1 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION 2 3 DONALD MOELLER, CIV 04-4200 4 Plaintiff, 5 -vs6 7 8 9 10 11 12 DOUGLAS WEBER, Warden, South Dakota State Penitentiary; DENNIS KAEMINGK, Acting Secretary in His Official Capacity as Secretary of Corrections; DOES 1-20, Unknown Employees or Agents of South Dakota Department of Corrections, Defendants. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 13 14 Oral Sworn Deposition of DOUGLAS WEBER taken 15 Monday, October 17, 2011, at the office of the Federal 16 Public Defender, 200 West 10th Street, #200, Sioux Falls, 17 South Dakota, beginning at 8:22 a.m., before Maxine J. 18 Risty, RPR, 48390 266th Street, Brandon, South Dakota. 19 20 21 22 23 24 25 Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 2 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 3 APPEARANCES: MR. SCOTT W. BRADEN -andMS. JENNIFER L. MOLAYEM Office of the Federal Public Defender 1401 West Capitol, Suite 490 Little Rock, Arkansas 72201 4 Attorneys for the Plaintiff. 5 7 MR. PAUL SWEDLUND Attorney General's Office 1302 East. Highway 14, #1 Pierre, South Dakota 57501 8 -and- 9 11 MS. SUSAN ANDERSON South Dakota State Penitentiary Legal Department Post Office Box 5911 Sioux Falls, South Dakota 57117 12 Attorneys for the Defendants. 6 10 13 14 15 16 17 18 19 20 21 22 23 24 25 Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 3 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 INDEX OF EXAMINATIONS 2 By Mr. Braden: Page 4,126 3 By Mr. Swedlund: Page 124 4 INDEX OF EXHIBITS 5 NUMBER DESCRIPTION MARKED 6 A 2007 session proposed HB 1175, death penalty by lethal injection revised 12 B FDA notice of hold 29 C1 Color-copied photograph 31 C2 Color-copied photograph 31 C3 Color-copied photograph 32 C4 Color-copied photograph 32 C5 Color-copied photograph 33 D ERM A.12(B) Capital Punishment Final Days Procedures 43 15 E Qualifications - John Doe (IV insertion) 60 16 F KELOLAND web page, Page execution timeline 112 G DEA Form 236 118 7 8 9 10 11 12 13 14 17 18 19 20 21 22 23 24 INDEX TO CERTIFIED QUESTIONS Page 25 26 47 53 57 58 58 58 58 Line 1 9 5 15 21 4 8 12 19 Page 63 64 65 65 109 118 120 121 122 25 Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 Line 20 9 5 24 8 15 16 5 4 4 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 DOUGLAS WEBER, 2 Called as a witness, having been first duly sworn, 3 testified as follows: 4 EXAMINATION 5 BY MR. BRADEN: 6 Q 7 8 Warden Weber, would you please state your name and your business address for the record? A 9 Douglas Lee Weber, W-E-B-E-R, 1600 North Drive Avenue in Sioux Falls, South Dakota. 10 Q And what is your position, sir? 11 A I am the director of prison operations, chief warden 12 13 14 for the State of South Dakota. Q All right. MR. SWEDLUND: Just -- I'd like to make a record 15 real fast. Do you have a copy of the notice for the 16 warden's deposition today? 17 MR. BRADEN: 18 MS. MOLAYEM: 19 MR. SWEDLUND: 20 MS. MOLAYEM: 21 22 I don't have it with me. I do I think. Is there one? He didn't have to be served because he's a party of the case. MR. SWEDLUND: Yeah, I understand that. So I 23 think for purposes of your request for a 30(b)6 24 designee, the warden will serve that function; 25 however, you're not going to get into questions about Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 5 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 how we acquired the drugs or where they came from. MR. BRADEN: Well, let me just put it this way. 3 We'll ask the questions, you can assert privilege if 4 you want, and we'll go from there. 5 don't get me wrong. 6 about it. 7 go along and -- 8 9 10 I'm not trying to be kind of flip I understand your objection but we'll just MR. SWEDLUND: Yeah, right. I just wanted to let you know ahead of time that we're taking the position that -- 11 MR. BRADEN: 12 MR. SWEDLUND: Sure. -- the "where" is irrelevant 13 constitutionally. 14 good -- and they are. 15 designee and go from there. 16 I understand -- So long as the drugs themselves are And so you can treat him as the The other thing I'd add is that, you know, 17 procedurally, at least according to the agreement that 18 we had with your office, these depositions weren't 19 supposed to occur until we had rulings on your motion 20 to compel. 21 far out was that we would have that ruling before the 22 deposition occurred. 23 so -- we don't have that ruling, we don't have the 24 benefit of that, but we're here anyway, even though I 25 don't think it's really appropriate because we had an The idea of setting these depositions this That ruling hasn't happened yet Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 6 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 agreement with your office that we wouldn't have to 2 appear until we had that ruling. 3 MS. MOLAYEM: And I just want to put on the 4 record that we just disagree with that 5 characterization that there was no agreement. 6 MR. SWEDLUND: Who's on the -- are you -- you're 7 lead counsel, right? 8 MR. BRADEN: 9 MR. SWEDLUND: 10 Well, Deb Czuba -- today? 11 MR. BRADEN: 12 MR. SWEDLUND: 13 MR. BRADEN: 14 For purposes of the deposition Q 15 Right. Okay. Okay. (By Mr. Braden) Warden Weber, have you been deposed before? 16 A I have, sir. 17 Q Okay. 18 And you understand that you're under oath, correct? 19 A Yes, sir. 20 Q All right. And your testimony here today is similar 21 to testimony in court under oath and you're sworn to 22 tell the truth. 23 that. 24 A I understand. 25 Q All right. This is just a more casual version of And you understand that you will have to Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 7 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 answer out loud so Ms. Risty can write that down on 2 the record. 3 A I understand. 4 Q All right. And you understand that any question that 5 I might ask you, if you don't understand it or if I 6 ask a confusing question, if you'll just stop and ask 7 me to reask the question; otherwise, we'll assume you 8 understood the question and answer truthfully. 9 A I understand. 10 Q Okay. 11 Did you bring any documents with you this morning concerning this deposition? 12 A I did not, sir. 13 Q All right. 14 Did you review any documents in preparation for this deposition? 15 A I did. 16 Q And do you know what those were? 17 A I reviewed the affidavits that I had prepared prior to 18 this deposition and I've also looked at our ERM or 19 policy that governs executions. 20 Q 21 22 25 Did you have meetings or telephone calls in preparation for this deposition? A 23 24 All right. I have conferred with counsel on a couple different occasions. Q If you could just briefly tell me: What's your basic education and background, sir, and your training? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 8 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A Education is high school. After high school I entered 2 the U.S. Marine Corps where I served seven years. 3 Left the service, returned to South Dakota. 4 family, needed to go to work and found that the 5 penitentiary was hiring. 6 correctional officer where I've been for 30 years. 7 Q 8 9 Young Applied and was hired as a What positions have you held with the Department of Corrections? A Started out as a correctional officer when I was hired 10 in 1981 and was promoted up through the ranks. I held 11 the rank of sergeant, lieutenant, and captain. I 12 supervised line staff or the shift workers. 13 while as a captain conducted internal investigations 14 for the penitentiary. 15 associate warden of custody -- or for custody, which 16 supervised all the uniformed staff and provided for 17 the security of the prisons. 18 approximately five years. 19 I for a Then I was promoted to I did that for And then in 1996 I was promoted to warden of the 20 facility. Then Governor Bill Janklow and Secretary 21 Jeff Bloomberg hired me. 22 since for 15 years. 23 served a one-year stint as the interim cabinet level 24 secretary for the department while my boss was 25 deployed for a military deployment. I did that -- done that now During that 15-year time, I So I worked for Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 9 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Governor Rounds for one year as his cabinet secretary 2 for the department. 3 assumed my role as director of prison operations, 4 adult prison operations, and chief warden for the 5 state. 6 doing that job in November -- or will have in 7 November. 8 Q 9 Returned back to the prison, Like I said, I had my 15-year anniversary One thing that you said earlier that it just kind of confuses me a little bit, you say you're warden for 10 the South Dakota prisons. 11 in South Dakota? 