Kamis, 28 Juli 2011

Pentobarbital Manufacturer Says Drug is Not Safe for Lethal Injections

http://www.beckersasc.com/anesthesia/pentobarbital-manufacturer-says-drug-is-not-safe-for-lethal-injections.html

Anesthesia-News and Analysis

Pentobarbital Manufacturer Says Drug is Not Safe for Lethal Injections

A split Florida supreme court has ordered a hearing on a new drug to be used as part of the lethal injection cocktail for convicted killer Manuel Valle, according to a Palm Beach Post report.

Department of Corrections officials in June replaced the anesthetic sodium thiopental, the first of three drugs used in lethal injections, with pentobarbital sodium. The manufacturer of sodium thiopental stopped making the drug early this year, part of a nationwide drug shortage that is affecting hospitals as well as correctional facilities.

Lundbeck, the Danish manufacturer that produces pentobarbital, announced the drug is untested and unsafe for use in lethal injections. The company has since stopped selling the drug to those who intend to resell it for lethal injections. The drug is not FDA-approved as an anesthetic, thought it has been used in at least 15 executions in other states.

Read the Palm Beach Post report on lethal injections.

Related Articles on Anesthesia:
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American Anesthesiology Acquires Palm Beach Physician Practice
Diabetes Drug Can Control Inflammation That Causes Pain, Nerve Damage

Experimental execution drug set to be used for first time in three US states

Three more death penalty states are preparing to adopt a new lethal injection drug this summer, despite evidence that it has caused botched executions and intense suffering to prisoners across the USA.
Delaware plans to use the untested barbiturate pentobarbital – in place of the anaesthetic sodium thiopental, which has been hit by domestic shortages – for the first time this Friday [July 29] in the execution of Robert Jackson. Virginia will use the same drug in the execution of Jerry Jackson on August 18.
Florida had planned to execute Manuel Valle, a Cuban with close ties to Spain, using pentobarbital on August 2, but the State Supreme Court issued a stay until September due to concerns over whether use of the drug could lead to unnecessary pain and suffering.
The concerns stem from reports of a number of botched executions using pentobarbital, notably that of Roy Willard Blankenship in Georgia earlier this year, who suffered a "thrashing, jerking death," during which his eyes never closed. Harvard anaesthesiologist Dr David Waisel testified in a sworn affidavit that Mr Blankenship must have "suffered greatly" during the process.
As a result, a recent execution in Georgia using pentobarbital has been videotaped on the orders of a judge, to assess whether it violates the Constitutional ban on "cruel and unusual punishment". This lends the process to an even greater appearance of human experimentation.
Reprieve investigator Kat Bekesi said: "It seems incredible that the 'thrashing' deaths of prisoners and the opinion of medical experts are not enough to persuade states that they should not be trying out experimental drugs in their execution chambers. The stay of execution in Florida is a small step in the right direction, but in the longer term, state authorities will need to think hard about whether they want yet another badly botched execution on their conscience."
ENDS
Notes to editors
1. For more information please contact Donald Campbell or Katherine O'Shea at Reprieve's Press Office: donald.campbell@reprieve.org.uk / +44 (0) 20 7427 1082 / (0) 7791 755 415 / katherine.oshea@reprieve.org.uk / +44 (0) 20 7427 1099 / (0) 7931 592 674.
2. Reprieve-assisted prisoner Manuel Valle is a Cuban national with Spanish links, who has now been on death row for 33 years. He has been denied proper clemency proceedings, and (similarly to the recent case of Humberto Leal in Texas) did not receive the consular assistance to which he was entitled. His execution has been stayed until September 1st to allow a full hearing on the matter to take place. Reprieve is assisting Mr Valle as part of our EC project.
3. An eyewitness from the Associated Press has described the "thrashing, jerking death of Roy Willard Blankenship" during which "his eyes never closed". The full text of Dr David Waisel's affidavit on Roy Blankenship's inadequate anaesthesia can be found on Reprieve's website

Judge to hold hearing on new use of drug in state’s lethal injection

A Miami judge will hear testimony on the safety of pentobarbital, an anesthetic intended to be used in the scheduled execution of man who killed a Coral Gables cop 33 years ago.

Rabu, 27 Juli 2011

APPENDIX TO EMERGENCY PETITION FOR A WRIT OF PROHIBITION

http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1326/Filed_07-06-2011_Writ_of_Prohibition_Appendix.pdf#xml=http://199.242.69.43/texis/search/pdfhi.txt?query=SC10-1967&pr=Florida+Supreme+Court&prox=page&rorder=500&rprox=500&rdfreq=500&rwfreq=500&rlead=500&rdepth=0&sufs=0&order=r&cq=&id=4e14a5735a2

Modified: 2011-07-06 12:21:06

Title: IN THE SUPREME COURT OF FLORIDA

Body: IN THE SUPREME COURT OF FLORIDA

NO. SCll -1326

MANUEL VALLE, Petitioner, v. STATE OF FLORIDA, Respondent. APPENDIX TO

EMERGENCY PETITION FOR A WRIT OF PROHIBITION

NEAL A. DUPREE Capital Collateral Regional Counsel-South SUZANNE KEFFER Chief Assistant OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL-SOUTH 101 N.E. 3rd Avenue, Suite 400 Ft. Lauderdale, Florida 33301 (954) 713-1284 COUNSEL FOR MR. VALLE

INDEX TO APPENDIX DOCUMENT EXHIBIT Motion to Disqualify filed 7/5/11 .............................................. A Copy of CD of recorded proceedings held 7/1/11 and note provided by the Administrative Office of the Courts, 11 th Judicial Circuit. ................................................................... B Affidavit of Attorney Suzanne Keffer ....................................... C Affidavit of Attorney Neal A. Dupree ....................................... D 2

