighth Amendment. The wider implications of the Montana Supreme Court's ruling justify an immediate halt to all executions in Montana, including Mr. Dawson's. First, although Mr. Dawson has waived his personal constitutional rights (appeal, habeas corpus etc.), Mr. Dawson has no authority to waive the Eighth Amendment protections discussed herein inasmuch as they inure not only to the benefit of Mr. Dawson, but to the benefit of the public generally. Second, failure to imlnediately halt all executions in the State of Montana could lead to the Inacabre result that Mr. Dawson will be executed in an unconstitutionallllanner and then the State will detennine that its Lethal Injection Protocol is not constitutional. A careful reading of the Montana Suprelne Court's July 25,2006 order denying Plaintiffs' petition for relief leaves little doubt that the Court was aware that Plaintiffs raised substantial issues worthy of consideration in court and the 2007 Montana Legislative Session.
Furthennore, every Montana citizen has the right to constitutional service frOlll its public officials. Under the existing circumstances, ifMr. Dawson is executed in an unconstitutional Inanller in the nan1e of the people, there will be no after-the-fact ren1edy applicable to that situation to vindicate the peoples' rights. Here, it's worth pointing out that Plaintiffs fully expect that defendants will argue that Plaintiffs' interests in the Eighth Alnendment protection outlined herein are far too speculative to enforce in court. In anticipation of this argulnent, Plaintiffs state that in the prosecution of the law it is not uncommon for the federal government to prosecute individuals and public officials for denying the citizenry the right to good government. See e.g. United States v. Williams, 441 F.3d 716 (9th Cir. 2006) (individuals and public officials alike can be prosecuted for denying public good government). The instant lawsuit and request for stay is simply a minor variation on that theme.

Motion for J]~iunction

7

The Eighth Amendment cruel and unusual clause is a restraint on State action As such, an individual defendant has no light to waive Eighth Amendlnent protections. Furthennore, the duty to enforce Eighth Alnendment principles falls to the federal courts when the state govenunent intends to act in an unconstitutional manner.
CONCLUSION WHEREFORE, Plaintiffs pray that the Couli will enjoin all executions until the merits of this lawsuit have been determined. Respectfully submitted this 4TH day of August 2006.
Gough, Shanahan, Johnson and Watennan
lsi Ronald F. Waterman Ronald F. Waterman, Esq. Julie A. Johnson, Esq. Attorneys for Plaintiffs

Motion for Injunction

8

CERTIFICATE OF SERVICE
I hereby certify that on the 4th day of August 2006, the foregoing with attachnlent was duly served upon counsel via hand-delivery:
Mike McGrath Attorney General Montana Attorney General's Office P.O. Box 201401 Helena, MT 59620-1401
Diana K.och Chief Legal Counsel Montana Departnlent of Corrections P.O. Box 201301 Helena, MT 59620-1301
The foregoing with attachment was also duly served upon the following by mailing a true and correct copy, U.S. Mail, first class and postage prepaid, and addressed as follows:
David Dawson A.O. #25284 700 Conley Lake Road Deer Lodge, MT 59722
Ednlund F. Sheehy Cannon and Sheehy P.O. Box 5717 Helena, MT 59604-5717
/s/ Ronald F. Watennan

Motion for !J~junction

9

 
 IN THE SUPREME COURT OF THE STATE OF MONTANA
No. _ _ _ _ _ __
MONTANA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION OF MONTANA; MONTANA ASSOCIATION OF CHURCHES; MONTANA CATHOLIC CONFERENCE; GORDON BENNETT; JOHN C. SHEEHY; SENATORS BRENT CROMLEY, STEVE GALLUS, DAN HARRINGTON, DON RYAN AND DAN WEINBERG; REPRESENTATIVES NORMA BIXBY, PAUL CLARK, GAIL GUTSCHE, JOEY JAYNE, AND JEANNE WINDHAM; MARIETTA JAEGER LANE; EVE MALO,
Petitioners, v. STATE OF MONTANA; DEPARTMENT OF CORRECTIONS; DIRECTOR MIKE FERRITER; WARDEN MIKE MAHONEY; ATTORNEY GENERAL MIKE MCGRATH, JOHN DOES 1-10,
Respondents.
VEH1FIED PETITI01~ FOR n~JlJi'·~CTIVE RELIEF "AJ~D
MEMORANDUM IN SUPPORT
(ORAL ARGUMENT REQUESTED)
Ronald F. Waterman, Esq. Julie A. Johnson, Esq. GOUGH, SHANAHAN, JOHNSON & WATERMAN P.O. Box 1715 Helena, MT 59624 406/442-8560

1. VERIFIED PETITION FOR INJUNCTIVE RELIEF COME NOW Petitioners pursuant to § 3-2-205(2), MCA, and Rule 17, M.R.App.P., and request a temporary restraining order and preliminalY and permanent injunctions barring the administration of all executions by lethal injection in the State of Montana. Petitioners also request this Court to remand the matter to the Montana First Judicial District1 for an evidentiary hearing on Montana's lethal injection protocol with the instruction that the district court shall permit limited discovery to allow the parties and the district court to fully investigate and review the protocol and thus alTive at a reasoned determination of its constitutionality or lack thereof. Finally, Petitioners request oral argument before this Court pursuant to Rule l7(f), M.R.App.P. II. INVOCATION OF ORIGINAL JURISDICTION An action for iniunctive relief can be commenced in this Court if the State is
J
a party, the public is interested, or the rights of the public are involved. § 3-22205(2), MCA. All three criteria are satisfied here. The State is a named party. The central issue raised by this proceeding implicates the State's involvement in formulating and administering a lethal injection protocol, which is comprised of a
The First Judicial District is the proper venue as the State is a named a party. § 25-2-126, MeA.
1

combination of drugs that various cOUIis have determined violate the Eighth Amendment and that the American Veterinary Medical Association has deemed unacceptable for euthanizing animals. The State is also charged with the administration of the death penalty by lethal injection, which is the precise action which Petitioners request this Court to enjoin. Next, the public has both an interest and a right to know and ensure that executions carried out in the name of the people of Montana are performed properly, humanely and constitutionally. This public interest is especially apparent in the context of the State's lethal injection protocol and the imposition of the death penalty thereunder.
Furthermore, the institution of an original proceeding in the Montana Supreme COUIt is justified by circumstances of an emergency nature, as when a cause of action or a right has arisen under conditions making due consideration in the trial courts and due appeal to this Court an inadequate remedy. Langford v. State (1997), 287 Mont. 107, 111,951 P.2d 1357, 1360; Rule 17(a), M.R.App.P. As is the situation in the instant case, the United States Supreme Court's recent ruling of Hill v. McDonough, 126 S.Ct. 2096 (issued June 12, 2006), discussed later in the petition, has propelled a nationwide discussion about states' lethal injection procedures and whether they subject inmates to an unconstitutional risk of cruel and unusual punishment. Because the United States Supreme Court
2

decided Hill v. McDonough less than a month ago, and the next lethal injection execution in Montana is scheduled to take place on August 11, 2006, due consideration in the trial courts is not possible. As it did in Walker v. State, 2003 MT 134, ~ 31, 316 Mont. 103, ~ 31, 68 P.3d 872, ~ 31, this Court should exercise jurisdiction over this petition and remand the matter to district court to allow the parties to develop a record upon which the district court can base an educated conclusion as to the constitutionality of Montana's lethal injection protocol.
III. PARTIES Petitioner Montana Association of Criminal Defense Lawyers ("MTACDL") is a non-partisan organization dedicated to the continued improvement of the criminal defense bar, and to preserving, protecting, and defending the adversary system ofjustice and the constitutional protections found in the Montana Constitution, the U. S. Constitution, and in the Constitutions of the Tribal Nations. Petitioner American Civil Liberties Union Foundation of Montana ("ACLU") is a non-partisan organization, which works to ensure that all people in the State of Montana are free to think and speak as they choose and are able to lead lives free from discrimination and unwarranted government intrusion. The ACLU is guided in its work by the U.S. Bill of Rights and the Montana Bill of Rights. Petitioner Montana Association of Churches ("MAC") is a non-
3

denominational organization of Christian churches. MAC recognizes the dignity of every human person by promoting human rights and principles of balanced justice.
Montana Catholic Conference serves as the public policy branch of the Catholic Church in Montana, and the liaison for Montana's Roman Catholic bishops with state and federal government. Inspired by Scripture and Catholic social teaching, the conference is committed to maintaining respect for life, and to promoting the value and dignity of all human lives..
John C. Sheehy is a former Justice of the Montana Supreme Court. Gordon Bennett is former judge for the Montana First Judicial District. As former members of the bench, they have a heightened interest in ensuring the State's lethal injection protocol is constitutional.
Senators Brent Cromley, Steve Gallus, Dan Harrington, Don Ryan, Dan Weinberg, Mike Wheat, and Representatives Norma Bixby, Paul Clark, Gail Gutsche, Joey Jayne, and Jeanne Windham are all elected Montana officials, currently serving the people of Montana. As elected representatives, these Petitioners have standing to contest potentially cruel and unusual punishment inflicted during their representation. Given a Legislator's inviolate duty to protect and promote fundamental public rights, these Petitioners have a heightened interest
4

in ensuring that statutolY provisions for the lethal injection protocol are implemented in accordance with Montana's constitutional provisions and the public's expectation that no one will be subjected to cruel and unusual punishment.
Petitioners Marietta Jaeger Lane and Eve Malo are members of Murder Victims' Families for Reconciliation. Both have lost family members to homicide. Through their work, these Petitioners seek to support other families who have lost loved ones to homicide or execution. Towards this end, Petitioners promote nonviolence towards all people as a way to honor the lives of those already taken.
All of the Petitioners are affected by Respondents' actions in this case. Petitioners have an interest in seeing that State officials operate with the boundaries of the law, and all have an interest in ensuring that executions are not can-ied out in Montana in violation of the United States Constitution or Montana's Bills of Rights. Petitioners have standing to bring the matter before this Court based on both the import~nce of fundamental rights enumerated in the Montana Constitution, and as residents, citizens, electors and taxpayers who are concerned that a lethal injection may be performed in a cruel and unusual manner in the name of the pUblic.
This Court has previously recognized that where fundamental rights are threatened, it is appropriate for "private paliies to vindicate the public interest in
5

cases presenting issues of great public importance." Committee For An Effective JudiciaJY v. State (1984), 209 Mont. 105, 111,679 P.2d 1223, 1226 (citations omitted). Petitioners have standing to bring the matter before this Court based on the importance of fundamental rights enumerated in the Montana Constitution, including prohibition against cruel and unusual punishment, and their constitutional right to know, guaranteed under Article II, Section 9 of the Montana Constitution. The Petitioners, as residents, citizens, electors and taxpayers, are concerned that a lethal injection may be performed in a cruel and unusual manner and assert their right to know the protocols employed by the Department of Corrections in the name of the people.
Fundamental rights are at stake where, irrespective of personal values regarding the appropriateness of the death penalty, the Montana Constitution demands that when the ultimate form of punishn1ent is imposed, it must be administered in a humane manner and in accordance with the publics' right to know. As such, Petitioners seek to vindicate the rights of all Montana citizens, those threatened with cruel and unusual punishment, and those seeking to ensure that such punishment is not conducted in the name of the public behind a shroud of secrecy.
Further, this Court has previously recognized standing in "special
6

circumstances, presenting issues of an urgent or emergency nature ... " Grossman v. Departlnent ofNatural Resources (1984), 209 Mont. 427, 439,682 P.2d 1319, 1325. Here, as residents, citizens, electors and taxpayers, the Petitioners have standing before this Court to confront the government in these extraordinary circumstances, underscored by the urgency of the matter.
Respondent Mike Ferriter is the Director of the Department of Corrections ("DOC") and is named in his official capacity. Respondent Mike Mahoney is warden of Montana State Prison and is named in his official capacity. Respondent Mike McGrath is Attorney General of Montana and is named in his official capacity. Respondents John Does 1-10 are any persons who have administered a lethal injection or otherwise assisted with an execution in Montana, as well as those who are planning to administer a lethal injection or otherwise assist in the execution of David Dawson.
IV. ISSUE Whether Montana's current method of administering lethal injections subjects death row inmates to an unconstitutional risk of suffering cruel and unusual pain during their execution, thus warranting the issuance of an injunction and a remand to district court to permit discovery and reasoned evaluation of the protocol in order to ensure that executions in Montana are humanely and
7

constitutionally?

V. BACKGROUND FACTS SUPPORTING INJUNCTIVE RELIEF

A. Montana's Death Penalty and Lethal Injection Protocol.

The sole method for execution in Montana is by lethal injection. § 46-19-

103(3), MCA. The lone statutory provision regarding the administration of the

death penalty is § 46-19-103, MCA, and is set forth below in its entirety:

46-19-103. Execution of death sentence. (1) In pronouncing the sentence of

death, the court shall set the date of execution, which may not be less than

30 days or more than 60 days from the date the sentence is pronounced. If

execution has been stayed by any court and the date set for execution has

passed prior to dissolution of the stay, the court in which the defendant was

previously sentenced shall, upon dissolution of the stay, set a new date of

execution for not less than 20 or more than 90 days from the day the date is

set. The defendant is entitled to be present in court on the day the new date

of execution is set.

(2) Pending execution of a sentence of death, the sheriff may deliver the

defendant to the Montana state prison or the Montana women's prison for

confinement, and the state shall bear the costs of imprisoning the defendant

from the date of delivery.

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continuous, intravenous injection of a lethal quantity of an ultra-fast-acting

barbiturate in combination with a chemical paralytic agent until a coroner or

deputy coroner pronounces that the defendant is dead.

(4) When an execution date is set, a death warrant signed by the judge

and attested by the clerk of court under the seal of the court must, within 5

days, be prepared. The warrant and a certified copy of the judgment must be

delivered to the director of the department of "corrections. The warrant must

be directed to the director and recite the conviction, judgment, appointed

date of execution, and duration of the warrant.

(5) The warden of the Montana state prison shall provide a suitable and

efficient room or place in which executions will be carried out, enclosed

8

from public view, within the walls of the state prison, and shall provide all implements necessary to the execution. The warden shall, subject to subsection (6), select the person to perform the execution, and the warden or the warden's designee shall supervise the execution. The identity of the executioner must remain anonymous. Facts pertaining to the selection and training of the executioner must remain confidential.
(6) (a) An execution must be perforn1ed by a person selected by the warden and trained to administer a lethal injection. The person administering the injection need not be a physician, registered nurse, or licensed practical nurse licensed or registered under the laws of this or any other state.
(b) The warden shall allow the execution to be observed by no more than 12 witnesses, excluding department of corrections staff necessary to carry out the execution. The witnesses must, to the extent possible, include three persons from the news media, three persons designated by the family of the victim of the crime, three persons designated by the person to be executed, . and three persons chosen by the department of corrections.
(c) A proposed witness is subject to rejection by the department of corrections if the department has reason to believe that the witness:
(i) poses a risk to the safety or security of department of corrections personnel, the other witnesses, or other persons; or
(ii) is likely to disrupt proceedings due to the witness's emotional or mental state.
(7) Within 20 days after the execution, the warden shall return the death warrant to the clerk of the court from which it was issued, noting on the warrant the time it was executed.
(8) The rej ection of a witness under subsection (6)(c) is not grounds for stay of the execution.
The statute prescribes no specific drugs, dosages, drug combinations, or the
manner of intravenous line access to be used in the execution process; nor does the
statute prescribe any certification, training, or licensure required of those who
participate in the execution process. As is apparent, the statute leaves the
Department of Corrections to its own devices to devise a constitutionally sound
9

lethal injection protoco1.2 Whether or not it has done so is the issue framed by this litigation.
Although the protocol employed by the Depaliment of Corrections has not been disclosed, a general outline of the procedure may be inferred from prior executions in Montana, such as Terry Langford's in 1998. According to Langford's death certificate, the lethal injection consisted of three drugs: sodium pentothal; Pavulon, the brand name of pancuronium bromide; and potassium chloride. See Appendix, Exhibit 1, Death Certificate of Terry Allen Langford. Sodium pentothal is a short-acting barbiturate used to make the individual lose consciousness. Pancuronium bromide is a paralytic agent, which paralyzes all voluntary muscles and stops respiration. The primary purpose of Pancuronium bromide (Pavulon) in an execution is to prevent the inmate from convulsing or twitching during his death, making it easier for witnesses to watch. Potassium chloride is an extrelnely painful chemical which activates the nerve fibers lining the prisoner's veins and interferes with the heart's contractions, causing cardiac arrest and death.3
Indeed, it may be that the § 46-19-103, MeA, itself is unconstitutionally vague and ambiguous, as it does not affinnatively prescribe specific measures to ensure a humane execution. 3 For a more detailed explanation of these drugs by a medical professional see Declaration of Dr. Mark Heath of Jan. 12,2006, discussed in footnote 4.
10

The three-drug combination is the typical lethal injection used in the thirtyseven states which have approved lethal injection as a means of executions. Debra
N. Denno, Symposiuln Addressing Capital Punisl17nent through Statutory Reforrn, 63 Ohio St. L.1. 63, 98 (2002). Therefore, it is beyond speculation that Montana will continue to use a combination of these three drugs in all future executions.
B. The Three Drugs used in Montana's Lethal Injection can Result in an Excruciatingly Painful and Inhumane Death if Administered Improperly.
The improper administration of these drugs in lethal injections can yield horrific results. Medical experts familiar and proficient with the use and pharmacology of the drugs used to perform lethal injections have determined that the use of these three drugs, sodium pentothal, pancuronium bromide, and potassium chloride may result in "excruciating pain" for the inmate if improperly administered. Declaration of Dr. Mark Heath of January 12, 2006, ~ 39.4 Dr. Heath, who is an Assistant Professor of Clinical- Anesthesiology at Columbia
University in New York, explains that: "Pancuronium paralyzes all voluntary
muscles, but does not affect sensation, consciousness, cognition, or the ability to
Petitioners request that this Court take judicial notice of the Heath Mfidavit of Jan. 12, 2006. The Heath Affidavit was submitted as an Exhibit in Morales v. HicJanan and is part of the COUli record in that case. See http://www.1aw.berkeley.eduiclinics/dpc1inic/Lethal%20Injection%20Documents/CalifomiaiMoraleslMorales%20D ist%20Ct.Cp/Ex%20C%20to%20TRO%20Motion%20(Heath%20Decl).pdf. This Court may take judicial notice of any "[rJecords of any court of this state or of any court of record of the United States or any court of record of any state in the United States ..." Rule 202(b)(6), M.R.Evid.
11

feel pain and suffocation" and that its "use... serves no rational or legitimate purpose and compounds the risk that an inmate may suffer excruciating pain during his execution" as it "places a chemical veil on the process that prevents an adequate assessment of whether or not the condemned is suffering in agony, and greatly increases the risks that such agony will ensue." Heath Dec., ~~ 37, 44.
Therefore, when an inmate receives an inadequate dosage of the barbituate, he may have some level of consciousness as he receives the second and third drugs, which will cause him to have the sensation of asphyxiation and cardiac arrest. Disturbingly enough, the inmate will be unable to alert those administering the drugs of his conscious state as he will have been completely paralyzed by the pancuronium bromide.
Dr. Heath is not alone. Recently, the president of the 40,OOO-member America Society of Anesthesiologists (ASA), Dr. Orin Guidry, issued a public statement strongly urging members to avoid any participation in lethal injection executions.5 In a four-page "Message froIll the President," Guidry noted that anesthesiologists had been "reluctantly thrust into the middle" of the legal controversy over lethal injections because they may.result in unnecessary and
"Message from the President" (June 30, 2006) http://www.asahg.org/news/asanews063006.htm (accessed July 10, 2006).
12

excruciating pain that violates the 8th Amendment's ban of cruel and unusual punishment.
C. The Likelihood that an Inmate will be Conscious or Semiconscious During his Execution is Significant and Unacceptable.
The percentage of error in the administration of a lethal injection, and the corresponding risk for excessive pain, is alarming. Toxicology reports from Arizona, Georgia, North Carolina, and South Carolina, all of which use the sequential administration of thiopental, pancuronium bromide, and potassium chloride for lethal injections, have shown that post-nlortem concentrations of thiopental in the blood were lower than that required for surgery in 43 of 49 executed inmates (88%) and that 21 out of 49 (43%) inmates had concentrations consistent with awareness. The Lancet, "Inadequate Anesthesia in Lethal Injection for Execution, "Volume 365; 1412-14 (April 2005). Thus, there is almost a one in two C1H-. anCe tl ua.t.a.n.InlTIate W'I1l1l n1~ ave some 1level1 orr conS' CIousness d, un.ng 1l..1. 1•S execution.
Given these odds, which are worse than Russian roulette, it is not surprising that even the American Veterinary Medical Association has concluded that a combination of a barbituate with a paralytic agent, the same combination that Montana used in prior executions, "is not an acceptable euthanasia agent" for
13

animals. Journal of American Veterinary Medical Association, Volume 218, No. 5, March 1,2001.
D. Many Coulis have Either Stayed an Inmate's Execution or Barred Death by Lethal Injection Entirely Pending Approval of the State's Lethal Injection Protocol.
Because of the concerns identified above, courts are beginning to take notice that the three-drug combination presents an unacceptable and unconstitutional risk of cruel and unusual punishment and are staying executions. Over the last several months, a number of courts have expressed grave concern over lethal injection protocols, which use the same general formula as Montana. The United States Supreme Court,6 as well as courts in California,7 Delaware,8 Ohio,9 and

6 See, Hill v. McDonough, _U.S. _, 126 S.Ct. 2096, _L.Ed.2d _(2006), http://www.law.berkeley.edulc1inics/dpclinic/Lethal%20Injection%2ODocuments/FloridalHil1l2006.06.12%20Hill% 20SCOTUS%20opinion.pdf (accessed July 10,2006).

7

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http://www.law.berkeley.eduiclinics/dpclinic/Lethal%20Injection%20Documents/CaliforniaiMorales/Morales%20D

ist%20Ctl06.02.21 %200rder%20on%20DefOIo27s%20Motion%20to%20Proceed-1.pdf (accessed July 10, 2006).

Stipulated Order Continuing Evidentiary Hearing to September 19, 2006 (April 27, 2006) in Morales v. Woodj01;d: http://www.law.berkeley.eduiclinics/dpclinic/Lethal%20Injection%2ODocuments/CaliforniaiMoraleslMorales%20D ist%20CtlOrder%20to%20Continue.pdf (accessed July 10,2006).

8 Order of the U.S. District Court Granting PI and Stay of Execution (May 9,2006) in Jackson v. Taylor: http://www.law.berkeley.eduiclinics/dpclinic/Lethal%20Injection%20Documents/Delaware/2006.05.09%20District %20Ct%200rder.pdf (accessed July 10,2006).

9 Order of the U.S. District Court Granting Prelim. Injunction (April 28, 2006) in Cooey, et al. v. Taft, et al. http://www.law.berkeley.eduiclinics/dpcliniciLethal%20Injection%20Documents/Ohio/2006.04.28%20CooeyHill% 20Dist%20Ct%200rder.pdf (accessed July 10, 2006).

14

Tennessee,1O as well as the District of Columbia, 11 have stayed several executions
pending investigations into the constitutionality of a State's lethal injection
protocol. Also, federal courts in two states, Missouri]2 and Arkansas,13 have
recently barred all executions by lethal injection until changes are made to the
lethal injection protocol. Other courts have also investigated claims based on
lethal injection protocols but have not issued stays. 14
As mentioned previously, the United States Supreme Court decided Hill v.
McDonough, _U.S. _, 126 S.Ct. 2096, _L.Ed.2d _(2006), less than a month
ago. In Hill, a death row inmate filed a 42 U.S.C. § 1983 claim against the director
10 U.s. District Court Order Granting Preliminary Injunction (May 11,2006) in Alley v. Little et al.: http://www.law.berkeley.edulc1inics/dpc1inic/Lethal%20Injection%20Documents/TennesseeI2006.05.11 %20alley% 20order%20.pdf(accessed July 10,2006). II See, Order Granting Preliminary Injunction and Staying Execution (Feb. 27, 2006) and Discovery Order (June 30, 2006) in Roane et al. v. Gonzales, 05-cv-02337-RWR (documents 5 and 7) in the United State District Court for the District of Columbia on PACER. 12 District Court Order Holding Missouri Lethal Injection Protocols Violate Eighth A_mendment, Orderi_ng DOC to Draft New Protocols, and Staying All Executions Pending Court's Approval (June 26, 2006) in Taylor v. Crawford attached at Appendix, Exhibit 2. 13 District Court Order Granting Preliminary Injunction and Issuing Stay of Execution (June 26, 2006) in Nooner et al. vs. Norris et al. attached at Appendix, Exhibit 3. 14 Kentucky: Briefs and other court records in Baze et al v. Rees et al., available at: http://www.law.berkeley.edulc1inics/dpc1inic/Lethal%20Injection%20Resource%20Pages/resources.ky.html Maryland: Briefs and other court records in Vernon Evans, Jr. v. Saar, available at: http://www.law.berkeley.edulc1inics/dpc1inic/Lethal%20Injection%20Resource%20Pages/resources.md.html North Carolina: Briefs and other court records in Brawn v. Beck, available at: http://www.law.berkeley.edulc1inics/dpc1inic/Lethal%20Injection%20Resource%20Pages/resources.nc.html Oklahoma: Orders in Boltz v. Jones, available at:
15

of Florida's Department of Corrections, alleging that the planned three-drug sequence of sodium pentothal, pancuronium bromide and potassium chloride, would cause great pain if the drugs were not administered properly during his execution. Hill, 126 S.Ct. at 2100. The inmate, Clarence Hill, filed a petition seeking an injunction only four days before his scheduled execution. Id. In his petition, Hill alleged that the "first drug injected, sodium pentothal, would not be a sufficient anesthetic to render painless the administration of the second and third drugs, pancuronium bromide and potassium chloride," and that there was "an ensuing risk... that he could remain conscious and suffer severe pain as the pancuronium paralyzed his lungs and body and the potassium chloride caused muscle cramping and a fatal heart attack." Id.
In Hill, the underlying issue addressed by the United States Supreme Court was whether a claim alleging cruel and unusual punishment based on a state's lethal injection protocol was cognizable under 42 U.S.C. § 1983. Holding that such a claim was valid under § 1983, but that "the equities and the merits of Rill's underlying action" was not before it, the Couli remanded the case to allow Hill to challenge Florida's lethal injection protocol, and implicitly granting him a stay of execution. Id. at 2104.
http://www.law.berkeley.edulc1inics/dpc1inic/Lethal%20Injection%20Resource%20Pages/resources.ok.html
16

Following on the heels of Hill, on June 26, 2006, a Missouri federal district court enjoined all executions by lethal injection in that state until its lethal injection protocol is revised and approved by the Court. Taylor v. Crawford, supra at footnote 12. Missouri uses the same three drugs in its protocol as Montana sodium pentothal, pancuronium bromide, and potassium chloride. ld. In the Missouri case, the petitioner claimed that Missouri's lethal injection procedure was not carried out consistently and was subject to changes without adequate oversight. The Court allowed the petitioner to conduct limited discovery, which included a Rule 34 F.R.Civ.P. inspection and videotaped tour of Missouri's execution chamber, a deposition of the director of Missouri's Department of Corrections, and document requests which pertained to the last six executions calTied out in the state. ld. The Court also allowed petitioner to submit interrogatories to and conduct an anonymous deposition of John Doe I, the doctor who had paliicipated in the most recent execution. ld.
Following this discovery and an evidentialY hearing, the couli concluded that "numerous problems" existed with the lethal injection protocol which "lead the Couli to conclude that Missouri's lethal injection procedure subjects condemned inmates to an unnecessary risk that they will be subject to unconstitutional pain and suffering when the lethal injection drugs are
17

administered" in violation of the Eighth Amendment. Id. In its order staying all lethal injection executions in the state, the Court outlined several of its concerns regarding the administration of the death penalty. First, the person in charge of administering the lethal injection testified that he monitored the consciousness of an inmate by observing the inmate's facial expression, even though the videotape from the death chamber revealed that the inmate's face would actually be turned away from the person monitoring his level of consciousness. Secondly, the Court was concelned that the person in charge of the injections could change the levels to be administered at a moment's notice without any oversight and had ultimate authority to increase or decrease the dosage.
Also post-Hill, a federal judge in Arkansas stayed the execution of an inmate by lethal injection pending further investigation into the constitutionality of the state's execution protocol. Nooner v. Norris et ai, supra at footnote 13. In Nooner, the petitioner claimed that Arkansas' protocol "create[d] a substantial risk that the first injection [of sodium pentothal] will fail to render him unconscious to the point that he will not experience intense pains and agony after the administration of the pancuronium bromide and potassium chloride." Id. The Court concluded, "the public interest will be serviced if the Couli holds an evidentiary hearing." Id. The Couli also recognized that although crime victims
18

and the general public have an interest in the timely enforcement of criminal sentences, the "failure to consider [the petitioner's] allegations would ignore the equally important public interest in the humane and constitutional application of the State's lethal injection statute." Id.
VI. LEGAL BASIS FOR RELIEF The purpose of the petition is not to challenge any particular death sentence or the validity of the death penalty by lethal injection itself, but only to assure that Montana has adopted and rigorously follows a lethal injection protocol that does not subject an inmate to a~ inhumane death in violation of the United States and Montana Constitutions. Based on prior executions in Montana, it is likely that the DOC's procedure for the administration of death by lethal injection subjects condemned inmates to an unconstitutional risk for pain and suffering. The procedure allows for an inmate to be conscious of being asphyxiated and injected with potassium chloride all the while he is chemically paralyzed and thus is unable to aleli anyone of his pain. Until such time as the State demonstrates that its procedure for the administration of a lethal injection does not subject a person to an unacceptable risk of suffering unconstitutional pain and suffering, the DOC and the State of Montana should be enjoined from performing any executions by lethal injection.
19

A. The Public has a Right to Know Montana's Lethal Injection Protocol.

Representative Paul Clark of Trout Creek, Vice Chair of the Judiciary

Committee, has requested the lethal injection protocols from the Department of

Corrections pursuant to § 2-6-102, MCA (providing that "[e]very citizen has a

right to inspect and take a copy of any public writings of this state"), and the

Freedom of Information Act. 15 5 U.S.C. § 552. To date, the Department of

Corrections has not responded to this request for information.

Representative Clark, as well as any Montana citizen, has a right to review

the DOC lethal injection protocol. Article II, Section 9 of the Montana

Constitution provides:

No person shall be deprived of the right to examine

documents or to observe the deliberations of all public

bodies or agencies of state government and its

subdivisions except in cases in which the demand of

individual privacy clearly exceeds the merits of public

r

t l

' 1

C'1

n

1 I

r.... ,,",'1 ......... 0

Ul,:)\.;lV,:)Ul \.;.

The constitutional "right to know" afforded by Article II, Section 9 is only

tempered by the demand of individual privacy guaranteed by Article II, Section 10

of the Montana Constitution. Lincoln County C0711Jn 'n v. Nixon (1998),292 Mont.

43,45,968 P.2d 1141, 1143. Moreover, this Court has already held that the public

15

Representative Clark's Freedom of Information Request is attached at Appendix, Exhibit 4.