12 A 13 How many prisons are there Well, there are -- let me just run through them for you. 14 Q All right. 15 A There's the maximum high-medium facility, which is 16 located in Sioux Falls, and there's also a low-medium 17 prison located in Springfield, South Dakota. 18 Warden Dooley, D-O-O-L-E-Y, supervises that facility, 19 and I'm his boss. 20 Pierre, South Dakota. 21 that facility, and I'm her boss as well. 22 there are four minimum security units throughout the 23 state located in Rapid City, Yankton, Sioux Falls, and 24 Pierre. 25 service centers where we have inmates who are residing And Then there's a women's prison in Warden Brenda Hyde supervises And then And then we have a handful of community Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 10 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 in county jails, and I supervise them. 2 essentially, I'm in charge of the adult correction 3 system in the state as well as the warden for the 4 Sioux Falls facility. 5 Q So So basically as an outsider looking in or a layman, 6 when you say that -- or when we say, well, you're the 7 warden of the prison here in Sioux Falls, actually 8 you're the warden basically of all the prisons in 9 South Dakota in a sense; is that right? 10 A 11 I supervise two other wardens in the state as well, yes, sir. 12 Q Okay. 13 A They do. 14 Q All right. 15 16 So your duties extend beyond Sioux Falls? Have you had any medical training in your background? A I was an EMT, emergency medical technician, for a 17 number of years. The primary reason was, as a 18 lieutenant, that was part of the job requirements. 19 I did go to EMT training and obtained my 20 certification. So 21 Q And when was that? 22 A That would have been back in the middle to late '80s. 23 Q All right. And is that certification something that 24 you need to keep up or continue? 25 continuing type license? I mean is it a Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 11 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A It is but I have not. 2 Q Okay. 3 Do you recall when the last time you were certified was? 4 A No, sir. 5 Q Okay. 6 A No, sir. 7 Has it been in the last ten years? It would have been in probably the '90, '91, '92 era. 8 Q Have you had any training in pharmacology or drugs? 9 A No, sir, I have not. 10 Q Have you had any training in the effects or the 11 interactions of drugs? 12 A No, sir. 13 Q Do you have a number or a licensure number for the 14 Drug Enforcement Administration? 15 A We have applied or did apply in the past -- 16 Q All right. 17 A -- with the DEA and did receive a number at that point 18 19 in time. Q 20 Is that an institutional number or is that an individual? 21 A I'm not sure. 22 Q And when you say "we," do you mean the institution? 23 A Yes, sir. 24 Q Okay. 25 To your recollection, is that -- the DEA issued that licensing number? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 12 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A That's my understanding. 2 Q I'm going to hand you a copy which it says it's marked 3 on here Exhibit D, but I think that's because we used 4 it at another deposition. We probably might want to 5 just call this Exhibit A. We're going to call this 6 Exhibit A. 7 8 (Exhibit A marked for identification.) A 9 10 And what is this, sir? This looks like a proposed bill from the 2007 session. It's titled death penalty by lethal injection revised. Q Well, actually, I think it's -- just to be clear on 11 it, I believe it's the statute that's actually enacted 12 that you operate under now; is that right? 13 know it looks like it's in the editing process, but 14 this is the final copy that's been enacted, right? 15 A I mean I I would have to see the actual statute to compare them 16 side by side to tell you that. 17 edited version that I'm looking at. 18 MR. SWEDLUND: This has been an Why don't we get a copy of the 19 statute book. 20 is that you've just handed him that says search one 21 result 23A-27A-32. 22 or if it's got the current version of the statute or 23 not. 24 25 I mean I don't know what this document MR. BRADEN: Q Let me ask this. I don't know where it comes from Well, let me -- and that's fine. What do you believe your statutory Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 13 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 role is under South Dakota Code 23A-27A-32, which is 2 basically the death penalty statute in South Dakota? 3 MR. SWEDLUND: Why don't we define the term. 4 don't we say the method of execution statute so we 5 don't have the -- 6 Q 7 Okay. Why The method of execution statute, what do you see your role is under that? 8 A To carry out the execution of the condemned inmate. 9 Q All right. But that statute defines certain 10 responsibilities you have. 11 responsibilities as you see them? 12 A What are those To ensure that the execution is carried out in a 13 humane, safe manner; that it is in accordance with the 14 law and the current policies; that we have consulted 15 with counsel; that we have done what we can to ensure 16 that we are considering precedent that has been set by 17 appellate courts; and then to determine the drugs 18 necessary and to administer such in a humane and 19 controlled environment. 20 Q Where in the statute does it set out that the 21 execution is supposed to be carried out in a safe and 22 humane way? 23 A Well, I guess you were asking me how -- what I see as 24 my responsibility and how I govern or run myself, and 25 that's what I was responding to. The statute doesn't Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 14 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 address that specifically. Q 3 4 So the legislature here has not given you any directive on that; is that right? A 5 I'm re-reading the statute right now -- or what you have shown me. 6 (Witness reviewing document.) MR. SWEDLUND: 7 Yeah, we haven't even determined that this is the statute yet. 8 MR. BRADEN: 9 minute. 10 Well, if we can just pause for a Let me go and see if they have a statute book here. 11 MR. SWEDLUND: Yeah, why don't we do that and get 12 a copy of the statute. 13 (Discussion off the record.) 14 MR. BRADEN: 15 Q Back on the record. Here is the pocket part for the most recent 16 South Dakota Codified Laws. 17 the pocket part and it was supplemented in 2011. 18 believe that that is the most current version of the 19 method of execution in this state, would you agree? 20 MR. SWEDLUND: 21 And this is 23A-27A-32 in And for the record, we're talking again about the method of execution statute. 22 MR. BRADEN: So I Right, 23A-27A-32. 23 A (Witness reviewing document.) 24 Q Had you ever read that statute before? 25 A I have. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 15 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Does that statute specify to you what drugs you're 2 supposed to use in the lethal injection process -- or 3 what chemicals? 4 A It does not. 5 Q And you would agree, sir, that it doesn't give you any 6 directive on safe or humane or any of the manner in 7 how to carry out the execution? 8 A I agree with that statement, yes. 9 Q Under this statute, how do you determine what drugs 10 you are going to use in the lethal injection process? 11 A Advice of counsel. 12 Q Okay. 13 A With the attorney general's office and I work with the 14 Who do you consult? institutional lawyer. 15 Q Do you consult any pharmacists? 16 A I have not to this day. 17 Q All right. 18 A I have not to this day. 19 Q Do you know if the people that you consult with, the Do you consult any physicians? 20 lawyers of the prison or the attorney general's 21 office, do they consult with physicians or 22 pharmacists? 23 A I believe they have, yes. 24 Q Do you know who those are? 25 A No, I do not. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 16 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q What is the drug pentobarbital? 2 A Pentobarbital, again, without consulting with any 3 pharmacist, I can just tell you that it's a powerful 4 depressant. 5 Q Do you currently have a supply of pentobarbital? 6 A I do. 7 Q Do you know when you got that? 8 MR. SWEDLUND: 9 MR. BRADEN: 10 11 Object. Don't answer. I'm sorry, I didn't hear your objection. MR. SWEDLUND: I'm instructing him not to answer. 12 The objection is that we have a motion pending in 13 front of the court, and I understand you believe the 14 motion is not self-executing. 15 the terms of the agreement these depositions were 16 supposed to be taken under, we were supposed to have 17 rulings on your motions to compel, which also cover 18 the same topic of the source of the drugs. 19 is very clear that the means of acquisition of the 20 drugs is not constitutionally relevant. 