EXHIBIT A

3

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

STATE OF FLORIDA, Plaintiff, CASE NO. 78-5281A v. EMERGENCY CAPITAL CASE DEATH WARRANT SIGNED MANUEL VALLE, EXECUTION SCHEDULED FOR Defendant. AUGUST 2, 2011 AT 6:00 P.M. ----------------------~/ DEFENDANT'S MOTION TO DISOUALIFY JUDGE

AND MEMORANDUM OF LAW

The Defendant, MANUEL VALLE, by and through his undersigned counsel, hereby moves the Honorable Jacqueline Hogan Scola, to disqualify herself from presiding over Mr. Valle's postconviction proceedings, and from any other proceedings required in this action, due to the appearance of impropriety. Mr. Valle files this motion pursuant to Rule 2.330 of the Florida Rilles ofIudicial Administration in order to protect his rights granted by the due process and equal protection clauses of the Fourteenth and Eighth Amendments to the United States Constitution, and the corresponding provisions of the Florida Constitution. If Judge Jacqueline Hogan Scola disqualifies herself, Mr. Valle moves that his case be assigned to a judge by random selection. Mr. Valle states the following grounds in support of his motion: I. Mr. Valle is an indigent Florida inmate under sentence of death. On June 30, 2011 Governor Rick Scott signed a death warrant. Mr. Valle's execution is scheduled for August 2, 2011. 2. Mr. Valle learned for the first time on July 1, 2011 that Judge Jacqueline Hogan Scola was assigned to his case for purposes of litigating the death warrant in circuit court.

3. Mr. Valle was charged by indictment dated April 13, 1978, in Dade County, Florida with one count of fIrst-degree murder, one count of attempted fIrst-degree murder, and one count of possession of a fIrearm by a convicted felon. Mr. Valle was found guilty and sentenced to death, but his convictions and sentences were reversed by the Florida Supreme Court. Valle v. State, 394 So. 2d 1004 (Fla. 1981). 4. Mr. Valle's second trial in 1981 resulted in his convictions and a sentence of death. On appeal, the Florida Supreme Court affIrmed. Valle v. State, 474 So. 2d 796 (Fla. 1985). Mr. Valle's death sentence was vacated by the United States Supreme Court. Valle v. Florida, 476 U.S. 1102 (1986). On remand from the United States Supreme Court, the Florida Supreme Court vacated Mr. Valle's sentence of death and remanded for a jury resentencing. Valle v. State, 502 So. 2d 1225 (Fla. 1987). 5. The resentencing was conducted in 1988. Mr. Valle was again sentenced to death. On appeal, the Florida Supreme Court affirmed. Valle v. State, 581 So. 2d 40 (Fla.), cert. denied, 502 U.S. 986 (1991). 6. Mr. Valle thereafter sought postconviction relief pursuant to Fla. R. Crim. P. 3.850 which was summarily denied by the trial court. The Florida Supreme Court remanded for an evidentiary hearing. Valle v. State, 705 So. 2d 1331 (Fla. 1997). On remand, the circuit court denied relief. The Florida Supreme Court affirmed that order. Valle v. State, 778 So. 2d 960 (Fla. 2001). The Florida Supreme Court subsequently denied a two petitions for state habeas corpus relief. Valle v. Moore, 837 So. 2d 905 (Fla 2002); Valle v. Crosby, 859 S02d 516 (Fla. 2003), cert. denied, 541 U.S. 962 (2004). 7. The Honorable Jacqueline Hogan Scola was employed by the Office of the State Attorney, Eleventh Judicial Circuit, from 1982 to 1995. Judge Scola's employment spanned the 2

relevant time periods of Mr. Valle's 1988 resentencing and most of his initial state postconviction proceedings. As such, Judge Scola was employed by, and worked with, the very parties that were and are urging that the State of Florida put Mr. Valle to death. 8. On Friday, July 1, 2011, Judge Scola, with counsel for the State present, contacted the Office of the CCRC-South to inquire why counsel for Mr. Valle was not present for a previously-scheduled hearing. Because undersigned counsel was not available, 1 Capital Collateral Regional Counsel Neal A. Dupree took the Court's call. The Court indicated that CCRC-South had been contacted the previous evening and advised that a hearing would take place. Undersigned counsel and additional staff were at the CCRC-South office late into the evening on June 30, 2011, and received no notice by phone, fax or e-mail of any hearing being scheduled. 9. The Court then advised that she had been appointed to hear this case, for which a death warrant had been signed, involving a "cop killer.,,2 It is unlmown to counsel how, or to what extent, Judge Scola learned of the facts of this case in the hours prior to the July 1,2011, hearing. It is unclear to what extent Judge Scola had contact with the State on June 30 and Mr. Valle fears it may have been more than mere scheduling, particularly given the fact that undersigned received no phone call, facsimile or email regarding the "scheduled hearing." However, it appears from Judge Scola's choice of the inflammatory term "cop killer" to describe the Defendant that Judge Scola is prejudiced against him. 10. Given Judge Scola's history as a prosecutor and colleague of the attorneys who have sought his imminent execution, and the nature of the comments Judge Scola has made upon 1 Undersigned counsel's three year old daughter was having surgery on the morning of July 1,

2011.

2 Undersigned counsel has requested on the date of filing this motion that a transcript of the July

1, 2011 hearing be transcribed immediately.