20

has a right to examine committee records of the Montana Department of Corrections. Great Falls Tribune Co., Inc. v. Day, 1998 MT 133, ,-r 33,289 Mont. 155, ,-r 33, 959 P.2d 508, ,-r 33. Here, it is clear that the State cannot assert a constitutionally protected privacy interest in its lethal injection protocols. Even were the State to claim an expectation of privacy, such a claim would be deelned unreasonable. No privacy interest outweighs the public's constitutional right to know Montana's lethal injection protocol and the protocol must be produced.
B. Montana's Protocol Perpetuates "Cruel and Unusual" Punishment and Violates the Eighth Amendment.
The Eighth Amendment of the United States Constitution provides that "cruel and unusual punishments" shall not be inflicted by the State. The Eighth Amendment also:
prohibits punishments that are incompatible with the evolving standards of decency that mark the progress of a maturing society... 1-:-:;',--,xecu•tlons tHh at'InVOL1Ve t1u.. e unnecessary ana1 vv'a, nron I• nI,"l".lcn.• on or£'" paIn. . . or that involved torture or a lingering death... are not permitted. When analyzing a particular method of execution or the implementation thereof, it is appropriate to focus on the objective evidence of the pain involved... Gregg v. Georgia, 428 U.S. 153, 173 (1976). The "cruelty against which the Constitution protects a convicted man is cruelty inherent in the lnethod of punishment, not the necessary suffering involved in any method employed to
21

extinguish life humanely." Louisiana ex reI. Francis v. Resweber, 329 U.S. 459, 464 (1947) (emphasis added).
A punishment is cruel when it involves "something more than the mere extinguishment of life," such as "torture or a lingering death." In re Kemmler, 136 U.S. 436, 447 (1890). This definition, however, "proscribes more than physically barbarous punishments." Estelle v. Galnble, 429 U.S. 97,102 (1976). It "forbids the infliction of unnecessary pain in the execution of the death sentence." Louisiana ex reI. Francis v. Resweber, 329 U.S. 459, 463 (1947); accord Gregg v. Georgia, 428 U.S. at 173 (holding that the Eighth Amendment prohibits punishments that "involve the unnecessary and "Tanton infliction of pain. Among the 'unnecessary and wanton' inflictions of pain are those that are nothing more than the purposeless and needless imposition of pain and suffering,") Francis, 329 U.S. at 463, and those that are "totally without penological justifications." Rhodes v. Chapman, 452 U.S. 337,346 (1981) (quoting Gregg, 428 U.S. at 183).
Second, a court must also consider whether the risk of error that makes a punishment cruel and unusual is one that the Eighth Amendment tolerates. In capital cases, as in other cases, the teaching of the Supreme Court's cases is that Eighth Amendment adjudication cannot proceed just by correcting ugly but isolated instances of deviation from generally acceptable standards of procedure.
22

Rather, it must be concerned with assuring that general procedures themselves are adequately designed and maintained to avoid undue risks of inflicting inhumane punishments. Farnzer v. Brennan, 511 U.S. 825, 846 (1994) (acknowledging that the focus of the inquiry is whether there exists an "objectively intolerable risk of harm"); Helling v. McKinney, 509 U.S. 25, 33 (1993) (holding that the "Eighth Amendment analysis 'requires a court to assess whether society considers the risk that the prisoner complains of. ,,, Ca7npbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994) (holding that an Eighth Amendment challenge to a method of execution must be considered in terms of the risk of pain).
As discussed above, toxicology reports from states, which use the same three-drug combination as Montana, reveal that nearly half of all inmates executed by lethal injection (21 out of 49, or 43%) had concentrations consistent with awareness. The Lancet, supra at 12. This risk of pain is not only unacceptable, it is unconstitutional. The D,QC must assure the public that its lethal injection procedure is adequately designed and applied to avoid undue risks of inflicting inhumane punishment. Indeed, having any level of consciousness of suffocation and cardiac arrest during your own execution, while simultaneously being chemically paralyzed, is the very essence of "physically barbarous." This barbarity is without penological justification and constitutes perhaps the cruelest and most
23

unusual of any punishment ever administered by a government agency. C. Montana's Protocol Violates Fundamental Rights Embodied in Montana's Declaration of Rights. Similarly, the Declaration of Rights set forth in Montana's Constitution
requires that inmates be executed in a humane manner. Article II, Section 22 of the Montana Constitution, the state counterpart to the Eighth Amendment, prohibits "cruel and unusual punishments." Article II, Section 4 is Montana's dignity clause which provides that the "dignity of the human being is inviolable."
This Court has previously held that when Al1icle II, Section 4 is read together with Article II, Section 22, the individual dignity clause provides Montanans with greater protections from cruel and unusual punishments than does the federal constitution. See Walker v. State, 2003 MT 134, ~ 73, 316 Mont. 103, ~ 73, 68 P.3d 872, ~ 73. Moreover, this Coul1 has repeatedly recognized the rights found in ~v1ontana's Declaration ofR.ights as being "fllndarl1ental," rl1eaning that "these rights are significant components of liberty, any infringement of which will trigger the highest level of scrutiny, and, thus, the highest level of protection by the courts." Walker v. State, ~ 74 (citing Dorwart v. Caraway, 2002 MT 240, ~ 96,312 Mont. 1, ~ 96,58 P.3d 128, ~ 96; Butte Community Union v. Lewis, (1986) 219 Mont. 426,430,712 P.2d 1309, 1311; Kloss v. Edward D. Jones & Co., 2002 MT
24

129, ~ 52,310 Mont. 123, ~ 52,54 P.3d 1, ~ 52, cert. denied, 538 U.S. 956 (2003). These fundamental rights belong as much to death row inmates as any Montana citizen. As this Court has also noted, "[w]hen the rights of even the most disrespected among us are ignored, all of society is diminished." CaJnpbell v. Mahoney, 2001 MT 146, ~ 57,306 Mont. 45, ~ 57,29 P.3d 1034, ~ 57.
In Walker, this Court ruled that a former inmate's living conditions at Montana State Prison constituted an "affront to the inviolable right of human dignity possessed by the inmate and that such punishment constitutes cruel and unusual punishment when it exacerbates the inmate's mental health condition." Walker, ~ 84. These conditions included the inmate being stripped, housed in a cell with human blood and waste, and forced to sleep naked on a concrete slab without a mattress. The inmate was also deprived of drinking water and his food was served in an unsanitary manner. ld., ~ 30.
Here, the cruel and unusual punishment posed to inmates on death row by the inhumane administration of a lethal injection is far crueler than the punishment suffered by the inmate in Walker. In this case, there is a significant risk that the inmate will be conscious or semi-conscious during his execution and will be cognizant of being asphyxiated and experience cardiac arrest. The right of a death row inmate to a humane extermination of his life cannot and must not be ignored
25

by this Court. The Court is obligated by Montana's constitutional directives to ensure that any future executions by lethal injection satisfy both the Eighth Amendment as well as Article II, Sections 4 and 22. In it beyond question that to ignore the fundamental right of a death row inmate to a humane execution, and to allow the State to execute inmates in a inhumane manner, would result in a diminishment of "all of society."
D. An Injunction is Necessary to Avoid Irreparable Injury to Inmates Facing Imminent Execution.
The Court may enter a preliminary injunction where the applicant appears entitled to the relief requested, and is visited by great or irreparable injury, or the applicant's rights are being violated. § 27-19-201, MCA. First, there is a significant possibility of success on the merits given that Montana's protocol for lethal injection exposes inmates to an unacceptable risk that they will feel eXCfllciating pain during their execution. Secondly, it is beyond question that alleged injury is both great and irreparable in that it results in needless suffering. Therefore, a preliminary injunction restraining the State from performing lethal injection executions until it demonstrates that its lethal injection procedures are constitutionally sound is proper. Moreover, the equities weigh in favor of granting the injunction. Here, if the Court orders a preliminary injunction on lethal
26

injection executions pending limited discovery and an evidentiary hearing, and Petitioners' allegations regarding Montana's lethal injection procedure prove true, those on Montana's death row will be spared subjection to an unconstitutional execution procedure which exposes them to unconstitutional pain and suffering. Similarly, the State's interest in enforcing the death penalty in compliance with constitutional standards will be served. If, on the other hand, the State demonstrates that its protocol is constitutionally sound, it can carry out executions without the specter that an inmate will face an unreasonable risk of suffering pain during his execution.
E. This Petition is Timely. This petition has been filed within a month of the United States Supreme Court ruling in Hill v. McDonough. Furthermore, with regards to the execution scheduled in August, Petitioners recognize that "[b]oth the States and the victims of crime have an important interest in the timely enforcement of a sentence." Calderon v. Thompson, 523 U.S. 538, 556 (1998). However, this interest does not outweigh society's interest in ensuring that state executions are humane. VII. CONCLUSION Montana's lethal injection protocol directly applies to those citizens who are on the fringes of society, death row inmates. However, the rights of these
27

individuals are no less important that the rights of any other citizen of this State. Recent experiences suggest that those on the fringe of society have little protection from the State's deliberate indifference, whether as criminal defendants or as an individual facing involuntary commitment to a mental health institution. In this case, it is especially important that this Court not allow the State show deliberate indifference to death row inmates and to shirk its duty to administer a lethal injection in a humane manner. The people of Montana, including those who have committed horrific crimes, deserve no less.
The State has a duty to perform humane executions, in·espective of a death row inmate's wishes to die. This Court must not allow a death row inmate to be subjected, voluntarily or not, to an unacceptable risk of cruel and unusual punishment at the time of his execution. The only way to ensure that Montana's lethal injection protocol is constitutionally sound is to review the protocol. Accordingly, Petitioners respectfully request the Montana Supreme Court accept jurisdiction, enjoin all executions pending the outcome of this litigation and remand this matter to a district court with the instructions that the court shall allow the petitioner to conduct limited discovery, including a Rule 34 M.R.Civ.P., inspection and videotaped tour of Montana's execution chamber, a deposition of the warden at Montana State Prison, and document requests which pertained to the
28

last two executions carried out in the state. Discovery should also include interrogatories to, and the anonymous depositions of, those who have participated in the two most recent executions and those who have been or will be trained for the upcoming execution of David Dawson.
Dated this ~day of July, 2
Attorneys for Petitioners
29

CERTIFICATE OF SERVICE This is to certify that the foregoing was hand-delivered upon the attorneys
and individuals of record at their address or addresses on the l \~ day of July
2006, as follows: Mike McGrath Attorney General Montana Attorney General's Office P.O. Box 201401 Helena, MT 59620-1401 Mike Ferriter Director Montana Department of Corrections Adult Community Corrections Division P.O. Box 201301 Helena, MT 59620-1301 Mike Mahoney Warden Montana State Prison 500 Conley Lake Road Deer Lodge, MT 59722
30

CERTIFICATE OF COMPLIANCE Pursuant to Rules 17(b) and 27 of the Montana Rules of Appellate Procedure, I certify that this VERIFIED PETITION FOR INJUNCTIVE RELIEF AND MEMORANDUM IN SUPPORT is printed with a monospaced typeface of 14 points, is double spaced and does not exceed 7,000 words, excluding Certificate
31

VERIFICATION OF RONALD F. WATERMAN

I, Ronald F. Watennan, hereby declare:

1. I am the President of the Montana Association of Criminal Defense

Lawyers and am a member of the State Bar of Montana and admitted to practice

before all courts of this state, as well as this Court, the U.S. Court of Appeals for

the Ninth Circuit, and U.S. Supreme Court. I am counsel for Petitioners in this

matter. I have personal knowledge of the matters set forth in this petition and I

could and would competently testify to then1 if called upon to do so.

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

facts that are not otherwise supported by citations to the record or declarations to

the attached petitions are true and correct to my own knowledge, except as to any

matters stated in it on infonnation and belief, which I am infonned and believe are

true and correct.

3. I declare under penalty of perju

~.1 r T.....

•.1. ..........

the

laws

of the

State

of Montana

and the United States of America that the fi

fIk Subscribed and sworn to before me this I da of July, 2006, t
TARY UBLI for the State of Montana Print Name: 'Julie A. JOhVlSuY\. Residing at: He {e&'\.q I M T
My Commission expires: "Dec. 23, Z007

VERIFICATION OF MICHAEL DONAHOE I, Michael Donahoe, hereby declare:
1. I am the President of the Montana Association of Criminal Defense
Lawyers and am a member of the State Bar of Montana and admitted to practice
before all courts of this state, as well as this Court, the U.S. Court of Appeals for
the Ninth Circuit, and U.S. Supreme Court. I have personal knowledge of the
matters set forth in this petition and I could and would competently testify to them if called upon to do so.
2. I have reviewed the foregoing complaint. I verify that all of the alleged
facts that are not otherwise supported by citations to the record or declarations to the attached petitions are true and correct to my own knowledge, except as to any matters stated in it on information and belief, which I am informed and believe are true and correct.
3. I declare under penalty of perjury under the laws of the State of Montana and the United States of America th{t,.he ore~ ing is true and correct.
Vf'-ri,-- .
. Michael Donahoe
~
ael Donahoe. y PUBLIC ~ . the State of Montana
Prin arne: -:5i:tL;''e- A-. 30hn $" OVl
Residing at: (:de{~, M"I My Commission expires: j)eL. '2:~ t 2Qo1

VERIFICATION OF SCOTT CRICHTON I, Scott Crichton, hereby declare: 1. I am the Executive Director of the Montana American Civil Liberty Union. I have personal knowledge of the matters set fOlih in this petition and I could and would competently testify to them if called upon to do so. 2. I have reviewed the foregoing complaint. I verify that all of the alleged facts that are not otherwise supported by citations to the record or declarations to the attached petitions are true and correct to my own knowledge, except as to any matters stated in it on information and belief, which I am informed and believe are true and correct. 3. I declare under penalty of perjury under the laws of the State of Montana and the United States of America that the foregoing is true and correct.

Scott Crichton

$ -(fA

Subscribed and sworn to before me this

day of July, 2006, by Scott Crichton.

for the State of Montana
-::ru le A· ~h.V\..r 0 t'\
Residing at: Ne1e(LC( I ,AftT
My COlnmission expires: Dec->. 613, Lf>01

VERIFICATION OF MOE WOSEPKA I, Moe Wosepka, hereby declare: 1. I am the Executive Director of the Montana Catholic Conference. I have personal knowledge of the matters set forth in this petition and I could and would competently testify to them if called upon to do so. 2. I have reviewed the foregoing complaint. I verify that all of the alleged facts that are not otherwise supported by citations to the record or declarations to the attached petitions are true and COlTect to my own knowledge, except as to any matters stated in it on information and belief, which I am informed and believe are true and correct. 3. I declare under penalty of perjury under the laws of the State of Montana and the United States of Ame~·.....u..--I~4-W...~
Subscribed and sworn to before me this ll~ day of July, 2006, by Moe Wosepka.
BLI for the State of ~v1ontal1a
Su.LZeA. ::JiO h f\ oS 0 1\
Residing at: He-(er1Ct., MT
My Commission expires: 'D ec. '2.3 I '2001

VERIFICATION OF JOHN C. SHEEHY I, John C. Sheehy hereby declare: 1. I am a member of the State Bar of Montana and admitted to practice before all courts of this state, as well as this Court and the U.S. Court of Appeals for the Ninth Circuit. I have personal knowledge of the matters set forth in this petition and I could and would competently testify to them if called upon to do so. 2. I have reviewed the foregoing complaint. I verify that all of the alleged facts that are not otherwise supported by citations to the record or declarations to the attached petitions are true and correct to my own knowledge, except as to any matters stated in it on information and belief, which I am informed and believe are true and correct. 3. I declare under penalty of perjury under the laws of the State of Montana and the United States of America that the foregoing is true and correct.
~ - ~ ~~(;/" ~
iT C. Sheehy
Subscribed and sworn to before me this ~ d y of J ly, 2006, by John C. Sheehy.

(Notarial Seal)

NO RY ~LIC for t):J,e State of Montana Print Nmne: JJlrl, 0 ~', WkT~~
Residing at: t\-el EtJAJ Mo"'-lTM&
My COlmnission expires: AO(TlJSi ;l..f5'1 ~

VERIFICATION OF GORDON BENNETT I, Gordon Bennett hereby declare: 1. I am a member of the State Bar of Montana and admitted to practice before all courts of this state, as well as this Court and U.S. Supreme Court. I have personal knowledge of the matters set forth in this petition and I could and would competently testify to them if called upon to do so. 2. I have reviewed the foregoing complaint. I verify that all of the alleged facts that are not otherwise supported by citations to the record or declarations to the attached petitions are true and correct to lny own knowledge, except as to any matters stated in it on information and belief, which I am informed and believe are true and correct. 3. I declare under penalty of perjury under the laws of the State of Montana and the United States of America that the foregoing is true and correct.
C:::;d~ V~( \~ J5~
Gor~ Bennett
Subscribed and sworn to before me this tttl-- day of/luly, . ,

(Not&rial Seal)

NO Y PU: LIC for,t,he State of Montana Print Nmne: LJ/rL'P ~. WNre(2..M.A-~
Residing at: \r\-6"LE'tJA, JJD~LI\-J}A-
My Commission expires: A-v6=u<;-r 1.%/ m 15

IN THE SUPREME COURT OF THE STATE OF MONTANA
No. _ _ _ _ _ __
MONTANA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION OF MONTANA; MONTANA ASSOCIATION OF CHURCHES; MONTANA CATHOLIC CONFERENCE; GORDON BENNETT; JOHN C. SHEEHY; SENATORS BRENT CROMLEY, STEVE GALLUS, DAN HARRINGTON, DON RYAN AND DAN WEINBERG; REPRESENTATIVES NORMA BIXBY, PAUL CLARK, GAIL GUTSCHE, JOEY JAYNE, AND JEANNE WINDHAM; MARIETTA JAEGER LANE; EVE MALO,
Petitioners,
v.
STATE OF MONTANA; DEPARTMENT OF CORRECTIONS; DIRECTOR MIKE FERRITER; WARDEN MIKE MAHONEY; ATTORNEY GENERAL MIKE MCGRATH, JOHN DOES 1-10,
Respondents.
APPENDIX TO VERIFIED PETITION FOR INJUNCTIVE RELIEF AND MEMORANDUM IN SUPPORT

Appendix
Exhibit 1..................... Death Certificate of Terry Allen Langford
Exhibit 2..................... District Couli Order Holding Missouri Lethal Injection Protocols Violate Eighth Amendn1ent, Ordering DOC to Draft New Protocols, and Staying All Executions Pending Court's Approval (June 26, 2006) in Taylor v. Crawford
Exhibit 3 ...................... District Court Order Granting Preliminary Injunction and Issuing Stay of Execution (June 26, 2006) in Nooner et al. vs. Norris et al.
Exhibit 4......................Representative Paul Clark's FOI Request to Director of Department of Corrections

5 IS A PERMANENT RECORD. USE TYPEWRITER WITI ':SH BLACK RIBBON.
ALL SIGI'IIATURES MUST BE IN BLACK OR NEAR BLACK INK. SEE HANDBOOK FOR INSTRUCTIONS. MONTANA DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES, VITAL RECORDS AND HEALTH STATISTICS BUREAU.

FORM V.S. 3 (1988 revision)

I

I

Local File Number DECEDENT"S NAME (Firs I)

1. T e r r y

(Middle) Allen

MONTANA CERTIFICATE OF DEATH

SEX 2. M a l e

Siale File Number DATE OF DEATH (Month. Day. Year)
3. Feb. 24, 1 9 9 8

23.

Enter the diseases. injuries. or complications Ihat caused Ihe death. Do not enler the mode 01 dying. such as cardiac or respiratory arrest.

shocx. or heart failure. list only one cause on each line. (See Instructions on OilIer side)

~;:. CAUSE OF
:':-:i.. DeATH -

IMMEDIATE CAUSE (Final disease or condition resulting in death)

SeqUentially list conditions ii any.

\(.

leading to immediate cause. Enter

Underlying Cause (Disease or injury Ihat

initiated evenls resulting in death) Last.

aMixed Drug and Electrolyte Toxicit

DUETO(ORASACONSEQUENCEOF): 1. Sodium Pentothal

2 . P a v u l o n b. ________________________________________ _ ~~~ _________________~-----------------

3 . DUE TO (OR AS A CONSEOUENCE OF):

Potassium Chlorid

c.Judicial Execution DUE TO (OR AS A CONSEQUENCE OF):

d.

PART II. Other significant conditions contribuling to dealh bul nol resulting in the underlying cause given in Pari!.

WAS AN AUTOPSY PERFORMED? (Yes or no)

24a.

No

24b. WERE AUTOPSY FINDINGS AVAILABLE PRIOR TO COMPLETtC
OF CAUSE OF DEATH? (Yes or 110.

WAS CASE REFERRED TO CORONER? (Yes or no)

25.

Yes

26. MANNER OF DEATH
r:J Nalural 0 Pending

Investigalion

n n Accident

Could nol he

f'JSuicide ~.xfoJrenleircrindineed

DATE OF INJURY (Month;P7' Year) 27<1. L. 2 4 /
PLACE OF INJURY-At horne. farm. street.lactory. oflir.e bllildiIH)./!Ir. (SfJf~r:ily) 27eNontana State Prison

DESCRIBE HOW INJURY OCCURRED
27cLJud i c i al Execution LOGI\T!ON (Stre.!1 ;I/HI NIIIllIH!r or Rural Route NlJIllt1P.r. Cily or Town. St;)le)
700 Conley Lake Road 211.

28a. TO BE COMPLETED BY GERTIFYING PHYSICIAN ONLY. To the he!;1 01 my knowledge. death occurred al Ihe time, date and place and due to the cause/s) staled.

29a TO BE COMPLETED BY CORO 'R ONLY. -On the basis 01 examination and/or dale and place and due

(Signature and Tille)

(Signatllre and Tille)

f)!%!n'!I"_.--.,.,......,.._. DATE SIGN ED (Monlh. Day. Year)

HOUn. OF DE:\TH

HOUR OF DEATH

"'':ll1il~..............1oWIII 28b.

2Bc.

M 29b.

1 8 Feb. 24,

99

29c. 1 2 : 07 A

-N-A-M-E--O-F-A-T-T-EN--D-IN-G~P~H-Y~S~IC~I-AN~IF~O~TH~ER~T-H-A-N-C-E-R-T-IF-I-E-R~(-~-p-e-o-rp-r-in-t-)-------+D-A-T-E-P-R-O-N-O-U-N-C--E-D-D-E-A-D-{M--on-t-h-.O--ay-.-Ye-a-f}------------+P-R-O--N-O-U-N~C~E~D-D-.E~A~D

(Hour)

28d.

29t.1.

Feb. 24, 1998

2ge. 1 2 : 07 A

NAME .l\ND ADDRESS OF CERTIFIER (PHYSICIAN OR CORONER) (Type orPrinl,

30 John M. Pohle, :Jil!1g''''''~rrl''"r'".,~m1 LOCAL REGISTRAR'S SIGNATURE
--------"--31 a.--_._---_.__......

Coroner,

601

Missouri

Ave.

Deer Lodge, Mt. DATE FILED (Monlh. Day. Year)
l'h

59722

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 1 of 16

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

MICHAEL ANTHONY TAYLOR
vs. LARRY CRAWFORD, et aI.,

)

)

Plaintiff,

)

)

)

)

)

Defendants. )

No. 05-4173-CV-C-FJG

ORDER
I. BACKGROUND Plaintiff filed his Complaint on June 3, 2005, and an amended complaint on September 12, 2005 (Doc. #36)1. In his First Amended Complaint plaintiff sought a declaratory judgment that Missouri's method of execution by lethal injection violates the Eighth, Thirteenth and Fourteenth Amendments because it would inflict on him cruel and unusual punishment, would deprive him of life, liberty or property without due process of law and would inflict upon him a badge of slavery, in that the three drug sequence using a procedure whereby the drugs are adrninistered through the fernoral artery creates a foreseeable risk of the infliction of gratuitous pain. Plaintiff also argued that the physician's role in the execution violated medical ethics. On December 28, 2005, the Court issued an Order denying defendant's Motion to Dismiss and ruling that the case presented factual issues which would likely be resolved by either a motion for

I Richard Clay was previously granted leave to intervene in this action. On

,",v, ",.v '-... uv"'''''''. tho rnllrt I\Ar I\Antinn tn nicrY'licc thic th Y I~nll~nl ~n ')nn~

U\,AIIUUI

'"-VV"",, ,

nr~lI\1 rtr~nto~

rl~\I'c

~,..tinn ~c

"JUI I. VII..AII] :::11 UII&."",\",.I IVII. '-'IUJ ~ IVIVIoI"""I. L\.J L.,...I'IVI'IIV'-' &.llIv

I I..A'-' L'-'

him without prejudice. Reginald Clemons also had a pending Motion for Leave to

Intervene in this action. He has now also moved to withdraw from this action.

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 2 of 16
summary judgment or through a hearing (Doc. # 54). On January 3, 2006, the
defendants notified the Court that the Supreme Court of Missouri had set plaintiffs execution date for February 1, 2006. On January 18, 2006, plaintiff filed an Application for a Court Order requesting that the Court issue an Order directing that Taylor not be executed until further order of the Court to be issued within a reasonable time after a hearing on the merits which was scheduled for February 21, 2006. On January 19, 2006, Judge Scott Wright issued an Order staying the execution until the Court could conduct the hearing (Doc. # 62). The same day, defendants appealed Judge Wright's ruling to the Eighth Circuit. On January 29, 2006, the Eighth Circuit entered an Order reversing and vacating Judge Wright's January 19, 2006 Order. The Eighth Circuit remanded the case to the Western District and directed that the Court reassign the case to another judge for an immediate hearing. The Eighth Circuit directed that an Order be issued no later than 12:00 Noon on Wednesday, February 1, 2006. This case was assigned to this Court on Monday, January 30, 2006.
On January 30-31, 2006, this Court conducted a telephonic hearing regarding plaintiffs Complaint. During the telephonic hearing, the Court heard the testimony of
the following individuals: Dr. Mark Dershwitz, Dr. Jonathan I. Groner, Dr. Mark Heath
and Terry W. Moore, the Director of Adult Institutions for the Missouri Department of Corrections. Plaintiff requested that the State produce John Doe Numbers One and Two (the doctor and the nurse who participated in the most recent execution), but this request was denied. Plaintiff also sought to present the testimony of Dr. Sri Melethil, a pharmacokineticist, but he 'vvas out of town and unable to appear until the morning of
2

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 3 of 16
February 1, 2006. After considering the evidence and the testimony of these individuals, the Court determined that neither the chemicals used by the State for lethal injection nor the procedure employed to administer these injections constituted cruel or unusual punishment. The Court noted that while the plaintiff suggested a different approach to lethal injection, he had not shown that the current method used by Missouri violated the Eighth Amendment. Further the Court was not persuaded that the use of the femoral vein for the administration of the lethal injection violated applicable standards of the Eighth Amendment. The Court also did not find that Missouri physicians who are involved in administering lethal injections were violating their ethical obligations or that the procedure was violative of the Thirteenth Amendment.
Plaintiff appealed this Court's January 31,2006 Order, arguing that he did not have sufficient time to present his arguments to the Court during the two day telephonic hearing. Plaintiff argued that this Court had abused its discretion in not allowing him to call John Doe I and II or Dr. Melethil and also erred in denying his claims. On April 27, 2006, the Eighth Circuit remanded the case to this Court to reconvene the hearing. The Eighth Circuit gave the parties thirty days to engage in some limited additional discovery and then an additional thirty days within which the hearing was to be held and for this Court to issue its Order, amending, modifying Oi iestating the previous judgment and certifying the same to the Eighth Circuit.
The Court allowed plaintiff to conduct the following discovery: a Rule 34 inspection and videotaped tour of Missouri's execution chamber, a deposition of Larry . Crawford, Director of the Missouri Department of Corrections and document requests
3

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 4 of 16
which pertained to the last six executions carried out by the State of Missouri. The document requests included any execution logs, records, autopsy reports, test results and analyses of post-mortem/toxicology reports. The State also provided information regarding what specialized training the physicians and nurses undergo who participate in administration of the drugs and all documents pertaining to any fall back procedures regarding vein access and the three drug sequence. The Court also allowed plaintiff to submit interrogatories to John Doe Defendants I-V. After John Doe I submitted his interrogatory responses, plaintiff again asked the Court for permission to depose him. The Court allowed plaintiff to conduct a limited anonymous deposition of John Doe I. This deposition was conducted at the Courthouse, with only the Court and counsel present. On June 12 -13,2006 this Court continued the hearing which was begun in January 2006. During the hearing, plaintiff presented the testimony of Dr. Mark Heath, an anesthesiologist, Dr. Stephen Johnson, an expert in central line placement and femoral line placement and Dr. Thomas Henthorn, an expert in pharmokinetics. The State presented the testimony of Dr. Mark Dershwitz, an anesthesiologist, Terry Moore, Director of Adult Institutions for Department of Corrections and Larry Crawford, Director of the Department of Corrections.
II. DISCUSSION A. Standard The Eighth Amendment provides that "cruel and unusual punishment" shall not be inflicted. It prohibits punishments that are "incompatible with the 'evolving standards
4

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 5 of 16
of decency that mark the progress of a maturing society.'" Estelle v. Gamble 429 U.S. 97,102,97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), (quoting Trop v. Dulles, 356 U.S. 86, 101,78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)). As to executions, it prohibits "the unnecessary and wanton infliction of pain" as well as methods involving torture or a lingering death. See Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976). "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely." Louisiana ex reI. Francis v. Resweber, 329 U.S. 459, 464,67 S.Ct. 374, 376, 91 L.Ed. 422 (1947)(emphasis added). Additionally, as the Court noted in Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994), "[t]he risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review."
B. Missouri's Execution Procedure During the January 30-31,2006 hearing, Terry Moore, Director of Adult Institutions for the Missouri Department of Corrections, described what he believed was the execution procedure used jn Missouri. Mr. Moore testified that three drugs are administered by a board certified physician. The physician first administers five grams of sodium pentothal, also known as thiopental, which is a substance that produces anesthesia. Thereafter, the physician administers a syringe of saline to flush the IV line. Next, the physician administers pancuronium bromide, also referred to as pancuronium. This drug is a paralytic agent which prevents any involuntary movement of the body.
5

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 6 of 16
administered is potassium chloride, which is a drug which stops the electrical activity of
the heart. There was no dispute that if an inmate is not sufficiently anesthetized when
the potassium chloride is administered, it will cause excruciating pain as it is
administered through the inmate's veins. The inmate, however, would be unable to
show that he was experiencing discomfort due to the paralyzing effects of the
pancuronium bromide.
After the Eighth Circuit remanded this case, the Court allowed plaintiff to conduct
additional limited discovery. In a letter sent to the Court on May 17, 2006, plaintiff's
counsel informed the Court that new evidence in the form of chemical dispensary logs, which had recently been produced by the State, contradicted the State's previous
representations regarding the amount of thiopental that is used during executions. In response, counsel for the State confirmed in a letter sent to the Court on May
17, 2006 that 5 grams of sodium pentothal are used:
As plaintiff correctly points out, defendants have stated consistently that 5 grams of sodium pentothal are used in executions in Missouri. Five grams are in fact used. The reference to the 2.5 grams noted in the drug log is not correct The doctor and the nurse \AJho have prepared the drugs for the last six executions and for plaintiffs stayed execution confirm that 5 grams has been used in the last six executions and was prepared for plaintiffs stayed execution. (Defendants are attempting to run down the source of the error in the record, and continue to do so.) However, the next day on May i 8, 2006, counsel for the State sent the Court another letter in which they acknowledge that a mistake had in fact been made regarding the representations as to the amount of thiopental administered. The letter stated in part: Upon further review, defendants have just determined this afternoon,
6

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 7 of 16
contrary to previous representations, that 2.5 grams of sodium pentothal was prepared and used at the last execution (not 5 grams) and that 2.5 grams was prepared for use at the execution of plaintiff (which was stayed before the femoral IV was inserted). Defendants and their counsel apologize to the Court and the parties for providing incorrect information.
(Doc. # 121).
Upon learning of this information, the Court submitted a set of interrogatories to
John Doe I 2 to answer. The Court inquired whether the lethal injection protocol was
codified in any publication, policy statement or state regulation. John Doe I responded
that he was not aware of the protocol being written down in any form. He stated that it
was his understanding at the time of Mr. Gray's execution that he had the independent
authority to change the dose based on his medical judgment. He stated that this
understanding was based on past contacts with predecessors of the current Director of
the Department of Corrections. When the Court asked how many times the protocol
has been modified since it was put into place, John Doe I responded:
John Doe I can recall one instance when three syringes of potassium chloride were used based on the obesity of the offender. John Doe I can recall one instance when the IV was inserted in the offender's neck instead of his femoral vein based on the damage to both of his femoral veins from drug abuse. John Doe I is aware of one instance when a peripheral IV was used because John Doe I was unable to attend the execution. For the execution of Mr. Gray and the preparation for the execution of Mr. Taylor, John Doe I determined to use 2.5 grams of sodium pentothal. This determination occurred because of difficulty in dissolving powder, obtained from a new supplier, containing more than 2.5 grams in the liquid that could be accommodated In a syringe. The rate of infusion and the concentration of the dose ensured that 2.S grams was more than sufficient to make the offender unconscious before administering the remaining drugs. Further, with regard to Mr. Taylor, John Doe I was aware that the dosage used in the execution of Mr. Gray was adequate. (Response to Interrogatory No. S, Doc. # 152).
2Defendants have disclosed that John Doe I is the physician that mixes the drugs used during the executions.
7