21 concerns about the safety and whether those sources 22 will be subject to harassment or not. 23 instructing the witness not to answer. 24 rules against us, you can continue the deposition by 25 telephone, and he'll answer those questions. However, again, under Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 Case law And we have So I'm If the court But we 17 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 can't unring the bell and we're not allowing that 2 information out. 3 Q 4 (By Mr. Braden) Are you asserting a privilege, warden? 5 MR. SWEDLUND: He doesn't have to assert a 6 privilege. 7 say that your discovery exceeds the scope of 8 permissible bounds, that it's conducted in bad faith, 9 that it is being interposed for the purposes of 10 11 He can assert a privilege or he can simply harassment or annoyance so... Q Let me just read the rule to you, warden, and then you 12 tell me. The rule here says -- and this is the 13 Federal Rules of Civil Procedure dealing with 14 depositions, Rule 30, Rule 30(c)2 -- an objection at 15 the time of the examination -- which is where we're at 16 right now -- to the evidence to a party's conduct, to 17 the officer's qualifications, to the manner of taking 18 a deposition, or to any other aspect of the deposition 19 must be noted on the record -- which you're making 20 that objection now -- but the examination will still 21 proceed. 22 objection. 23 nonargumentative and nonsuggestive manner. 24 may instruct a deponent not to answer only when 25 necessary to preserve a privilege, to enforce a The testimony is taken subject to any An objection must be stated concisely in a Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 A person 18 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 limitation ordered by the court -- which there are 2 none -- or to present a motion under Rule 30(d)3. 3 So I'm asking: 4 MR. SWEDLUND: Are you asserting a privilege? Counsel, I believe what you're 5 doing at this point is badgering the witness. 6 made your record. 7 simply not going to divulge that information to you. 8 You have sought to obtain it. 9 made misrepresentations to the court in the course of 10 trying to obtain the information of the source of our 11 drugs. 12 court and give the court straight information, I'm 13 sure we cannot trust you to not leak the source of our 14 drugs to parties who shouldn't have it. 15 I have made my record. If we can't trust you to be square with the MR. BRADEN: Well, I disagree with you, but my question is to the warden. 17 privilege before he can refuse to answer. 19 Q privilege? MR. SWEDLUND: Mr. Braden, you've made your record. 22 23 The warden has to assert a So I'll ask you again, warden, are you asserting a 20 21 We are In my opinion, you have 16 18 You've MR. BRADEN: Actually, I haven't made my record -- 24 MR. SWEDLUND: 25 MR. BRADEN: Move on. -- because he hasn't answered my Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 19 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 question -MR. SWEDLUND: You are asking him a legal 3 question, all right, so he's not going to make a legal 4 answer. 5 MR. BRADEN: Well, first off, the question is: 6 When did you get the drugs? 7 legal determination. 8 MR. SWEDLUND: 9 MR. BRADEN: 10 But the -- it is not a Yes, it is. Before he can answer the -- MR. SWEDLUND: The existence of a privilege is a 11 legal question so... 12 MR. BRADEN: 13 MR. SWEDLUND: What privilege are you asserting? He does not need to assert a 14 privilege. 15 performed in bad faith or discovery that is designed 16 to annoy, harass, or oppress. 17 asserting at this time. 18 Kindly move on. 19 He can also object for discovery that is MR. BRADEN: That is what we are You've made your record. I disagree. First off, if you're 20 going to assert a privilege, you have to tell me what 21 the privilege is. 22 What privilege are you asserting? MR. SWEDLUND: I'm asserting the privilege not to 23 be harassed at this moment. 24 counsel. 25 MR. BRADEN: You've made your record, But that is not an evidentiary Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 20 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 privilege. MR. SWEDLUND: 3 later. 4 go back and forth over -- 5 6 7 Move on. You can argue that to the court Do you want to sit here all day and MR. BRADEN: I will. I'm perfectly willing to sit here all day. MR. SWEDLUND: Then go ahead. But if you want 8 him to give you a legal conclusion as to what 9 privilege he's asserting, I'm going to make an 10 11 12 13 objection that you're calling for a legal conclusion. MR. BRADEN: And under the rule, unless you assert a privilege, you have to answer the question. MR. SWEDLUND: I disagree with your 14 interpretation of the rule. 15 and do this all day long, or you can move on. 16 17 MR. BRADEN: I believe under the rules if you believe that this is in bad faith or somehow -- 18 MR. SWEDLUND: 19 MR. BRADEN: Didn't I say that? You've got to make a motion to stop 20 the deposition. 21 continue with this. 22 We can either sit here And until you do that, we're going to MR. SWEDLUND: You can continue to do this and 23 I'm going to continue to tell him that -- I'm not 24 disclosing that information. 25 pending, and this deposition is occurring even though We have a motion Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 21 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 we had agreed as counsel that it wouldn't occur until 2 we had a ruling on your motion. 3 MR. BRADEN: The question of relevancy is not an 4 issue here at this point. 5 not, you still have to answer the question. 6 evidentiary objection to make at trial when we get 7 there. 8 MR. SWEDLUND: 9 the question, all right? Whether it's relevant or That's an Scott, he's not going to answer So do we want to keep 10 arguing, or do you just want to move on to the next 11 question? 12 13 MR. BRADEN: I want to make my record really clear that -- 14 MR. SWEDLUND: 15 MR. BRADEN: Please do. -- I have made every effort to get 16 him to answer the question when we go into contempt 17 proceedings. 18 19 20 21 22 MR. SWEDLUND: I've acknowledged that you've made every effort. MR. BRADEN: And you cannot stop a deposition on the issue of irrelevance. MR. SWEDLUND: I'm not stopping it. I'm simply 23 telling him that he's not going to inform you about 24 the source of our drugs. 25 have, we will provide you with the testing so that you We'll tell you what drug we Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 22 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 know that it's a good drug, but I'm sorry, we do not 2 trust the Federal Public Defender's Office of Arkansas 3 not to leak that information to parties who would then 4 harass the sources. 5 MR. BRADEN: Well, let me ask you, Mr. Swedlund. 6 Are you saying this deposition is being conducted in 7 bad faith? 8 9 MR. SWEDLUND: I'm saying the questioning that you are asking is at this point being conducted in bad 10 faith, and that is designed to oppress, harass, and 11 annoy. 12 MR. BRADEN: 13 stop the deposition? 14 15 MR. SWEDLUND: No. I'm just going to simply ask you to move on to the next question. 16 17 Are you going to make a motion to MR. BRADEN: Well, then unless you make a motion to stop the deposition, he has to answer the question. 18 MR. SWEDLUND: That's your interpretation of the 19 rules. 20 want to stop it, that's up to you. 21 22 MR. BRADEN: 25 Or if you Let me read the rule to make it really clear. 23 24 You can ask your next question. MR. SWEDLUND: You don't need to read the rule to me. MR. BRADEN: I'm going to read the rule. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 Motion 23 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 to terminate or limit. 2 deposition, the deponent or a party may move to 3 terminate or limit it on the ground it is being 4 conducted in bad faith or in a manner that 5 unreasonably annoys, embarrasses, or opposes the 6 deponent or party. 7 court where the action is pending or the deposition is 8 being taken. 9 deponent or party so demands, the deposition must be 10 suspended for the time necessary to obtain an order. 11 At any time during a The motion may be filed in the If the objection -- if the objecting So unless you're going to stop the deposition and 12 make a motion to suspend this deposition with the 13 court on the basis that we're acting, as you have 14 accused us, of operating in bad faith or to annoy the 15 warden, then he has to answer the question. 16 Irrelevancy is not an improper objection. 