3

being appointed to hear his case, Mr. Valle has a concern that, no matter how fair-minded any judge might be, this situation results in the appearance of impropriety. Mr. Valle is in fear that he cannot receive a fair hearing before Judge Jacqueline Hogan Scola. See "Attachment A" (Affidavit of Manuel Valle). MEMORANDUM OF LAW Mr. Valle is entitled to full and fair Rule 3.851 proceedings. Holland v. State, 503 So. 2d 1354 (Fla. 1987); see also Easter v. Endell, 37 F.3d 1343 (8th Cir. 1994). This includes a fair determination of the issues by a neutral, detached judge. The circumstances of this case are of such a nature that they are sufficient to warrant an objectively reasonable fear on Mr. Valle's part that he would not receive a fair hearing. Suarez v. Dugger, 527 So. 2d 191, 192 (Fla. 1988). Because of the fact Judge Jacqueline Hogan Scola worked for and with the State Attorney's Office while it prosecuted Mr. Valle's 1988 capital sentencing phase and subsequent postconviction proceedings, coupled with the prejudicial comments made by Judge Scola on July 1,2011, "a shadow is cast upon judicial neutrality so that disqualification is required." Chastine v. Broome, 629 So. 2d 293, 295 (Fla. 4th DCA 1993). In capital cases, the trial judge "should be especially sensitive to the basis for the fear, as the defendant's life is literally at stalce, and the judge's sentencing decision is in fact a life or death matter." Livingston v. State, 441 So. 2d 1083, 1086. Once a litigant files a timely, legally sufficient motion, the judge "shall immediately enter an order granting disqualification and proceed no further in the action." Fla. R. Jud. Admin. 2.330(f). The instant motion is timely filed pursuant to Rule of Judicial Administration 2.330(e) in that Judge Jacqueline Hogan Scola was assigned to Mr. Valle's case only after the death warrant was signed on June 30, 2011. 4

The law does not require the Defendant to show that Judge Jacqueline Hogan Scola is actually biased or would be absolutely unable to fairly judge this case. Rather, "[tJhe question 1 of disqualification focuses on those matters from which a litigant may reasonably question a 1 judge's impartiality rather than the judge's perception of his ability to act fairly and impartially." State v. Livingston, 441 So. 2d 1083, 1086 (Fla. 1983) (emphasis added). Courts must avoid the appearance of impropriety even though the requirement" 'may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,' but due process oflaw requires no less." Taylor v. Hayes, 418 U.S. 488, 501 (1974) (citing In re Murchison, 349 U.S. 133, 136, (1955)). The United States Supreme Court recently reiterated that "[i]t is axiomatic that '[a] fair trial in a fair tribunal is a basic requirement of due process.'" Caperton v. A. T. Massey Coal Co., Inc. 129 S. Ct. 2252, 2259 (2009) (quoting In re Murchison, 349 U.S. 133, 136 (1955»). The Court has long recognized the basic constitutional precept of a neutral, detached judiciary: The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision making process. The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness, 'generating the feeling, so important to a popular government, that justice has been done,' by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against hirn. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (internal citations omitted). Due process guarantees the right to a neutral, detached judiciary in order "to convey to the individual a 5

feeling that the government has dealt with him fairly; as well as to minimize the risk of mistaken deprivations of protected interests." Carey v. Piphus, 425 U.S.247, 262 (1978). The appearance of impropriety violates state and federal constitutional rights to due process. A fair hearing before an impartial tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133 (1955). "Every litigant[] is entitled to nothing less than the cold neutrality of an impartial judge." State ex rei. Mickle v. Rowe, 131 So. 331, 332 (Fla. 1930). Absent a fair tribunal there is no full and fair hearing. Under the circumstances, Mr. Valle is compelled to file this motion to disqualify Judge Jacqueline Hogan Scola. REQUEST FOR RELIEF WHEREFORE, because this motion is legally sufficient, this Court should not consider the facts of the motion; it should take no action other than recusing itself and requesting random reassignment of the case. Fla. R. Jud. Admin. 2.330. Recusal at this stage is appropriate and vital .for the interests of justice. Random assignment to a ew. Judge will help ensure a fair and impartial postconviction proceeding. 6

CERTIFICATE OF GOOD FAITH

Undersigned counsel certifies that she is counsel of record in this cause and that the motion for disqualification is made in good faith for the oses described in the Florida Rules of Judicial Administration. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the f~,Oing has been furnished by United States Mail and/or e-mail and/or hand delivery to the £ ll~ng this --Day of July, 201 L /' . SU'-'D,.< '" ~ Chie Copies furnished to: The Honorable Jacqueline Hogan Scola Richard E. Gerstein Justice Bldg. 1351 N.W. 12th Street Miami, Florida 33125 Penny Brill, Assistant State Attorney Office of the State Attorney 1350N.W.12thAvenue Miami, Florida 33125 Sandra Jaggard, Assistant Attorney General Office of the Attorney General Rivergate Plaza, Suite 950 444 Brickell Avenue Miami, Florida 33131 7 STATE OF FLORIDA ) ) ss: COUNTY OF BRADFORD) AFFIDAVIT OF MANUEL VALLE I, MANUEL VALLE, having been duly sworn, do hereby depose and say: I have reviewed the forgoing Motion to Disqualify Judge and Memorandum of Law, in the case of State v. Manuel Valle, Case No. 78-5281A. After review of this motion and the facts presented therein I am in fear that I cannot receive a fair hearing before Judge Jacqueline Hogan Scola. As a result, I believe that Judge Jacqueline Hogan Scola must be disqualified from the proceedings. Random assignment to a new judge is appropriate. Further, I swear that the facts and matters presented in this motion are correct and true. Further affiant sayeth naught. MANUEL VALLE Sworn to or affirmed and subscribed before me this ~ day of July, 2011 by Manuel Valle,~o is personally kno~r has shown the following form of identification: ~~ .~1f.~'i~> JUAN f- ~INEDA TARY PUBLIC, S1f~TE OF FLORIDA SEAL: .;.r~"\" CommISSIO!1 #DD 913192 ~~~ Expires October 4, 2013 YCommission ExpirM ;«P.r..~~' Bonded Thn.i T/tIYFtln /neinr!Ce 8OQ.3&S.70t.