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 8 of 16
When asked who was consulted before the dosage of thiopental was decreased,
he responded that no one was consulted because he thought it was within the
acceptable parameters to accomplish the goal. When questioned about his medical
background, John Doe stated that although he was a board certified surgeon, he is not
an anesthesiologist. The Court also allowed plaintiff to conduct an anonymous
deposition of John Doe I on June 5, 2006.
When he was asked whether any part of the execution procedure was written
down, John Doe I responded as follows:
A. I have never seen it. If it was, it would have been written on my recommendation. Q. I see. Do you have any idea why it might not be written down? A. I'm sure it's written down somewhere. If they're checking the logs of all the drugs every time we use them and recording expiration dates and number of sheets and needles that we use, I'm certain they have it written down somewhere. Q. But in terms of the aspects of the procedure that you're responsible for, that you perform, those aren't written down, to your knowledge? A. It might be written in there, but it would be written on by somebody observing what I was doing and using their interpretation. So if there was a written procedure that they had done I would - you know, I'm curious to see what they think I'm doing, but I don't know that they write down the individual details of how I insert an 18-gauge rather than a 22-gauge or a 14-gauge needle. Q. I see. So people might write things down as you're doing them, but there's no guide that you follow as you're doing it? A. Absolutely not. Q. So you just rely on your memory? A. Yes. Q. And your judgment? A. Yes.
(John Doe Depo. pp. 69-70)
During his deposition, John Doe I described how he has had to devise an
improvised procedure with regard to mixing the correct dosage of thiopental:
Q. And could you take me step-by-step through that, your improvised process? A. I'd have to see the containers because I cannot at the present time remember
whether they have glass or - they are actually just two straight-walled glass bottles. One has powder in the bottom, one has liquid in the bottom, and they are
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8

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 9 of 16
plastic and inject my own diluents which I know will give me no more than 50 cc's for the final product, which is what I'm aiming for for the final injection.
We have encountered problems trying to mix more than three or four grams using this method, mainly because of an inert sUbstance possibly put in by the manufacturer to prevent mis-mixing, which I know several drug companies will do. So right now the last time I saw and talked to the Director on each of these occasions saying we either need to change what we say we're dosing or we will have to go back to the original five-gram bottle that was available when we instituted this procedure. So right now we're still improvising. And he's also having me researching an alternate drug if it comes to that.
(John Doe Depo. pp. 9-10).
When John Doe I was asked why he did not initially recall why he prepared a
smaller dose of thiopental, he responded:
A. . .. But I am dyslexic and so I can recall in the operating room specific facts and details of operation and function perfectly, but in terms of copying' one line to another or trying to simply copy a phone number or account number I will
sometimes transpose numbers even when I'm staring at the two numbers. So,
it's not unusual for me to make mistakes. ... But I am dyslexic and that is the reason why there are inconsistencies in my testimony. That's why there are inconsistencies in what I call drugs. I can make these mistakes, but it's not medically 'crucial in the type of work I do as a surgeon.
(John Doe Depo. pp. 24-25)(emphasis added).
In describing how the drugs are administered, John Doe I stated that, " ...the
people who do the injections are nonmedical and they're in the dark so they have a
smail flashlight that they're able to quickly identify the syringes, make the appropriate
connections and injections, disconnect, clamp the tube, and changing the number of
syringes or the order of syringes was an unnecessary risk." (John Doe Depo. p. 31).
When questioned about whether he monitors anesthetic depth, John Doe I
testified as follows:
Q. Did you monitor Mr. Gray's anesthetic depth during the execution? A. I monitor - the only thing that can be monitored is facial expression, and you can judge when the effect of the drug is accomplished, and that can be seen from across a room through a window. And when that effect occurs then I know the inmate is unconscious....
9

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 10 of 16
o. So you said that you can see that - an inmate's facial expression from where you
stand? A. Yes. That's the only thing any anesthesiologist uses in the course of inducing a person when pentothal was still used, was you simply started injecting, look at the face, and again, it's difficult to describe, but I can tell instantly when the pentothal has taken effect. And in medical practice the instant the pentothal has taken effect they gave absolutely no more because then they move on to the actual anesthesia which has to be started before the pentothal wears off.
(John Doe Depo. pp. 41-42).
When he was asked whether he had any discussions with Director Crawford
about the scope of his authority, John Doe I stated:
A. Oh, yes. We talk - I talk in his office and at the time of the execution. In fact, he's the only director I have actually gone over to his office for other reasons and visited about this. And again, he has no background in corrections and he has no background in medicine, so the other corrections officers had long backgrounds in corrections so they were aware of what we were doing and why we were doing it. Since he has no background in either field, he reiterated that he's totally dependent on me advising him what could and should and will be done, and he will back up - if I think there's a change that needs to be made, he wants me to quickly inform him so he can make the appropriate changes. O. I see. So, it's your understanding that if you thought a change to the execution procedure needed to be made you would - Director Crawford would defer to your opinion? A. Absol utely.
(John Doe Depo. pp. 63-64).
C. Is Missouri's Execution Procedure Constitutional?
In Morales v. Hickman, 415 F.Supp.2d 1037 (N.D.Cal. 2006), aff'd, 438 F.3d 926
(9th Cir. 2006), cert. denied,126 S.Ct.1314,163 L.Ed.2d 1148 (2006), the Court stated:
The Eighth Amendment prohibits punishments that are incompatible with the evolving standards of decency that mark the progress of a maturing society.... Executions that involve the unnecessary and wanton infliction of pain ... or that involve torture or a lingering death ... are not permitted. When analyzing a particular method of execution or the implementation thereof, it is appropriate to focus on the objective evidence of the pain involved ... .In this case, the Court must determine whether Plaintiff is subject to an unnecessary risk of unconstitutional pain or suffering such that his execution by lethal injection under California's
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10

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 11 of 16
Id. at 1039 (internal citations and quotations omitted)(emphasis added). In that case the Court focused on the narrow issue of "whether or not there is a reasonable possibility that Plaintiff will be conscious when he is injected with pancuronium bromide or potassium chloride, and, if so, how the risk of such an occurrence may be avoided." lQ. at 1040. This is precisely the same question which this Court must address.
After learning more about how executions are carried out in Missouri, through the interrogatories submitted to the John Doe defendants, reviewing the chemical dispensary logs, reviewing the videotape of the execution chamber and listening to the testimony of John Doe I, and to the testimony of the other expert witnesses at the June 12-13, 2006 hearing, it is apparent that there are numerous problems. For example, there is no written protocol which describes which drugs will be administered, in what amounts and defines how they will be administered. John Doe I testified that he came up with the current protocol. John Doe I also testified that he felt that he had the authority to change or modify the formula as he saw fit. It is apparent that he has changed and modified the protocol on several occasions in the past. He has reduced the amount of thiopental given from 5.0 grams to 2.5 grams and has also changed the' location on the inmate's body where the drugs were administered. It is obvious that the protocol as it currently exists is not carried out consistently and is subject to change at a moment's notice.
The Court is also concerned that John Doe I possesses total discretion for the execution protocol. Currently, there are no checks and balances or oversight, either before, during or after the lethal injection occurs. No one monitors the changes or modifications that John Doe I makes. John Doe I even testified that the Director of the Department of Corrections; Mr. Crawford: has no medical or corrections background,
11

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 12 of 16
and that he is "totally dependent on me advising him." (John Doe Depo. p. 64). In addition to the fact that there is no oversight and the responsibility for making
changes or adjustments is completely vested in one individual, the Court also has concerns about John Doe I's qualifications. John Doe I readily admitted that he is dyslexic and that he has difficulty with numbers and oftentimes transposes numbers. John Doe I testified "it's not unusual for me to make mistakes.... But I am dyslexic and that is the reason why there are inconsistencies in my testimony. That's why there are inconsistencies in what I call drugs. I can make these mistakes, but it's not medically crucial in the type of work I do as a surgeon." (John Doe Depo. p. 25). The Court disagrees and is gravely concerned that a physician who is solely responsible for correctly mixing the drugs which will be responsible for humanely ending the life of condemned inmates has a condition which causes him confusion with regard to numbers. As the Court has learned, the process of mixing the three different drugs and knowing the correct amount of the drugs to dissolve in the correct amount of solution involves precise measurements and the ability to use, decipher, and not confuse numbers. Although John Doe I does not feel this is crucial in the type of work he does as a surgeon, it is critical when one is mixing and dissolving chemicals for a lethal injection.
In addition, John Doe I testified that although he is not an anesthesiologist, he monitors the anesthetic depth of an inmate by observing the inmate's facial expression. However, as can be seen from the videotape of the execution chamber, when the inmate is lying on the gurney in the execution room, the inmate is facing away from the Operations room where John Doe I is located. Additionally, it is dark in the Operations room and there are blinds on the window which are partially closed and obstruct the
12

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 13 of 16
view. This would make it almost impossible for John Doe I to observe the inmate's facial expression. This leads the Court to conclude that there is little or no monitoring of the inmate to ensure that he has received an adequate dose of anesthesia before the other two chemicals are administered.
All of these concerns lead the Court to conclude that Missouri's lethal injection procedure subjects condemned inmates to an unnecessary risk that they will be subject to unconstitutional pain and suffering when the lethal injection drugs are administered.
D. Revisions to the Execution Protocol Having determined that Missouri's current method of administering lethal injections subjects condemned inmates to an unacceptable risk of suffering unconstitutional pain and suffering, the Court concludes that it is within its equitable powers to fashion a remedy that "preserves both the State's interest in proceeding with Plaintiff's execution and Plaintiff's constitutional right not to be subject to an undue risk of extreme pain." Morales, 415 F.Supp.2d at 1046. Director Crawford testified at the hearing that the Department of Corrections is in the process of developing a directive which would establish a protocol for administering lethal injections. However, from his testimony, it was apparent that the directive wouid not encompass aU of the attributes which the Court finds are necessary to ensure that lethal injections are carried out humanely. Recently other courts have also faced this challenge and have modified execution procedures in those states. See!UL. Brown v. Beck, No. 5:06-CT-3018-H, (E.D.N.C. April 7, 2006)(Doc. No. 32) and Morales, 415 F.Supp.2dat 1046.
Accordingly, the Court hereby AMENDS its previous order of January 31,2006 and ORDERS the Department of Corrections for the State of Missouri to prepare a
13

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 14 of 16

written protocol for the implementation of lethal injections which incorporates the

following provisions:

1. Personnel

A board certified anesthesiologist shall be responsible for the mixing of all drugs

which are used in the lethal injection process. If the anesthesiologist does not actually

administer the drugs through the IV, he or she shall directly observe those individuals

who do so. Additionally, the Operations Room shall be sufficiently lighted so that the

corrections personnel can see which drugs are being administered.

2. Lethal Injection Drugs & Method of Administration

The level of thiopental administered shall not be less than 5 grams. Pancuronium

Bromide and Potassium Chloride will not be administered until the anesthesiologist

certifies that the inmate has achieved sufficient anesthetic depth so that the inmate will

not feel any undue pain when the Potassium Chloride is injected. The State in

conjunction with the anesthesiologist will have discretion to determine the most

appropriate location on the inmate's body to inject the drugs. The State shall specify in

the protocol how the anesthesiologist will certify that the inmate has achieved the

appropriate anesthetic depth.

3. Monitoring

The State will put in place procedures which will allow the anesthesiologist to

adequately monitor the anesthetic depth of the inmate. This may require the State to

purchase additional equipment in order to adequately monitor anesthetic depth. The

State should also consider repositioning the gurney so that the inmates's face will be

visible to the anesthesiologist, using a mirror, or even allowing the anesthesiologist to

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14

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 15 of 16 4. Contingency Plan
The State's protocol shall also contain a contingency plan in case problems develop during the execution procedure. 5. Auditing Process
The Department of Corrections shall put in place an auditing process which will ensure that the individuals involved in the lethal injection process are correctly following the protocol, including administering the correct dosages of the medication, in the proper order. The Court contemplates that the State will consult with a board certified anesthesiologist in designing the auditing process. 6. Changes to the Lethal Injection Procedure
After approval by the Court, no further changes shall be made to the lethal injection protocol without seeking the prior approval of this Court. This Order contemplates consultation with a board certified anesthesiologist in arriving at a proposed written protocol. The Court will retain jurisdiction over the State's implementation of the lethal injection protocol for the next six executions or until the Court is satisfied that the protocol is being administered in a consistent fashion. The Department of Corrections shall submit its revised lethal execution protocol to this Court for review and approval on or before July 15, 2006. All executions in the State of Missouri are hereby STAYED pending approval of the protocol.
III. CONCLUSION For the reasons stated above, the Court hereby AMENDS its January 31,2006 Order and in accordance with the April 27, 2006 Order of the Eighth Circuit, this Court
15

Case 2:05-cv-04173-FJG Document 195 Filed 06/26/2006 Page 16 of 16 hereby CERTIFIES this Order to the Eighth Circuit for its review and consideration.

Date: June 26,2006 Kansas City, Missouri

SI FERNANDO J. GAITAN, JR. Fernando J. Gaitan, Jr. United States District Judge

16

Case S:06-cv-0011 O-SWW Document 29 Filed 06/26/2006 Page 1 of 7

IN THE UNITED STATES DISTRlCT COURT EASTERN DISTRlCT OF ARKANSAS PINE BLUFF DIVISION

TERRICK TERRELL NOONER, and
DON WILLIAMS DAVIS

PLAINTIFF INTERVENOR PLAINTIFF

No. 5:06CV00110 SWW VS.

LARRY NORRIS, Director, Arkansas Department of Correction; GAYLON LAY, Warden, Arkansas Department of Correction; WENDY KELLY, Deputy Director for Health and Correctional Progrmns; JOHN BYUS; Administrator, Correctional Medical Services, Arkansas Department of Correction; and OTHER UNKNOWN EMPLOYEES, Arkansas Department of Correction

DEFENDANTS

ORDER

Terrick Terrell Nooner ("Nooner") and Don Williams Davis ("Davis"), Arkansas death-

row irunates, bring this action pursuant to 42 U.S.C. § 1983 claiming that the protocol for

carrying out execution by lethal injection in Arkansas violates the Fifth, Eighth, and Fourteenth

Amendments of the United States Constitution. Plaintiffs seek a declaration that the protocol is

unconstitutional, and an injunction enjoining Defendants from carrying out future executions in

accordance with the protocol.

Before the Court is Plaintiff Davis's motion for a preliminary injunction (docket entry

#21) asking the Court to stay his July 5, 2006 execution and permit him to litigate his

constitutional claims. Defendants have responded (docket entry #28), and the Inatter is ready for

Case S:06-cv-0011 O-SWW Document 29 Filed 06/26/2006 Page 2 of 7
decision. After careful consideration, and for the reason that follow, the Court concludes that the motion for a preliminary injunction should be granted.
I. In 1992, Davis was convicted of capital murder, burglary, and theft of property and sentenced to death. His conviction and sentence were affinned on direct appeal, 1 and his petition for post-conviction relief in state court was denied. 2 On September 14,2005, the Eighth Circuit affirmed denial of Davis's petition for habeas relief,3 and on April 17, 2006, the United States Suprelne Court denied Davis's petition for a writ of certiorari.4 Plaintiff Nooner initiated this § 1983 action on May 1, 2006, and on May 4, 2006, Davis filed a motion to intervene as a party plaintiff. On May 11,2006, Governor Mike Huckabee scheduled Davis's execution for July 5, 2006. On May 26,2006, the Court granted Davis's motion to intervene, and on June 16,2006, Davis filed the present motion for a preliminary injunction. Arkansas' lethal injection statute provides that the "punishlnent of death is to be administered by a continuous intravenous injection of a lethal quantity of an ultra-short-acting barbiturate in combination with a chelnical paralytic agent until the defendant's death is pronounced according to accepted standards of Inedical practice." Ark. Code .L.L.l.:r..n. 5-4-17(a)( 1). Arkansas law gives the Director of the Arkansas Departn1ent of Correction ("ADe") the responsibility to detennine the substances to be adlninistered and the procedures to be used in
IDavis v. State, 314 Ark. 257 (1993), cert. denied, 511 U.S. 1026 (1994). 2Davis v. State, 354 Ark. 161 (2001). 3Davis v. Norris. 423 F.3d 868 (8th Cir. 2005). 4Davis v. Norris, 126 S. Ct. 1826 (2006).
2

Case 5:06-cv-0011 O-SWW Document 29 Filed 06/26/2006 Page 3 of 7
any execution. See Ark. Code Ann. § 5-4-617(a)(2). The Director's protocol for execution by lethal injection, set forth in ADC Administrative Directive 96-06 ("AD 96-06"), calls for the administration of three chemicals in the following order: (1) a 2-gram injection of sodiuln pentothal (also known as thiopental), adlninistered to cause unconsciousness; (2) 2, 50milligran1 injections of pancuronium bromide, administered to cause paralysis; and (3) up to 3, 50-milliequivalent injections of potassium chloride, to stop the heart.5 Each injection is followed by a saline flush. According to AD 96-06, the injections are administered by way of control devices located in a control room, separate frOln the execution chmnber. The control devices are connected, by extension tubing, to IV catheters inserted into each arm of the condelnned imnate. The catheters are inserted by an "IV team" and the injections are administered by executioners, whose identities are kept secret. AD 96-06 contains no provision requiring that the IV team or executioners have any type of medical training or certification.6
Davis alleges that the State's protocol creates a substantial risk that the first injection (2 grams of sodiuln pentothal) will fail to render hiln unconscious to the point that he will not experience intense pain and agony after the administration of pancuroniuln bromide and potassium chloride.
Davis's medical expert, 1\1ark 1. S. Heath, M.D., a board-certified anesthesiologist and the Assistant Professor of Clinical Anesthesiology at Columbia University in New York City, states that the ADC's lethal injection procedure creates Inedically unacceptable risks of inflicting
5Docket entry #21, Ex. 1 (ADC Administrative Directive 96-06). 6The State asserts that the protocol requires the use of trained individuals for both the placement of the IV lines and the administration of chelnicals. Docket entry #28, at 9. The Court has carefully reviewed ADC 96-06 and finds no such provision.
3

Case 5:06-cv-0011 O-SWW Document 29 Filed 06/26/2006 Page 4 of 7
excruciating pain and suffering. See docket entry #21, Ex. 1 (Heath Decl.), ~ 51. In his declaration, Dr. Heath explains that pancuronium bromide stops all movelnent, including that necessary to breathe, but it has no effect on the ability to feel pain, and potassium chloride bums intensely as it travels through the veins to the hem1. Thus, if a condemned inmate is conscious when the pancuroniuln bromide and potassium chloride are adlninistered, he or she will feel the sensations of slow suffocation and excruciating pain.
Dr. Heath maintains that the ADC' s protocol creates an unacceptable risk that condelnned imnates will be conscious for the duration of the execution procedure. He states that the protocol fails to conlply with medical standards of care for inducing and Inaintaining anesthesia and the Alnerican Veterinary Medical Association-' s standards for the euthanasia of animals. Dr. Heath finds that the protocol fails to address several foreseeable situations in which human or technical error could result in the failure to successfully administer the 2-gram dose of sodiuln pentothal. Further, Dr. Heath opines that the protocol creates a substantial risk of unnecessary pain which is easily relnedied.
In addition to Dr. Heath's declaration, Davis submits the declaration of a witness to the 1992 execution of Steven Hill. The witness states: "Approximately 3-5 minutes after the IV fluid began to flow, I noticed Steven struggling to breathe. He was strapped down, but his chest was heaving .... He appeared to be gasping for air. Within another minute, he turned a bright red color and then lay completely still." Docket entry #21, Ex. 38. Davis also submits several newspaper articles containing eye-witness accounts of ADC executions which, according to Davis, indicate that inmates relnained conscious and suffered pain during their executions. See docket entry #21, Exs. 28, 34, 37, 42, 45, 49.
4

Case S:06-cv-0011 O-SWW Document 29 Filed 06/26/2006 Page 5 of 7
II. The factors to consider when deciding whether to grant or deny Inotions for preliminary injunctions include (1) the threat of irreparable harm to the movant; (2) the state of the balance between his hann and the injury that granting the injunction will inflict on other parties involved in the litigation; (3) the probability the movant will succeed on the merits; and (4) the public interest. See Dataphase Sys., Inc. v. CL Sys., 640 F.2d 109, 113 (8th Cir. 1981). Additionally, a court considering a stay of execution must apply '''a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the Inerits without requiring an entry ofa stay.'" Hill v. McDonough, 2006 WL 1584710, at *8 (U.S. June 12, 2006)(quotingNelson v. Campbell, 124 S. Ct. 2117, 2126 (2004)). The Court finds that Davis has shown that he is personally under a threat of irreparable hann. If Davis relnains or becomes conscious during the execution, he will suffer intense pain that will never be rectified. The Court further finds that the balance of potential hanns favors Davis. If a stay is granted and Davis's allegations prove true, he and others will be spared subjection to an unconstitutional execution procedure, and the State's interest in enforcing death penalties in compliance with constitutional standards will be sef'led. If, on the other hand, a stay is granted and Davis's allegations are without merit, the State can carry out Davis's execution without the specter that the ADC's protocol carries an unreasonable risk of inflicting unnecessary paIn. The State argues that the equities favor the State because Davis unjustifiably delayed bringing his claims. However, Davis moved to intervene in this case before the State set his execution date and shortly after he exhausted all means for challenging his conviction. The
5

Case 5:06-cv-0011 O-SWW Document 29 Filed 06/26/2006 Page 6 of 7
Court disagrees that Davis delayed pursuing his claims.7
Next, the Court must consider the probability that Davis will succeed on the lnerits.
The Eighth Amendment prohibits punishments repugnant to '''the evolving standards of decency
that mark the progress of a maturing society'" or those involving '''unnecessary and wanton
infliction of pain. '" Estelle v. Gamble, 97 S. Ct. 285,290,290 (1976) (quoting Trap v. Dulles, 78
S. Ct. 590,598 (1958)(first quote); Gregg v. Georgia, 96 S. Ct. 2909, 2925 (1976) (second
quote)).
The State contends that Davis has not shown that he lnight succeed on the merits because
Dr. Heath's declaration offers no infonnation about the probability that Davis might experience
unnecessary pain. However, Davis need not show a lnathematical probability of success at trial
7The Eighth Circuit's opinion in Taylor v. Crawford, 445 F.3d 1095 (8 th Cir. 2006), indicates that the Court of Appeals would agree that Davis did not delay bringing his clailns. In Taylor, Larry Crawford, sentenced to death in 1991, brought clailns under § 1983, challenging Missouri's three-chemical protocol for executions by lethal injection. Like Davis, Taylor initiated his lawsuit after he exhausted his state post-conviction remedies and after his petitions for habeas relief were denied in federal court. Also similar to this case, the State of Iv1issouri set Taylor's execution date after he commenced suit under § 1983. The district court stayed Taylor's execution, but gave no reasons for the stay, other than the court's inability to hold an evidentiary hearing before the scheduled execution date.
The Eighth Circuit reversed the stay after concluding that the State's interest in prompt execution of its judgment was not outweighed by the district court's scheduling difficulties. The Eighth Circuit ordered that the case be reassigned to a district judge who could hear the case immediately "[i]n recognition of Mr. Taylor's equally strong interest in having an evidentiary hearing on his claims prior to his execution." Taylor, 445 F.3d at 1098-99. The district court followed the Eighth Circuit's instructions and detennined that Taylor's claims had no lnerit. Taylor appealed, arguing that the district court, in its haste to lnake a decision before Taylor's execution date, prevented him from calling medical witnesses. On appeal, the Eighth Circuit stayed Taylor'S execution, concluding that it asked the district court to do too much in too little time. The Court of Appeals stated, "In view of the existing record, the importance of the issue to this plaintiff as well as others, and the likelihood of recurrence of these identical issues in future Missouri death penalty cases, we remand for ... a continuation of the hearing ...." Taylor, 445 F.3d at 1099.
6

Case 5:06-cv-0011 O-SWW Document 29 Filed 06/26/2006 Page 7 of 7
before a stay can be granted. It is enough that Davis has raised serious questions that call for deliberate investigation. See Dataphase, 640 F.2d at 113 ("But where the balance of other factors tip decidedly toward lTIOVant a preliminary injunction lTIay issue if movant has raised questions so serious and difficult as to call for more deliberate investigation. ").
Finally, the Court finds that the public interest will be served if the Court holds an evidentiary hearing on Plaintiffs' claims. Crime victilTIS and the general public have an important interest in the timely enforcement of criminal sentences. However, failure to consider Davis's allegations would ignore the equally ilnportant public interest in the hmnane and constitutional application of the State's lethal injection statute.
III. For the reasons stated, Plaintiff Davis's motion for a preliminary injunction (docket entry #21) is GRANTED. IT IS HEREBY ORDERED that the State of Arkansas is STAYED frOlTI implementing an order for the execution of Don Willimn Davis until further notice frOlTI this Court. The Court will attempt to schedule an expedited hearing. The tune of the hearing will
IT IS SO ORDERED THIS 26TH DAY OF JUNE, 2006. Is/Susan Webber Wright UNITED STATES DISTRICT JUDGE
7

TO: MT Dept of Corrections, Mike Ferriter, Director FROM: Rep Paul Clark RE: Lethal injection protocol
Dear Director Ferriter:
I know that you are now very involved in addressing the protocols for executions in Montana. As August 11, the scheduled date for Montana's execution of David Dawson draws nearer, it is imperative that Montana be able to make clear that the protocols utilized in this execution are consistent with the 8th amendment protection against the infliction of cruel and unusual punishment.
To that end, I am formally making application under the freedom of information act requesting specific information about the lethal injection procedures and protocols in currently in place here in Montana.
Specifically, I am wanting to know: a) whether and how the lethal injection protocol ensures that the personnel responsible for anesthesia are appropriately trained and qualified; b) whether and how the lethal injection protocol employs adequate standards for administering injections and monitoring consciousness; c) what chemicals are involved in lethal injection and what doses are used; d) whether and how the current lethal injection protocol employs adequate standards for measuring and understanding the reaction to pain; and e) whether and how lethal injection protocol makes adequate efforts to identify and address contingencies that may arise during executions.
In addition, I arI1 requesting information to detennine 'whether today's lethal injection protocols are the same as those used when the state executed Duncan McKenzie, and when the state took the life of Terry Langford. If there have been changes made, what are they and why were they undertaken? Thank you for taking the time to consider and answer these questions.
Sincerely, Representative Paul Clark, HD 13

 
 IN THE SUPREME COURT OF THE STATE OF MONTANA

2

No. OP 06-0492

3 MONTANA ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES

4 UNION OF MONTANA; MONTANA ASSOCIATION

OF CHURCHES; MONTANA CATHOLIC CONFERENCE;

5 GORDON BENNETT; JOHN C. SHEEHY; SENATORS

BRENT CROMLEY, STEVE GALLUS, DAN HARRINGTON,

6 DON RYAN AND DAN WEINBERG; REPRESENTATIVES

NORMA BIXBY, PAUL CLARK, GAIL GUTSCHE, JOEY

7 JAYNE, AND JEANNE WINDHAM; MARIETTA JAEGER CLERK OF THF SUPREME COURT

LANE; EVE MALO,

or 81ATE MONTANA

8 Petiti oners,

9 v.

10 STATE OF MONTANA- DEPARTMENT OF CORRECTIONS;
I I DIRECTOR MIKE FERRITER; WARDEN MIKE MAHONEY; ATTORNEY GENERAL MIKE McGRATH; JOHN DOES 1-10,

12 Defendant and Appellant.

13

14

RESPONSE TO PETITION FOR INJUNCTIVE RELIEF

15

16

Without presenting any evidence of any past or present problem related

17 to Montana's lethal injection procedure, and only thirty days prior to his

18 scheduled execution on August II, 2006, Petitioners ask this Court to invoke

19 its original jurisdiction to stay the execution of David Thomas Dawson

20 (Dawson) on the ground that Montana's lethal injection procedure may pose a

21 risk of error that may violate the Eighth Amendment prohibition against cruel

22 and unusual punishment. Noticeably absent from the long list of Petitioners is

23 David Dawson. In fact, Dawson has specifically informed this Court that he

24 does not desire to participate in this lawsuit, and that he desires that his

25 execution proceed as scheduled. Also absent are the other inmates subject

26 to a death penalty in Montana: William Gollehon, Ronald Smith, and

27

RESPO",SE TO PETITIO", FOR I'iJL'iCTIVE RELIEF P·\(;E I

Daniel Johnson. These inmates' executions are not imminent, and no

2 execution dates have been set.

3

The Petition must be denied because the Court lacks jurisdiction based

4 on Petitioners' lack of standing. Further, the petition should be denied

5 because it fails to satisfy the requirements for the Court's acceptance of

6 original jurisdiction: it presents factual, not purely legal, issues; and

7 Petitioners have been dilatory. Finally, Petitioners' request for a preliminary

8 injunction must be denied because they have failed to show any probability of

9 success on the merits.

10

II

BACKGROUND

12

In April 1986, the four members of the Rodstein family were

13 kidnapped at gunpoint and robbed, and three of the family members were

14 murdered by strangulation. Fifteen-year-old Amy Rodstein was held hostage

15 for two days until rescued by Billings, Montana police officers. Amy's father

16 and mother, David and Monica Rodstein, and her II-year-old brother,

17 Andrew, were strangled to death in Dawson's motel room at the Airport

18 Metra Inn, in Billings Montana. A jury trial was conducted on February 9 to

19 28, 1987. The jury found the Defendant, David Thomas Dawson guilty

20 beyond any reasonable doubt of three counts of deliberate homicide for the

21 deaths by strangulation of Andrew, David, and Monica Rodstein. Dawson

22 was also convicted offour counts of the aggravated kidnapping of David,

23 Monica, Andrew, and Amy Rodstein, and one count of robbery.

24

Following a sentencing hearing, the district court sentenced

25 Dawson to death on April 15, 1987. This Court affirmed, State v. Dawson,

26 233 Mont. 345, 761 P.2d 352 (1988), and the Supreme Court denied

27 certiorari, Dawson v. Montana, 491 U,S, 910 (1989),

RESPONSE TO PETITION FOR INJI:NCTIVE RELIEF' PAGE!

At the time Dawson was sentenced, § 46-19-103(3) provided that "[tJhe

2 punishment of death must be inflicted by hanging the defendant by the neck

3 until he is dead or, at the election of the defendant, by administration ofa

4 continuous, intravenous injection of a lethal quantity of an ultra-fast-acting

5 barbiturate in combination with a chemical paralytic agent until a licensed

6 physician pronounces that the defendant is dead according to accepted

7 standards of medical practice." In 1997, the Legislature further amended the

8 statute to eliminate hanging as an option. See Langford v. State, 287 Mont.

9 107,951 P.2d 1357, 1359 (1997).

l O O n October 5, 1989, Dawson filed a petition for writ of habeas corpus

II in the federal district court. The federal petition was held in abeyance while

12 Dawson exhausted his state posconviction remedy. Dawson filed his

13 postconvicti on rei ie f petition in the state district court on March 25, 1991,

14 which was ultimately denied. This Court unanimously afflrmed the denial of

15 relief on August 15, 2000, and the United States Supreme Court denied

16 certiorari. Dawson v. State, 2000 MT 2 I9,30 I Mont. 135, 10 P.3d 49,

17 cert. denied, 532 U.S. 928 (2001). In neither proceeding did Dawson

18 challenge the constitutionality of the execution of a sentence of death by

19 lethal injection.

20

In July 2002, Dawson filed, through counsel, a motion for new trial

2 I and to vacate his death sentences under Mont. R. Civ. P. 60(b)(6), based on

22 Ring v. Arizona, 536 U.S. 584 (2002), and state constitutional grounds. In

23 July 2003, the state district court denied both motions, and on July 24, 2003,

24 Dawson appealed.

25

On July 27, 2004, during the pendency of his tederal habeas corpus

26 petition, Dawson filed a pro se request in the federal district court to cease all

27 of his appeals, and on September 8. 2004, he moved to dismiss his habeas

RESPONSE TO PETITION FOR 1:\.IL~CTlVE RELIEF PAGE3

counsel, Kathryn Ross and William Hooks (Ross and Hooks), On August 24,

2 2004, Dawson filed in this Court a pro se motion to dismiss all ongoing

3 appeals, and to discharge his appellate counsel, Ross and Hooks. He also

4 moved the state district court to set a new date for his execution.