17 18 MR. SWEDLUND: 19 MR. BRADEN: 20 MR. SWEDLUND: It's beyond relevancy, all right? Then what is it? It is my concern that your office 21 will oppress, harass, and annoy people; that you're 22 asking a question in bad faith at this point; and I 23 invite you to move on. 24 adequate record of your position at this time. 25 Q You have made more than an (By Mr. Braden) Warden, I've just got to ask you Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 24 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 again. 2 answer the question? 3 MR. SWEDLUND: 4 5 What privilege are you asserting here not to Objection. conclusion. Q But you still have to answer the question. 6 privilege are you asserting? 7 privilege are you asserting? 8 Calls for a legal A 9 What What evidentiary I'm going to follow the advice of counsel and not answer the question. 10 Q And what privilege are you asserting to do that, sir? 11 A Advice of counsel. 12 MS. MOLAYEM: 13 MR. SWEDLUND: 14 (Off-the-record discussion between Ms. Molayem 15 and Mr. Braden.) 16 MR. BRADEN: Can I make a suggestion? I prefer if he did. We're on the record. We will move 17 on, but on Wednesday if the warden has been designated 18 as the 30(b)6 as Mr. Swedlund has told us this 19 morning, then we can go into this at that point. 20 MR. SWEDLUND: Well, he's not going to appear 21 twice this week. Now if he needs to come back at a 22 later time to fill in any questions that the court 23 indicates must be answered, then he can do that. 24 we're not going to have him deposed twice this week. 25 Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 But 25 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q (By Mr. Braden) When did you get your supply of 2 pentobarbital, warden? 3 MR. SWEDLUND: 4 MR. BRADEN: 5 6 Objection. All right. Warden, don't answer. Ma'am, court reporter, would you certify that question, please. Q 7 Do you currently have in your possession sodium thiopental? 8 A I do, sir. 9 Q And where did you obtain that drug? 10 MR. SWEDLUND: And just so the record is clear, I 11 will allow the answer to the question because it's 12 already a matter of public record, but that is not to 13 say that I'm waiving my objection as to source 14 information that is not already public record. 15 Q Where did you obtain that drug, sir? 16 A A pharmaceutical company out of Mumbai, India. 17 Q Did you make the arrangements to obtain that drug? 18 A I was -- I consulted with legal counsel to obtain that 19 20 drug. Q 21 Do you have other sodium thiopental in your possession other than from the drugs from Mumbai, India? 22 A No. 23 Q Who did you consult with to obtain the drugs in 24 25 Mumbai, India? MR. SWEDLUND: Hold on. Are you talking Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 26 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 internally or... 2 MR. BRADEN: 3 MR. SWEDLUND: Internally or externally. Well, as to -- I would object as 4 to internal because I believe that requests 5 attorney-client privileged documents and information. 6 External, except to the extent that we've identified 7 that it comes from Mumbai, India, I would instruct him 8 not to answer as to how we got those drugs. 9 Q 10 Who under your supervision or control obtained the drugs from Mumbai, India? 11 MR. SWEDLUND: I'm going to object. How we got 12 the drugs, again, is an area that we're not allowing 13 questions on today. 14 Q Are you asserting a privilege on that? 15 MR. SWEDLUND: 16 MR. BRADEN: 17 Same argument. Well, I need to have this answered by the warden. 18 Q Are you asserting a privilege on that? 19 A I'm again following the advice of counsel not to 20 answer the question. 21 Q So you're not going to answer that question? 22 A On the advice of counsel I am not. 23 MR. BRADEN: 24 25 Ma'am, court reporter, would you certify that question, please. Q What litigation is pending, if any, that gives rise to Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 27 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 an attorney-client privilege on asserting the 2 attorney-client privilege in refusing to answer this 3 question? 4 the obtaining of the drugs other than what we're here 5 today on? Is there any other litigation pending about 6 A Not that I'm aware of. 7 Q What's the difference between sodium thiopental and 8 pentobarbital? 9 A I don't believe I'm qualified to answer that question. 10 Q Before you obtained the sodium thiopental from Mumbai, 11 India, had you obtained sodium thiopental from other 12 places inside the United States? 13 A We did. 14 Q I noticed from some of the discovery that we've had 15 that when you obtained sodium thiopental from Mumbai, 16 India, you bought I think 166 doses of that. 17 much? 18 A My recollection is that they would only sell in 19 certain lot sizes. 20 for example. 21 would sell. 22 Q 23 24 25 Why so You couldn't buy a small amount, You had to buy the minimum amount they Are you planning to use that -- the sodium thiopental from Mumbai in any execution at any time? A At this point, I believe it's still a consideration, yes. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 28 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q 2 Have you been in contact with the Drug Enforcement Administration over that drug? 3 A I have not. 4 Q All right. 5 A Counsel is my understanding. 6 Q And what restrictions or limitations, if any, have 7 Who has? they put on the use of that drug? 8 A I'm not aware of any. 9 Q What do you know about Kayem Pharmaceuticals? 10 A Other than that's the company we purchase the drug 11 12 from, not anything additional. Q 13 Did you look to see if they had any licenses or certificates or any qualification to sell drugs? 14 A I assume counsel in working the issue did. 15 Q Do they -- and when you say "counsel," which counsel 16 17 are you talking about? A 18 I'm talking about primarily the institutional lawyer, my institutional lawyer. 19 Q Was that Doug Loen? 20 A It was. 21 Q Do you know what type of products Kayem 22 Pharmaceuticals sells? 23 A I do not. 24 Q What was your understanding of why the drugs from 25 Kayem Pharmaceuticals were held when they were Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 29 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 imported into the United States? 2 MR. SWEDLUND: 3 4 I'm sorry, what was the question again? Q What is your understanding of the reasoning that the 5 DEA held or suspended the delivery of the Kayem 6 Pharmaceuticals when they were initially imported? 7 MR. SWEDLUND: 8 9 It assumes facts not in evidence. Q 10 Warden, you still need to answer that question. What is your understanding, if any, about that incident? 11 12 I object. MR. SWEDLUND: Q Well, let me show you something we're going to mark as 13 B, Exhibit B. 14 marking. 15 the top here. 16 What incident? We're not doing a very good job I'm just going to put a little "B" right at (Exhibit B marked for identification.) 17 Q And what is that, sir? 18 A I don't know. 19 Q Okay. 20 A (Witness reviewing document.) I'll have to take a moment and read it. I really don't know 21 what this document is implying or even the originator 22 or who it was sent to or anything about it. 23 Q Well, I mean you can look at the document and see -- 24 do you dispute that this is from the Food and Drug 25 Administration? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 30 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A That's what it says, but it doesn't look very 2 official. 3 would indicate. 4 don't have any idea. 5 Q There's no signatures or anything that It's not on letterhead. So I really And do you dispute that the importer here is the South 6 Dakota State Penitentiary, which basically would be 7 you; is that right? 8 A I don't dispute that. 9 Q All right. And is this the date that you -- at least 10 generally in the time period when you obtained these 11 drugs? 12 A 13 14 Yeah, I believe that's within that time frame that I recall. Q 15 And didn't your institution use Phil Patterson as an importer in Omaha, Nebraska? 16 A I really don't know the name of the importer. 17 Q Well, for whatever it's worth, this document was given 18 to us by your counsel, so we take it as being true 19 since your representatives gave it to us. 20 A I have never seen this document before today. 21 Q Okay. 22 photographs. 23 Thank you. I want to show you five If we can just call them C -- (Off-the-record discussion between Mr. Braden and 24 25 All right. Ms. Molayem.) Q Anyway, I'm going to show you what's marked as Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 31 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Exhibit C. 2 I didn't mean to toss that at you. 3 4 Do you know what that is, sir? Excuse me, (Exhibit C1 marked for identification.) Q 5 (By Mr. Braden) What does C appear to be? MR. SWEDLUND: Object. There's absolutely no 6 foundation for these photographs, what they are, where 7 they came from, who took them, what they are of, 8 nothing. 