EXHIBITB

4

_ . ~D5'__=_20~ -_20_1---'-9_ _ _ __

~----+I-- - . -.... - - - - - - - - - - -

EXHIBITC

5

STATE OF FLORIDA ss: COUNTY OF BROWARD AFFIDAVIT OF SUZANNE MYERS KEFFER I, SUZANNE MYERS KEFFER, having been duly sworn or affirmed, do hereby depose and say: 1. I currently represent Manuel Valle in the matter of State of Florida v. Manuel Valle, Case No. 78-5281A; Manuel valle v. State of Florida, Case No. SCll-1326. 2. On July 5, 2011, as counsel for Mr. Valle, I attended a status conference at 11:00 am before the Honorable Jacqueline Hogan Scola. Before the commencement of the status conference, undersigned counsel filed a Motion to Disqualify Judge and Memorandum of Law in open court. 3. During the status conference, at approximately 12:00 pm, Judge Hogan Scola announced that the court would conduct a public records at 1: 30 pm the same day. As a result of the previously unscheduled public records hearing, I did not leave court until approximately 5:30 pm. 4. While in court on the afternoon of July 5 th , I requested the transcripts of the proceedings and requested these transcripts be expedited. The court reporter indicated she would get the transcripts to me as soon as possible and understood the urgency of the case. 5. On the morning of July 6, 2011, I contacted Apex Reporting, the agency for which the court reporter works. Apex

informed me that the reporter was covering her regularly scheduled calendar and would be in court all morning, but would email the reporter regarding the July 5, 2011 transcript. Mid-morning, having not heard from the reporter or Apex, I again called Apex, who agreed to get a message to the reporter through the judge's judicial assistant for whom she was reporting. 6. At approximately 11:00 am, I heard from the court reporter, who informed she had worked on the transcripts last night but due to the volume was not able to complete them. She also informed me that due to the nature of Mr. Valle's case she requested that her agency find someone to cover her morning calendar, so she could complete the transcripts. She was unable to receive coverage. 7. The court reporter indicated that she would return home and immediately begin working on the transcript. I requested that she complete the morning portion of the proceedings first as this involved the Motion to Disqualify and scheduling. The court reporter agreed to email the transcripts to me as soon as they were available. 8. The transcripts of July 5, 2011 will be forwarded to this Court and all parties immediately upon receipt. 9. Furthermore, I was able to obtain a copy of an audio recording of the July 1, 2011 status conference. The audio recording was done by the Administrative Offices of the Courts for the Eleventh Judicial Circuit . The audio has not been 2

transcribed, nor can the audio be downloaded in order to forward to the Court electronically. Additionally, it appears that the disc does not represent a full recording of the proceedings, as it abruptly cuts off. I am attempting to hire a court reporting service to transcribe the audio recording as soon as possible. Further affiant sayeth naught. / / of is Sworn to or affirmed and ____~~~~~·~!={~1<7(/~---------, personally kn9Wn to me. NOTARY PUBLIC, STATE OF FLORIDA My Commission Expires: ,""~'Ipf!' PAUL KALIL /~ ... if~Z\ Commission # EE 021767 ~. !t§ Expires December 29, 2014 ~'.r! o'"W\ Shaquivia Alvin 'ItWR j Commission # DD757106 .......,;:,/ Expires: MAR. 19, 2012

DO:NIlED 'J'HRU ATLANTIC BONDINGCQ., INC,

CERTIFICATES OF SERVICES

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by United States Mail and/or e-mail and/or hand delivery to the following this D;/?day ofJuly, 2011. '7 / / / Copies furnished to: The Honorable Jacqueline Hogan Scola Richard E. Gerstein Justice Bldg. 1351 N.W.12thStreet Miami, Florida 33125 Penny Brill, Assistant State Attorney Office of the State Attorney 1350 N.W. 12th Avenue Miami, Florida 33125 Sandra Jaggard, Assistant Attorney General Office of the Attorney General Rivergate Plaza, Suite 950 444 Brickell Avenue Miami, Florida 33131 6

Danish company asks Florida to stop using its drug to kill inmates

Danish company asks Florida to stop using its drug to kill inmates

The head of Lundbeck, Inc., the Danish company that makes ones of the drugs Florida plans to use to execute its first death row inmate in 18 months, has twice written Gov. Rick Scott urging him not to use their product for capital punishment.

Staffan Schüberg, president of Lundbeck, wrote to Scott in May and again in June after he said his letters to the Florida Department of Corrections went unanswered. It's unclear if Scott's office has responded, either.

The drug — pentobarbital sodium, branded as Nembutal — is at the center of the Florida Supreme Court's decision this week to delay the execution of Manuel Valle, who shot and killed a South Florida police officer 33 years ago.

"The use of pentobarbital outside the approved labeling has not been established," Schüberg wrote. "As such, Lundbeck cannot assure the associated safety and efficacy profiles in such instances. For this reason, we are concerned about its use in prison executions."

Here are the letters from Schüberg to Scott:

May 16, 2011

The Honorable Rick Scott, State of Florida, The Capitol, 400 S. Monroe St., Tallahassee, FL, 32399-0001

Dear Governor Scott,

Lunbeck understands that the state of Florida has decided to use our product Nembutal® (pentobarbital sodium injection, USP) for the purpose of capital punishment. We are adamantly opposed to the use of Nembutal to execute prisoners because it contradicts everything we are in business to do — provide therapies that improve people's lives.