5

In the federal district court, Magistrate Judge Anderson conducted an

6 extensive evidentiary inquiry into Dawson's competency to waive his

7 appeals, On June 1,2005, Magistrate Anderson filed his Findings and

8 Recommendations, recommending that Dawson's pro se motions to dismiss

9 his federal habeas corpus petition and to dismiss his counsel be granted.

10 United States District Judge Shanstrom adopted Magistrate Anderson's

11 tindings and recommendations and granted Dawson's pro se motions to

12 dismiss his federal habeas petition and his counsel. On December 27,

13 2005, Ross and Hooks filed a notice of appeal. On March 21, 2006,

14 Judge Shanstrom denied Ross's and Hooks' motion for a Certificate of

IS Appealaibility (COA), under 28 U.S.C. § 2253(c)(I).

16

The Ninth Circuit Court of Appeals has since rejected the request of

17 Ross and Hooks for a stay of execution and for a COA, noting that there was

18 "not a shred of evidence" to suggest that Dawson was not competent to waive

19 his appeals. Dawson v. Mahoney, 2006 U.S. App. LEXIS 14145, _ F.3d

20 _ (9th Cir. June 8, 2006), (Order attached hereto as Exhibit A). The Court

21 denied reconsideration on July 10, 2006. (Order attached as Exhibit B).

22

This Court, on July 26, 2005, remanded Dawson's pro se motions to

23 dismiss his appeal and his counsel to the district court with instructions to

24 determine whether they were made knowingly, voluntarily, and intelligently.

25 On February 6, 2006, Judge Todd issued the court's Findings of Fact and

26 Conclusions of Law Regarding Defendant's Pro Se Motions, concluding that

27 Dawson's pro se motions to dismiss his appeal and discharge his counsel

RESPONSE TO PETITION FOR 1:-;,Il::-;('T1n: RELIEF PAGE4

I should be granted because his motions have been made knowingly,

2 voluntarily, intelligently, and unequivocally.

3

On April 11,2006, this Court issued its Opinion and Order,

4 unanimously concluding that Dawson's motions to discharge appellate

5 counsel, and dismiss his state court appeal, were made knowingly,

6 voluntarily, and intelligently, and must be granted. The Court remanded to

7 the state district court for execution of the judgment and sentence. State v.

8 Dawson, 2006 MT 69, _ Mont. _ , _ P.3d _ . Justice Nelson

9 concurred in the Court's Opinion and Order, but primarily on the ground that

10 because Dawson has been found to be mentally competent, he has the

II paramount right to end his appeals, and thus his life, under the personal

12 autonomy component of the right of individual privacy guaranteed under

13 Article II, Section 10, of Montana's Constitution. [d. at ~ 46.

14

On May 15, 2006, the state district court set Dawson's execution date

IS for August 11,2006, and issued the death warrant.

16

On July II, 2006, the Montana Association of Criminal Defense

17 Lawyers and other third parties filed this petition asking this Court to exercise

18 its original jurisdiction and issue a temporary restraining order, and

19 preliminary and permanent injunctions, barring all executions by lethal

20 injection in the State of Montana. Petitioners also request a remand to a

21 district court for discovery, and an evidentiary hearing.

22

Petitioners base their constitutional claim for injunctive relief on their

23 speculation that "Montana's protocol for lethal injection exposes inmates to

24 an unacceptable risk that they will feel excruciating pain during their

25 execution." (Pet. at 26.) At the time they filed the Petition, Petitioners knew

26 the names of the three drugs used in the Langford execution, i.e., sodium

27 penthothal, pavulon, and potassium chloride. See App. I to Pet., Death

RESPONSE TO PETITION FOR INJeNCTIVE RELIEF PAGE 5

I I Certificate of Terry Langford. Other than Appendix 1, Petitioners rely

2 exclusively on affidavits and evidence from other cases from other States.

3 They have produced no evidence of any error with the executions by lethal

4 injection of Duncan McKenzie or Terry Langford. Nor have they produced

5 any evidence of any potential problem with the execution of David Dawson.

6 7 8 I. 9 10

DISCUSSION THIS COURT LACKS JURISDICTION AND THE PETITION MUST BE DISMISSED WITH PREJUDICE BECAUSE PETITIONERS LACK STANDING TO BRING THIS ACTION ON BEHALF OF DAWSON AND OTHER MONTANA INMATES SUBJECT TO THE DEATH PENALTY.

II

Petitioners assert they have standing in this case because they are

12 "residents, citizens, electors, and taxpayers," who "are concerned that a lethal

13 injection may be performed in a cruel and unusual manner." They also assert

14 they have standing based on their Article II, Section 9, "right to know" the

15 Department of Corrections' (Department) lethal irljection protocol. (Pet. at

16 6.) Because Petitioners have failed to allege facts that establish that

17 Montana's lethal injection procedure has caused or will cause an injury that is

18 personal to Petitioners, as distinguished from the community in general, this

19 action must be dismissed beeause they lack standing.

20

Further, Petitioners' alleged "right to know" has not been violated. As

21 set forth in the attached affidavit of the Director of the Department of

22 Corrections, Mike Ferriter, Exhibit C, one of the Petitioners, Rep. Paul Clark,

23 requested information regarding the Department's lethal injection protocol on

24 Thursday, July 6, 2006, only two business days prior to filing this lawsuit on

25 July II, 2006. The information Rep. Clark requested was timely provided to

26 him on Thursday, July 13,2006. A copy of Rep. Clark's letter to the

27 Department is attached to the Petition as Exhibit 4. A copy of the

RESPONSE TO PETITION FOR I:-iJL:-iCTlVE RELIEF PAGE 6

Department's response to Rep. Clark's letter is attached hereto to Director

2 Ferriter's affidavit, Exhibit C.

3

Standing to sue refers to a "party's right to make a legal claim or seek

4 judicial enforcement of a duty or right." [n re B.F. and A.W., 2004 MT 61, ~

5 15,320 Mont. 261,87 P.3d 427, quoting Black's Law Dictionary, Seventh

6 Edition. Standing is a threshold jurisdictional question, especially in cases 7 where it is claimed that a statutory or constitutional violation has occurred, or 8 will occur. Lohmeier v. Gallatin County, 2006 MT 88, ~ 16,332 Mont. 39, 9 135 P.3d 775, citing Fleenor v. Darby Sch. Dist., 2006 MT 31, ~ 7, 331 Mont.

10 124, 128 P.3d 1048. A party lacks standing when he or she has no personal 11 stake in the outcome of the controversy. In re B.F. and A.W., ~ 15. The 12 general rule is that "a litigant may only assert his own constitutional rights or 13 immunities." [d. at ~ 16, quoting McGowan v. Maryland, 366 U.S. 420,429 14 (1961). The injury alleged must be personal to the plaintiff as distinguished 15 from the community in general. Fleenor, ~i~ 9, 10 (rejecting plaintiffs

16 assertion that simply being an "informed and interested citizen" is sufficient

17 to conter standing in an action alleging a violation of the plaintiffs "right to

18 know" under Article II, Section 9 ofthe Montana Constitution). See also 19 State v. Krantz, 241 Mont. 501, 788 P.2d 298,301 (1990) (to challenge the 20 constitutionality of a criminal statute or procedure, petitioners must show a 21 direct, personal injury resulting from application of the law in question); State

22 v. Goodwin, 208 Mont. 522, 679 P.2d 231,235 (1984) (because the statute

23 complained of was not applied to the defendant, the defendant was not

24 subjected to any ofthe alleged constitutional errors he complains of and the 25 issue is therefore not before the Court); State v. Bruns, 213 Mont. 372, 691

26 P.2d817, 822 (l984) (same).

27

RESPO'iSE TO PETITION FOR 1'i.Jl':'oICTIVE RELIEF PAGE 7

This Court has stated that the standing requirement in Montana is based

2 on the Montana Constitution and embodies the same limitations that are

3 imposed by the federal courts under the "case or controversy" provision of

4 Article III of the United States Constitution. Olson v. Department of

5 Revenue, 223 Mont. 464, 469, 726 P.2d 1162, 1166 (1986), citing Stewart v.

6 Board of County Comm'rs, 175 Mont. 197,201,573 P.2d 184, 187 (1977);

7 see also Roosevelt v. Montana Dep't of Revenue, 1999 MT 30, ~~ 47-49, 293

8 Mont. 240, 975 P.2d 295 (same); Carter v. Montana DOT, 274 Mont. 39,44,

9 905 P.2d 1102, 1105 (1995) (Nelson, J. concurring) ("Originating in Article

10 VII, section 4 of the Montana Constitution, the standing doctrine limits

II judicial power to 'cases at law and equity.' This Court has interpreted 'cases

12 at law and equity' to embody the same limitations as the Article III 'case or

13 controversy' provision in the United States Constitution").

14

In Whitmore v. Arkansas, 495 U.S. 149, 155 (1990), the Court stated

15 that the burden is on the plaintiff to clearly and specifically set forth facts
16 sufficient to satisfy Article m standing requirements, including a showing

17 that the alleged harm is actual or imminent, not conjectural" or

18 "hypothctical." A threatened injury must be "certainly impending" to

19 constitute injury in fact. Whitmore, 495 U.S. at 158. Whitmore presented the

20 question whether the petitioner, a death row inmate, has standing to challenge

21 the validity of a death sentence imposed on another death row inmate,

22 Simmons, who had elected to forgo his right of appeal to the state supreme

23 court. The United States Supreme Court dismissed the appeal for lack of

24 jurisdiction, holding that Whitmore did not have standing to press an Eighth

25 Amendment objection to Simmons' conviction and sentence. The Court

26 stated that its threshold inquiry into standing in no way depends on the merits

27 of Whitmore's allegation of an Eighth Amendment violation (495 U.S. at

RESPONSE TO PETITION FOR INJUNCTIVE RELIEF PAGE 8

1 155); that Whitmore's claim of injury was too speculative to invoke Art. III

2 jurisdiction (495 U.S. at 158); and that a generalized interest of all citizens in

3 constitutional governance was not an adequate basis on which to grant

4 standing. 495 U.S. at 148. Further, the fact that this was a death penalty case

5 did not create an exception to traditional standing doctrine. 495 U.S. at 160.

6

The Ninth Circuit has also rejected standing by third parties. Johns v.

7 County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) ("[C]onstitutional

8 claims are personal and cannot be asserted vicariously"); United States v. 9 Valdovinos-Valdovinos, 743 F.2d 1436, 1437 (9th Cir. 1984) (a defendant is

10 precluded from raising due process violations allegedly suffered by third

II parties); United States v. Mitchell, 915 F.2d 521, 526 (9th Cir. 1990) (same).

12

The cases relied upon by Petitioners do not support their standing in

13 this case. Petitioners cite Grossman v. Department of Natural Resources, 14 209 Mont. 427, 682 P.2d 1319, 1325 (1984), for the alleged principle that the 15 Court will recognize standing in "special circumstances, presenting issues of 16 an urgent or emergency nature ...." (Pet. at 6-7.) The quoted language from

17 Grossman, however, relates to the Court's discussion of its original 18 jurisdiction. In Grossman, the Court recognized a limited exception to

19 traditional standing principles for a taxpayer to question the state 20 constitutional validity of a tax or use of tax monies, where the issue presented

21 directly affects the constitutional validity of the state or its political 22 subdivisions acting to collect the tax, issue bonds, or use the proceeds thereof.

23 682 P.2d at 1325. In the instant case, the Petitioners are alleging a speculative 24 Eighth Amendment violation regarding Montana's lethal injection procedure

25 which will not be applied to any of them. They are not challenging the 26 constitutional validity of the collection of any tax, the issuance of bonds, or

27

RESPONSE TO PETITION FOR INJlJNCTIVE RELIEF PAGE 9

the use of the proceeds thereof Therefore, the narrow exception stated in

2 Grossman is not applicable here.

3

Petitioners also rely on Committee for an EIJeetive Judiciary v. State,

4 209 Mont. 105,679 P.2d 1223 (1984). In Committee for an Effective

5 Judiciary, 679 P.2d at 1225, the Court held that the petitioners had standing

6 under the facts of that case because they were registered voters and the

7 statutes they challenged adversely affected the election process contemplated

8 by the 1972 Montana Constitution. The Court stated that the operation of the

9 statutes challenged denied the petitioners their right to vote for a class of

10 judicial candidates that allegedly is expressly permitted by the Montana

II Constitution to be candidates for other judicial offices. 679 P.2d at 1227.

12 The Court emphasized that a special interest exists in a registered voter whose

13 vote may be denied by legislation; that the right to vote is a personal and

14 constitutional right; and that a voter who is denied his or her right to vote is

15 sufficiently affected to invoke the judicial power to challenge the validity of

16 the Act. 679 P.2d at 1226-27. Committee for an Effective Judiciary cannot

17 confer standing on the Petitioners in this case. Petitioners here are not

18 alleging the denial of their constitutional right to vote, but are alleging a

19 speCUlative Eighth Amendment violation regarding Montana's lethal injection

20 procedure which will not be applied to any of them.

21

Petitioners lack standing because they do not and cannot allege a direct

22 personal stake in the outcome ofthis litigation. They allege a conjectural or

23 hypothetical harm, an alleged harm that is common to all members of the

24 general public. The Petitioners do not and cannot allege that they are subject

25 to a sentence of death. Absent standing, the Petitioners are not entitled to an

26 adjudication of the merits of the petition, either in this Court or in the district

27 court.

RESPONSE TO PETITION FOR INJl'NCTlVE RELIEF PAGE 10

The Court lacks jurisdiction and the petition must be dismissed with

2 prejudice.

3

4 II. 5

IF THE COURT FINDS THAT PETITIONERS HAVE STANDING, THE COURT SHOULD REFUSE TO ACCEPT ORIGINAL JURISDICTION IN THIS CASE.

6

This Court has an initial obligation to determine the question of

7 whether Petitioners have the requisite standing to bring these claims, and if

8 standing is absent, the Court must dismiss the Petitioners' claims with

9 prejudice. Respondent submits that the standing issue is dispositive and the

10 Court need go no further in resolving this case. However, should the Court

II agree with Petitioners that an exception to the traditional standing rules

12 applies here, the Court should nevertheless dismiss this Petition because it

13 fails to satisfy the requirements for invocation of the Court's original

14 jurisdiction.

15

This Court's assumption of original jurisdiction is proper when

16 (I) constitutional issues of major state wide importance are involved; (2) the

17 case involves pure legal questions of statutory and constitutional construction;

18 and (3) urgency and emergency factors exist making the normal appeal

19 process inadequate. Butte-Silver Bow Local Gov't v. State, 235 Mont. 398,

20 401,768 P.2d 327, 329 (1989).

21

Even assuming arguendo that the first requirement is met, Petitioners

22 have failed to satisfy the second and third requirements. Petitioners do not

23 even address the second requirement that the case must involve pure legal

24 questions of statutory and constitutional construction. (Pet. at 1-3.) Indeed,

25 Petitioners have raised a fact-bound, speculative claim, i.e., that Montana's

26 current method of administering lethal injections subjects death row inmates
27 Ito a significant risk of suffering cruel and unusual pain during their

RESPONSE TO PETITION FOR I~JlJNCTIVE RELIEF P\(;E II

1 executions. (Pet at 7). Petitioners have failed to satisfy the second

2 requirement for acceptance of original jurisdiction. Ingraham v. Ninth

3 Judicial District Court, 2006 MT LEXIS 220, ~~ 2-4 (denying original

4 jurisdiction and declining to address factual issues, noting "[w]e are

5 extremely critical of these sorts of eleventh hour petitions"); Gates v.

6 Missoula County Comm'rs, 235 Mont. 261, 262, 766 P.2d 884, 885 (1988)

7 (concluding that the court should not accept jurisdiction because of, inter alia,

8 disputed factual questions); Langford v, State, 951 P.2d at 1361 (accepting

9 jurisdiction of a petition for writ of injunction when the only issues were
1o constitutional challenges to a statutory amendment eliminating hanging as a

11 method ofexecution).

12

The third requirement is that urgency and emergency factors exist,

13 making the normal appeal process inadequate. To the extent that an

14 emergency exists in this case, however, it is ofthe Petitioners' own making.

15 Injunction is an equitable remedy. BoyerY. Karagacin, 178 Mont. 26, 31,
16 582P.2dl173,·nn (1978). Petitionerscatlll0tneediesslywait llntil30 days

17 prior to a scheduled execution, and then demand that the Court accept original

18 jurisdiction and stay Dawson's execution because there is not enough time to

19 develop the factual basis of their claim in the district court prior to the

20 execution date.

21

Petitioners summarily state that their petition is timely because it "has

22 been filed within a month of the United States Supreme Court ruling in Hill v.

23 McDonough [126 S. Ct. 2096, 165 L. Ed. 2d 44]." (Pet. at 27.) Petitioners'

24 assertion makes no sense because Petitioners aeknowledge that the

25 constitutionality oflethal injection was not before the Court, and that the issue

26 in Hill was purely procedural: whether an Eighth Amendment claim based on

27 a state's lethal injection chemical sequence must be brought by an action for a

RESPONSE TO PETITION FOR INJUNCTIVE RELlEF PAGE 12

I writ of habeas corpus under 28 U.S.C. § 2254, or whether it may proceed as

2 an action tor relief under 42 U.S.c. § 1983. Hill, 165 L. Ed. 2d at 49; Pet. at

3 16. Hill itself is of no help to Petitioners in this case because they did not file

4 a § 1983 action. Also, there was no standing issue in Hill because the plaintitI

5 was the inmate facing execution.

6

Lethal injection challenges have been filed in the courts since at least

7 2004. Sec Cooper v. Rimmer, 2004 U.S. Dist. LEXIS 1624 (N.D. Cal. Feb. 6,

8 2004); Reid v. Johnson, 333 F. Supp 2d 543 (E.D. Va. Sept. 3,2004);

9 Beardslee v. Woodford, 2005 U.S. Dis!. LEXIS 144 (N.D. Cal. Jan. 7,2005);

10 Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949 (W.D. Mo. Jun. 26,2006)

II (the complaint was filed on June 3, 2005); ( Hicks v. Taft, 431 F.3d 916 (6th

12 Cir. 2005); White v. Johnson, 429 F.3d 572 (5th Cir. 2005); Boyd v. Beck,

13 404 F. Supp. 2d 879 (E.D.N.C. 2005). Dawson was sentenced to death in

14 1987. Lethal injection has been the sole method of execution in Montana

IS since March 19,1997. Petitioners possessed Terry Langford's 1998 death

16 certificate (Exhibit 1 to the Petition) and so they were aware of the three

17 drugs Montana uses in its lethal injection procedure. Petitioner Paul Clark

18 submitted his letter asking for information about Montana's procedure only

t 9 two business days before tiling the lawsuit. Dawson's August 11, 2006

20 execution date was set by Judge Todd on May IS, 2006. Yet Petitioners

21 inexplicably waited until July 11,2006 to file their lawsuit.

22

Hill does, however, contain discussion that highlights the

23 inappropriateness of Petitioners' request for a stay. A stay of execution is an

24 equitable remedy. It is not available as a matter of right, and equity must be

25 sensitive to the State's strong interest in enforcing its criminal judgments.

26 Both the State and the victims of crime have an important interest in the

27 timely enforcement of a sentence. Hill, 165 L. Ed. 2d at 54. The Court stated

RESPO~SE TO PETlTlO~ FOR I~Jli~CTlVE RELIEF PAGE 13

1 that inmates seeking time to challenge the manner in which the State plans to

2 execute them must satisfy all of the requirements for a stay, including a

3 showing of a signi ficant possibility of success on the merits. Citing

4 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (preliminary

5 injunction not granted unless the movant, by a clear showing, carries the

6 burden of persuasion). Id.

7

Further, the Court in Hill said that when considering a stay, a court

8 must apply "a strong equitable presumption against the grant of a stay where a

9 claim could have been brought at such a time as to allow consideration of the

10 merits without requiring entry of a stay." 165 L. Ed. at 54, citing Nelson v.

II Campbell, 541 U.S. 637, 650 (2004) (Nelson held that a challenge to a

12 surgical procedure preliminary to the lethal injection may proceed under

13 § 1983 when Nelson's action, if successful, would not necessarily prevent the

14 State from executing him by lethal injection); and Gomez v. United States

15 Dist. Court, 503 U.S. 653, 654 (1992) (per curiam) (noting that the "last-

16 minute nature of an application" or an applicant's "attempt at manipulation"

17 of the judicial process may be grounds for denial of a stay). Id. See also

18 McKenzie v. Day, 57 F.3d 1461, 1464, 1468 (9th Cir. I 995)(a court may

19 consider the last-minute nature of an application to stay execution in deciding

20 whether to grant equitable relief. McKenzie could and should have raised his

21 Lackei claim at a time when it was capable of being resolved without

22 staying a scheduled execution).

23

The Hill Court noted that after Nelson was decided, a number of federal

24 courts invoked their equitable powers to dismiss suits they saw as speculative

-) )-

26 I See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting the
27 denial of certiorari).

RESPONSE TO PETITION FOR INJF'ICTIVE RELIEF PAGE 14

I or not timely filed. 165 L. Ed. 2d at 54, citing Hicks v. Taft, 431 F.3d 916

2 (6th Cir. 2005) (denying the inmate's request for a stay of execution pending

3 appeal because the motion was untimely); White v. Johnson, 429 F.3d 572

4 (5th Cir. 2005) (affirming the district court's dismissal of the inmate's action

5 seeking injunctive relief under § 1983, in which he alleged that Texas's

6 method of execution violated the Eighth and Fourteenth Amendments,

7 because he was dilatory in filing his action for equitable relief); Boyd v. Beck,

8 404 F. Supp. 2d 879 (E.D.N.C. 2005) (denying Boyd's request for a

9 preliminary injunction to bar his execution until the merits of his claims

10 challenging the lethal injection protocol can be heard and determined because

II his claims were speculative and because his challenge was untimely).

12

Following the decision in Hill, the Court in Reese v. Livingston,

13 __ F.3d _ , 2006 U.S. App. LEXIS 15166 at *6 (5th CiL June 20, 2006)

14 denied Reese's request for a stay of execution as untimely, stating that as it

15 read tfill, "a plaintiff cannot wait until a stay must be granted to enable it to

16 develop facts and take the case to trial--not when there is no satisfactory

17 explanation for the delay."

18

Petitioners have failed to satisfactorily explain why they waited until 30

19 days prior to the execution to file their lawsuit. They have been dilatory.

20 Therefixe, Petitioners have not complied with the third requirement for

21 invoking the Court's original jurisdiction.

22

The Court's assumption of original jurisdiction is not proper in this

23 case.

24

25

26

27

RESPONSE TO PETITION FOR IN.lDiCTlVE RELIEF PAGE 15

III. PETITIONERS ARE NOT ENTITLED TO A PRELIMINARY INJUNCTION BECAUSE THEY HAVE NOT PRESENTED A

2

SUFFICIENT CASE TO WARRANT SUCH AN

EXTRAORDINARY REMEDY.

3

4

As discussed above, Petitioners have no standing to bring this action,

5 and the assumption of the Court's original jurisdiction would not be proper.

6 The Petition should be dismissed on those grounds, alone. However, even if

7 the Court desires to examine the merits, it should refuse to issue a preliminary

8 injunction to stop the scheduled execution of David Dawson. The Petition

9 must be dismissed with prejudice.

10

The burden is on the Petitioners to show that they satisfy the

11 requirements for a preliminary injunction. Porter v. K & S Partnership,

12 192 Mont. 175, 182,627 P.2d 836, 839 (1981). "Injunctions are

13 extraordinary remedies, granted with caution, and in the exercise of sound

14 judicial discretion." State ex reI. Blackwood v. Lutes, 142 Mont. 29, 34,

15 381 P.2d 479,482 (1963). Petitioners must show that a "sufficient case has

16 been made out" to warrant the issuance of such an extraordinary remedy.

17 Sweet Farms. LTD v. County Board ofComm'rs, 2000 MT 147, ~ 28,

18 300 Mont. 66, 2 P.3d 825. See also Mont. Code Ann. § 27-19-201(1) (a

i 9 preliminary injunction may be granted when it appears that the applicant is

20 "entitled to the relief demanded").

21

Petitioners have failed to meet their burden forthe Court's issuance of

22 a preliminary injunction. They rely exclusively on affidavits and evidence

23 from other cases from other states. Respondents, on the other hand, have

24 af1irmatively established that the likelihood of a condemned inmate in

25 Montana suffering excruciating pain from the manner in which Montana

26 intends to carry out the sentence is so remote as to be nonexistent. Petitioners

27 then, without presenting any evidence whatsoever, engage in pure speculation

RESPO:'<SE TO PETITIO." FOR f:,<JI,:'<CTlVE RELIEF P\GE 16

1 that Montana's lethal injection protocol will not be executed as written.

2 Respondents, on the other hand, have affinnatively shown that, based on the

3 two prior executions in Montana, there is no foreseeable probability that

4 Montana will not carry out a condemned inmate's execution according to its

5 lethal injection protocol. Petitioners have failed to sustain their burden to

6 demonstrate that they are entitled to the equitable reliefthey demand. Lethal

7 injection as conducted under Montana's protocol does not violate the Eighth

8 Amendment. Their request for injunctive relief must be denied.

9

Only the "unnecessary and wanton infliction of pain" implicates the

10 Eighth Amendment. Wilson v. Seiter, 501 U.S. 294, 297 (1991), quoting

11 Gregg v. Georgia, 428 U.S. 153, 173 (1976). A condemned inmate is not

12 entitled to a painless execution, but only to one free of purposeful cruelty.

13 Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994), citing Louisiana ex reI.

14 Francis v. Resweber, 329 U.S. 459, 464 (1947). Further, "the risk of accident

15 cannot and need not be eliminated from the execution process in order to

16 survive constitutional review." Campbell, 18 F.3d at 687; Resweber,

17 329 U.S. at 462 ("Accidents happen for which no man is to blame"). See also

18 McKenzie v. Day, 57 F.3d at 1469 ("The state has broad discretion to

19 detcnnine the procedures for conducting an execution; we are aware of no

20 authority for the proposition that a prisoner is entitled, for example, to have a

21 lethal injection administered by a physician. Montana's procedures are

22 reasonably calculated to ensure a swift, painless death and are therefore

23 immune from constitutional attack" citing Campbell, 18 F.3d at 687).

24

As demonstrated by the attached declaration of Dr. Mark Dershwitz,

25 Exhibit D, who has examined Montana's current lethal injection protocol,

26 there is no foreseeable probability that, under Montana's current protocol,

27 Dawson's execution will involve "torture or lingering death." See In re

RESPO'lSE: TO PETlTlO'l FOR INJlJ'ICTlVE RELIEF PAGE 17

1 Kemmler, 136 U.S. 436, 447 (1890). On the contrary, it is Dr. Dershwitz's

2 opinion, "to a reasonable degree of medical certainty, that the application of

3 Montana's protocol for execution by lethal injection will result in the rapid

4 and painless death of the condemned inmate." (Dershwitz Dec!. at ~ 28.)

5

Dr. Dershwitz is a board certified anesthesiologist, associated with the

6 University of Massachusetts. Dr. Dcrshwitz also has a doctorate in

7 pharmacology. He has performed extensive research and written numerous

8 review articles and research papers on the use of anesthetics and he regularly

9 practices medicine in that capacity. His research includes the study of the

10 pharmacokinetics and pharmacodynamics of drugs. Pharmacokinetics is the

II study of the time course of medications in the body, and Pharmacodynamics

12 is the study ofthe effect of medications on the body. Dr. Dershwitz has

13 testified as an expert witness in court on 13 oecasions, and has given 22
14 depositions as an expert witness. (Dershwitz Decl., at,;,; 1-3.)

15

After hearing the in-court testimony of Dr. Dershwitz, the Court in

16 Reid v. Johnson, 333 F. Supp. 2d 543, 547 n. 7 (E.D. Virginia 2004)

17 concluded that Dr. Dershwitz's clinical and aeademic experience with the

18 administration of sodium thiopental and pancuronium bromide made him a

19 "convincing witness." Further, Dr. Heath, whose declaration from a death

20 penalty case in California is referenced in the Petition, has conceded that with

21 respect to the pharmacokinetics and pharmacodynamics of sodium thiopental,

22 he defers to Dr. Dershwitz's expertise. Id.

23

Dr. Dershwitz examined Montana's current lethal injection protocol

24 (attached to the Department's response to Rep. Clark's letter, Exhibit C), in

25 which death is caused by the sequential injection of thiopental sodium 3 g,

26 pancuronium bromide 100 mg, and potassium chloride 140 mEq. (Dershwitz

27 I Dee!. at~'; 5-6.) He performed a detailed pharmacokinetic and

RESPONSE TO PETITION FOR IN.JlJNCTIVE RELIEF PAGE 18

phannacodynamic analysis of the etlects ofa 3-g dose of thiopental sodium

2 given to an average man weighing about 176 pounds. It is Dr. Dershwitz's

3 opinion, to a reasonable degree of medical certainty, that a condemned inmate

4 who is administered a 3-g dose of thiopental sodium will be rendered

5 unconscious, and not experience pain, for the period of time necessary to

6 complete the execution. (Dershwitz Dec!. at ~ 7.) Dr. Derswitz then

7 quantitated and discussed the "minuscule probability" that the person could

8 be conscious during the period of time that elapses between the administration

9 of the thiopental sodium and the person's death. (Dershwitz Dec!. at ~ 7-9.)

10 Even in persons of greater size or with inherent drug tolerance, the listed

I I probabilities would not be altered in a meaningful way. (Dershwitz Dec!. at

12 ~ 7.)

13

It is Dr. Dershwitz's opinion, to a reasonable degree of medical

14 certainty, that the dose of thiopental sodium lIsed by Montana would render

15 most people unconscious within 60 seconds from the time of the start of

16 administration. By the time the entire 3-g dose ofthiopental sodium solution

17 is injected, over 99.99999999 % of the population would be unconscious.

18 Further, this dose of thiopental sodium will cause virtually all persons to stop

19 breathing within a minute of drug administration. Thus, virtually every

20 person given a 3-g dose of thiopental sodium will have stopped breathing

21 prior to the administration of the pancuronium bromide. Even in the absence

22 of the administration of pancuronium bromide and potassium chloride, the

23 administration of a 3-g dose of thiopental sodium by itself would be lethal in 24 almost everyone. (Dershwitz Dec!. at ~l 0.)

There is approximately a 0.000003 % probability that a condemned

26 inmate given a 3-g dose of thiopental sodium would be conscious, and able to 27 experience pain, after a period of five minutes; an approximately 0.00012 %

RESPONSE TO PETITION FOR 1"i.JL"iCTIVE RELIEF PAGE 19

I probability after ten minutes; an approximately 0.0014 % probability after

2 thirty minutes; an approximately 0.029 % probability after sixty minutes.

3 (Dershwitz Dee!. at'l'; 11-14.) Most people would be rendered unconscious

4 for a period of approximately 4.7 hours, assuming they continued to breathe.

5 (Dershwitz Dec!. at,; 15.) As such, there is an exceedingly small risk that a

6 condemned inmate under the circumstances of Montana's execution protocol

7 would experience any pain associated with the administration oflethal doses

S of pancuronium bromide and potassium chloride." (Dershwitz Dec!. at,; 16.)

9

The Petitioners rely on an article in The Lancet in asserting that the

10 likelihood that an inmate will be conscious during his execution is significant.

II (Pet. at 13.) The Lancet article authors cited postmortem blood

12 concentrations of thiopental obtained at autopsy, in some states other than

13 Montana, that they say demonstrated that a significant fraction of executed

14 inmates were conscious at the time the pancuronium bromide and potassium

15 chloride were administered. Dr. Dershwitz states that the authors of The

16 Lancet article, none of whom was a pharmacologist or toxicologist,

17 misinterpreted the postmortem toxicology reports. It is crucial that the blood

IS sample be obtained within a short time of the inmate's death. (Dershwitz

19 Dec!. at ~ IS.) Samples taken from Michael Ross's execution in Connecticut

20 on May 13, 2005, shortly after the time of death and at the time of the autopsy

21 seven hours later, strongly support the conclusion that post-mortem

22 redistribution occurs with thiopental, and it occurs in the opposite direction

23 from many of the medications previously reported. "[T]hese results tend to

24 refute any conclusions that low concentrations of thiopental from samples

25 taken during autopsies such as those cited in The Lancet, were the result of

26 improperly performed execution processes." (Dershwitz Dec!. at ~ 19.) See

27 also Reid v. Johnson, 333 F. Supp. 2d at 54S (concluding that the thiopental

RESPONSE TO PETITION FOR INJeNCTIVE RELIEF PAGE 20

1 level found in the post-mortem toxicology reports from other states are not

2 indicative of the consciousness of that inmate during his execution). Properly

3 obtained toxicological blood samples were obtained following recent

4 executions in Connecticut, Maryland, and North Carolina, and "every one of

5 those has been consistent with a very high probability of unconsciousness at

6 the time of the inmate's death." (Dershwitz Dec!. at, 20.) Dr. Dershwitz

7 notes that even Dr. Heath has criticized the conclusions of The Lancet article.