9 Q 10 11 Okay. I mean these are just photographs. The objection is noted, but what does C appear to be to you? A I have no idea, sir. 12 (Exhibit C2 marked for identification.) 13 MR. BRADEN: All right. 14 This would be D, right? 15 MS. MOLAYEM: C2. 16 MR. BRADEN: Okay. 17 Q If you look at -- 18 A All right. 19 And let's see here. Is that how you did it? I'm getting a little confused here. I don't know where all these go. 20 Q Okay. Look at the ones I've handed you. 21 A Okay. I've looked at this one. 22 Q All right. 23 Okay. I have no idea. I want you to look at C2. know what that is? 24 A No idea. 25 Q Okay. What does it appear to be? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 Do you 32 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A I have no idea, sir. 2 Q Okay. 3 4 And you don't know -- do you disagree it looks like some sort of back alley? A 5 It looks like some sort of building. say. 6 Q All right. 7 A Back alley. 8 9 Who knows. (Exhibit C3 marked for identification.) Q 10 And if you'd look at this, which we'll call C3, do you know what that is? 11 A I do not. 12 Q And what does it appear to be? 13 A I don't know. 14 15 That's all I can It could be an apartment building. (Exhibit C4 marked for identification.) Q 16 Okay. And when you look at C4, do you know what that is? 17 A I have no idea. 18 Q What does it appear to be? 19 A It appears to be someone I've never seen before in 20 21 maybe an office supply room or supply room. Q Okay. Well, just to help you understand a little bit, 22 this is photographs of Kayem Pharmaceuticals where 23 you're obtaining the drugs. 24 25 MR. SWEDLUND: Q Objection. Foundation. Do you -- what do these appear to be, the boxes and Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 33 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 stuff in the photograph? A I have no way of knowing. 3 (Exhibit C5 marked for identification.) 4 Q Okay. 5 A No. 6 7 And C5, do you know what that is? A gentleman at a chair in front of a computer screen. Q 8 All right. Do you know what Kayem Pharmaceuticals export is? 9 A I do not. 10 Q Did you know that their main export is kind of a 11 secondary or generic Viagra? 12 A I did not. 13 Q Do these red boxes here, do you have any sense of what 14 those are? 15 A No. 16 Q All right. The majority of the -- Would you disagree that they look like 17 they are boxes with kind of an alluringly posed female 18 on them? 19 A I'm not going to speculate on that. 20 Q All right. 21 Who had to approve in your operation the purchase of the drugs from Kayem? 22 MR. SWEDLUND: I'm going to object as well and -- 23 well, approved the purchase, you can go ahead and 24 answer that. 25 A It would have been the secretary of corrections. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 34 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Why did you have to get the approval of the secretary 2 of corrections? 3 that was at issue or because it was being imported? 4 Why -- I mean just kind of what was the reasoning for 5 that? 6 A Was it because of the amount of money That is my immediate supervisor and that's who's 7 directed -- I believe in statute even -- that I need 8 to consult with in the purchase of or consideration of 9 any drugs and/or their dosages -- 10 Q Okay. 11 A -- to carry out an execution. 12 Q But you have the authority to purchase equipment and 13 supplies for the operation of the prison, is that 14 right, without having to go to the secretary of 15 corrections? 16 A Most of the time. 17 Q All right. Well, when do you have to go to the 18 secretary of corrections? 19 When did you have to seek his approval? 20 A You say "most of the time." For large expenditures, especially out-of-the-ordinary 21 expenditures. I think anything over a thousand 22 dollars I would consult with the secretary. 23 Q Is there a written rule or procedure about that? 24 A There probably is in the Bureau of Finance and 25 Management, but again, just from my experience and my Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 35 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 years on the job, it's wise to involve your boss in 2 decisions like that. 3 Q 4 5 you made this purchase? A 6 7 And who was the secretary of corrections at the time I believe it would have been Timothy Reisch at that time. Q 8 Did you explain to Mr. Reisch anything you knew about Kayem Pharmaceuticals at the time? 9 A No. 10 Q Did anybody that assisted you in purchasing these 11 drugs do any background check on Kayem 12 Pharmaceuticals? 13 A I have no idea. 14 Q All right. And just to make it clear if I didn't 15 already, the photographs we showed you in C3 are Kayem 16 Pharmaceuticals. 17 MR. SWEDLUND: 18 Lack of foundation. 19 MR. BRADEN: 20 21 I'm going to object. Okay. Objection noted. But just so you're aware. Q 22 Would you routinely buy drugs from an operation that looks like the photographs in C1 and 2? 23 A I don't know what those photographs are of. 24 Q Okay. 25 Would you buy drugs for your own family from a facility that looks like that? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 36 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 MR. SWEDLUND: Object. Badgering the witness. 2 Q Would you? 3 A I don't know if that's a facility, sir. 4 5 I don't know what that is. Q Okay. Assuming -- let's assume for the sake of 6 argument here that it is Kayem, which it is. 7 you buy drugs for your own family from a place like 8 that? 9 MR. SWEDLUND: 10 11 Calls for speculation. You're badgering the witness. Q 12 13 Object. Would He's made the objection, but you need to answer the question. A I guess there was a lot -- there's a lot going on in 14 my thought process. 15 alley view, if that's something you would see from the 16 street walking up to the front of the business. 17 have no idea where this photograph was taken, when it 18 was taken. 19 Q I don't know if that's a back I Well, let's assume -- it's all true, but let's just 20 assume for the sake of argument that is the building 21 that you're holding, which I think is C? 22 A This is C what? 23 24 25 MS. MOLAYEM: Q C3. For the record, that is C3. And that's the building. However, C1 and 2 are the photographs of the entrance of the office facility Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 37 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 that's in that building for Kayem Pharmaceuticals. 2 MR. SWEDLUND: 3 4 Objection, counsel. You're testifying. Q And so assuming that this is all true -- because it 5 is -- this is the entrance and this is the facility 6 that the Kayem Pharmaceuticals come from, would you 7 use this to buy drugs for your own family? 8 MR. SWEDLUND: 9 Calls for speculation. 10 A 11 12 Lack of foundation. If I walked up to this building which is C... MS. MOLAYEM: A Objection. Three. Three, I could see myself purchasing drugs for myself. 13 The other photographs, again, I have no idea when 14 those were taken, what they were taken of, whether 15 they were even of the building, so you're asking me to 16 speculate and I won't speculate any further than what 17 I already have. 18 Q Well, I'm asking you to take this as true, because, 19 one, it is. 20 this deposition, this C1 and 2 is the Kayem 21 Pharmaceuticals entrance and facility in this 22 building. 23 But let's just assume for the sake of Would you buy drugs from this place? MR. SWEDLUND: Objection. 24 Speculation. 25 that it's irrelevant. Asked and answered. Lack of foundation. I further object Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 38 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Well, would you -- let's go back to C3 where you say 2 that you might buy drugs from there. 3 apartment building. 4 store. 5 supplier such as what we might have here like 6 Wal-Mart. 7 buy drugs for your family? 8 It's not a Would you go to an apartment building and Foundation. 10 It's not an office. It's not a registered pharmacy or any sort of MR. SWEDLUND: 9 But this is an Objection. Speculation. Asked and answered. As far as I'm concerned at this point, you're badgering the witness. 11 Q Would you buy drugs from this? 12 A I've seen numerous businesses in this community and 13 many others I visited where there are businesses on 14 the ground floor and apartment or living arrangements 15 on top. 16 because you tell me that's an apartment building 17 doesn't automatically mean I shouldn't visit the 18 business on the ground floor. They exist in downtown Sioux Falls. So 19 Q It would give you some pause, though, wouldn't it? 20 A You're asking me to speculate or you're trying to put 21 words in my mouth, and I'm not going to allow you to 22 do that. 23 24 25 Q Well, I'm just asking you, wouldn't you pause for a minute? MR. SWEDLUND: Asked and answered. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 39 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A I think about those decisions all the time. I choose 2 my family's pharmacy with pause and consideration to 3 ensure that I'm getting what I pay for and that it's a 4 place I want to do business with. 5 Q At the time that you bought the drugs from Kayem 6 Pharmaceuticals, were you aware that this is what this 7 facility looked like? 8 A I have never seen those pictures before today. 9 Q Did you investigate what it looked like? 10 A I have never seen those pictures before today. 11 Q Did you do any background on, check or do any sort of 12 investigation into Kayem to see what kind of business 13 it was? 14 A I did not. 15 Q Did anybody in your supervision or control do that? 16 A I believe counsel did. 17 Q All right. 18 And when you say "counsel," who would that be? 19 A The institution lawyer, Doug Loen, at the time. 20 Q When you received the drugs from Kayem 21 22 Pharmaceuticals, why did you have them tested? A Just to be safe rather than sorry. To ensure we got 23 what we paid for, and they, in fact, were what we 24 purchased. 25 Q What made you suspicious they may not be what you paid Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 40 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 for? 2 MR. SWEDLUND: I'm going to object. Assuming 3 facts not in evidence, and you're assuming he's 4 suspicious. 5 Q Well, are you suspicious -- 6 A I wasn't suspicious. I was careful. I was prudent. 7 I wanted to ensure that there was no doubt that they 8 were what we purchased. 9 wise thing to do if you're going to be charged with And I believe that that's a 10 carrying out a safe and humane execution with no 11 problems. 12 obligated to do that as the leader of that 13 organization. 14 Q You're obligated to do that or I'm When you obtained drugs, sodium thiopental from other 15 facilities before Kayem Pharmaceuticals, did you have 16 those drugs tested? 17 A I don't recall if those were tested in 2007 or not. 18 Q So why would you have these drugs from Kayem 19 20 Pharmaceuticals tested if you didn't test other drugs? A 21 I didn't say I didn't test. they were. I said I don't recall if I don't know for sure, sir. 22 Q Who would know? 23 A I imagine we could go back and check the record. 24 lawyer -- again, Doug Loen -- may have a clearer 25 recollection than me. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 My 41 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q 2 3 penitentiaries in the state. A 4 5 I don't buy any drugs for the penitentiary of the state. Q 6 7 You must buy a lot of drugs at the -- for all the But somebody under your supervision and control probably does, right? A The Department of Health in South Dakota does. We're 8 rather unique in South Dakota how we purchase and 9 provide medical care for our inmates. 10 Q 11 Do they routinely have drugs tested that they buy from suppliers? 12 A I don't know what their procedures are. 13 Q How did you choose the laboratory in Oklahoma to have 14 these drugs tested? 15 A Advice of counsel as I recall. 16 Q Did anybody tell you that you should have the drugs 17 tested? 18 MR. SWEDLUND: 19 20 Q Did anybody tell you that you needed to have these drugs tested? 22 MR. SWEDLUND: Q 24 25 Calls for attorney-client privilege. 21 23 Objection. Objection. It's privileged. Did the Drug Enforcement Administration tell you you needed to have them tested? A No. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 42 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q 2 Did the Food and Drug Administration tell you you needed to have them tested? 3 A No. 4 Q Did they advise you it would be wise to do that? 5 A No. 6 Q Did you consult with the secretary about whether to 7 have them tested? 8 A Yes, I believe so. 9 Q And why did you consult with him about that? 10 A Because, again, he's my boss. 11 Q All right. Do you recall whether you had the Kayem 12 Pharmaceuticals drugs tested before or after the DEA 13 contacted you? 14 MR. SWEDLUND: 15 16 Sorry, what was the question again? Q Do you recall whether you had the Kayem 17 Pharmaceuticals drugs tested for their efficacy before 18 or after the DEA contacted you about their 19 importation? 20 MR. SWEDLUND: I'm going to object. 21 facts not in evidence. 22 you're talking about. 23 MR. BRADEN: Assumes I'm not sure what DEA contact Well, they were tested -- 24 Q Do you recall when they were tested? 25 A No, I don't. I know it was shortly after their Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 43 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 arrival. Q 3 Okay. And all that process was handled by Doug Loen; is that right? 4 A Yes. 5 Q All right. 6 MR. SWEDLUND: 7 8 Is it on his advice you had them tested? Counsel, you're asking attorney-client privilege. Q 9 All right. How many times have you written or produced or generated an execution protocol? And 10 basically I know that you refer to it as ERM A.12(B). 11 How many versions have there been basically? 12 A More than the one obviously. 13 Q When's the most recent protocol that you've prepared? 14 A Last week actually. 15 Q Okay. 16 Probably three times. And that's the ERM A.12(B) which is dated October 13, 2011; is that right? 17 A Yes, sir. 18 Q Okay. And let's mark this as D. of it. And here's a copy for... 19 20 And there's a copy (Exhibit D marked for identification.) 21 Q Did you draft this yourself, sir? 22 A I was involved in that process with counsel. 23 Q What was your role in drafting it? 24 A My role would have been consulting, meeting with, 25 considering advice of counsel. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 44 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q And when you say "counsel," who are you referring to? 2 A Attorney general's office and also our internal 3 counsel. 4 Q Okay. 5 A Department of Corrections internal counsel. 6 Q Did you have a number of meetings about this? 7 A We had several, yes, sir. 8 Q Okay. 9 10 Who in the attorney general's office did you work with on this? A 11 Paul that is sitting with us today, and Susan with us today. 12 Q Okay. And anybody else? 13 A Sherri. Sherri Wald. 14 THE WITNESS: 15 MR. SWEDLUND: 16 17 Q All right. Right? If you would look at this document, which we've marked as D I think. 18 MR. BRADEN: 19 MS. MOLAYEM: 20 MR. BRADEN: 21 MR. SWEDLUND: 22 MS. MOLAYEM: 23 MR. SWEDLUND: 24 MR. BRADEN: 25 (Nods head.) Is that right? Uh-huh. Okay. We already have a D. That's B. This is D. That's the confusing document. This is A that we marked that is from another deposition. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 45 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 MR. SWEDLUND: 2 did? 3 MR. BRADEN: 4 MR. SWEDLUND: 5 We remarked it, is that what we Q Yeah. I apologize. That's fine. If you look at paragraph A3 in this protocol, it 6 mentions in here that two complete sets of substances 7 used to conduct an execution shall be kept in 8 separate, secure locations. 9 drugs kept? How many locations are 10 A Drugs in general? 11 Q Well, drugs that you're going to use -- 12 A For the execution. 13 Q -- for the execution. 14 A There's two locations they can be kept -- 15 Q Okay. 16 A -- at the facility. 17 Q All right. 18 Are they actually kept in both those locations? 19 A Not at the present time, no. 20 Q What are those two locations? 21 MR. SWEDLUND: 22 23 Simply say what the locations are but not where the locations are. A 24 25 Just a second. I'm not sure I'm clear, but would you restate the question for me, please? Q The protocol mentions separate locations -Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 46 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 MR. SWEDLUND: Just a second here. The 2 protocol -- you're referring to a different point in 3 time. 4 day-to-day. 5 where they're stored. 6 MR. BRADEN: 7 MR. SWEDLUND: 8 Q 9 Well, let's make that clear. Yes. Under A3 under ERM A.12(B), which is Exhibit D here -Which says on the scheduled date of execution. 11 MR. BRADEN: Q 13 14 This is in preparation for an execution MR. SWEDLUND: 10 12 This doesn't cover where they're stored from Right. On the date of the execution, where are the drugs kept? A One set would be kept outside of the walls of the 15 prison, and another set of drugs inside the walls of 16 the prison. 17 Q And why is that? 18 A Just so that we have two distinct sets of drugs in two 19 different locations in the highly unlikely event 20 something could happen to compromise one of the sets 21 of drugs. 