Given our strong opposition to this misuse of our product, we previously sent a letter to the Florida Department of Corrections urging it to refrain from using Nembutal for the purpose of capital punishment. The Florida Department of Corrections has not responded to our letter and we therefore request that you take immediate action to stop the use of Nembutal as a means to end lives.

After exploring several potential means of restricting the distribution of Nembutal, we've learned that we simply cannot control how licensed healthcare professionals use this or any pharmaceutical product in the United States. The only potentially effective action we can take is to appeal to you and urge that Florida refrain from using our product for a purpose that severely contradicts Lundbeck's mission to provide therapies that help improve people's lives.

Thank you for your serious consideration of this matter.

Sincerely,

Staffan Schüberg, President, Lundbeck, Inc.

____________

June 8, 2011

The Honorable Rick Scott, State of Florida, The Capitol, 400 S. Monroe St., Tallahassee, FL, 32399-0001

Dear Mr. Scott,

I am writing to follow up on my recent letter about your state's use of Nembutal® (pentobarbital sodium injection, USP) for the purpose of lethal injection in your state.

The use of pentobarbital outside the approved labeling has not been established. As such, Lundbeck cannot assure the associated safety and efficacy profiles in such instances. For this reason, we are concerned about its use in prison executions.

We ask that you stop using pentobarbital in the execution of prisoners in your state because it contradicts everything we are in business to do — provide therapies that improve people's lives.

Thank you for your serious consideration of this matter.

Sincerely,

Staffan Schüberg, President, Lundbeck, Inc.

Read more: http://miamiherald.typepad.com/nakedpolitics/2011/07/danish-company-asks-florida-to-stop-using-its-drug-to-kill-inmates.html#ixzz1TLYhEFqD

Our product is being misused.

Our product is being misused.

What has Lundbeck done to prevent the misuse?

In our view the misuse of our product is a result of laws and social practices that we have little prospect of changing. In situations like this, the UN guidance states that failure to sell into certain markets could be ethically wrong if the product in the majority of its use scenarios offers broader human and social benefits when used in the way in which it is intended. We believe this to be established as a fact with respect to pentobarbital.

Therefore we have focused our efforts on assessing ways to prevent the distribution of pentobarbital for use in capital punishment.

Objections directly to the states

We have gone straight to the Departments of Correction in the states using or considering the use of pentobarbital for lethal injection. To date, we have sent letters to 11 states strongly stating our objection to their use of our product to end lives, since it contradicts everything we are in business to do, namely provide therapies that help improve people’s lives. Thus far, we have sent letters to Governors and the Departments of Correction in the following states: Alabama, Arizona, Florida, Georgia, Louisiana, Mississippi, Ohio, Oklahoma, South Carolina, Texas and Virginia.

Further, we have emphasized to the states that the use of pentobarbital outside of the approved labelling has not been established.

SUPPLEMENTAL APPENDIX TO EMERGENCY PETITION FOR A WRIT OF PROHIBITION

IN THE SUPREME COURT OF FLORIDA
NO. SCll -1434
MANUEL VALLE, Petitioner,
v.
STATE OF FLORIDA, Respondent.
SUPPLEMENTAL APPENDIX TO
EMERGENCY PETITION FOR A WRIT OF PROHIBITION
NEAL A. DUPREE Capital Collateral Regional Counsel-South
SUZANNE KEFFER Chief Assistant CCRC-South
OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL-SOUTH 101 N.E. 3rd Avenue, Suite 400 Ft. Lauderdale, Florida 33301
(954) 713-1284
COUNSEL FOR MR. VALLE
INDEX TO SUPPLEMENTAL APPENDIX
DOCUMENT EXHIBIT
Transcript ofHearing July 27,2011 ......................................... D
EXHIBITD
Page 1
IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA CRIMINAL DIVISION
CASE NO. F78-5281A
STATE OF FLORIDA,
Plaintiff, vs. MANUEL ADRIANO VALLE,
Defendant.
TRANSCRIPT OF PROCEEDINGS
BEFORE
THE HONORABLE JACQUELINE HOGAN SCOLA
1351 Northwest 12th Street Miami, Florida 33125
Tuesday, July 26, 2011
9:38 a.m. to 9:55 a.m.
APEX REPORTING GROUP (954) 467-8204
Page 2
1
A P
PEA RAN C E
S
2
3
For the Plaintiff:
4
SANDRA
S. JAGGARD,
ESQUIRE
Attorney Generals's Office
5
444 Brickell Avenue
Suite
650
6
Miami,
Florida 33131-2406
(305) 377-5441
7
and
-8
CAROLYN M.
SNUARKOWSKI,
ESQUIRE
9
Attorney Generals's Office
4519
Camden Road
10
Tallahassee,
Florida 32303-7224
(850) 414-3300
11
-and
-12
PENNY
H. BRILL,
ESQUIRE
13
-and
-GAIL
LEVINE,
ESQUIRE
14
Miami-Dade
State Attorney's Office
1350
Northwest
12th Avenue
15
Miami,
Florida 33136-2102
(305) 547-0666
16
17
18
For
the Defendant:
19
SUZANNE
M. KEFFER,
ESQUIRE
-and-
20
NEAL A.
DUPREE,
ESQUIRE
-and
-21
PAUL
E. KALIL,
ESQUIRE
101 Northeast
3rd Avenue
22
Suite 400
Fort Lauderdale,
Florida 33301-1100
23
(954) 713-1284
24
25
APEX REPORTING GROUP (954) 467-8204