8 (Dershwitz Dec!. at, 2 I.)

9

Dr. Dershwitz also notes that in paragraph 16 of Dr. Heath's

10 declaration in the California death penalty case, Dr. Heath concedes that

I I "When successfully delivered into the circulation in sufficient quantities,

12 sodium thiopental causes sufficient depression of the nervous system to

13 permit excruciatingly painful procedures to be performed without causing

14 discomfort or distress." (Dershwitz Dec!. at , 23.)

IS

Petitioners also assert that Montana's lethal injection protocol is not an

16 acceptable euthanasia agent for animals. (Pet. at 13.) This asscrtion has been

17 made in many states and it prompted the American Veterinary Medical

18 Association (AVMA) to issue a press release that stated: "The 2000 Report of

19 the A VMA Panel on Euthanasia has been widely misinterpreted in the media,

20 particularly how it relates to capital punishment. Capital punishment

2 I opponents and the media have attempted to use the AVMA report to infer that

22 the AVMA deems this procedure an inhumane method of nonhuman

23 euthanasia. When referring to the 2000 Report ofthe A VMA Panel on

24 Euthanasia, reporters are strongly encouraged to contact the AVMA to

25 ensure the association's position is stated correctly." (Dershwitz Dec!. at

26 22.) The disclaimer can be found on the AVMA's Web Site at
27 Ihttp://www.avma.org/issues/animal~welfare/euthanasia.pdf.

RESPO'lSE TO PETlTIO'l FOR I'IJli'lCTIVE RELIEF PAGE 21

Dr. Dershwitz disagrees with paragraph 37 of Dr. Heath's declaration

2 in the California case where he argues that the inclusion ofpancuronium

3 bromide in the protocol "serves no rational or legitimate purpose." 4 Dr. Dershwitz states that "the administration of a large dose of potassium 5 chloride will, in addition to stopping the heart, cause widespread stimulation 6 of nerve and muscle tissue throughout the body. This may lead to generalized

7 contraction of skeletal muscles that would be manifested as involuntary

8 jerking movements. Such movements, which may be misperceived by lay

9 witnesses as consistent with suffering on the part of the inmate, will be

10 substantially mitigated by the prior administration of pancuronium bromide."

11 (Dershwitz Decl. at ~ 25.)

12

Without presenting any evidence whatsoever to support their assertion,

13 Petitioners summari ly state that "[blased on prior executions in Montana", it 14 is likely that Montana's lethal injection procedure subjects inmates to an 15 unconstitutional risk for pain and suffering." (Pet. at 19.) On the contrary, 16 the execution logs from the McKenzie and Langford executions do not 17 indicate that there was any error in the administration of the protocol. See 18 Affidavit of Cheryl Coughlin Bolton, which contains the execution logs for 19 the McKenzie and Langford executions, attached hereto as Exhibit E.

20 Further, Dawson's recent filing with this Court stated that a witness at 21 McKenzie's execution told Dawson that "Mr. McKenzie seemed to be very 22 peaceful." (Mot. of David T. Dawson to Continue His Execution and in 23 Response to the Petition Filed by Ron Waterman, et aI., at 3.) There is no 24 reason to believe, and Petitioners have presented none, that the speculative 25 errors described by Petitioners are likely to come to pass in Montana. See 26 Resweber, 329 U.S. at 462 ("As nothing has been brought to our attention to

27

RESPONSE TO PETITION FOR IN.JI'NCTIVE RELIEF PAGE 22

suggest the contrary, we must and do assume that the state officials carried

2 out their duties under the death warrant in a careful and humane manner").

3

The cases relied upon by Petitioners, Taylor v. Crawford and Nooner v.

4 Davis, which involve a lack of written protocol, and witness observations,

5 execution logs, and media reports which indicated possible problems with the

6 actual practice of prior executions in that state, are not applicable to Montana.

7 Montana has a written lethal injection protocol, and there is no evidence of

8 any error occurring in the actual practice of prior executions in Montana.

9

Dr. Dershwitz's declaration confinns that the likelihood of a

10 condemned inmate in Montana suffering excruciating pain from the manner

II in which Montana intends to carry out the sentence is so remote as to be

12 nonexistent. Petitioners' argument then shifts to pure speculation that

13 Montana's lethal injection protocol will not be implemented as written.

14 However, there is no foreseeable probability that Montana will not carry out a IS condemned inmate's execution according to its lethal injection protocol. 16 Petitioners have failed to sustain their burden to demonstrate that there is a 17 substantial risk that a condemned inmate in Montana will be subjected to the 18 unnecessary and wanton int1iction of pain. Lethal injection as conducted 19 under Montana's protocol does not violate the Eighth Amendment.

20

21

CONCLUSION

22

The petition for injunctive relief must be denied with prejudice.

23 24 25
26
27

RESPO'iSE TO PETITIO" FOR I:\JU:\CTIVE RELIEF PAGE 23

Respectfully submitted this 24th day of July, 2006.

2

MIKE McGRATH

Montana Attorney General

3

C. MARK FOWLER

Assistant Attorney General

4

215 North Sanders

P.O. Box 201401

5

Helena, MT 59620-1401

6

By:}·}····

7

PAMELA P. COLLINS

Assistant Attorney General

8

9

10

1 1

CERTIFICATE OF SERVICE

12

I hereby certity that I caused a true and accurate copy ofthe foregoing

13 Response to Motion for Injunctive Relief to be mailed to:

14

Mr. Ronald F. Watennan Ms. Julie A. Johnson

15

Gough, Shanahan,Johnson & Waterman

16

P.O. Box 1715 Helena, MT 59624

17

Mr. David Dawson

18

A.O. # 25284 700 Conley Lake Road

19

Deer Lodge, MT 59722

20

Mr. Edmund F. Sheehy, Jr. Cannon & Sheehy

21

P.O. Box 5717 Helena, MT 59604-5717

Ms. Diana Koch

23

Chief Legal Counsel Department of Corrections

24

1539 Eleventh Avenue Helena, MT 59620-1301

25

26 DA TED:_r-.--'_--'-_~_ __

27

RESPONSE TO PETITION FOR INJVNCTIVE RELIEF PAGE 24

CERTIFICATE OF COMPLIANCE

2 Pursuant to Rule I7(b) of the Montana Rules of Appellate Procedure, I certify

3 that this Response to Petition for lnjuncivc Relief is printed with a

4 proportionately spaced Times New Roman text typeface of 14 points; and the

5 word count as calculated by Microsoft Word for Windows is not more than

6 7,000 words, not averaging more than 280 words per page, excluding

7 certificate of service and certificate of compliance.

8

PAMELA P. COLLINS

9

10

I 1

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

RESPO~SE TO PETlTlO~ FOR I:'iJC~CTlVE RELIEF PAGE 25

IN THE SUPREME COURT OF THE STATE OF MONTANA

2

No. OP 06-0492

3 MONTANA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES

4 UNION OF MONTANA; MONTANA ASSOCIATION OF CHURCHES; MONTANA CATHOLIC CONFERENCE;
5 GORDON BENNETT JOHN C. SHEEHY; SENATORS BRENT CROMLEY, STEVE GALLUS, DAN HARRINGTON,
6 DON RYAN AND DAN WEINBERG; REPRESENTATIVES NORMA BIXBY, PAUL CLARK, GAIL GUTSCHE, JOEY
7 JAYNE, AND JEANNE WINDHAM; MARIETTA JAEGER LANE; EVE MALO,

8 Petitioners,

9 v.

10 STATE OF MONTANA; DEPARTMENT OF CORRECTIONS;
11 DIRECTOR MIKE FERRITER; WARDEN MIKE MAHONEY; ATTORNEY GENERAL MIKE McGRATH; JOHN DOES 1-10,

12

Defendant and Appellant.

13

14

LIST OF EXHIBITS

15

16 Exhibit A
17 Exhibit B.
18
19 Exhibit C
20
21 22 Exhibit D.

Dawson v. Mahone" 2006 U.S. Apy. LEXIS 14145, - FJd .•- (9th If. June 8, 200b). Dawson v. Mahoney, (9th Cif. July 10,2006), Order
denymg motIOn for reeonsideration of June 8, 2006
Order
Affidavit of Mike Ferriter, Director of the Department of Corrections, and attached July 13, 2006 response of the Department of CorrectIOns to Rep. Clark's letter.
Declaration of Dr. Mark Dershwitz.

23 Exhibit E 24

Affidavit of Cheryl Coughlin Bolton which includes the execution logs for the MeKenzie and Langford executIOns.

25

26

27

EXHIBIT A

FOR PUBLlCATI0'ftENj1, t, UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

F' LED
JUN- B2006
CATflY A. CATTERSON CL~R~ !is. COURT OF APPEALS

DA VID THOMAS DA WSON, Peti tioner- Appellant,
v.
MICHAEL MAHONEY, Warden, Respondent-Appellee.

No. 06-99004
D.C. No. CV-89-00246-JDS Montana (Billings)
ORDER

Before: CANBY, T.G. NELSON, and KLEINFELD, Circuit Judges
Montana state prisoner David Thomas Dawson was convicted and sentenced to death in 1987 for three counts of deliberate homicide. In 2004, Mr. Dawson moved to discharge his federal habeas counsel, to waive further habeas proceedings, and for the appointment of an independent expert to detennine his competency. The federal district court appointed two independent mental health experts to evaluate Mr. Dawson and ordered the parties to provide all relevant materials to those experts. After considering the experts' reports, the federal district court found that Mr. Dawson is competent to waive further proceedings and has made that decision knowingly, intelligently, and voluntarily. On December 12, 2005, the tederal district court granted Mr. Dawson's motion to

discharge his habeas counsel, Kathryn Ross and William Hooks, and granted his motion to waive further habeas proccedings. The federal district court later denied habeas counsel's motion for a certificate of appealability (COA).
On December 15,2005, the Montana district court conducted a competency hearing at which Mr. Dawson appeared by video. After an extensive colloquy with Mr. Dawson, the Montana district court found that Mr. Dawson is competent and has a made a knowing, intelligent, and voluntary decision to waive further habcas proecedings. On April II, 2006, the Montana Supreme Court granted Mr. Dawson's motion to dismiss counsel Ross and Hooks and granted Mr. Dawson's motion to dismiss all appeals. On May 15,2006, thc Montana district court set an execution date for August 11,2006. 1
On December 27, 2005, habeas counsel filed a notice of appeal in federal district court. [n this Court, habeas counsel filed "Habeas Counsels' Motion For Certificate of Appealability" (COA) and "Petitioner's, Through Habeas Counsel, Motion For Stay of Execution." Mr. Dawson opposes "former counsel's" COA and stay motions, as does Respondent.
An appeal may not be taken from the final order in a habeas corpus
1 We take judicial notice of the Montana state court orders and proceedings. See Fed. R. Evid. 20 I(b),(c); see also United States ex rel. Robinson Rancheria Citizens Coul/cil v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
2

proceeding unless a eOA is granted. See 28 U.S.c. § 2253(c)(I); see also 28 U.S.c. § 2253(c)(2) (a COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a substantial showing of the denial of a constitutional right includes a showing that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further), citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983).
Both the federal district court and the Montana state courts found Mr. Dawson competent and granted his motions to discharge habeas counsel Ross and Hooks. Habeas counsel do not contend that Mr. Dawson has a mental disorder or mental defect, nor do they dispute that Mr. Dawson has no history of mental illness2 Counsel, relying on Comer v. Stewart, 215 F.3d 910 (9th Cir. 2000), argue instead that Mr. Dawson's decision to waive further proceedings is involuntary due to the combination of the harsh conditions on Montana's death
2 See Rees v. Peyton, 384 U.S. 312, 314 (1966) (the test for competency to waive further proceedings is "whether [petitioner] has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is sutTering from a mental disease, disorder, or defect which may substantially alTect his capacity in the premises").
3

row and his reaction to the suicides of two other inmates on death row. See Comer, 215 F.3d at 917 (in addition to competency, the district court must also detennine the separate question of whether petitioner's decision is voluntary); see id. at <) Ig (,The issue is whether Mr. Comer's conditions of confinement constitute punishment so harsh that he has been forced to abandon a natural desire to live"). Mr. Dawson, however, in state and federal court has expressly disavowed these explanations for his decision to waive further habeas proceedings. See, e.g., December 15,2005 Montana district court RT at 19-25. Because there is no suggestion that Mr. Dawson is not competent, the state court did not err in accepting Mr. Dawson's testimony that his decision to waive further proceedings is not based on intolerable prison conditions nor on the suicides of two inmates on death row.
Because there was not a shred of evidence proffered in federal district court or in the Montana state courts (or in this Court) that Mr. Dawson is not competent to discharge his counsel, no reasonable jurist would debate that the district court did not err when it granted Mr. Dawson's motions to discharge his habeas counsel and to waive further proceedings. See Demosthenes v. Baal, 495 U.S. 731, 736 (1990) ("In the absence of any 'meaningful evidence' of incompetency, ... the District Court correctly denied petitioners' motion for a further evidentiary hearing
4

on the question of Baal's competence to waive his right to proceed"); sec also Del/llis ex. rei. BUlko v. Budge, 378 F.3d 880, 891 (9th Cir. 2004); Wells By and fhrough Kehne v. Arave, 18 F.3d 656, 658 (9th eir. 1994).
Because Mr. Dawson has competently dischargcd his habeas counsel, they lack standing to appeal on Mr. Dawson's behalf. We accordingly dismiss habeas counsel's motions for a CO/\ and for a stay of execution. Sec Baal, 495 U.S. at 73 7 (stay improper absent substantial grounds upon which relief might be granted), citing Barefoot, 463 U.S. at 895.
The Court has also received motions for clarification of status and to submit further bricling from Assistant Federal Defender Donahoe, who was appointed as special counsel in the district court to assist Mr. Dawson. Mr. Dawson, however, has informed this Court that Mr. Donahoe no longer represents Mr. Dawson. Accordingly, we dismiss Mr. Donahoe's motions for lack of standing.
Any motion for reconsideration must be filed by June 19, 2006. Any response is due June 26, 2006. Any reply is due June 30, 2006.
5

EXHIBIT B

:;.

',j\

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

F I LED

JUl 1 ;) 2006

CAuT.HsY.

A CATTERSON, CLER~ COURT OF APPEALS

DAVID THOMAS DAWSON,
Peti tioner- Appellant,
v.
MICHAEL MAHONEY, Warden,
Respondent-Appellee.

No. 06-99004
D.C. No. CV-89-00246-JDS Montana (Billings)
ORDER

Before: CANBY, T.G. NELSON, and KLEINFELD, Circuit Judges
The motion filed by former habeas counsel, for reconsideration of our June 8, 2006 order, is denied.

EXHIBIT C

1

IN THE SUPREME COURT OF THE STATE OF MONTANA

2

No. OP 06-0492

3 MONTANA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAL CIVIL LIBERTIES
4 UNION OF MONTANA- MONTANA ASSOCIATION OF CHURCHES; MONTANA CATHOLIC CONFERENCE;
5 GORDON BENNETT- JOHN C. SHEEHY; SENATORS BRENT CROMLEY, STEVE GALLUS;.QAN HARRINGTON,
6 DON RYAN AND DAN WEINBERG; KtPRESENTATIVES NORMA BIXBY, PAUL CLARKI GAIL GUTSCHE, JOEY
7 JAYNE, AND JEANNE WINDHAM; MARIETTA JAEGER
LANE; EVE MALO,

8

Petitioners,

9

v.

10 STATE OF MONTAN~.i,.PEPARTMENT OF CORRECTIONS; 11 DIRECTOR MIKE FEKKlTER' WARDEN MIKE MAHONEY.
ATTORNEY GENERAL MIKE McGRATH; JOHN DOES 1-10,

12

Respondents.

13

14

AFFIDAVIT OF MIKE FERRITER

15

16 STATE OF MONTANA

)

: ss.

17 County of Lewis and Clark )

18

19

I, Mike Ferriter, being first duly sworn upon my oath, depose and state

20 as follows:

21

I. This Affidavit is made in support of the Respondents in the

22 above-entitled action.

23

2. This Affidavit is made of my own personal knowledge except

24 where stated on information and belief, as to those matters, I believe them to

25 be true. If called as a witness, I would competently testify thereto.

26

3. I am the Director for the Montana Department of Corrections

27 (DOC). I have served in that capacity since July 1, 2006. Before that, I

AFFIDAVIT OF MIKE FERRITER PAGE I

1 served as the Administrator of the Adult Community Corrections Division

2 with the DOC since 1995.

3

4. On or about Wednesday July 5 or Thursday morning on the 6th,

4 Representative Paul Clark contacted me by phone and informed me that he

5 would be sending a letter to me asking for copies of the lethal injection

6 protocols of the DOC.

7

5. On Thursday, July 6, 2006, my e-mail in-box indicated receipt of

8 an e-mail and attachment at 4:18 p.m. from Rep. Clark. I opened and read the

9 e-mail and attachment that afternoon at about 5 p.m. In this e-mail, Rep.

10 Clark stated that the "letter I discussed with you on the phone is attached,"

11 and "I hope for a timely response to my request."

12

6. After reviewing Rep. Clark's letter, I decided to direct that a

13 response for my signature be drafted by the person(s) within the DOC most

14 appropriate to handle such a request. On Friday, July 7 at 8:30 a.m., I

15 forwarded Rep. Clark's letter to DOC Chief Legal Counsel, Diana Koch, and

16 directed that she prepare a response.

17

7. On Thursday, July 13, Diana Koch's draft response letter was

18 finalized for my signature. Because I was on vacation and away from the

19 office at the time, one of our employees read the contents of the draft over the

20 phone to me. I authorized the acting director to sign the letter under my name

21 by proxy. A copy of my July 13 letter to Rep. Clark is attached to this

22 Affidavit.

23

8. Further your affiant sayeth not.

24

I hereby affirm under penalty of perjury that the assertions of this

25 Affidavit are true to the best of my knowledge.

26

27

AFFIDAVIT OF MIKE FERRITER PAGE 2

1

DATED this 21st day ofJuly, 2006

2

3

4

5

SUBSCRIBED and SWORN to before me this 21st day ofJuly, 2006.

, ,

6

", j;'

7

Teddy J~Wru-d

8

Notary Public for the State of Montana

Residing at Helena, Montana

9

My Commission expires ~~~~---'{-"-

10

1 I

12

I3

14

15

16

17

18

19

20

21

22

23

24

25

26

27

AFFIDA VIT OF MIKE FERRITER PAGE 3

DEPARTMENT OF CORRECTIONS

flRIA.\I SClIW[fTZlR, GOVER1\oOR

15:W1I "AVLNUE

--ST;-\TE OF ~J10NTANA------

140ft) 4-14 H 3930 "AX ("Obi 444--4920

PO BOX 2!.IlJIIl flFlENA. MONT.-;'NA 5%20-1..\01

July 13, 2006
Representative Paul Clark 20 Fox lane Trout Creek, MT 59874
Dear Rep. Clark:
In your letter of July 6, you requested information from the Montana Department of Corrections conceming procedures the department uses to carry out a courtordered execution by lethal injection. This is the response to your inquiry.
J. Question: You asked whether and how the lethal injection protocol ensures that the personnel responsible for anesthesia are appropriately trained and qualified.
Answer: Mont. Code Ann. § 46-19-103 (6) (a) states: "An execution must be performed by a person selected by the warden and trained to
administer a lethal injection. The person administering the injection need not be a physician, registered nurse, or licensed practical nurse licensed or registered under the laws of this or any other state.•
Further, Mont. Code Ann. § 46-19-103 (5) states, in pertinent part:
"The identity of the executioner must remain anonymous. Facts pertaining to the selection and training of the executioner must remain confidential: (emphasis added). The department, therefore, cannot give you details about the qualifications or training of the person who will carry out the execution without violating the statute.
2. Question: You asked whether and how the lethal injection protocol employs adequate standards for administering injections and monitoring consciousness.
Answer: The department employs standard medically accepted practices for administering injections. The department works in

Rep. Paul Clar1t July 13, 2006 Page 2
conjunction with a registered pharmacist to mix and prepare the drugs utilized in the execution process. The drugs are administered in a lethal dose, sequentially, with intervening saline flushes over a period of approximately five minutes. This is a protocol utilized by the Texas DOC in numerous executions carried out by that department since 19n. This department monitors consciousness through visual observation by Warden Mahoney, the Powell County coroner, and a medically trained person.
3. Question: You asked what chemicals were used in lethal injections and in what doses.
Answer:
a. The first drug used Is sodium thiopental (sodium pentothal); 3 grams are administered. Sodium thiopental is an 'ultra fast-acting
barbiturate' that satisfies the mandates of Mont. Code Ann. § 46-
19-103.
b. Second, pancuronium bromide (Pavulon) is administered in a dose of 100 mg. Pavulon is the 'chemical paralytic agent" mandated in
Mont. Code Ann. § 46-19-103.
c. Lastly, potassium chloride is administered in a quantity of 140 mEq (milliequivalents).
d. Please see attached medical protocol for additional information.
4. Question: You asked whether and how the current lethal injection protocol employs adequate standards for measuring and understanding the reaction to pain.
Answer:
a. Montana's lethal injection protocol calls for a dosage of 3 grams of the first drug, sodium thiopental. Dr. Mar1t Dershwitz, a board certified anesthesiologist, associated with the University of Massachusetts, who has a doctorate in pharmacology, and has performed extensive research in the area of the pharmacokinetics and pharmacodynamics of intravenous anesthetic agents, testified at a hearing in federal district court in Virginia that 2 grams of

Rep. Paul Clark July 13, 2006 Page 3
sodium thiopental is approximately five to eight times the dosage
that would be used to render a 176-pound individual unconscious for general surgery. Within moments after the injection of the
sodium thiopental, the inmate will be rendered unconscious. The condemned inmate will slip into unconsciousness in the same manner as that experienced by a general surgery patient. The
probability of the inmate regaining consciousness within the ensuing 10 minutes is 3/1000 of 1 percent. The probability of the inmate regaining consciousness in 15 minutes is 6/1000 of 1 percent. The probability of the inmate regaining consciousness within 20 minutes never rises above 11100 of 1 percent. Flushing of
the IV line prevents the sodium thiopental and the second and third drugs from interacting outside the body of the inmate. ~ Reid v. Johnson, 333 F. Supp. 2d 543, 546-47and n. 7 (E.D. Virginia 2004). The U.S. District Court in that case found that Dr. Dershwitz's clinical and academic experience with the administration of sodium thiopental and pancuronium made him a "convincing witness.·
b. The department monitors any pain reaction through visual
observation by Warden Mahoney, the Powell County Coroner, and
a medically trained person. In the last two executions the
department carried out using lethal injection, witnesses were in extremely close proximity to the condemned inmate. No witness reported any visual manifestation of pain or for that matter, consciousness of the inmate after the process started. Warden Mahoney said he observed no such manifestations.
5. Question: You asked whether and how the lethal injection protocol makes adequate efforts to identify and address contingencies that may arise during executions.
Answer:
a. The department has contingencies in place to ensure an intravenous line can be inserted in the inmate, that the drugs continue into the
intravenous line, and that the quantities of drugs are adequately
measured.
b. Please see attached medical protocol for additional information.

Rep. Paul Clark July 13, 2006 Page 4
6. Question: You asked if today's lethal injection protocols are the same as
those used when the state executed Duncan McKenzie and Terry Langford.
Answer: No. The department has changed the dosages of the chemicals
it expects to use in this execution after consultation with corrections
colleagues in other states that carry out executions far more frequently
than Montana. This was not done in response to anything related to the two previous /ethal-injection executions in Montana.
We hope this answers your questions.
Sincerely,
Mike Ferriter Director
Att.

TM 01/05.12 Execution by Lethal Injection
A. At least one hour prior to the execution the Executioners and Setup Officer shall be escorted into the Execution Chamber by the Deputy Warden or Designee.
B. The Executioner shall complete a pre-execution inventory and equipment check (reference TM 01/05.08); and
C. The Medical Officer shall prepare the IV set-up.
D. IV Set-Up Procedure
I. The connector of Administration Set (Braun CSP l52VSL or equivalent) shall be inserted into the bag of Normal Saline IV solution.
2. The flow of solution shall be controlled by the Flo-Trol clamp.
3. A 35-ineh extension set (Braun SCE 33SL or equivalent) shall be connected to the needle adapter of the Administration set.
4. All connections should then be taped to ensure they do not come apart during the procedure.
5. The tubing shall be cleared of air by removing the protector from the needle adapter and opening the Flo-Trol clamp letting the tube fill with solution.
6. The Flo-Trol clamp shall then be closed and the protective cap over the needle adapter replaced.
7. Steps I through 7 shall be repeated for the second set-up.
C. Preparation of Syringes
I. Six hours prior to the execution the pharmacist shall begin to prepare the necessary syringes except the Sodium Pentothal for the lethal injection. Two hours prior to the execution. on command of the Deputy Warden, the Pharmacist will prepare the Sodium Pentothal.
2. The pharmacist shall prepare the syringes as follows, witnessed by the Deputy Warden and/or the Infirmary designee:
a. One set of syringes for the lethal irtiection;
b. One backup set of syringes for the lethal injection.
3. The syringes containing the drugs shall be prepared and loaded in the following order:

a. Two 60-cc syringes, each containing 70 milequiv of Potassium Chloride in 35 cc. (label syringes "3");
b. One 60-cc syringe, containing 100 milligrams of Pavulon in 50 cc. (label syringe "2");
c. One 60-cc syringe containing 3 grams of Sodium Pentothal (contents of 1 gram kits X3)
d. The Sodium Pentothal, being a Federally controlled drug, shall be prepared last (within two hours of the execution), when it appears that it shall actually be used and as directed by the Deputy Warden (label syringe "1"); and
e. One extra set of syringes are to be prepared and labeled as "stand-bys", in the event one of the others is dropped or otherwise becomes inoperative in handling during the injection procedure.
D. Injection Procedure
I. The angiocath shall be inserted into the vein of the left arm.
2. The inner needle is then withdrawn and the needle adapter is placed on the angiocath.
3. The flow of normal saline shall be started and administer at a slow rate, TKO (to keep open).
4. Step 1 through 3 shall be repeated for the right arm.
5. The administration sets shall be running at a slow rate of slow, TKO, and ready for insertion of the syringes containing the injection agents.
6. Both set-ups shall be observed to ensure they are both patent and functioning properly.
7. No further action is necessary at this time.
E. Lethal Injection Procedure
I. When all preliminaries are completed and when the Warden is ready to proceed with the execution. he shall signal the Executioner.
2. The execution procedures shall then be followed with the Executioner administering a continuous intravenous injection simultaneously.
a. The flow of the normal saline into the arm shall be cut off utilizing the Flo-Trol clamp.

b. Tbe clamp should be moved as close to the "Y" site as possible.

c. Syringe #1 (Sodium Pentothal) shall be inserted into the "Y" site and the injection shall commence.

(I) A slow, even flow of the il1iection shall be maintained ""ith only a minimum amount of force applied to the syringe plunger.

(2) When the entire contents of the syringe have been il1iccted syringe # I shall be removed from the "Y" site.

d. The Flo-Trol clamp should then be opened fully and allowed to run for 15 seconds.

e. The Flo-Trol clamps shall then be closed.

f. Syringe #2 shall be inserted into the "Y" site;

(1) The entire contents shall be injected mth slow even pressure.

(2) After syringe #2 has been given, the Flo-Trol clamp should be opened fully for 15 seconds.

g. The Flo-Trol clamp should be closed and the first #3 syringe (Ke I) shall be inserted.

( 1) The entire contents shall be injected with a slow, even pressure.

(2) The second #3 syringe shall then be repeated until death has been pronounced.

h. Upon completion of injections, or at such earlier time as may be appropriate, the medically trained person shall examine the inmate to pronounce death.

I.

Ifat any time one of the lines become blocked and the flow ceases the

lethal injection shall be injected into the line which is not blocked.

TM 01105.08 Equipment CbecklInveutory: Lethal Injection
A. Responsibility
I. The Director or Nursing or Designee shall conduct a check of equipment and materials necessary to conduct the execution.
2. The inventory shall be conducted 72 hours prior to the execution.
B. Inventory
I. An inventory checklist shall be completed, dated and initialed by the Montana State Prison Director of Nursing or Designee. Items marked "A" in the "code" column shall be carried into the Execution Chamber by the Executioners at the time of the execution.
2. Quantities of items in, or adjacent to, the cabinet in the Execution Chamber shall include at least those indicated with a "B" in the "code" column.
3. Expiration dates of all items shall be checked individually.
a. Outdated items (e.g., normal saline bags) shall be replaced immediately.
4. At least one hour prior to the execution, the Executioner shall enter the Execution Chamber and re-inventory the supplies and equipment to ensure that all is in readiness, and if necessary, immediately obtain replacement items from the Prison Infirmary.
TM 01105.09 Acquisition and Storage of Drugs for Lethal Injection
A. Purchase
I. Fourteen days prior to the scheduled execution, the Warden shall provide to the designated pharmaceutical company for their official records a memorandum specifYing:
a. the drugs which must be obtained:
b. a copy of the judgment of death; and
c. a copy of the state statute. (MCA 46-19-103)
2. Seven days prior to the execution, the designated pharmaceutical company will deliver the drugs to the Montana State Prison Infirmary. Upon taking custody of the drugs the Health Service Bureau Chief:
a. shall check seals and expiration dates on the drugs prior to receiving them from the vendor;

b. the Health Service Bureau Chief will deliver all the drugs to the Deputy Warden.
c. The Deputy Warden shall secure the drugs in a locking cabinet in Warden's cabinet area and maintain personal custody and security of the drugs until such time as they are turned over to the Warden;
d. The Deputy Warden shall verify the quantity, seals and expiration dates with the Warden; and
e. shall place the drugs in a vault in the Department of Correction Investigations Unit, witnessed by the Warden.
B. Storage and Handling of Drugs
l. Six to eight hours prior to the execution the Deputy Warden shall pick up the drugs from their storage location.
2. The Deputy Warden will ensure that all of the drugs will be secured from the Investigation's unit and delivered to the designated site for syringe preparation by the Pharmacist. The Deputy Warden shall witness the preparation of the synnges.
3. The pharmacist shall, at that time, prepare all syringes except for the sodium pentothal.
4. The sodium pentothal syringes shall be prepared at the direction of the Warden when it appears that the execution shall be carried out, but not sooner than two hours prior to the execution.
5. The drug boxes containing the syringes shall then be surrendered to the Deputy Warden.
6. The Deputy Warden shall retain the drug boxes until he gives them to the Setup Officer.

MONTANA STATE PRISON

Equipment and Material Checklist: Execution by Injection

QUAN ITEM

9

Sodium Pentothal, I gm kit,(SO mg/m!)

30 Pancuronium Bromide; 10 mg/Sml vial

6

Potassium Chloride, syringe containing 70 mEq, (2mEq/m!)

3

Diazepam (Valium), 2 ml Dossette Syrings

20 Syringe, 60 cc Lur Lock

10 Syringe, 10 cc Lur Lock

10 Syringe, 5 cc, Lur Lock

40 18 Ga., I Y2" needles

20 2S Ga., I Y2" needles
50 14 Ga., I v.." angiocath 50 16 Ga., I v.." angiocath

18 18 Ga., I W' angiocath

8

Normal Saline, IV Bag, 1000cc

8

Solution Injections set; 106" long with Y Sites

16 Extension set, 35" long

2

Stethoscopes

2

Boxes of alcohol preps

24 Rolls of Kling

4

I" adhesive tape

4

2" adhesive tape

3 pr Bandage Scissors

12 IV start kits (gauze, dressing, CloraPrep, tape, tourniquet)

3 pr Surgical gloves, size 7 Y, (sterile)

3 pr Surgical Gloves, size 8 (sterile)

I

Box gloves, 100 large (non-sterile)

12 Surgical Masks

3 pr Hemostats

6

3" ace wraps

100 Gauze pads (sterile)

Clean up kit

Flashlight, with batteries

6

Batteries (flashlight spares)

CODE A A A A B B B B B B B B B B B B B B B B B B B B
B B B B B B B

Inventoried by:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Date: _ _ _ _ __

EXHIBITD

IN THE SUPREME COURT OF THE STATE OF MONTANA

FILE NUMBER OP 06-0492

MONTANA ASSOCIATION OF

)

CRIMINAL DEFENSE LAWYERS, et aI, )

)

Plaintiff,

)

)

v.