22 Q And where outside the prison are they kept? 23 A On the prison grounds in a separate building. 24 Q Okay. 25 But outside the walls of the actual institution? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 47 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A Outside the secure perimeter. 2 Q Right. 3 4 7 Where are they kept prior to an execution, the drugs? A 5 6 Okay. Outside the walls of the prison. In a building outside the walls of the prison. Q And they're all kept in one location? MR. SWEDLUND: Just a minute. Warden, just 8 identify the name of the place where they're kept. 9 But beyond that, don't identify where that place is. 10 11 THE WITNESS: Okay. The building that I'm referring to? 12 MR. SWEDLUND: 13 MR. BRADEN: 14 MR. SWEDLUND: No, no, not the building. Yes. Simply the name. One of the 15 places is in the armory, but where the armory is we're 16 not going to tell you for obvious reasons. 17 MR. BRADEN: 18 MR. SWEDLUND: 19 MR. BRADEN: 20 MR. SWEDLUND: 21 22 23 its armory is. But are you asserting a privilege? Yeah. What privilege is that? The prison doesn't disclose where That's a security issue. MR. BRADEN: Sorry. What evidentiary privilege are you asserting? 24 MR. SWEDLUND: 25 MR. BRADEN: We don't need to go around -- Well, you know, Paul, we do. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 The 48 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 rules are clear. 2 and there's privileges -- 3 There's rules of evidence about this MR. SWEDLUND: I understand. You've lectured me 4 on the rules enough, okay? 5 matter of security, we're not going to tell you where 6 our armory is located. 7 right, that -- 8 MR. BRADEN: 9 MR. SWEDLUND: 10 Now I'm telling you, as a You can understand that, No, I can't understand --- it's not a matter of general knowledge? 11 MR. BRADEN: I can't understand you disregarding 12 the rules of evidence here. 13 Unless you assert a privilege set out in the evidence 14 code, you have to answer the question or else you have 15 to seek a protective order. 16 MR. SWEDLUND: Counsel, we don't really need to 17 have this argument again. 18 the prison armory is. 19 MR. BRADEN: 20 I'm not telling you where All right. Ma'am, court reporter, would you mark that question, please? 21 22 And it's really clear: MR. SWEDLUND: Q Thank you. How are those drugs stored prior to the execution in 23 the armory? Are they just kept -- I mean are they 24 kept in a cabinet or are they kept in a safe or how 25 are they kept and stored? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 49 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 MR. SWEDLUND: A 3 Go ahead. They're kept in locked metal containers that are secured to the building. 4 Q Who has access to that? 5 A Very few people. Those folks who have access to the 6 armory can access the keys to the drug containers with 7 prior approval from me or my designee. 8 Q And who's your designee? 9 A It would be my deputy warden. 10 Q And who is that? 11 A Deputy Warden Daryl Slykhuis. 12 Q Do you have a key to the container or however -- 13 whatever they're kept in? 14 A On me? 15 Q Well, not at this time. 16 But you have the key that controls that; is that right? 17 A I don't carry that key. 18 Q All right. I mean -- It's not in my office, no. Do you know how they're kept? 19 kept refrigerated or whatever? 20 in a cabinet or... Are they I mean are they just 21 A They're kept in a climate-controlled room. 22 Q When you say "climate-controlled room," what do you 23 mean by that, air-conditioned? 24 A Air-conditioned and dehumidified. 25 Q Is it specially done, or is it just like a normal Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 50 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 office that just has an air conditioner in it? A 3 It's a normal office with an air conditioner; however, we monitor the temperatures and the humidity levels. 4 Q And why do you do that? 5 A To ensure that we have proper temperatures and 6 humidity levels for storing that drug. 7 Q Okay. If you will look at paragraph A5 of Exhibit D. 8 A (Witness reviewing document.) 9 Q You mention in here that this ambulance that's waiting Yeah. 10 or standing by is equipped with supplies and equipment 11 needed to revive an individual who has been injected 12 with one or more of the substances. 13 equipment are those? 14 A 15 16 I don't know other than what would normally be on an advanced ambulance service. Q 17 18 What supplies and Who in your supervision or control makes arrangements for this ambulance to be standing by? A One of the staff who's assigned to carry out the 19 execution and take care of duties as assigned to 20 ensure the ambulance is standing by. 21 Q Do you know who that is? 22 A No, it could change. 23 24 25 It could be a different person every time. Q Do they make arrangements with the ambulance staff to have any special equipment to deal with these types of Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 51 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 chemicals or drugs? No. And I don't believe they would be qualified to do 3 so. They would just tell the ambulance crew what 4 might be expected of them. 5 A Q Do you know what drugs or equipment would be needed to 6 revive somebody who's been poisoned with sodium 7 thiopental or pentobarbital or any of the drugs used 8 in the lethal injection? 9 A 10 I do not. MR. SWEDLUND: 11 I'll object to the word "poisoned." 12 Q Where does this ambulance stand by? 13 A Inside the prison. Inside the secure perimeter of the 14 prison within probably a hundred yards of the 15 execution area. 16 Q 17 Do the ambulance staff or EMTs or whatever are on an ambulance, do they wait in the ambulance? 18 A Paramedics. 19 Q Is there -- what communication does you or your team 20 21 And, yes, they're with the ambulance. have with the ambulance, do you know? A One of my staff will be with the ambulance crew with a 22 two-way radio. 23 the execution room. 24 25 Q They would have immediate contact with How long would it take this -- the paramedics or the ambulance staff to reach the person being executed? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 52 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A Probably within a minute. 2 Q Do you interview or assess the qualifications of the 3 paramedics to deal with reviving somebody who is 4 suffering from the use of these drugs? 5 A I do not. 6 Q Does anybody in your staff do that? 7 A Not to my knowledge. 8 Q Is this ambulance part of the Department of 9 Corrections or is this an independent ambulance 10 service or do you know? 11 A Independent. 12 Q Okay. If you look on D in paragraph B1, you mention 13 in here that -- or the protocol states that the 14 execution shall be carried out by an intravenous 15 injection, shall be performed by persons trained to 16 perform the venipuncture. 17 look at to assess whether they've been trained? 18 A 19 What qualifications do you Look at their qualifications, whether an EMT, a phlebotomist, paramedic, a nurse, either an LPN or RN. 20 Q How do you select these people? 21 A By looking at their qualifications. 22 Q Do they apply to be part of this team, or do you go 23 and ask them to be part of the team? 24 A Both actually. 25 Q Okay. Do people apply that you reject? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 53 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A Not to this date. 2 Q Do they provide you with résumés? 3 A No. 4 Q Do you do any criminal background checks on them? 5 A I don't, no. 6 Q Does anybody in your supervision or control do that? 7 A Not in my supervision or control. 8 Q Do you know whether any of these people have ever had 9 criminal background checks run on them? 10 A They have because of their positions. 11 Q Are they employees of the Department of Corrections? 12 MR. SWEDLUND: Well, don't answer that. That 13 would allow them to identify who the executioners are, 14 and the court has protected that. 15 Q 16 17 Well, first off, are you asserting a privilege? MR. SWEDLUND: Q All right. I'm not asking you to name these people. 18 I'm just asking: 19 of Corrections? 20 Yes, the court order. Are they employees of the Department MR. SWEDLUND: Mr. Braden, it's a violation of 21 state law to reveal the identities of the 22 executioners. 23 lead or could lead to the identification of who the 24 executioners are. 25 violating state law or violating the court's order. The information you're seeking would So I'm not going to have my client Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 54 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 You're asking for identifying information. 2 have the question certified; that would be all right. 