Page 3
E X H I BIT I N D E X
(NONE)
APEX REPORTING GROUP (954) 467-8204

Page 4
(Thereupon, the following proceedings were
had: ) THE COURT: Good morning. MS. JAGGARD: Good morning, your Honor. MS. BRILL: Good morning, your Honor. THE COURT: Okay. You're on the record.
We're in open court. I have you on the speaker phone. This is Judge Jacqueline Hogan Scola. And we are here on Manuel Valle pursuant to
the Supreme Court's order of last night regarding the mandate to hold an evidentiary hearing in this matter. I have received several motions after that order. So let me ask you all to announce your presence, and then we'll deal with those motions.
MS. JAGGARD: Sandra Jaggard and Carolyn Snuarkowski, Assistant Attorneys General on behalf of the State.
MS. BRILL: Penny Brill and Gail Levine,
Assistant State attorneys, co-counsel on this -THE COURT: Louis? THE BAILIFF: What? THE COURT: Hold on. I'm fine. Hello. Are you there?
APEX REPORTING GROUP (954) 467-8204

Page 5
MS. BRILL: Yes.
THE COURT: Okay. Sorry. We had a phone issue here. THE BAILIFF: Sorry. THE COURT: All right. So Penny Brill and
Gail Levine for the State.
And for the defense?
MS. KEFFER: Suzanne Keffer, Chief Assistant CCRC, Neal Dupree, CCRC, and Paul Kalil, Assistant CCRC, on behalf of Mr. Valle.
THE COURT: Okay. All right.
The first motion I have in front of me that we need deal with is the defendant's motion to disqualify the judge and memorandum of law. I have reviewed that.
As well, I have the Attorney General's response to the motion for disqualification. I have reviewed that.
I am denying this motion.
I'm handing the clerk these motions.
I'm assuming that the originals will be coming the sign and sworn-to originals; is that
correct? MS. KEFFER: Yes, your Honor. I'll have those sent down today to be filed.
APEX REPORTING GROUP (954) 467-8204
1
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THE COURT: All right. Thank you.
The next thing I have is the Attorney General filed a motion to lift the stay in a capital case, warrant signed, filed -MS.
JAGGARD: (Indiscernible) --the United
States Supreme Court, your Honor. THE COURT: Pardon me? MS. JAGGARD: That's in the United States
Supreme Court.
THE COURT: Oh, okay. Very well.
So I imagine that everybody has already started their federal filings?
MS. JAGGARD: Well, there's a 1983 action pending in the Middle District of Florida raising basically the same legal objection with some add-on.
THE COURT: In the Middle District in this
case or in -MS. JAGGARD: In this case, your Honor. THE COURT: Oh, okay. What's the
jurisdiction in the Middle District?
I'm just curious.
MS. JAGGARD: That's where the prison is.
THE COURT: Okay. That's what I figured. All right.
So that was sent to me as a courtesy.
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And now I guess what we need to do is be about the business of scheduling this evidentiary hearing.
So let me hear --obviously, the defense is going to call Dr. Waisel.
Would that be correct?
MS. KEFFER: Well, we haven't filed witness
lists or anything yet, but obviously I attached his affidavit. So I think yes.
But that wouldn't be the only witness.
THE COURT: Okay. Well, that's fine.
But I want to tell everybody that I have a vacation scheduled next week. And also this order is due by August 5th, which is a week from this Friday, the end of next week.
So I'm going to have this hearing on Thursday and Friday, if it needs to go over a second day, so that I can do my order over the weekend and get it done in plenty of time.
So when can we have our witness list filed, and do you know your witnesses's availability?
MS. JAGGARD: The State will file its witness list right now, along with the order to transport that you requested.
THE COURT: Okay. Can you fax or email the
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order to transport to me?
MS. JAGGARD: I am emailing it as we speak.
THE COURT: Okay. Thank you.
So right now I am scheduling this hearing for Thursday, July 28th, at 10:00 a.m. So who else will the defense be calling, Miss Keffer?
MS. KEFFER: Judge, right now --I mean, I'd like the opportunity to file a witness list at least by -THE
COURT: Noon.
MS. KEFFER: --today.
It's something that I need to discuss with
the team. I certainly have ideas -THE COURT: Okay. MS. KEFFER: --but I don't think I have a
set list at this very moment. THE COURT: Okay. Noon is the deadline to file all witness lists. So Dr. Waisel is Number 1. And he's going to talk about the only issue, which is the pentobarbital. So I don't think that it's appropriate to
have more than two witnesses.
So tell me who your other witness would be.
MS. KEFFER: Well, your Honor, I would
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disagree.
I mean, I think that Florida Supreme Court order is clear that I was given an evidentiary hearing on the safety and efficacy of pentobarbital.
THE COURT: That's right.
MS. KEFFER: And from the defense standpoint,
that involves more than two witnesses.
THE COURT: Well, let me say this.
There's really only one issue, and the Court has the discretion to limit the number of experts and this is an expert issue --with regard to the number of experts.
So -MS.
KEFFER: I'm --I don't know that I'm referring simply to experts, your Honor. And THE COURT: Okay. Well, who else? MS. KEFFER: I'm sorry? THE COURT: Who else do you have? MS. KEFFER: Well, I certainly think that
Timothy Cannon, the lead --the team leader for the execution, Reina Wallace, Greg Lustein, who is the person that witnessed the Blankenship execution --that goes to the safety and efficacy of pentobarbital.
There's two witnesses out of Alabama, who also have witnessed a debauched execution based on