)

)

STATE OF MONTANA;

)

DEPARTMENT OF CORRECTIONS, et )

al.,

)

)

Defendants.

)

)

DECLARATION OF MARK DERSHWITZ, M.D., Pb.D.

I. Mark Dershwitz, M.D., Ph.D., hereby declare as follows: I. 1am Dr. Mark Dershwitz, an M.D. with a Ph.D. in pharmacology. A true and accurate copy of my curriculum vitae is attached as Exhibit A. 1 am licensed to practice medicine in the States of Massachusetts and Maine. 1am currently an anesthesiologist at the University of Massachusetts and 1am certified by the American Board of Anesthesiology. 1 am currently a Professor of Anesthesiology and Biochemistry and Molecular Pharmacology at the University of Massachusetts. 2. I have done extensive research and written numerous review articles and research papers on the use of anesthetics and 1 regularly practice medicine in that capacity. My research includes the study of the pharmacodynamics and the pharmacokinetics of drugs. Pharrnacokinetics is the study of the time course ofa drug, while pharmacodynamics refers to the effects ofa drug. 3. Prior to my current appointment at the University of Massachusetts, 1 have been an
1

Instructor, Assistant Professor and Associate Professor at Harvard Medical School. I have testified as an expert witness concerning the pharmacokinetics and/or pharmacodynamics of anesthetic medications and other medications. I have testified in court as an expert witness on thirteen occasions. I have given twenty-two depositions as an expert witness.
4. I previously provided opinions on lethal injection, either in writing or testimony, in cases in Alabama, Arkansas, California, Kentucky, Maryland, Missouri, North Carolina, Ohio, South Carolina, Virginia, and for the federal government.
5. I have been requested by the Attorney General's Office of the State of Montana to render an expert opinion concerning the effects of administering thiopental sodium, pancuronium bromide, and potassium chloride with respect to the procedures employed in Montana for executing prisoners by lethal injection. While Montana's execution protocol references "Sodium Pentothal," it is the same substance as thiopental sodium. Similarly, while Montana's execution protocol references "Pavulon," it is the same substance as pancuronium bromide. Accordingly, all discussion in my Declaration relating to thiopental sodium references the anesthetic drug being used in Montana in its execution protocol, and all discussion in my Declaration relating to pancuronium bromide references the paralytic drug being used in Montana in its execution protocol.
6. Death is caused by the sequential injection of thiopental sodium 3 g, pancuronium bromide 100 mg, and potassium chloride 140 mEq. The intravenous tubing is flushed with saline solution following the administration of thiopental sodium and pancuronium bromide.
7. I have performed a detailed pharmacokinetic and pharmacodynamic analysis of the effects ofa 3-g dose of thiopental sodium given to an average man with a mass of80 kilograms
2

or about 176 pounds. It is my opinion, to a reasonable degree of medical certainty, that a condemned inmate who is administered a 3-g dose of thiopental sodium will be rendered unconscious, and not experience pain, for the time period necessary to complete the execution. The following discussion will quantitate the minuscule probability that the person could be conscious during the period of time that elapses between the administration of the thiopental sodium and the person's death. Even in persons of greater size or with inherent drug tolerance (due, for example, to the prior administration of therapeutic medications), the listed probabilities would not be altered in a meaningful way.
8. From my pharmacokinetic analysis I have generated two graphs, attached as Exhibits Band C. These pharmacokinetic graphs show the predicted concentration of thiopental sodium in the blood in an average man as a function of time. In Exhibit B, the time course considered is two hundred minutes, while in Exhibit C it is twenty minutes. In both Exhibits Band C, the y-axis is the concentration of thiopental in blood measured in mcg/mL (micrograms, or millionths of gram). As shown in Exhibit B, after the administration of a 3-g dose of thiopental sodium, the blood concentration of thiopental would be about 63.0 mcg/mL about five minutes after drug administration, falling to about 33.3 mcg/mL after twenty minutes. It should be noted that twenty minutes is more than twice as long as the time required to complete an execution by lethal injection. Over the two hundred minute time course shown in Exhibit B, the blood concentration of thiopental would fall to about 8.1 mcg/mL. The blood concentration of thiopental at which 50% of people are conscious and 50% are unconscious is 7.0 mcg/mL; about 280 minutes must elapse until this point is reached.
9. From my pharmacodynamic analysis, I have generated a graph, attached as Exhibit D.
3

This pharmacodynamic graph shows the probability that an average man will be conscious as a function of the blood concentration of thiopental. In other words, the graph shows the likelihood of consciousness in the presence of varying blood concentrations of thiopental. The graph shows that it is extraordinarily unlikely that someone will remain conscious during the hour following the administration of a 3-g dose of thiopental sodium.
10. It is my opinion, to a reasonable degree of medical certainty, that the dose of thiopental sodium used by Montana would render most people unconscious within 60 seconds from the time of the start of administration. By the time the entire 3-g dose of thiopental sodium solution is injected, it is my further opinion, to a reasonable degree of medical certainty, that over 99.99999999 % of the population would be unconscious. Furthermore, this dose of thiopental sodium will cause virtually all persons to stop breathing within a minute of drug administration. Thus, although the subsequent administration of pancuronium bromide, a paralytic agent, would have the effect of paralyzing the person and preventing him from being able to breathe, virtually every person given a 3-g dose of thiopental sodium will have stopped breathing prior to the administration of the pancuronium bromide. Thus, even in the absence of the administration of pancuronium bromide and potassium chloride, the administration of a 3-g dose of thiopental sodium by itself would be lethal in almost everyone.
II. It is my opinion, to a reasonable degree of medical certainty, that there is approximately a 0.000003 % probability that a condemned inmate given a 3-g dose of thiopental sodium would be conscious, and able to experience pain, after a period of five minutes.
12. It is my opinion, to a reasonable degree of medical certainty, that there is approximately a 0.00012 % probability that a condemned inmate given a 3-g dose of thiopental
4

approximately a 0.00012 % probability that a condemned inmate given a 3-g dose of thiopental sodium would be conscious, and able to experience pain, after a period of ten minutes.
13. It is my opinion, to a reasonable degree of medical certainty, tbat there is approximately a 0.0014 % probability that a condemned inmate given a 3-g dose of thiopental sodium would be conscious, and able to experience pain, after a period of thirty minutes.
14. It is my opinion, to a reasonable degree of medical certainty, that there is approximately a 0.029 % probability that a condemned inmate given a 3-g dose of thiopental sodium would be conscious, and able to experience pain, after a period of sixty minutes.
15. Finally, it is my opinion, based upon a reasonable degree of medical certainty, the administration of a 3-g dose of thiopental sodium would render most people unconscious for a period of approximately 4.7 hours, assuming that they continued to breathe.
16. Therefore, it is my opinion to a reasonable degree of medical certainty that there is an exceedingly small risk that a condemned inmate under the circumstances of Montana's execution protocol would experience any pain associated with the administration of lethal doses of pancuronium bromide and potassium chloride.
17. I have reviewed the protocols for lethal injection as used in Alabama, Arkansas, California, Delaware, Kentucky, Maryland, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, and by the federal government. All of these states use the same three medications in lethal injections. While the protocols in these states differ in terms of the doses of the three medications used, each of these protocols will render the inmate unconscious quickly and cause the inmate's rapid and painless death.
18. I have reviewed the petition for injunctive relief filed by the plaintiffs in this Court in
5

a lethal injection, and the corresponding risk for excessive pain, is alarming." The petitioners quote an article by Koniaris, et aI., published in the medical journal, The Lancel, in which the authors cited postmortem blood concentrations of thiopental obtained at autopsy that allegedly demonstrated that a significant fraction of executed inmates were conscious at the time the pancuronium bromide and potassium chloride were administered. The authors of the article in The Lancet, none of whom was a pharmacologist or toxicologist, misinterpreted the postmortem toxicology results. It is crucial that if a blood sample is to be obtained for toxicological analysis of thiopental following an execution, it must be obtained within a short time of the inmate's death.
19. On 13 May 2005, the State of Connecticut executed Michael Ross. Dr. Carver, the State Medical Examiner, obtained a sample of femoral venous blood from Ross twenty minutes after the time of death and a similar sample of femoral venous blood at the time he performed Ross' autopsy seven hours later. The sample taken shortly after the time of death had a concentration of thiopental of 29.6 mg/mL, and the sample taken at the autopsy had a concentration of9.7 mg/mL. These results strongly support the conclusion that post-mortem redistribution occurs with thiopental, and it occurs in the opposite direction from many of medications previously reported. Conversely, these results tend to refute any conclusions that low concentrations of thiopental from samples taken during autopsies, such as those cited in the article in The Lancet, were the result of improperly performed execution processes.
20. Properly obtained toxicological blood samples have been obtained following recent executions in Connecticut, Maryland, and North Carolina, and every one of these has been consistent with a very high probability of unconsciousness at the time of the inmate's death.
6

21. Well-known death penalty opponents have criticized the authors' conclusions in the article described in the paragraph 18 above. Dr. Mark Heath, whose declaration in a death penalty case in California is subsequently referenced by the plaintiffs, wrote a letter to the editor of The Lancet in which he stated, "Koniaris and colleagues do not present scientifically convincing data to justifY their conclusion that so large a proportion of inmates have experienced awareness during lethal injection. Indeed, published and unpublished data, and clinical experience, contradict their conclusions. It is widely accepted that concentrations of a drug in post-mortem blood might not reflect the concentrations present at the time of death because of post-mortem drug redistribution-ie, site-dependent and time-dependent changes in drug concentration that occur after death."
22. On page 13, the petitioners argue that Montana's lethal injection protocol is not acceptable by the American Veterinary Medical Association (A VMA) for the euthanasia of animals. This argument has been made in many states and it prompted the AVMA to issue a press release that stated, "The 2000 Report ofthe A VMA Panel on Euthanasia has been widely misinterpreted in the media, particularly how it relates to capital punishment. Capital punishment opponents and the media have attempted to use the AVMA report to infer that the AVMA deems this procedure an inhumane method of nonhuman euthanasia. When referring to the 2000 Report ofthe A VAtA Panel on Euthanasia, reporters are strongly encouraged to contact the AVMA to ensure the association's position is stated correctly."
23. The petitioners cite the declaration of Dr. Mark Heath submitted in the case of Morales v Hickman, et aI., in California. In paragraph 16 of his declaration, Dr. Heath concedes, "When successfully delivered into the circulation in sufficient quantities, sodium thiopental causes sufficient depression of the nervous system to permit excruciatingly painful procedures to
7

be performed without causing discomfort or distress." Thus, the petitioners base the entirety of their argument on the probability that Montana's lethal injection protocol will not be implemented as written, for if it is, there is essentially no possibility that the inmate would experience any pain or suffering whatsoever.
24. In paragraph 22 of his declaration, Dr. Heath describes several possible errors that could occur during the lethal injection process. He provides no evidence whatsoever on the frequency of these errors in past executions or the likelihood that such errors may occur in a future execution. In fact, the recent data derived from post-mortem blood sampling of executed inmates described above suggests that in the states that performed such blood sampling, there were no errors in the preparation or delivery of thiopental sodium that could have contributed to the inmate being awake following such administration.
25. In paragraph 37, Dr. Heath argues that the inclusion ofpancuronium bromide in the protocol "serves no rational or legitimate purpose." I disagree. The administration of a large dose of potassium chloride will, in addition to stopping the heart, cause widespread stimulation of nerve and muscle tissue throughout the body. This may lead to generalized contraction of skeletal muscles that would be manifested as involuntary jerking movements. Such movements, whieh may be mispereeived by lay witnesses as eonsistent with suffering on the part of the inmate, will be substantially mitigated by the prior administration of paneuronium bromide.
26. In paragraph 48, Dr. Heath misinterprets the 2000 Report of the AVA·fA Panel on Euthanasia as described above by the press release issued by the AVMA.
27. In paragraphs 52-53, Dr. Heath criticizes my pharmacokinetic and pharmacodynamic predictions that [ have described in this affidavit and elsewhere. He states that, "None of his
8

27. In paragraphs 52-53, Dr. Heath criticizes my pharnlacokinetic and pharmacodynamic predictions that I have described in this affidavit and elsewhere. He states that, "None ofbis affidavits address the probability of error in the administration of sodium thiopental during the execution process ... " In fact, I contend that the recently acquired data in several states suggest that there is no evidence of any executions in which errors were made in preparing or administering an adequate dose of thiopental sodium.
28. In summary, it is my opinion, 10 a reasonable degree of medical certainty, that the application of Montana's protocol for execution by lethal injection will result in the rapid and painless deatb of the condemned inmate.
Executed under penalty of perjury under the laws of the United States, on this 21 Sf day of July, 2006, at Sherborn, Massachusetts.

Dated: July 21, 2006

MARK DERSHWlTZ, M.D., Ph.D.

9

NAME: ADDRESS:

EXHIBIT A CURRICULUM VITAE
(prepared 20 November 2005)
Mark Dershwitz
33 Wildwood Drive Sherborn, MA 01770 Telephone (508) 651-1120

PLACE OF BIRTH:

Dearborn, MI

EDUCATION: 1974
1982 1982

B.A. cum laude Chemistry, with Departmental Honors Oakland University, Rochester, MI 48063
Ph.D. (Pharmacology) Northwestern University, Evanston, IL 60201
M.D. Northwestern University, Chicago, IL 60611

POSTDOCTORAL TRAINING:

INTERNSHIPS AND RESIDENCIES:

1983

Transitional Resident Carney Hospital, Boston, MA 02124

1984-1986

Resident in Anesthesia Massachusetts General Hospital, Boston, MA 02114

RESEARCH FELLOWSHIPS:

1986-1988

Department of Anesthesia Massachusetts General Hospital, Boston, MA 02114

LICENSURE AND CERTIFICATION:

1984 1987 1990 2005

Massachusetts American Board of Anesthesiology Maine American Board of Anesthesiology, Maintenance of Certification
in Anesthesiology
10

ACADEMIC APPOINTMENTS:

1977-1979 1979-1982 1984-1987 1987-1990 1990-1997 1997-2000 2000-

Lecturer in Pharmacology, Illinois College of Podiatric Medicine Lecturer in Pharmacology, Illinois College of Optometry Clinical Fellow in Ana"sthesia, Harvard Medical School Instructor in Ana"sthesia, Harvard Medical School Assistant Professor of Ana"sthesia, Harvard Medical School Associate Professor of Ana"sthesia, Harvard Medical School Professor and Academic Vice Chair of Anesthesiology Professor of Biochemistry & Molecular Pharmacology University of Massachusetts Medical School

HOSPITAL APPOINTMENTS:

1986-1990 1990-1996 1996-2000 2000-2002 2000-

Assistant in Anesthesia, Massachusetts General Hospital Assistant Anesthetist, Massachusetts General Hospital Associate Anesthetist, Massachusetts General Hospital Clinical Associate in Anesthesia, Massachusetts General Hospital Anesthesiologist, UMass Memorial Medical Center

AWARDS AND HONORS:

1972 1972-1974 1973-1974 1979
1981 1982 1986-1988 2001
2002
2003
2003
20042005

Michigan Higher Education Association Scholarship Oakland University Competitive Scholarship National Merit Scholarship American Society for Pharmacology and Experimental
Therapeutics Travel Award Biophysical Society Samuel A. Talbot Award Alpha Omega Alpha Research Award NIH National Research Service Award Distinguished Alumnus Award Oakland University Department of Chemistry Outstanding Teacher Award University of Massachusetts Department of Anesthesiology Outstanding Medical Educator Award University of Massachusetts Medical School Outstanding Teacher Award University of Massachusetts Department of Anesthesiology Listed in \-\'10'S l-\'ho in America Teaching Recognition Award, Honorable Mention International Anesthesia Research Society

11

MEMBERSHIPS IN PROFESSIONAL SOCIETIES:
Association of University Anesthesiologists American Society of Anesthesiologists American Society for Pharmacology and Experimental Therapeutics American Society for Clinical Pharmacology and Therapeutics International Anesthesia Research Society Biophysical Society International Society for Anesthetic Pharmacology Massachusetts Medical Society Anesthesia History Association

RESEARCH INTERESTS:
Intravenous anesthetics Antiemetics Monitoring depth of anesthesia Malignant hyperthermia

RESEARCH FUNDING:

1986-1988 1988-1989 1989-1990
1990-1991
1991-1992 1992-1993

National Institutes of Health GM11656 (PI) The role of glutathione in malignant hyperthermia
Anaquest, Inc. (PI) Comparison of the sedative effects of midazolam and butorphanol
Glaxo, Inc. (Co-I) A randomized, double-blind comparison of intravenous
ondansetron and placebo in the prevention of postoperative nausea and vomiting in female patients undergoing abdominal gynecological surgical procedures
Glaxo, Inc. (Co-I) A randomized, double-blind, placebo-controlled study of the
effects of two dose levels of intravenous ondansetron on respiratory depression induced by alfentanil in healthy male volunteers
Glaxo, Inc. (Co-I) A dose finding and comparative trial of GI87084B and alfentanil for
anesthesia maintenance
Glaxo, Inc. (Co-I) Pharmacokinetics and pharmacodynamics of GI87084B in subjects
with hepatic impairment compared to subjects with normal hepatic function
12

1993-1994 1993-1994 1993-1994 1995-1996 1996-1997 1999-2000

Marion Merrell Dow, Inc. (PI) A randomized, double-blind, placebo-controlled, dose response
trial to assess single dose intravenous dolasetron mesylate in patients experiencing postoperative nausea and vomiting
Marion Merrell Dow, Inc. (PI) A randomized, double-blind, placebo-controlled, dose response
trial to assess single dose intravenous dolasetron mesylate in preventing postoperative nausea and vomiting
Glaxo, Inc. (Co-I) Pharmacokinetics and pharmacodynamics of GI87084B in subjects
wi!:h renal impairment compared to subjects with normal renal function
Glaxo, Inc. (PI) A randomized, double-blind, dose-response study of ondansetron
in !:he prevention of postoperative nausea and vomiting in inpatients
Aradigm Corporation (Co-I) Comparison of !:he pharmacokinetics and pharmacodynamics of
inhaled versus intravenous morphine suliate in healthy volunteers
Searle, Inc. Clinical Protocol for a Double-blind, Placebo-Controlled, Rando-
mized Study of the Efficacy of Parecoxib 20 mg IV and Parecoxib 40 mg IV Given Postoperatively to Determine Narcotic-Sparing Effectiveness in a Post-General Surgery Pain Model

CLINICAL RESPONSIBILITIES:

1986-1988

Attending Anesthesiologist (20% clinical responsibility) Massachusetts General Hospital

1988-2000

Attending Anesthesiologist (50% clinical responsibility) Massachusetts General Hospital

1994-1997

Team Leader, East-West Anesthesia Service Massachusetts General Hospital

1997-2000 2000-

Team Leader, General Surgery Anesthesia Service Massachusetts General Hospital
Attending Anesthesiologist (45% clinical responsibility)

13

UMass Memorial Medical Center TEACHING EXPERIENCE:

1976-1980

Dental Hygiene Pharmacology Northwestern University Dental School 5 hours and Course Director

1977-1979

Medical Pharmacology Illinois College of Podiatric Medicine 22 hours and Course Director

1978-1981

Dental Pharmacology Northwestern University Dental School 3 hours

1979-1982

General Pharmacology Illinois College of Optometry 20 hours and Course Director

1979-1982

Ocular Pharmacology Illinois College of Optometry 10 hours and Course Director

1980-1981

Nursing Pharmacology, Northwestern University 5 hours

19941996-2001-

HST 150 Introduction to Pharmacology Harvard-MIT Program in Health, Science and Technology 4 hours
Harvard Anesthesia Review and Update 1-2 hrs
Medical Pharmacology University of Massachusetts Medical School 11-14 hrs

VISITING PROFESSORSHIPS:

April 6-7, 1994: May 17-18, 1994: Sept. 20-22, 1994: April 5-6, 1995: May 8-10, 1997: Dec. 8-9, 1998

University of Pennsylvania University of North Carolina at Chapel Hill State University of New York at Stony Brook Albany Medical College University of Texas Southwestern Medical Center Temple University
14

Dec. 16-17, 1998

University of Pittsburgh

COMMmEE MEMBERSHIPS:

LOCAL: 2000-
2001-

Pharmacy and Therapeutics Committee UMass Memorial Medical Center
Physician Health and Well-Being Committee UMass Memorial Medical Center

NATIONAL: 1999 -2002
2001-

Subcommittee on Anesthetic Action and Biochemistry American Society of Anesthesiologists
Subcommittee on Drug Disposition American Society of Anesthesiologists

BIBLIOGRAPHY:
ORIGINAL REPORTS:
1. Novak RF, Dershwitz M, Novak FC. The interaction of benzene with human hemoglobin as studied by IH Fourier transform NMR spectroscopy. Biochem. Biophys. Res. Commun. 1978; 82:634-40.
2. Novak RF, Dershwitz M, Novak FC. Characterization of the interaction of the aromatic hydrocarbons benzene and toluene with human hemoglobin. Mol. Pharmacol. 1979; 16:1046-58.
3. Dershwitz M, Novak RF. Lack of inhibition of glutathione reductase by unnitrated derivatives of nitrofurantoin. Biochem. Biophys. Res. Commun. 1980; 92:1313-19.
4. Dershwitz M, Novak RF. Lack of inhibition of glutathione reductase by anthracycline antibiotics. Biochem. Pharmacol. 1981; 30:676-8.
5. Dershwitz M, Novak RF. Generation of superoxide anion via the interaction of nitro-
furantoin with human hemoglobin. J. BioI. Chern. 1982; 257:75-9.
6. Dershwitz M, Novak RF. Studies on the mechanism of nitrofurantoin-mediated red
cell toxicity. J. Pharm. Exp. Ther. 1982; 222:430-4.
7. Dershwitz M, Ts' ao CH, Novak RF. Metabolic and morphologic effects of the antimicrobial agent nitrofurantoin on human erythrocytes in vitro. Biochem. Pharmacol. 1985; 34:1963-70.

15

8. Dershwitz M, Sreter FA, Ryan JF. Ketamine does not trigger malignant hyperthermia in susceptible swine. Anesth. Analg. 1989; 69:501-3.
9. Dershwitz M, Ryan JF, Guralnick W. Safety of amide local anesthetics in patients
susceptible to malignant hyperthermia. J. Am. Dent. Assoc. 1989; 118:276-80.
10. Dershwitz M, Sreter FA. Azumolene reverses episodes of malignant hyperthermia in susceptible swine. Anesth. Analg. 1990; 70:253-5.
11. Dershwitz M, Rosow CE, Di Biase PM, Zaslavsky A. Comparison of the sedative effects of butorphanol and midazolam. Anesthesiology 1991; 74:717-24.
12. Dershwitz M, Sherman EP. Acute myocardial infarction symptoms masked by
epidural morphine? J. Clin. Anesth. 1991; 3:146-8.
13. Dershwitz M, Rosow CE, Di Biase PM, Joslyn AF, Sanderson PE. Ondansetron is effective in decreasing postoperative nausea and vomiting. CHn. Pharmacol. Ther. 1992; 52:96-101.
14. Dershwitz M, Di Biase PM, Rosow CE, Wilson RS, Sanderson PE, Joslyn AF. Ondansetron does not affect alfentanil-induced ventilatory depression or sedation. Anesthesiology 1992; 77:447-52.
15. McKenzie R, Sharifi-Azad S, Dershwitz M, Miguel R, Joslyn A, Tantisira B, Rosenblum F, Rosow C, Downs J, Bowie J, Odell S, Lessin J, Di Biase P, Nations M. A randomized, double-blind pilot study examining the use of intravenous ondansetron
in the prevention of postoperative nausea and vomiting in female inpatients. J. CHn.
Anesth. 1993; 5:30-6.
16. Dershwitz M, Randel Gr, Rosow CE, Fragen RJ, Connors PM, Librojo ES, Shaw DL, Peng AW, Jamerson BD. Initial clinical experience with remifentanil, a new opioid metabolized by esterases. Anesth. Analg. 1995; 81:619-23.
17. Dershwitz M, Hoke JF, Rosow CE, Michafowski P, Connors PM, Muir KT, Dienstag JL. Pharmacokinetics and pharmacodynamics of remifentanil in volunteer subjects with severe liver disease. Anesthesiology 1996; 84:812-20.
18. Dershwitz M, Rosow CEo The pharmacokinetics and pharmacodynamics of
remifentanil in volunteers with severe hepatic or renal dysfunction. J. CHn. Anesth.
1996; 8:885-90S.
19. Kovac AL, Scuderi PE, Boerner TF, Chelly JE, Goldberg ME, Hantler CB, Hahne WF, Brown RA, Dolasetron Mesylate PONY Treatment Study group. Treatment of postoperative nausea and vomiting with single intravenous doses of dolasetron mesylate: a multicenter trial. Anesth Analg 1997; 85:546-52.
16

20. Hoke JF, Shlugman D, Dershwitz M, Michafowski P, Malthouse-Dufore S, Connors PM, Marten D, Rosow CE, Muir KT, Rubin N, Glass PSA. Pharmacokinetics and pharmacodynamics of remifentanil in subjects with renal failure compared to healthy volunteers. Anesthesiology 1997; 87:533-4l.
21. Gan TJ, Glass PS, Windsor A, Payne F, Rosow C, Sebel P, Manberg P, BIS Utility Study Group. Bispectral index monitoring allows faster emergence and improved recovery from propofol, aIfentanil, and nitrous oxide anesthesia. Anesthesiology 1997; 87:808-15.
22. Kearse LA, Rosow C, Zaslavsky A, Connors P, Dershwitz M, Denman W. Bispectral analysis of the electroencephalogram predicts conscious processing of information during propofo! sedation and hypnosis. Anesthesiology 1998; 88:25-34.
23. Dershwitz M, Conant JA, Chang yc, Rosow CE, Connors PM. A randomized
double-blind dose-response study of ondansetron in the prevention of postoperative
nausea and vomiting. J Clin Anesth 1998; 10:314-20.
24. Philip BK, Pearman MH, Kovac AL, Chelly JE, Wetchler BV, McKenzie R, Monk TG, Dershwitz M, Mingus M, Sung YF, Hahne WF, Brown RA, Dolasetron PONY Prevention Study Group. Dolasetron for the prevention of postoperative nausea and vomiting following outpatient surgery with general anaesthesia: a randomized,
placebo-controlled study. Eur J Anaesthesiol2000; 17:23-32.
25. Philip BK, McLeskey CH, Chelly JE, McKenzie R, Kovac AL, Diemunsch P, DuBois DM, Dolasetron Prophylaxis Study Group. Pooled analysis of three large clinical trials to determine the optimal dose of dolasetron mesylate needed to prevent
postoperative nausea and vomiting. J Clin Anesth 2000; 12:1-8. (erratum published in J Clin Anesth 2000; 12:577-78).
26. Dershwitz M, Walsh JL, Morishige RJ, Connors PM, Rubsamen RM, Shafer, SL, Rosow C. Pharmacokinetics and pharmacodynamics of inhaled versus intravenous morphine in healthy volunteers. Anesthesiology 2000; 93:619-28.
27. Dershwitz M, Michafowski P, Chang yc, Rosow CE, Conlay LA. Postoperative
nausea and vomiting following total intravenous anesthesia with propofol and
remifentanil or alfentanil. How important is the opioid? J Clin Anesth 2002;
14:275-78.
28. Dershwitz M. Droperidol: should the black box be light gray? J Clin Anesth 2002;
14:598-603.
29. Dershwitz M. There should be a threshold dose for the FDA black-box warning on droperidol (letter). Anesth Analg 2003; 97:1542-3.
30. Dershwitz M. Is droperidol safe? Probably... Semin Anesth 2004; 23:291-301.
17

PROCEEDINGS OF MEETINGS:
1. Kharasch ED, Dershwitz M, Novak RF. Differential hemeprotein involvement in microsomal and red cell lysate quinone and nitro group reduction. In: Sato R, Kato R, eds. Microsomes, Drug Oxidations, and Drug Toxicity. New York: Wiley Interscience, 1982:237-8.
BOOKS:
1. Stelmack TR, Dershwitz M. Manual for the Use of Pharmaceutical Agents for Ocular Diagnostic Purposes, ICO Press, Chicago, 1980.
2. Dershwitz M, ed. The MGH Board Review of Anesthesiology. 4th ed. Norwalk, CT: Appleton & Lange, 1994.
3. Dershwitz M, ed. The MGH Board Review of Anesthesiology. 5th ed. Norwalk, CT: Appleton & Lange, 1998.
4. Dershwitz M, Walz JM, eds. McGraw-Hill Specialty Board Review: Anesthesiology. 6th ed. New York: McGraw-Hill,2006.
CHAPTERS IN BOOKS:
1. Dershwitz M, Ten Eick RE. Pharmacology. In: National Boards Examination Review for Part I, Basic Sciences. Garden City, NY: Medical Examination Publishing Co., 1981.
2. Dershwitz M. Pharmacology. In: National Boards Examination Review for Part I, Basic Sciences. New Hyde Park, NY: Medical Examination Publishing Co., 1984.
3. Dershwitz M. Pharmacology. In: National Boards Examination Review for Part I, Basic Sciences. New York: Elsevier Science Publishing Co., Inc., 1987.
4. Dershwitz M. Local anesthetics. In: Firestone LL, Lebowitz PW, Cook CE, eds. Clinical Anesthesia Procedures of the Massachusetts General Hospital, 3,d ed. Boston: Little, Brown and Co., 1988.
5. Dershwitz M. Antiemetics. In: Bowdle TA, Horita A, Kharasch ED, eds. The Pharmacological Basis of Anesthesia. New York: Churchill Livingstone, 1994.
6. Dershwitz M. Antiemetic drugs. In: White PF, ed. Ambulatory Anesthesia and Surgery. London: W.B. Saunders Co., 1997.
7. Rosow CE and Dershwitz M. Opioid analgetics. In: Longnecker DE, Tinker JH, Morgan GE, eds. Principles and Practice of Anesthesiology, 2nd ed. Philadelphia: Mosby-Year Book, Inc., 1997.
18

8. Starnbach A, Dershwitz M. Intravenous and inhalation anesthetics. In: Hurford WE, Bailin MT, Davison ]K, et a1., eds. Clinical Anesthesia Procedures of the Massachusetts General Hospital, 5th ed. Philadelphia: Lippincott-Raven, 1998.
9. Dershwitz M. Agents for general anesthesia. In: Schirmer BD, Rattner DW, eds. Ambulatory Surgery. Philadelphia: W.B. Saunders Co., 1998.
10. Dershwitz M. Intravenous and inhalation anesthetics. In: Hurford WE, ed. Clinical Anesthesia Procedures of the Massachusetts General Hospital, 6th ed. Philadelphia: Lippincott Williams and Wilkins, 2002.
11. Dershwitz M, Landow L, Joshi-Ryzewicz W. Anesthesia for bedside procedures. In: Irwin RS, Cerra FB, Rippe JM, eds. hwin and Rippe's Intensive Care Medicine, 5th ed. Philadelphia: Lippincott, Williams, and Wilkins, 2003.
12. Dershwitz M, Landow L, Joshi-Ryzewicz W. Anesthesia for bedside procedures. In: Irwin RS, Rippe JM, Curley FJ, Heard SO, eds. Procedures and Techniques in Intensive Care Medicine, 3rd ed. Philadelphia: Lippincott, Williams, and Wilkins, 2003.
13. Dershwitz M. Antipsychotics. In: Fink M, Abraham E, Vincent J-L, ct a!.. eds. Textbook of Critical Care, 5th ed. Philadelphia: Elsevier. 2005.
14. Dershwitz M. AnalgeSiC cycIooxygenase inhibitors for ambulatory anesthesia. In: Steele S, Nielsen K, eds. Ambulatory Anesthesia and Perioperative Analgesia. New York: McGraw Hill, 2005.
15. Walz JM, Dershwitz M. Anesthesia for bedside procedures. In: Irwin RS, Rippe JM, eds. Manual of Intensive Care Medicine, 4th ed. Philadelphia: Lippincott Williams & Wilkins, 2006.
REVIEWS AND EDUCATIONAL MATERIALS:
1. Dershwitz M. Advances in antiemetic therapy. Anesth. Clinics North Amer. 1994; 12:119-32.
2. Dershwitz M. How can the costs of anesthesia be decreased? Intravenous Anesth. Today 1994; 1(3):4-9.
3. Dershwitz M. 5- HT3 antagonists in postoperative nausea and vomiting. Ambulatory Anesth. 1995; 10(1):9-11.
4. Ballantyne ]C, Dershwitz M. The pharmacology of non-steroidal anti-inflammatory drugs for acute pain. Curro Opin. Anaesthesio!' 1995; 8:461-68.
5. Dershwitz M, Rosow CE. Remifentanil: a truly-short-acting opioid. Semin. Anesth. 1996; 15:88-96.
19