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pentobarbital. That goes to the safety and efficacy. I
think there could additionally be another expert that I'm looking into at this point that I've recently become familiar with.
So I think there's numerous witnesses, your Honor, and I think that all goes to -THE COURT: Well, make sure --as long as they're available Thursday and Friday.
MS. KEFFER: Well, I can tell you right now, Judge, that when I got this order last night from the Florida Supreme Court, I scrambled, as I'm sure everybody did, to try and find out everybody's availability. I spoke with Dr. Waisel.
Unfortunately, he's not available until Tuesday the 2nd, which still falls within Florida Supreme Court's remand. That was the best that I could do. August --and he is
THE COURT: Well, he can testify by phone from wherever he is Thursday and Friday. So -MS.
KEFFER: I would not like to have him testifying by telephone. He's my witness. I have the opportunity --I'd like to present him so that this Court can make an adequate credibility finding.
THE COURT: Well, video teleconference. MS. KEFFER: There may be documents that
I
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want him looking at. There may be -THE
COURT: Well, you can fax them or email them to him, and he can testify, and you can show me the same documents. That's how we'll do.
I'm telling you that's how we're doing it. So-MS.
KEFFER: Your Honor, like I said, I don't know if he's in surgery, if he can stop a surgery to come talk on the telephone.
He said that he was available on the 2nd. That was the best that I know of.
I will have to look into that.
THE COURT: Okay. Well, I'm telling you: Look into it or find a substitute witness. Okay. State, who are you calling? MS. JAGGARD: Your Honor, given that the
order of concern, Dr. Waisel's affidavit and his report, the State will be calling an expert witness, Dr. Dershwitz.
And since the affidavit concerned the execution in Georgia and --we were going to call two witnesses to that execution
THE COURT: Civilian witnesses?
MS. JAGGARD: Yes, ma'am.
MS. KEFFER: Can I have their names, please,
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or we filing witness lists? MS. JAGGARD: I have filed a witness list already. It should be on your computer. THE COURT: Okay. Well, can you give me a hint? This is the judge. I'd like to know the names. MS. JAGGARD: I understand, your Honor. I have to pull it back up.
THE COURT: Okay.
MS. JAGGARD: One is a Dr. Jacqueline Martin. She was a medical examiner who was a witness to the execution. And the other is John Harper with DOC in Georgia, who was a witness to the execution.
And I know we will be needing to present Dr. Dershwitz by phone or video, depending on timing, and that the other two witnesses will --we're still in the process of making arrangements to either have them here or present them.
THE COURT: Okay. What kind of witnesses are they?
MS. JAGGARD: It's Dr. Martin and -THE
COURT: Oh, Harper.
MS. JAGGARD: --Harper.
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THE COURT: Oh, okay. I thought you meant two additional witnesses. Well, are Dr. Martin and Dr. Harper going to testify as experts? MS. JAGGARD: Dr. Martin is mainly testifying based on what she saw at the execution, your Honor. THE COURT: Okay. But she's going to draw
some expert opinion about what she saw, I'm assuming?
Pardon?
MS. JAGGARD: She will use her expertise as a medical examiner to explain to you what she saw. THE COURT: Okay. Why do we need two --why do we need two folks?
MS. JAGGARD: What?
THE COURT: Why do we need two folks?
I mean, what's good for the goose is for the gander. I'm limiting expert witnesses, and I think two is the maximum, but I don't know why we need two. So I'm going to ask each side to tell me if they have two MS. JAGGARD: Harper is not a doctor. He's a Georgia DOC person. THE COURT: Oh, he is. All right. Well, then that's different.
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Page 14 MS. JAGGARD: Basically one expert --one and two fact witnesses, one of whom has some expert ability. THE COURT: Okay. So I want everybody to exchange their witness lists by noon today. The State says they've already filed their witness list. The defendant will be here 10:00 a.m. this Thursday, the 28th of July, and we'll have our hearing. Are there any other motions or matters we need to deal with?
MS.
KEFFER:
No,
your Honor.
MS.
LEVINE:
Judge?
Judge, can you hear me?
This is Gail Levine.
THE COURT: Yes, ma'am.
MS. LEVINE: Okay. I just wanted to let you know that Mrs. Brill and I are going to appear on Thursday, but I have a doctor appointment early Thursday morning. So I'm going to be running a few minutes late.
THE COURT: That's fine.
All right. I don't know whether the State needs to set up the video teleconference or the court administrator needs to do that.
Do you have that information, Miss Levine?
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Page 15 MS. LEVINE: Yes, Judge. I believe the court
administrators office would help Miss Keffer.
THE COURT: Okay.
MS. JAGGARD: I know our office has been in
touch with him about doing that. THE COURT: Okay. Very well. So I'll have my JA contact the court administrator. MS. KEFFER: For clarification, I understand
that my witness list is by noon today. THE COURT: Yes, ma'am. MS. KEFFER: I indicated numerous witnesses. Your Honor had mentioned something about two
witnesses.
Are you limiting me
to
two
witness,
or
are
you waiting
to
see
the witness
list?
THE
COURT:
Two
expert witnesses
on
an
issue.
MS.
KEFFER:
Okay.
But
I
can
call lay
witnesses
as
well?
THE COURT: Yes.
MS. KEFFER: Okay. Thank you.
THE COURT: But if your lay witnesses are