6. Dershwitz M, Rosow CEo Remifentanil: an opioid metabolized by esterases. Exp Opin Invest Drugs 1996; 5:1361-76.
7. Dershwitz M. Should we measure depth of anesthesia? Semin. Anesth. 2001; 20:246-56.
NON-PRINT MATERIALS:
1. Dershwitz M. Use of short-acting analgesia in surgery: achieving cost-effective care (videotape). Rancho Mirage, CA: Annenberg Center for Health Sciences, 1996.
2. Dershwitz M. General considerations (section editor). In: Bailin M. ed. Harvard Department of Anesthesia Electronic Library (CD-ROM). Philadelphia: Lippincott Williams & Wilkins, 2001.
3. Dershwitz M. Practical pharmacokinetics of intravenous anesthetics. In: Bailin M. ed. Harvard Department of Anesthesia Electronic Library (CD-ROM). Philadelphia: Lippincott Williams & Wilkins, 2001.
ABSTRACTS:
1. Bruer P, Cantarella J, Dershwitz M, Undy L, Young DC. Polarographic studies of
copper (II) complexes of glycine peptides. Abstract #6, Anachem Society Meeting, Detroit, lvII, 1976.
2. Dershwitz M, Novak RF. The interaction of nitrofurantoin with human hemoglobin. Fed. Proe. 1979; 38:544.
3. Dershwitz M, Novak RF. Metabolic effects of nitrofurantoin on the human erythrocyte. The Pharmacologist 1979; 21:170.
4. Dershwitz M, Novak RF. Depletion of erythrocyte adenosine-5'-triphosphate and reduced glutathione levels by nitrofurantoin and unnitrated derivatives. Fed. Proe. 1980; 39:748.
5. Dershwitz M, Lack of inhibition of glutathione reductase by unnitrated derivatives of nitrofurantoin. Fed. Proc. 1980; 39:1751.
6. Dershwitz M, Novak RF. Oxidation of human hemoglobin by nitrofurantoin.
Biophys. J. 1981; 33:81a.
7. Dershwitz M, Novak RF. The effects of ethyl isocyanide on nitrofurantoin-mediated depletion of red cell glutathione. Fed. Proc. 1981; 40:667.
20

8. Dershwitz M, Novak RF. Studies on the mechanism of nitrofurantoin-mediated red cell toxicity. Eighth International Congress on Pharmacology, Tokyo, Japan, 1981.
9. Kharasch ED, Dershwitz M, Novak RF. Differential hemeprotein involvement in microsomal and red cell lysate quinone and nitro group reduction. Fifth International Symposium on Microsomes and Drug Oxidations, Tokyo, Japan, 1981.
10. Dershwitz M, Novak RF. On the mechanism of nitrofurantoin-mediated red cell toxicity. The Pharmacologist 1981; 23:211.
11. Dershwitz M, Novak RF. Generation of activated oxygen species in human red cells by nitrofurantoin. Seventh International Biophysics Congress and Third PanAmerican Biochemistry Congress, Mexico City, Mexico, 1981.
12. Dershwitz M, Sreter FA. Substrate requirements for glutathione maintenance in pig red cells in vitro. The Pharmacologist 1987; 29:210.
13. Lopez JR, Dershwitz M, Sanchez V, Sreter FA. [K+] and [Na+] in malignant
hyperthermia-susceptible swine. Biophys. J. 1988; 53:609a.
14. Chang RJ, Dershwitz M, Sreler FA, Smilowitz H. Skeletal muscle from malignant hyperthermia-susceptible swine contains decreased levels of monoclonal antibody reactive dihydropyridine receptor. The Pharmacologist 1988; 30:A88.
15. Kim DH, Lee YS, Sreter FA, Ohkisa T, Dershwitz M, Ikemoto N. Effects of azumolene on the kinetics of Ca release from normal and malignant hyperthermic
sarcoplasmic reticulum. Biophys. J. 1990; 57:497a.
16. Dershwitz M, Sreter FA. Reversal of malignant hyperthermia episodes by azumolene in susceptible swine. Anesth. Analg. 1990; 70:S81.
17. Dershwitz M, Rosow CE, Di Biase PM, Zaslavsky A. Characterization of the sedative effects of butorphanol in humans. The Pharmacologist 1990; 32:139.
18. Dershwitz M, Rosow CE, Di Biase PM, Joslyn AF, Sanderson PE. Prophylaxis of postoperative vomiting by ondansetron. Clin. Pharm. Ther. 1991; 49:184.
19. Dershwitz M, Rosow CE, Di Biase PM, Joslyn AF, Sanderson PE. Ondansetron is
effective in decreasing postoperative nausea and vomiting. Jap. J. Anesthesio!. 1991;
40:S312.
20. Dershwitz M. Di Biase PM, Rosow CE, Wilson RS. Ondansetron does not affect alfentanil-induced ventilatory depression. Anesthesiology 1991; 75:A321.
21

21. Nakamura H, deBros F, Roberts J, Dershwitz M, Sweet W, Poletti C, Philbin D. Plasma catecholamine concentrations before and after trigeminal rhizotomy: a clinical study. 5th International Symposium on Endocrinology in Anesthesia and Critical Care, Berlin, October, 1991.
22. Nakamura H, deBros F, Roberts J, Dershwitz M, Sweet W, Poletti C, Philbin D. Plasma catecholamine concentrations before and after trigeminal rhizotomy: a clinical study. Anesth. Analg. 1992; 74:S217.
23. Dershwitz M, Randel G, Rosow CE, Fragen R, Di Biase PM, Librojo ES, Jamerson B, Shaw DL. Dose-response relationship of GI87084B, a new ultra-short acting opioid. Anesthesiology 1992; 77:A396.
24. Dershwitz M, Rosow CE, Di Biase PM, Wilson RS. Ventilatory depression during and after a low dose aIfentanil infusion in normal volunteers. Anesthesiology 1992; 77:A360.
25. Dershwitz M, Rosow CE, Michalowski P, Connors PM, Hoke JF, Muir KT, Dienstag JL. Pharmacokinetics and pharmacodynamics of remifentanil in volunteer subjects with severe liver disease. Association of University Anesthesiologists Annual Meeting; Chicago, Illinois; May, 1994.
26. Dershwitz M, Rosow CE, Michalowski P, Connors PM, Hoke JF, Muir KT, Dienstag JL. Pharmacokinetics and pharmacodynamics of remifentanil in subjects with severe liver disease compared with normal subjects. Anesthesiology 1994; 81:A377.
27. Shlugman D, Dufore S, Dershwitz M, Michalowski P, Hoke J, Muir KT, Rosow C,
Glass PSA. Respiratory effects of remifentanil in subjects with severe renal impairment compared to matched controls. Anesthesiology 1994; 81:A1417.
28. Hoke JF, Muir KT, Glass PSA, Shlugman D, Rosow CE, Dershwitz M, Michalowski P. Pharmacokinetics of remifentanil and its metabolite (GR90291) in subjects with renal disease. Clin. Pharm. Ther. 1995; 57:148.
29. Kovac A, Melson T, Graczyk S, Scuderi P, Watkins WD, MCPR44 Study Group. Treatment of postoperative nausea and vomiting with single doses of IV dolasetron: a multicenter trial. Anesthesiology 1995; 83:A6.
30. Kearse L, Rosow C, Connors P, Denman W, Dershwitz M. Propofol sedation/hypnosis and bispectral EEG analysis in volunteers. Anesthesiology 1995; 83:A506.
31. Kovac A, Chelly J, McKenzie R, Philip B, Pearman M, Brown R, MCPR45 Study Group. Multicenter intravenous dose response trial to assess the efficacy and safety of dolasetron mesylate in preventing postoperative nausea and vomiting. Anesthesiology 1996; 85:Al.
22

32. Dershwitz M, Conant JA, Rosow CE, Connors PM, Zaslavsky A. A dose-response study of ondansetron in preventing postoperative nausea and vomiting in female inpatients. Anesthesiology 1996; 85:A331.
33. Rosow CE, Connors PM, Hennessy D, Rosow D, Dershwitz M, Shyu WC, Vachharajani N. Bioavailability of nasal butorphanol. Anesthesiology 1996; 85:A314.
34. Denman WT, Rosow D, Hennessy D, Dershwitz M, Rosow C. Miotic effects of alfentanil, and fentanyl occur at extremely low doses. The Pharmacologist 1997; 39:109.
35. Dershwitz M, Morishige RJ, Walsh JL, Rodriguez-Paz JM, Maarschalk LA, Rubsamen
RM, Connors PM, Rosow CEo Pharmacokinetics of inhaled morphine in normal volunteers. Anesthesiology 1997; 87:A376.
36. Denman WT, Rosow D, Hennessy D, Dershwitz M, Rosow CE. Miotic effects of alfentanil, and fentanyl occur at extremely low doses. Anesthesiology 1997; 87:A316.
37. Michafowski P, Dershwitz M, Rosow CE, Conlay LA, Chang yc. Total intravenous
anesthesia with remifentanil or alfentanil in ambulatory orthopedic surgery carries minimal risk of postoperative nausea and vomiting. Anesthesiology 1998; 89:A34.
38. Walsh J, Dershwitz M, Rosow C, Connors PM, Morishige R, Rubsamen R. Intravenous and inhaled morphine pharmacokinetics and pharmacodynamics as measured by pupillometry. Anesthesiology 1998; 89:A521.
39. Dershwitz M, Walsh JL, Krause S, Makris N, Gollub R. Using functional magnetic resonance imaging to measure opioid effects in discrete brain regions. Association of University Anesthesiologists Annual Meeting; Pittsburgh, Pennsylvania; May, 1999.
40. Gollub RL, Breiter H, Dershwitz M, Elman I, Kantor H, Gastfriend D, Benson E, Lazar S, Krause S, Makris N, Kennedy D, Campbell T, Weisskoff R, Rosen B: Cocaine dose dependent activation of brain reward circuitry in humans revealed by 3T fMRI. International Conference on Functional Mapping of the Human Brain, 1999.
41. Dershwitz M, Walsh JL, Krause S, Makris N, Gollub R. Using functional magnetic resonance imaging to measure opioid effects in discrete brain regions. Anesthesiology 1999; 91:A367.
42. He YL, Walsh J, Denman W, Dershwitz M, Kim J, Rosow C. Pharmacodynamic
modeling of the miotic effects of alfentanil in humans measured with infrared pupillometry. Association of University Anesthesiologists Annual Meeting; Rochester, NY; May, 2001.
23

43. Gollub R, Aquino P, Kong J, Gracely R, Kramet T, Dershwitz M. Reliable intensity and laterality encoding of noxious pressure and heat pain in cortex within single subjects using l.5T fMRl. Organization for Human Brain Mapping 7th Annual Meeting; Brighton, UK; June, 2001.
44. Aquino P, Kong J, Gracely RH, Kramer T, Dershwitz M, Gollub R. Reliable encoding
of brief noxious mechanical stimuli in single subjects using l.5T [t..,IRI. Society for Neuroscience, 2001.
24

400

-..J

E
-C)

100

--CJ
E

50

-Sr::: 10

Q)

.-.-..oc-.. 5
J:

1

1

Exhibit B

Tim. (min)
10 10 30 60 280

[Thlop.nu,l]

Probability

(mcg/mL) of Consclousn... (%1

630

0.000003

394

000012

33.3

1),00047

2U

0.0014

19.7

11029

70

50

5 10

50

Time (min)

100 200

25

Exhibit C

-..oJ
E
-C')

400

(.)
-E 100
.-..ca.:.. 50

Q)

.-Co
0
..I.c.-..

Tim. (min)
10 20 JO 60 280

(Thiopental]

Probability

(mcg/mL) of Consciousn... (%)

6).0

aQOOOO3

39.4

0_00012

JJ.J

() 00047

28.9

0,0014

197

0,029

20

50

10

1

5

10

20

Time (min)

26

--eft. 100
80

Exhibit D
\

60
- 40
o
-»
:t:: 20
o
2

{ThiOJM1IbIJ
''''''''''J
,
, 7
10 12 14
"20

Probabiolity of ConseloUSRHI {%)

99.995 98.7 76.3 50.0 25.0
5.' 14 0.4 0.1
0,02

J

5

10

20

[Thiopental] (mcg/mL)

27

EXHIBIT E

IN THE SUPREME COURT OF THE STATE OF MONTANA

2

No. OP 06-0492

3 MONTANA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAL CIVIL LIBERTIES
4 UNION OF MONTANA; MONTANA ASSOCIATION OF CHURCHES; MONTANA CATHOLIC CONFERENCE;
5 GORDON BENNETT; JOHN C. SHEEHY; SENATORS BRENT CROMLEY, STEVE GALLUS, DAN HARRINGTON,
6 DON RYAN AND DAN WEINBERG; REPRESENTATIVES NORMA BIXBY, PAUL CLARK, GAIL GUTSCHE, JOEY
7 JAYNE, AND JEANNE WINDHAM; MARIETTA JAEGER LANE; EVE MALO,
8 Petitioners,
9
v.
10
II SDATITRATETOCERTNOOFERYMMGOIEKNNETEAFRNEARALR; IDMTEIEKPRAE; RWMTcAMGRERDNAETTNHOM;FJICOKOHERNMRDAEOCHETOSINOIEN-YIS6·;,
12 Respondents.
13

14

AFFIDAVIT OF CHERYL COUGHLIN BOLTON

IS

16 STATE OF MONTANA

)

: ss.

17 County of Lewis and Clark )

18

19

I, Cheryl Coughlin Bolton, being first duly sworn upon my oath,

20 depose and state as follows:

21

I. This Affldavit is made in support of the Respondents in the

22 above-entitled action.

23

2. This Affldavit is made of my own personal knowledge except

24 where stated on information and belief, as to those matters, I believe them to

25 be true. If called as a witness, I would competently testify thereto.

26

3. I am an Administrative Officer for Montana Department of

27 Corrections at Montana State Prison (MSP). I have served in that capacity for

AFFIDAVIT OF CIIERYI C. BOLTO:'ol PAGE I

12 112 years. Before that, I served as an Administrative Assistant at MSP

2 for 2 112 years, between 1991 and 1993.

3

4. Among many other responsibilities, the Administrative Officer

4 acts as the custodian of the prison's execution logs, which are the written

5 descriptions of what transpired during prior executions.

6

5. Under the direction of the MSP Warden, I was the principle and

7 official log-kceper of the judicial executions by lethal injection of inmates

8 Duncan McKenzie Jr., on May 10, 1995, and Terry Allen Langford, on

9 February 24, 1998. I hand wrote entries of execution events

10 contemporaneously as I personally observed them.

1 1

6. I personally typed the hand-written execution logs of the

12 McKenzie and Langford executions. I have carefully reviewed my typed logs

13 and compared them to the original handwritten entries and checked for any

14 errors or omissions. To my best information and belief, I attest that the typed

15 excerpts of the logs provided below in this Affidavit, at ~~ 7-8, are true,

16 accurate and complete re-recordings of the handwritten logs, with the

17 following exceptions. I have made redactions ("blackened out") I believe are

18 necessary to protect the privacy of execution personnel. Where necessary, I

19 have inserted such phrases as "medically trained person" or "pharmacist" in

20 brackets next to the redactions to identity the person's role.

21

7. For the McKenzie execution, I stood in the witness section of the

22 execution chamber about 5 feet from the gurney upon which inmate

23 McKenzie lay. No obstructions impeded my view of the inmate's entire face

24 and body. The following is an excerpt from the official execution log of

25 Duncan McKenzie, showing the entire last 24 hours ending on May 10, 1995:

26

27

AFFIDAVIT OF CIIFRVL C. BOLTO'i PAGE 2

r Date Time

--;--------c-c-- _ Entered By __

-05--09--9-5 -'1-6~12-TRrev~ie' we-d t"im-e f~ram'es and sequcncc of events with escorts and tie r Cheryl

2
3 4

1f __~~.I"""' ' '"" " " down teams. Also medical set up.

I

I Duncan McKenzie will be t(

-05-09-95 --i750 i Carl Nelson: Curtain' inilslt,a"ll locks on construction gate c

Coughlin
i

5

05-09-95 1751 Should an incident arise at i'vISP the Command Post will establish and maintain the Incident Command Center during the times the

I
I'

6 7

------:----t ----1 1

~_ ~ execution IS in progress, Captain Malcolm and Ll. Hess notified by

.

_______ __ _Security MajorLeonard Mihelich.

.

~05-09-95 1806 Tie Down Teams, Escort Oftlcers, Medical set up Carl Nc-e·71s-0-n-,--+"'Cc-h-e-ry"':'l

Major Mihelich, Cheryl Coughlin into chamber for final rehearsal. ~.oUghlin

]'

r-09-95, 1910 Security Manager and Cherylout of Max, rehearsal complete.

Myron

8 05-09-95 1915 Pharmacist arrived from HPI'--------,~___~_~B~ees----+on==1--,

9 , 05-09-95 1920 Dave Ohler---McKenzie's attorney tiled Writ of Cert for state of

10 r-:05-09-95

1931

execution with Suereme Court, Dennis Taylor from A~G 's 0 fIice called to tell Rick Day that Writ of

_ _ Cert for stay of execution Wa' s v_e_ri_ti~.~_a_t_A_-(_J_'s_e_n~_ _ _ _ _ _+---_~_+-

-I

I 1 05-09-95 1931
r05-09-95 , 1940

T!ailer secured after practie,! section. Bureau Warden II Mike Mall ~ssumed possession of lethal

~ __

12

J!1jection me~jjcations from ~HPI l'harrnacisl.

_ _ _--/_ _ --/__

105-09-95-1194.C ~edicatjons_signcd_over to Bureau Warden II, Mike Mahon~::--'r----__
13 ros~09-95 205-9 Unit Manager Perry notified to authorize move for McKenzie to 105

I

room.
14 ~05:()'l-95 -P115 ~Kenzie moved to 105 ro_om______________~---+____--+_

-----~----,

05-09-95 2116 Ron \Vaterman notified ofseating arrangement and denial of request

IS

i ,

to review phone check. Beearne highly upset and was advised that decisions afC final and if he fails to conduct himself in a professional

16 17

05-09-95
~'~." 05-09-95

tI manner he will be removed [roIll prison prope~_ _ _ _ _t---__T_--___j 2126 ~al ph~ne hooked u!' and placed in 105 room. --~----~+-;--;'--;c:'---'--

Maint Umt Mana~Carl Ne Ison on site trailer 0 ened.

~ Beeson

-2"15,0,- Call from AG in Gov office relative to Mr. Vv"a'-t'::eLrma='n::.:c:'s-c-a'"CnC't-o-t'Ch-e-+(:c';-h"'er"'y""I='---------I

18

Gov about the seating arrangement in the chamber seating

Coughlin

19

----~
r5-09-95

arran..gements stand as~ae rradn_ ' .__ ~he LJS Supreme Court is in session

_er_-t~h-e-f-:-\"'G::,.-s-o-:-ft:::lc-e-----+--.

. -

-

-

-

-

j

20

i
I

2207 Telephone check with Attorney General's & Governor's office by

I ~ i

Rick Day. Rick notified them that the lethal injection drugs were being prepared. No new developrnents or news from the US

21
22
23 24
25

: Supreme Court.

r---·· 2215' The trailer area is secure, Max windows have been covt:red, and

al of medical set up.

t__ I em"",""" """"'IT, "rr', --.~t2222_,-+ Lethal injectIon medication se!Up com!,lete.

---c-----I--~'+---

I I 2229 Greg Budd called from max bldg, attorney Waterman wished to

J •

notify Rick Day that he would hold him accountable If Mr.

~....____ ~233

I \Vaterman does not have a direet line of vie-w-. -'------------- -
i Medic:!!.s,,, up onsite in- :VIa

~

i
---------I

~ney. Co~ghhn, =t- -~I .

2251fI.eonard Mihelich, Mike Ma

('heryl

III route to

[------t I --1 ! I i i trailer. 2259 - Arrived in Max traIler,,~M_ ,Mahoney, L Mih-;:-lich, C~C;;~gh~-

Cheryl

i I 26 ---~---I,~~ -' -1---~-..--,~-----,

05-09-95 i 2307 Coroner and

[medlcally trained person j on site in Max

I' (~_-hoeurgyhllin .----.JI

27 I ~_,~, ,~, Compound. ______ .. Il_~ ~ .._ _.....-". .._______. __.__..~_~_.__.____..__~. __

_________

_LC()Ughlin _

I

AFFIDAVIT OF CHERYL C. BOI.1'O:>; PAGE.l

2

3

but be

4

5

6

7

2353 Rick Day and Mike Mahoney in the trailer. Rick Day confirmed

8

communication with the Gov and Attorney General---next communication when execution

9

2400 Tie Down Team leaving trailer.

10

I I

12

13
14
2414
15
2417
16
05-10-95 2418
17 <sic>

cannot

gurney by execution '

to

[Medically trained person] in place for initial check of

18

19

20

21

22

23

24

25 out of trailer
26
2449 Coroner's vehicle out of compound.
27

\FFlllA VIT OF CIIERVL C. BOLTON PAGE4

I cr·~·~~·---·n·1·;}·+·f·f.e·~·i·}·;i~\-~~:-:·~·d·I·I~·~·d·:~~-~-;~;-:~~~·;·~·~·r·O·t·~)~t~~-a~;~~-E-!~~~~-H~-[)..e~~t-h ~Wa.t.~h~·p-··~--iiI- ~-I]

2
3 4

. L~~ _._j~~~~.Jordered to stalld down..

.._____ ~

I

I i I I 2454 Tie Down Team, Rick Day, MyTon Beeson, Mike Mahoney, Greg

·r'-.---f·--;o-t Bucld...Cheryl Coughlin out of MaxS.:',ml'."und. ...

_.-L.

'

I _~~____ 002~+ Tie Down equipment and escor~_~)fficer t'q~ie.:nent checked in. ~---+---1
05-10-95 0200 Debriefing conducted for statTby Sandy Heaton and Jon Berg

5 6 7

I .

"/I
I

offered further assistance if anyone felt the need to talk further, encouraged staffto talk to each other, listen to each otber, be
I supportive, and be observant of signs that someone is having
I troubles. Next debriefing as a follow up is scheduled for Thursday

I'

I

I I ~_~.._ __. Maxll, 1995 at 1300 in the R A C ' . .

-iC--=;-..c..-- .•

0233 Debriefing conducted for inner and outer perimeter security teams Cheryl

by Drew Schoening in the Armory. I-Iandout and assistance,

Coughlin

~~~~_

. encouragement provided ~s above.

_

~

_IL....~_ __

8

9

8, For the Langford execution, I stood in the witness section of the

10 execution chamber about 5 feet from the gurney upon which inmate Langford

I I lay. No obstructions impeded my view of the inmate's entire face and body.

12 The following is an excerpt from the official execution log of Terry Langford,

13 showing the entire last 24 hours ending on February 24, 1998:

14

Date Time

Entered By

15 16 17

'02:23~98 / 08001 DZath Watch- cbange of officers.

I Chery'!

~ r---.-.::(JiilO Phone Test complete - acceptable.

______.__.__._=..c.E.'Ou '_hj-Ii_ n _-i

I f---_ _~-+-i1339 Chambers secured by Carl Nelson.
r----.--+-;c:-1:3:i1:5---t-C-h;eCc;k;=P-o:~in=t'7II-?in'=p=lca.c.e.... --c------c--c-~__;__c---c;-;"7.'C---;--

I ,

1420 / Check Pomt I··· bottom ot airpomt <SIC> [alfportj hIli m place per ,

18

'_"'_'_l--:-=:-~M?ajor Wood ---;;C'-'7"~-;:-c----;-"C"..";'---;-::=-----;c--+-..---+-----!
1425 KOFI Reporter Wendi O. Price not admitted on MSP property after

19
20
21

Check Point J discovered alcohol and firearm in her vehicle. She

1
~ I. PlO'::"1 I 1--'_-~fI

will not be replaced as a media witness. Warden Mahoney and Director Day notified. Andy Malcom notified by PIO Linda
I GMooov~de.rnr~oyrcR··a~c~i_ cot_no~tif~ied~o~f _ab~ov·e ~inc.id_en~t b..y..~D~ir._ec~to_r 7Da~y~ :~--1~-

I I

/' l I 1750 Wendi o. Price called for Linda Moodry PIO requesting re~onsideration of decision from earlier today to WIthhold her as

22
23 24
25

I ,t==~t 1756 I ! /1845

~W~·Ict,n~e~ss~.~~_~~__..~~~---;-_~~~_ _..~~_ _ _ _ ~

Wendi O. Price called again f()r LindaMoodry

.-r---:-+---i

Warden notified by Max Unit Manager that Attorney Donahoe in to ~--

! +-- i -~'~-

Max to see his client. S~ke with his c l i e n t . "

I. "I ...

I 1850 Attorney Donahoe out of Max with Capt Ge"c.h:·~"-·~---"-T·. - -

11851 I' \Vendi O. Price will not be allowed to re-instate her position as a

LF .1

I. ~!~~~~yNOexceptionsallowcdPerDirectorDayandWarden,

I

ri - - I 26 I ~""---~- D~Hlahoe ~.~~~ 853-- n;apt Geach to the Wardens office after escon"ing .A"ttorney

27 l._..""_ __ L__H~~:::i~I::;~d ~~~a~~;~~~~~~e~i~a~:~~~~;~~~~~t~I~:;~t~eachJ .__ ~ "_J

AFFIDAVIT OF CHERVL C. BOLTON PAGE: 5

attorney with

Attorney

Donahoe did indicate that he had placed a call to Judy Browning in

')

thc Gov office and had requested she return the call here at MSI'.

~

Donahoe is going to stage at the sheriffs office and requests we

3

that

1856 Capt

office to report that Donahoe indicated

4

upon being escorted from the prison, that [nrnate Langford gave him '"limited

5

1900 Aller discussion by Director Day, Major Wood and PIO's Linda Moodry and Mike Cronin a media lottery will be held at 2030 to

6

rcplace the witness slot vacated by Wendy Pricc. CJIN clearance will need to be made.

7

1921 Gov Racicot cal1ed \Varden i\1ahoney for briefing on conversation between Mr. Donahoe and Inmate Langford. He indicated he will

contact Attorney Donahoe at 406·846·2711 (PCSO) and then report

8

back to Warden

1930 Beth Baker AG's office for bnefing on decision to turn away media

9

witness \Vendy O. Pricc. Decision explained. Exception cannot be

made in these critical areas in this of incident.

10

1935 Wendy O. Price called

Mahoney

again request the

decision made earlier

denied.

I I

1947

called Gov. Racicot to brief him on media witness

12

13

14

15

16

and

17 2049 lJM Perry Called to report they (Greg Budd and himself) talked to

18

Inmate Langford and explained procedures for rest of evening. 2005 hours.

19

2052 Winnie Ore called to infonn us DOC-ICC is in operation.

20

2058 Sheriff Dupont called to discuss Wendy O. Pnce being denied access to MSP

21 21 J0 Warden notified from Ranch I Training
i-.-.~~... ~-C',-,-C""+- from Silver State Post was chosen as

22

Dana ~.l('fI(l'Qe

23 24
2201
25 26
27

Attorney General Joe Macurek called to check in with ~lark Fowler.

Error 2110

set up begins. Completed at Pharmacist·HP!. Witnessed by Warden Mahoney, Deputy i \Varden Mihelich, DOC Investigators Mike MinI, Dept of Texas . Consultants. Two boxes: Primary contains primary and secondary syringes of all three medications. Second box contains backup
. for Sodium Pcntathol and Potassium Chloride.

AFFIDAVIT OF ellERY!. c. BOI.TON
PAGE 6

1

I 2257 Dept. Warden Mihelich, Cheryl Coughlin enroute to .\1ax with

medication

2

I 02-23-98 2304

b~pt \Varden Millclich 8: CI~~?'I.Coughlin arrived ~t trailer \V:ith
medications Carl Nelson and Major Wood Present in trailer.

I

3

2311

, set up

I-"Ito traIler.

.

. I by UcpUly Wardell "W'C'" I

4

I 2316 Coroner vehicle into comnmmn

2326

Mahoney and Director Day enroutc to tv-lax staging area per

5

Lf)Uer"p""Hr"['Y"

Beeson,

"or: 2330 Ii ;Malor \Vood notified they are beginning strip process ofinmate

6

2335 '~DTowin eTe~~a~tlh I1nm1ate Lan' into..!~lTlC

7

.

I[Ii~e~;;;;;-Te-"-m' ""'-Down

8

2338 2338

2341

9

2341 Set up oflV ;n

10

2344 Rightarm

Set up ind ;eates left

2344 Arm best IV set up

11 2345 Tie Down Team exits trailer. 02-23-98 2345 Inmate Langford requests pillow be removed from under his head.

12 02-23-98 2346 Set up Team to rear of trailer-staging area

13

r------".---t-:2~31:5:;2c3;:4OO9·

' , Director Day,

, Coroner mto traIler

vv aruer:'s office

by Rick Day of arrival

14

2350 . AG', office

I of arrival in trailer

2350 Gov

I of arrival in trailer

15

I 2351 DOC:ICC ;('''''_ofarrival in trailer.

16

I , .- , I,' 2352 . IPS escorit~;n;r;e;s;si1we'r

'----, into trailer (media) An<lv

Linda

17

I ?"", ~h',- """C'''' ;"'" ,",;10",

by IP~_ _ _cc[s~'ec--u-nC"ty~-+-----I--~-1

~~~

~,~"

All ' uuv u~':';cated in e,ec;;ti~~

I 2355 I Cnndemm>d w;

into trailer and escorted by IPS

18

'm

2356 I Vi~tim

; into trailer

19

20

lR 2400 • ,,,ue,, .

I to front of """"-;"'"'"'' Inmate to make tlnal

21

statement-does not wish to make final statement order given to

22

. 2401

Day gives order to

I to

2402 Snoring heard from Inmate 1 "not",d

23

2404 Clock on right has'

no

t from r

2406

I checks for heart ,,',

, pupil

24
,
25
26

2407 2407 2407 _0007 0008

M"hnnev.

Terry Allen

Victim out oftrai!er,

Gov

Aci's office

C

, out of trailer

OOOR Deputy \Varden Beeson notified in Wardens office. Order of the

27 _ _ .__ __

court has b._e_e_n.c,a,r_ri_ed_o_u_t. ___

_ _ _ _ _ _ __~~

.~~

. _ . " L . _ _ , , - '. . . ._

..-.-J

·\FFIOAVIT OF CHERVL C. BOLTON P\(;E 7

2 3 4

~~---rI~:TII~~~~~ ! 1--------1 2411

, ~

·----·-----·-·----~------------~T---
I~~)tj~~~~._.~!U]ot,iJica!~gE,E~L~~·

r--~-J

I l~ ess_es_o_ut_o_f t._ra_i_le,r -..- - - - - - _ - - ______.. _1. ______

Media WItoesses out of trailer. Linda Moodry & Andy Malcom out

1

-

-

-

-

-~
---

~ 4

I
- .Il.

0013.
0013

of trailer
I I;)icturcs ~
InvestiEat

f d
o~

,
eceased ta
Micu into

,--~
ken by coroner. ~~aile~ctures taken

of

deceased.

.