going to say the same thing, I don't see any need for two people. That's why I was asking the State about their two witnesses to the execution. If there's one person
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who's going to say the very same thing, I don't need the second person to tell me the same thing. That's all.
So just --I'm just advising you of what I think is going to give you some guidance when you're talking to your witnesses.
If they're going to say the same thing, and I hear them, you know, starting to say the very same thing, I might cut them off.
So -MS.
JAGGARD: Your Honor, might I ask for a proffer of what Miss Keffer believes Miss Wallace or Mr. Cannon would have to testify about?
THE COURT: These are the DOC folks?
MS. JAGGARD: Miss Wallace is the attorney
THE COURT: Right. Legal counsel.
MS. JAGGARD: Yeah.
THE COURT: Well, that's another matter I
wanted to address.
I'm going to ask --I will be happy to ask for a proffer, but there are also some DOC documents that the Supreme Court ordered turned over that I have not previously turned over.
Is that everyone's understanding?
MS. JAGGARD: Yes. They ordered letters from
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Lundown.
THE COURT: So I guess --actually, we should have called Miss Wallace. MS. JAGGARD: Miss Wallace is aware of it,
your Honor.
THE
COURT:
Okay.
So you know
that
she
is
aware.
All
right.
I
want
to make
sure
that
she's
aware
of that.
And I don't know how profuse those documents are, but I'm going to say that she should get those to Counsel by close of business today.
So I'll enter an order to that effect, and I will fax it to her. MS. JAGGARD: Okay. I will let her know after the hearing.
THE COURT: All right. Thank you.
No later than 5:00 p.m. today.
Okay. And what is --can you proffer, Miss Keffer, what it is you believe Miss Wallace will have to say?
MS. KEFFER: Your Honor, can I suggest that maybe what might be easier is that, when I file the witness list, I include a brief, little written proffer, if that's what your Honor is ordering?
THE COURT: Yes. That's fine.
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And Timothy Cannon, the same thing?
MS. KEFFER: Yes.
THE COURT: All right. Very well.
Is there anything else from either side?
MS. KEFFER: Judge
THE COURT: Yeah.
MS. KEFFER: --can I ask the same from the
State as well, what Don Harper and Jacqueline Martin have to say?
I have no idea what their observations are from that execution. I haven't had the opportunity to depose them.
And so I'd like the same from the State.
THE COURT: Sure. Okay.
Miss Jaggard?
MS. JAGGARD: That should not be a problem with regard to Dr. Martin because she's filed an affidavit (indiscernible) .
So I will have to check into Mr. Harper.
THE COURT: Okay. Well, do the best you can do.
And I'm expecting everyone here at 10:00 a.m. on Thursday the 28th, unless someone asks to have a joint conference or files another motion and we need to get together. Okay?
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MS. KEFFER: Your Honor, may I ask one more question?
THE COURT: Yes, ma'am.
MS. KEFFER: With respect to Dr. Dershwitz
can I ask --has the State obtained a report with respect to Florida procedures from him. And, if so, I would like a copy of it.
MS. JAGGARD: Not that I'm aware of, but I am considering it's limited to the efficacy of pentobarbital. I believe she is already aware his -THE
COURT: Testimony?
MS. JAGGARD: --opinion, because she received, from the public records from the Governor's office, an affidavit he has done on this issue from Oklahoma.
THE COURT: Okay.
MS. KEFFER: I'm simply asking if there was
an additional, more specific
THE COURT: Right, right. I understand.
So there's no more of a report or anything in this matter? MS. JAGGARD: Not that I'm aware of, your Honor. THE COURT: Okay. So, of course, if there would be, that should be turned over.
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And is there anything additional from anybody? MS. BRILL: Not from the State Attorney's Office, Judge. Thank you.
THE COURT: Thank you, Miss Brill.
Okay. Thank you, everyone, Miss Keffer and Miss Jaggard.
And I'll see everyone Thursday at 10:00.
MS. JAGGARD: Thank you.
THE COURT: Take care. Bye.
(Thereupon, the hearing was concluded at
9:55 a.m.)
* * *
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21
1
CERTIFICATE
2
STATE
OF
FLORIDA
SS.
3
COUNTY
OF
BROWARD
4
I,
PHILLIP
CLARK,
CERTIFY
THAT
I
WAS
6
AUTHORIZED
TO
AND
DID
REPORT
THE
FOREGOING
PROCEEDINGS.
7
I
DO
FURTHER
CERTIFY
THAT
THE
FOREGOING
IS
A
8
TRUE
AND
ACCURATE
TRANSCRIPT
OF
THE
TESTIMONY
AS
9
REPORTED
BY
ME
AND
BEFORE
ME
AT
THE
TIME,
PLACE,
AND
THE
DATE
HEREINABOVE
SET
FORTH.
11
I
DO
FURTHER
CERTIFY
THAT
I
AM
NEITHER A
12
RELATIVE
NOR
EMPLOYEE,
NOR
ATTORNEY
NOR
COUNSEL
OF
ANY
13
OF
THE
PARTIES
TO
THIS
ACTION,
AND
THAT
I
AM
NEITHER
A
14
RELATIVE
NOR
EMPLOYEE
OF
SUCH
ATTORNEY
OR
COUNSEL,
AND
THAT
I
AM
NOT
FINANCIALLY
INTERESTED
IN
THE
ACTION.
16
17
WITNESS
MY
HAND
AND
OFFICIAL
SEAL
IN
THE
CITY
18
OF
FORT
LAUDERDALE,
COUNTY
OF
BROWARD,
STATE
OF
19
FLORIDA,
THIS
27TH
DAY
OF
JULY
2011.
21
BY:
22 PHILLIP CLARK, REPORTER 23 24
APEX REPORTING GROUP
TRANSCRIPT (2)

APEX REPORTING GROUP (954) 467-8204
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by United States Mail and/or e-mail and/or hand delivery to the following this 27th day of July, 2011.
Copies furnished to:
The Honorable Jacqueline Hogan Scola Richard E. Gerstein Justice Bldg. 1351 N.W. 12th Street Miami, Florida 33125
Penny Brill, Assistant State Attorney Office of the State Attorney 1350 N.W. 12th Avenue Miami, Florida 33125
Sandra Jaggard, Assistant Attorney General Office of the Attorney General Rivergate Plaza, Suite 950 444 Brickell Avenue Miami, Florida 33131

supreme court justices

Kamis, 28 Juli 2011