0020 Executioner out of trailer. Dcputy Warden Redfern, Set up Team

r--~~ I
t,-~--
,~~~,_

!
I

r--i

5

0022

I consultants out ,?L~,aile,~ an~:L~r:E~~_~~~~~min_ bldg by Cushman
RIck!)ay gave ok to release Medical Response Team staged in Max

area,

._ _. . .L

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

6 7 8 9

0022

l =,

0023

I~ __~I~ I,

0025 0026
0030

Executioncr cleared comEound.

I

~:~ TieDown Team into trailer to help prepare condemned body for
remov rom trailer. Bod oved from trailer

I
I

-~.

~--~--~

,

Direct ay notified Dept Beeson DOC-ICC, Gov's. Office body

' ~;a7 ! I out of ler. No answer at AG's office. ""-~~"
I -+O;~rYI Trailer clear-Mamtenanc_e_b_eg_I_n_s_cl_ea_n_up__._ _ _ _ _ __

~ug=h_lin,,---_..>

10

10. Further your affiant sayeth not.

1 1

I hereby affinn under penalty of perjury that the assertions of this

12 Affidavit are true to the best of my knowledge.

13

DATED this 21st day ofJuly, 2006

14

15

By: __~~____~~_·____~_____

16

CHrt:RYL C. BOLTON

17

SUBSCRIBED and SWORN to before me this 21st day ofJuly, 2006.

18

19

,
20 I I

JANET E. MYERS Notary Public for the State of Montana

" I ~,

Residing at Helena, Montana

My Commission expires _______

23 24
25
26 27

AFFIDAVIT OF CHERYL C. BOLTO," PAGE 8

 
 IN THE SUPREME COURT OF THE STATE OF MONTANA

No. OP 06-0492 _____________

MONTANA ASSOCIATION OF CRIMINAL

)

DEFENSE LAWYERS; AMERICAN CIVIL

)

LIBERTIES UNION OF MONTANA; MONTANA

)

ASSOCIATION OF CHURCHES; MONTANA

)

CATHOLIC CONFERENCE; GORDON BENNETT; )

JOHN C. SHEEHY; SENATORS BRENT CROMLEY, )

STEVE GALLUS, DAN HARRINGTON, DON RYAN )

AND DAN WEINBERG; REPRESENTATIVES

)

NORMA BIXBY, PAUL CLARK, GAIL GUTSCHE, )

JOEY JAYNE, AND JEANNE WINDHAM;

)

MARIETTA JAEGER LANE; EVE MALO,

)

)

Petitioners,

)

)

v.

)

)

STATE OF MONTANA; DEPARTMENT OF

)

CORRECTIONS; DIRECTOR MIKE FERRITER;

)

WARDEN MIKE MAHONEY; ATTORNEY

)

GENERAL MIKE McGRATH; JOHN DOES 1-10,

)

)

Respondents.

)

)

_____________

O R D E R

On July 11, 2006, Petitioners filed their Verified Petition for Injunctive Relief and

Memorandum in Support with the Clerk of this Court. They seek the exercise of our original

jurisdiction, injunctive relief enjoining all executions in Montana pending the outcome of this

litigation and a “remand” to a district court for discovery and an evidentiary hearing. They

also request oral argument. Petitioners seek original jurisdiction pursuant to § 3-2-202(1),

MCA, which generally lists certain writs—including injunction—this Court is empowered to

issue in the exercise of its original jurisdiction, and Rule 17(a), M.R.App.P., which

implements our constitutional power to hear and determine such original writs as are

1

necessary and proper to the complete exercise of our jurisdiction. Stated briefly, Petitioners contend that the Montana statute providing for execution of
a death sentence by lethal injection—§ 46-19-103, MCA—does not prescribe any specific drug or drugs, dosages, or drug combinations; manner of intravenous line access; or certification, training or licensure required of those who participate in the execution process. Given the absence of statutory guidance, Petitioners seek a determination as to whether the Montana Department of Corrections has devised a constitutionally sound lethal injection protocol.
On July 12, 2006, we ordered the State of Montana to respond, addressing both the procedural and substantive issues in the Petition, on or before July 24, 2006, at 4:30 p.m. We also ordered that Mr. David Dawson—the only person currently facing an execution date in Montana, that date being August 11, 2006—and/or his stand-by counsel could respond to the Petition in the same time period.
On July 18, 2006, Mr. Dawson filed his response to the Petition and a motion to go forward with his execution as scheduled. His pro se response observes that he has been attempting to withdraw from further appeals and delays regarding his execution for two years and has been tested and interviewed by psychiatric personnel with regard to both his competency to make a decision regarding his own death and any outside coercion having been brought to bear on that decision. The Thirteenth Judicial District Court, Yellowstone County, the Montana Supreme Court, the United States District Court for the District of Montana and the United States Court of Appeals for the Ninth Circuit have all determined—
2

in their own form and fashion—that Mr. Dawson unequivocally, knowingly, competently and voluntarily waived his right to further appeals in his underlying death penalty case. Stated differently, Mr. Dawson has chosen to withdraw further resistance to the imposition of the death penalty and to proceed to his death as provided by law.
The State’s response was timely filed on the afternoon of July 24, 2006. Briefly stated, the response asserts that 1) we are without jurisdiction to address the Petition because Petitioners lack standing; 2) alternatively, we should refuse to accept original jurisdiction; and 3) Petitioners are not entitled to a preliminary injunction because they have not presented a case sufficient to warrant such an extraordinary remedy. One of the Exhibits to the State’s brief is a Declaration by Mark Dershwitz, M.D., PhD, which addresses the merits of portions of the Petition.
In response to the inclusion of Dr. Dershwitz’s Declaration, Petitioners moved to file an opposing Declaration by Dr. Mark Heath on July 25, 2006. Because of the manner of our resolution of this cause number, we need not concern ourselves with the Declarations.
It cannot be disputed that this Court may exercise jurisdiction over an original petition for injunctive relief. Both Article VII, Section 2, of the Montana Constitution and § 3-2202(1), MCA, empower us to do so under certain circumstances. In addition, Rule 17(a), M.R.App.P., states that we may hear and determine original writs as necessary to the complete exercise of our jurisdiction when such an exercise of jurisdiction is
justified by circumstances of an emergency nature, as when a cause of action has arisen under conditions making due consideration in the trial courts and due appeal to this court an inadequate remedy[.]
3

In the present case, of course, Mr. Dawson’s rights must be weighed into our determination of whether to exercise original jurisdiction. We conclude that we will not “undo” years of effort by Mr. Dawson in attempting to stop further delays in the imposition of his death sentence, as well as the work of many others and both state and federal courts. Moreover, the Montana Legislature will convene in regular session in January of 2007 and may choose to address these matters during the course of its work, with or without a court decision. Finally, since Petitioners herein seek “remand” to a district court for discovery and a hearing, and because no other executions are imminent in Montana, we decline to conclude that the circumstances surrounding this cause number are of an emergency nature making due consideration in the trial court and due appeal to this Court an inadequate remedy. Thus, we decline to exercise original jurisdiction.
The Court having fully considered these matters, IT IS ORDERED that Petitioners’ motion for leave to file the Declaration is DENIED; IT IS FURTHER ORDERED that the Petition for Injunctive Relief is DISMISSED; IT IS FURTHER ORDERED that Mr. Dawson’s execution date remains in full force and effect; IT IS FURTHER ORDERED that remittitur shall issue forthwith; and IT IS FURTHER ORDERED that the Clerk shall give immediate electronic notice of this Order to Ronald F. Waterman and Julie A. Johnson, counsel for Petitioners; C. Mark Fowler and Pamela P. Collins, of the Office of the Attorney General; and Director Mike Ferriter, Warden Mike Mahoney and Chief Legal Counsel Diana Koch, of the Department of
4

Corrections; and IT IS FURTHER ORDERED that one or more of the aforementioned representatives
of the Department of Corrections shall provide personal notice of this Order to Mr. David Dawson no later than midnight, July 25, 2006.
The Clerk is directed to mail a true copy of this Order to the service list in this matter and to Ed Sheehy, Esq., and Mr. David Dawson.
DATED this 25th day of July, 2006.
/S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ JOHN WARNER /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE
Justice James C. Nelson concurs. I concur in the result of our Order, but I am concerned that our decision not to accept
jurisdiction gives rather short shrift to Petitioners’ petition and to the important issue raised— that of the constitutionality of the Department of Corrections’ (DOC) protocols for carrying out the death sentence.
At the outset, I must state that I have not formed any opinion as to the constitutionality of lethal injection as a method of carrying out capital executions in Montana. Petitioners’ petition and the Attorney General’s response are both compelling. Although I agree with the Court that there is no immediate emergency that would necessitate our accepting original
5

jurisdiction—given our decision as to David Thomas Dawson (Dawson)—that ignores the elephant in the room.
It is important that the issues raised in Petitioners’ petition be addressed sooner as opposed to later. Waiting for the next execution will simply delay that execution. Furthermore, if a fact-finding court determines that the protocols and drugs used by the DOC violate Montana’s Constitution, then the Legislature should be given the opportunity in its 2007 session to amend existing laws or enact new laws that will insure that Montana’s capital execution statutes pass constitutional muster. This issue is simply not going to go away. Tangentially, this issue has been before the United States Supreme Court once already, and the issue has been and is being litigated in various federal and state courts around the country. See Hill v. McDonough (2006), ___ U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44, and Petitioners’ petition at pages 21–23. Montana’s courts and Legislature can be pro-active in this issue or we can wait for a federal court to instruct us what to do and what not to do. Indeed, it is almost assured that this issue is ultimately going to wind up in the courts no matter what course of action is followed. Since fact-finding must take place in the District Courts, Petitioners’ petition should start there—presumably joined by a defendant or defendants presently awaiting capital execution, so as to address the sorts of standing issues raised by the Attorney General.
That said, however, I suggest that any implication that capital execution and the manner in which it is conducted is simply the particular defendant’s problem is misplaced. The people of this State, acting through their elected representatives in the Legislature, have
6

willed that capital executions take place in some cases. The manner of execution is not purely the capital defendant’s issue. It is an issue that is owned by every adult in this State. Indeed, by law, capital executions in Montana must be witnessed by members of the media and the public. Section 46-19-103(6)(b), MCA. Presumably, the public and the media witness executions, not only to determine that the public’s will and the peoples’ sentence of death was carried out as ordered, but also that the execution was done in a manner consistent with the Supreme Law of this State—Montana’s Constitution—and in a manner consistent with the values of a civilized society. Montana’s Constitution imposes the requirement that executions be accomplished in a manner that is not cruel and unusual. Capital defendants retain their right of inviolable, individual, human dignity and individual privacy. The public has, by law, a vitally important and personal stake in this matter. If the lethal injection protocols and cocktail used in this State constitute cruel and unusual punishment, then it is incumbent upon the criminal justice system and the people of this State, through the courts, to determine, as a factual matter, the appropriate protocols and drugs that will insure that capital executions by lethal injection are carried out humanely.
More importantly, if it is found that Montana’s method of lethal injection violates one or more provisions of the Constitution, it is incumbent upon the Legislature to require protocols and drugs that will insure that capital executions are carried out so as not to violate the individual rights to human dignity and individual privacy of the capital defendant, and so as not to violate Article II, Section 22 of the Montana Constitution. In that regard, it is worth noting that, read together with the inviolable, individual right to human dignity (Article II,
7

Section 4), Montanans enjoy greater protections from cruel and unusual punishments under Article II, Section 22, than are provided under the Eighth Amendment to the federal Constitution. Walker v. State, 2003 MT 134, ¶ 73, 316 Mont. 103, ¶ 73, 68 P.3d 872, ¶ 73.
As to Petitioners’ petition that Dawson’s execution should be stayed, I, too, would deny the petition. I would do so for one, and only one, reason, however. Dawson—who has filed his own pro se response in this matter—has unequivocally, knowingly, and intelligently exercised one of the few rights he still retains as a capital defendant. He has exercised the one right that is most personal and most important to him—his right of individual privacy guaranteed under Article II, Section 10 of the Montana Constitution. Dawson has determined to die at the hands of the people of this State, despite any alleged affronts to his humanity and dignity and despite that he may be, according to Petitioners, subjected to pain and suffering during the administration of the lethal injection cocktail and his death. That is his choice, and it is his to make under the circumstances of this case, notwithstanding the issue raised by Petitioners.
We discussed, at length, the right of individual privacy as including the fundamental right of self-determination and personal autonomy in Armstrong v. State, 1999 MT 26, ¶¶ 29–38, 296 Mont. 361, ¶¶ 29–38, 989 P.2d 364, ¶¶ 29–38. Dawson has exercised what little right to self-determination and personal autonomy he has left. He has the right to go to his execution, Petitioners’ concerns about the imposition of the death penalty by a means that Petitioners allege may be constitutionally flawed notwithstanding. Dawson’s choice must be respected.
8

As we noted in Armstrong, the fundamental right of self-determination and personal
autonomy acts both as a limitation on the power of government and as a principle of
preeminent deference to the individual.
[T]he only purpose for which power can be rightfully exercised over any member of a civilised [sic] community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because, it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.
Armstrong, ¶ 31 (citation and authority omitted).
For these reasons, I concur.
/S/ JAMES C. NELSON

Justice Patricia Cotter joins in the foregoing concurrence.

/S/ PATRICIA COTTER

Justice W. William Leaphart specially concurring. In my view, the citizens of Montana having, through their legislators, adopted lethal
injection as the means of capital punishment, § 46-19-103, MCA, have a direct legal and ethical interest in seeing that executions are not carried out contrary to one of the most fundamental values of our society—that is, that punishments are not administered in a cruel and unusual manner. Eighth Amendment to the United States Constitution and Article II, Section 22 of the Montana Constitution. Accordingly, the petitioners, as “residents, citizens,
9

electors and taxpayers” of the State of Montana, have standing to challenge the lack of any provisions in Montana’s statutory scheme concerning the specific drugs, dosages, manner of intravenous line access, or certification or training required of those who administer the lethal injection. However, these alleged deficiencies are all matters of law which have been apparent since the adoption of the statutes on lethal injection in 1997. Accordingly, there is no reason petitioners had to wait until July 11, 2006, to ask this Court to exercise its original jurisdiction and issue an extraordinary writ when such a remedy would, of necessity, require that there be a stay of the August 11, 2006, scheduled execution of David Dawson. This is particularly true given that Mr. Dawson has successfully withdrawn all appeals on his behalf and has filed a response opposing the present petition.
For the above reason, I concur in the Court’s decision declining to exercise original jurisdiction and dismissing the request for injunctive relief.
/S/ W. WILLIAM LEAPHART
10

 
 Ronald F. Waterman, Esq. Julie A. Johnson, Esq. GOUGH, SHANAHAN, JOHNSON & WATERMAN P.O. Box 1715 Helena, MT 59624 406/442-8560

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION

MONTANA ASSOCIATION OF CRIMINAL )

DEFENSE LAWYERS; AMERICAN CIVIL )

LIBERTIES UNION OF MONTANA;

)

MONTANA ASSOCIATION OF CHURCHES; )

MONTANA CATHOLIC CONFERENCE; )

SENATORS BRENT CROMLEY, STEVE )

GALLUS, DAN HARRINGTON, DON RYAN )

AND DAN WEINBERG;

)

REPRESENTATIVES NORMA BIXBY;

)

PAUL CLARK, GAIL GUTSCHE, JOEY

)

JAYNE, AND JEANNE WINDHAM

)

)

Plaintiffs.

)

)

v.

)

)

DIRECTOR ~vlIKE FERRITER; VIARDEN )

MIK.E MAHONEY; ATTORNEY GENERAL )

MIKE McGRATH; JOHN DOES 1-10,

)

)

Defendants

)

)

)

)

)

)

Civil No. CV-06-35-H-DWM FIRST AMENDED COMPLAINT

COME NOW Plaintiffs named above and allege and plead as follows:

I.

First Amended Complaint

Page 1

Plaintiffs are a collection of organizational and individual persons who either function within or are residents of the State of Montana.
Plaintiff Montana Association of Criminal Defense Lawyers ("MTACDL") is a nonpartisan organization dedicated to the continued improvement of the criminal defense bar, and to preserving, protecting, and defending the adversary system ofjustice and the constitutional protections found in the Montana Constitution, the U. S. Constitution, and in the Constitutions of the Tribal Nations.
Plaintiff American Civil Liberties Union Foundation of Montana ("ACLU") is a nonpartisan organization, which works to ensure that all people in the State of Montana are free to think and speak as they choose and are able to lead lives free from discrimination and unwarranted government intrusion. The ACLU is guided in its work by the U.S. Bill of Rights and the Montana Bill of Rights.
Plaintiff Montana Association of Churches ("MAC") is a non-denolninational organization of Christian churches. MAC recognizes the dignity of every human person by promoting human rights and principles of balanced justice.
Montana Catholic Conference serves as the public policy branch of the Catholic Church in Montana, and the liaison for Montana's ROlnan Catholic bishops with state and federal government. Inspired by Scripture and Catholic social teaching, the conference is committed to maintaining respect for life, and to promoting the value and dignity of all hUlnan lives.
Senators Brent Cromley, Steve Gallus, Dan Harrington, Don Ryan, Dan Weinberg, Mike Wheat, and Representatives Norma Bixby, Paul Clark, Gail Gutsche, Joey Jayne, and Jeanne Windham are all elected Montana officials, currently serving the people of Montana. As elected

First Amended Complaint

Page 2

representatives, these Plaintiffs have standing to contest potentially cruel and unusual punishment inflicted during their representation. Given a Legislator's inviolate duty to protect and promote fundamental public rights, these Plaintiffs have a heightened interest in ensuring that statutory provisions for the lethal injection protocol are implemented in accordance with Montana's constitutional provisions and the public's expectation that no one will be subjected to cruel and unusual punishment.
Each of these Plaintiffs has a direct interest in assuring that the government operates within the confines of the both the federal and state constitutions. The MTACDL represents criminal defendants accused of capital crimes and their ability to effectively advocates for their clients will be injured and diminished if the State is allowed to proceed and inflict cruel and unusual punishment on criminal defendants.
ACLU of Montana likewise is an advocacy organization working to protect all citizens against unconstitutional actions by state government. The ACLU's advocacy agenda will be diminished and the organization thereby injured if it cannot advocate against the imposition of cruel and unusual punishment in capital cases.
Plaintiffs MAC and Catholic Conference advocate for the respect for and dignity of life. Their advocacy will be directly diminished and the organization thereby injured in the event it cannot advocate against the imposition of cruel and unusual punishment in capital cases.
All three organization will be directly injured if, confronted with substantial evidence the current form of administering lethal injection, the organization cannot challenge the utilization of a process which violates the Eighth Amendment. The injuries are expected to be in the direct

First Amended Complaint

Page 3

loss of membership since the inability to advocate effectively will cause members of the public to question the organization's competencies and capabilities.
The Legislative Plaintiffs have all taken oaths to uphold the state and federal constitution and ifunable to challenge the lethal injection procedure, each Legislator will be directly injured, knowing that they can take no legal steps to prevent and unconstitutional action to occur during their tenure in office.
While Plaintiffs share concerns with the general public about governmental action which are unconstitutional, the Plaintiffs all have separate and distinct concerns, not shared by the general public, making the violation of the constitution damaging as to theln. Specifically, either clients will be directly exposed to an unconstitutional procedure; the inability to advocate willcreate questions of competency and credibility of the organizations or the individuals, namely the Legislators, will be unable to fulfill their requirements of their office.
II. On July 11, 2006, Plaintiffs filed an original proceeding in the Montana Suprelne Court seeking injunctive relief prohibiting the defendants named herein from executing any person under a sentence of death. (Verified Petition, Exhibit 1, attached hereto). The request for this injunction rested on the general allegation that under existing circumstances there is a high degree of probability that Montana's lethal injection protocol violates the Eighth Amendment's prohibition against cruel and unusual punishtnent.
III. On July 25, 2006 the Montana Suprelne Court issued an order denying the relief requested; however, before relief was denied the Montana Court issued an order requiring that all

First Amended Complaint

Page 4

the papers in the case be forwarded to and served on Montana death row inmate David Dawson and his attorney Ed Sheehy so that they might have the opportunity to respond. Moreover, in the July 25, 2006 dismissal Order at page 4, (Order, Exhibit 2 attached) the Montana Supreme Court states that "of course, Mr. Dawson's right must be weighed into our determination of whether to exercise original jurisdiction." This reference to Mr. Dawson and his rights involves his execution by lethal injection currently scheduled for August 11,2006 at the Montana State Prison in Deer Lodge, over which Defendant Warden Mike Mahoney and some of the other named Defendants will preside.
IV. On August 1, 2006 Plaintiffs filed a motion for reconsideration of the July 25, 2006 Order dismissing Plaintiffs' petition. The request for reconsideration centered on the Montana Supreme Court's decision to take full account of Mr. Dawson's "rights" to drop all his appeals and demand execution. Plaintiffs contended that the Eighth Amendment problems with Montana's Lethal Injection Protocol were categorically not subject to individual waiver by Mr. Dawson or any other single defendant. Importantly, the Eighth Alnendment serves as a restraint on the exercise of State power which inures both to the community at large as well as a criminal defendant.
v.
In the Order dated August 2, 2006, the Montana Suprelne Court denied Plaintiffs reconsideration request. (Order, Exhibit 3, attached). The Montana Court reinforced its July 25th decision and said that "after consideration of.... the opinions expressed by Mr. Dawson in his response, we determined that this case was not appropriate for the exercise of original

First Amended Complaint

Page 5

jurisdiction to entertain such issues." Plaintiffs' opportunities to obtain immediate relief from the

Supreme Court of Montana has been exhausted.

VI.

The parties filed competing declarations from experts knowledgeable in the field of

anesthesiology with the Montana Supreme Court. Those declarations of Dr. Heath (Exhibit 4)

and Dr. Dershwitz (Exhibit 5) are attached hereto. Plaintiffs allege that at any hearing on the

Eighth Amendment validity of Montana's Lethal Injection Protocol, the Court would be

persuaded by the amount of proof required in the circumstances. The matters outlined in the

declaration, supporting Plaintiffs' position (See Dr. Heath's Declaration,) are factually correct

and warrant the finding that Montana's Lethal Injection Protocol violates the Eighth and

Fourteenth Amendments to the United States Constitution.

VII.

Plaintiffs allege that this Court has jurisdiction to decide this case and enter a temporary

injunction prohibiting all executions until this matter is decided under 42 U.S.C. § 1983 and/or

28 U.S.C. § 2201 andlor 28 U.S.C. § 1331.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that the Court will assume jurisdiction over this matter

and enter any and all appropriate temporary and/or permanent Orders or Judgments in favor of

Plaintiffs.

Respectfully submitted this 7th day of August 2006. Gough, Shanahan, Johnson and Waterman

First Amended Complaint

Is/ Ronald F. Waterman Ronald F. Waterman, Esq. Attorneys for Plaintiffs

Page 6

CERTIFICATE OF SERVICE
I hereby certify that on the 7th day of August 2006, the foregoing was duly served upon counsel via facsimile at 9: 15 a.m.:
Mike McGrath, Attorney General Pamela Collins Montana Attorney General's Office P.O. Box 201401 Helena, MT 59620-1401 406-444-3549
Diana Koch Chief Legal Counsel Montana Department of Corrections P.O. Box 201301 Helena, MT 59620-1301 406-444-1494
The foregoing was also duly served upon the following by mailing a true and correct
copy, u.s. Mail, first class and postage prepaid, and addressed as follows:
David Dawson A.O. #25284 700 Conley Lake Road Deer Lodge, MT 59722
Edmund F. Sheehy Cannon and Sheehy . P.O. Box 5717 Helena, MT 59604-5717
/s/ Ronald F. Waterman

First Amended Complaint

Page 7

 
 Case: 6:06-cv-35 As of: 11/13/2017 05:11 PM MST 1 of 6
ARCHIVE,CLOSED,SDP
U.S. District Court District of Montana (Helena) CIVIL DOCKET FOR CASE #: 6:06−cv−00035−DWM

Montana Association Of Criminal Defense Lawyers et al v. State Date Filed: 08/04/2006

of Montana et al

Date Terminated: 08/07/2006

Assigned to: Judge Donald W. Molloy

Jury Demand: None

Case in other court: 9th Circuit Court of Appeals, 06−35663 Nature of Suit: 440 Civil Rights: Other

Cause: 42:1983 Civil Rights Act

Jurisdiction: Federal Question

Plaintiff

Montana Association Of Criminal Defense Lawyers

represented by Ronald F. Waterman GOUGH SHANAHAN JOHNSON & WATERMAN 33 South Last Chance Gulch PO Boz 1715 Helena, MT 59624−1715 406−442−8560 Fax: 442−8783 Email: rfw@gsjw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties Union Of Montana

represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Montana Association Of Churches

represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Montana Catholic Conference

represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Gordon Bennett

represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff John Sheehy

represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Senator Brent Cromley

represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 6:06-cv-35 As of: 11/13/2017 05:11 PM MST 2 of 6

Plaintiff Senator Steve Gallus
Plaintiff Senator Dan Harrington
Plaintiff Senator Don Ryan
Plaintiff Senator Dan Weinberg
Plaintiff Representative Norma Bixby
Plaintiff Representative Paul Clark
Plaintiff Representative Gail Gutsche
Plaintiff Representative Joey Jayne
Plaintiff Representative Jeanne Windham
Plaintiff Representative Marietta Jaegar Lane

represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY

Case: 6:06-cv-35 As of: 11/13/2017 05:11 PM MST 3 of 6

ATTORNEY TO BE NOTICED

Plaintiff Representative Eve Mallo

represented by Ronald F. Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant State of Montana
Defendant Department of Corrections
Defendant

represented by Chris D. Tweeten OFFICE OF THE MONTANA ATTORNEY GENERAL PO Box 201401 Helena, MT 59620−1401 406−444−2026 Fax: 444−3549 Email: beholnbeck@mt.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mike McGrath OFFICE OF THE MONTANA ATTORNEY GENERAL PO Box 201401 Helena, MT 59620−1401 406−444−2026 Fax: 444−3549 Email: EDOJ@mt.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pamela P. Collins OFFICE OF THE MONTANA ATTORNEY GENERAL PO Box 201401 Helena, MT 59620−1401 406−444−2026 Fax: 444−3549 Email: pcollins@mt.gov (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chris D. Tweeten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mike McGrath (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pamela P. Collins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 6:06-cv-35 As of: 11/13/2017 05:11 PM MST 4 of 6

Mike Ferriter Director

Chris D. Tweeten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mike McGrath (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela P. Collins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Warden Mike Mahoney

represented by Chris D. Tweeten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mike McGrath (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela P. Collins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Mike McGrath Attorney General

Defendant
A−Z Does 1−10

represented by Chris D. Tweeten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mike McGrath (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela P. Collins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/04/2006
08/04/2006 08/04/2006

# Docket Text
1 COMPLAINT against all defendants against all plaintiffs ( Filing fee $ 350 receipt number 35724.), filed by American Civil Liberties Union Of Montana.(Waterman, Ronald) (Entered: 08/04/2006)
2 MOTION for Preliminary Injunction by American Civil Liberties Union Of Montana. (Waterman, Ronald) (Entered: 08/04/2006)
3 Summons Issued as to State of Montana, Mike McGrath. Orig returned to Plaintiffs' Counsel. (Civil Cover Sheet Attached to this entry) (GAR, ) (Entered: 08/04/2006)

Case: 6:06-cv-35 As of: 11/13/2017 05:11 PM MST 5 of 6

08/04/2006
08/04/2006 08/07/2006 08/07/2006
08/07/2006 08/07/2006 08/07/2006
08/07/2006 08/07/2006 08/07/2006 08/07/2006 08/07/2006 08/07/2006 08/08/2006 08/08/2006 08/08/2006 08/10/2006

4 Order Setting Hearing: Hearing set for 8/7/2006, at 1:00 PM before Judge Donald W. Molloy in the Russell Smith Courthouse, Missoula, Montana. FURTHER ORDERED: Plaintiffs shall immediately serve the Defendants. The parties shall immediately, by CM/ECF, file briefs and affidavits so that they are available for consideration by the Court before the hearing. Signed by Judge Donald W. Molloy on 8/4/2006. (ASG, ) (Entered: 08/04/2006)
5 APPENDIX to complaint by American Civil Liberties Union Of Montana. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8)(Waterman, Ronald) (Entered: 08/04/2006)
Notice of Correction: re 6 Amended Complaint,. Amended Complaint to be refiled correcting the parties. (GAR, ) (Entered: 08/07/2006)
7 AMENDED COMPLAINT against all defendants, filed by Gordon Bennett, John Sheehy, Brent Cromley, Steve Gallus, Dan Harrington, Don Ryan, Dan Weinberg, Norma Bixby, Paul Clark, Gail Gutsche, Montana Association Of Criminal Defense Lawyers, Joey Jayne, Jeanne Windham, Marietta Jaegar Lane, Eve Mallo, American Civil Liberties Union Of Montana, Montana Association Of Churches, Montana Catholic Conference.(Waterman, Ronald) (Entered: 08/07/2006)
8 MOTION to Dismiss by State of Montana, Department of Corrections, Mike Ferriter, Mike Mahoney, Attorney General, Mike McGrath & Does 1−10 (GAR, ) (Entered: 08/07/2006)
9 Brief in Support re 8 MOTION to Dismiss filed by State of Montana, Department of Corrections, Mike Ferriter, Mike Mahoney, Mike McGrath, Does. (Attachments: # 1 Exhibit A & B# 2 Affidavit of Cheryl Caughlin Bolton)(GAR, ) (Entered: 08/07/2006)
10 Minute Entry for proceedings held before Judge Donald W. Molloy : Ron Waterman for plaintiff; Pamela Collins for dft; parties argue; oral ruling from bench: case to be dismissed for lact of standing; Judge advises pla of right to file oral appeal; pla to advise court; written order to follow Evidentiary Hearing held on 8/7/2006; . (Court Reporter DBH.) (MCN, ) Modified on 8/7/2006 (MCN, ). Modified on 8/7/2006 (MCN, ). Modified on 8/7/2006 (MCN, ). (Entered: 08/07/2006)
Remark Docket Text of Minute Entry of 8/7/06 mailed to counsel, Collins, McGrath and Tweeten (GAR, ) (Entered: 08/07/2006)
11 NOTICE OF APPEAL by Montana Association Of Criminal Defense Lawyers. from oral order dismissing case for lack of standing. Filing fee $ 455 due. (BAW, ) Modified on 8/7/2006 (BAW, ). (Entered: 08/07/2006)
12 ORDER DISMISSING CASE. Signed by Judge Donald W. Molloy on 8/7/2006. (MMH, ) (Entered: 08/07/2006)
Remark Court's Order #12 faxed to Defense Counsel. (GAR, ) (Entered: 08/07/2006)
13 AMENDED NOTICE OF APPEAL as to 12 Order Dismissing Case by Montana Association Of Criminal Defense Lawyers. Filing fee $ 455 DUE. (APP, ) (Entered: 08/07/2006)
14 SECOND AMENDED NOTICE OF APPEAL as to 12 Order Dismissing Case by Montana Association Of Criminal Defense Lawyers. Filing fee $ 455 due. Clerical error, caption correction. (MCN, ) (Entered: 08/07/2006)
15 Remark: Lodged Motion of David Dawson (SLN) (Entered: 08/08/2006)
Remark #15, Lodged Motion of David Dawson faxed to 9th Circuit Court of Appeals, Civil Docketing Unit and Death Penalty Clerk (GAR, ) (Entered: 08/08/2006)
16 TRANSCRIPT of Proceedings held on 8/7/06 before Judge Donald W. Molloy. Court Reporter: D. Hodges. Transcript kept in Helena Clerk's Office (BAF, ) (Entered: 08/09/2006)
17 MANDATE of USCA as to 14 Notice of Appeal filed by Montana Association Of Criminal Defense Lawyers, Appellants' motion to dismiss is granted. Appeal is dismissed. (GAR, ) (Entered: 08/10/2006)

Case: 6:06-cv-35 As of: 11/13/2017 05:11 PM MST 6 of 6

08/14/2006 08/24/2009

USCA Case Number 06−35663 for 11 Notice of Appeal filed by Montana Association Of Criminal Defense Lawyers,. (GAR, ) (Entered: 08/14/2006)
ARCHIVE CASE INFORMATION FROM FRC DENVER, CO, 1 Transcript, 16 of 17 Box Number, 021−09−4507 FRC Accession Number (HEG, ) (Entered: 09/09/2009)