3 Q 4 (By Mr. Braden) Are you asserting a privilege, warden? 5 MR. SWEDLUND: 6 MR. BRADEN: 7 record. 8 courthouse. 9 I mean this is all going to wind up in the I've got to make it clear. I'm not -- He's following the advice of counsel. A 12 13 He's -- I have to make it clear for the MR. SWEDLUND: 10 11 Understand, sir, following the advice of counsel once again. Q And you understand I'm not asking for the name or the 14 identity of these people. 15 employed by the Department of Corrections. 16 MR. SWEDLUND: 17 18 I'm just asking if they're You're asking for identifying information. A 19 I understand the question. MR. BRADEN: 20 21 So you can I'd ask the court reporter to certify that question, please. Q Do you or anybody in your supervision and control 22 obtain licenses or certificates that these people 23 might hold, or do you just take them at their word 24 that they're certified? 25 A We do. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 55 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Okay. 2 A I'm sorry, that was a two-part question. 3 4 I'll try to go to the meat of the question. Q 5 6 That was a stupid question on my part. Okay. And that was badly asked on my part. I'm sorry. A We do -- 7 MR. SWEDLUND: 8 THE WITNESS: 9 MR. SWEDLUND: And -Sorry, Paul. This entire line of questioning 10 has occurred without any reference to time frame. 11 you talking about the Page execution? 12 about how it would occur under the current protocol? 13 Q Are Are you talking (By Mr. Braden) Let me make this clear. I'm just 14 talking about under this current protocol right now. 15 We'll get to the Page execution in a little bit. 16 Under this protocol right now, for some reason -- 17 let's pretend there was going to be an execution 18 tomorrow and you were having to pick these people. 19 you take them at their word, or do you obtain copies 20 of their certificates or licenses or whatever? Do 21 A I would receive copies of and verify their licensure. 22 Q And do you do that, or does somebody under your 23 24 25 supervision and control do that? A Somebody under my supervision and control would do that and report to me. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 56 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q And who would that be? 2 A Most likely it would be my counsel. 3 Q Okay. 4 A Susan here. 5 Q Okay. And that's Susan here? Under paragraph 3 of that same section B, it 6 mentions that the person that is going to insert an 7 intravenous needle needs to be certified or licensed 8 and then it lists a number of things here -- medical 9 doctor, nurse, a military corpsman. Are all those 10 different professions in there that are listed, are 11 they all the same? 12 A All the same? 13 Q In the sense that -- I mean is the military corpsman 14 No. equal to a doctor? 15 A No. 16 Q Okay. 17 So there's a varying degree of training on these; is that right? 18 A I would agree with that. 19 Q Okay. Out of these -- this list of different 20 professions here, which is the most likely one that 21 you would use, the Department of Corrections, do you 22 know? 23 A I would look at them all I guess. You know, if you 24 want me to speculate, which I think is where you're 25 asking me to go, I would consider any and all of Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 57 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 those. Q 3 And that's why they're under my protocol. Now under the statutes of South Dakota, a medical doctor is not allowed to participate; is that right? 4 MR. SWEDLUND: 5 Legal conclusion. Objection. Calls for speculation. Medical conclusion. 6 Q Do you use a physician? 7 A We have not. 8 Q Have you ever used a physician? 9 A We have not. 10 Q Have you ever used a registered nurse? 11 A I believe you may be ticking these off again -- 12 13 THE WITNESS: A And correct me if I'm wrong, Paul. -- in terms of trying to narrow down the person who 14 may have participated in a previous execution by 15 getting to a point where you have decided or 16 determined which of these experts we utilized. 17 Q 18 Have you ever used a registered nurse? MR. SWEDLUND: I think the warden has made a good 19 point. 20 past executioners, and that would be a violation of 21 state law to provide information that would lead to 22 the identity of those people. 23 Q That you're trying to get to the identity of Well, warden, not to -- I just need for you to tell me 24 you're either going to answer or not going to answer. 25 Have you ever used a registered nurse? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 58 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A I'm not going to answer the question on advice of 2 counsel, and I believe that you're trying to identify 3 the executioner. 4 MR. BRADEN: 5 And I'd ask the court reporter to certify that question, please. 6 Q Have you ever used a certified medical assistant? 7 A Same answer. 8 MR. BRADEN: 9 And I'd ask the court reporter to certify that. 10 Q Have you ever used a licensed practical nurse? 11 A Same answer. 12 MR. BRADEN: 13 And, again, I'd ask that that be certified. 14 Q Have you ever used a phlebotomist? 15 A Same answer. 16 Q Do you know what a phlebotomist is? 17 A I do. 18 Q All right. 19 Have you ever used -- MR. BRADEN: 20 And, again, I ask ma'am, court reporter to certify that question. 21 Q Have you ever used a paramedic? 22 A Same answer. 23 MR. BRADEN: Again, I'd ask that to be certified. 24 Q Have you ever used an emergency medical technician? 25 A Same answer. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 59 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 MR. BRADEN: Again, I'd ask that to be certified. 2 Q Have you ever used a military corpsman? 3 A Same answer, sir. 4 Q All right. Again -- and I may have asked you this, 5 but just making it clear. 6 persons -- I assume you use some of these. 7 check their certifications or licenses before you 8 obtain their services? 9 A 10 Do you check these Do you I previously answered that question, and the answer is, yes, I do. 11 Q Okay. 12 A Or someone on my staff does. 13 Q And you obtain copies of their license? 14 A I believe they become part of a record, yes. 15 Q Do you solicit these people or do they volunteer? 16 A As I stated earlier, both. 17 Q In paragraph B4 of Exhibit D, the protocol mentions 18 here that these persons are selected by you and that 19 they have to demonstrate their proficiency through 20 relevant training. 21 make this demonstration? How do they do that? 22 A By presenting their credentials. 23 Q Okay. 24 A I become aware of it. 25 How do they And they do that to you; is that right? personally. They don't do that to me But again, someone on my staff would Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 60 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 certify them as qualified. Q Okay. Now talking for just a little bit about the 3 Elijah Page execution. 4 executioners in that was a paramedic from documents 5 that's been provided to us by your counsel. 6 disagree with that? 7 MR. SWEDLUND: 8 I'd rather not assume. 9 MR. BRADEN: We know that one of the Do you Can you provide the documents? Facts not in evidence. Well, this is -- I'm looking at a 10 document that was provided to us from the attorney 11 general's office -- 12 MR. SWEDLUND: 13 MR. BRADEN: 14 MR. SWEDLUND: Sure. -- about qualifications. Can I just see it? You've asked 15 us to verify that this person was a paramedic, and I 16 don't know that he or she was. 17 you talking about: 18 MR. BRADEN: 19 MR. SWEDLUND: 20 MR. BRADEN: 21 MR. SWEDLUND: 22 23 24 25 Which individual are John or Jim? (No verbal response.) Are you talking about John or Jim? Well, let's start with John Doe. Is this an exact copy of the document you received from us or is retyped? MR. BRADEN: This is an exact copy of what we received from you. Well, let's mark that as Exhibit E. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 61 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 (Exhibit E marked for identification.) Q 3 (By Mr. Braden) And let's just look for a minute here at -- do you know what this is? 4 A I've never seen this before. 5 Q Okay. 6 Exhibit E? MR. SWEDLUND: 7 What is the marking in the upper right-hand corner, DEM -- 8 MR. BRADEN: 9 That's our internal filing number that we should have removed. 10 It helps us keep track of our lots of documents we have in our office. 11 MR. SWEDLUND: 12 MR. BRADEN: Okay. So DEM000137 is my office's marking 13 for tracking documents. 14 MR. SWEDLUND: 15 MR. BRADEN: So internal Bates number. Yeah. Other than that, this is an 16 exact copy of the document presented to us by the 17 attorney general's office. 18 Q (By Mr. Braden) In looking at this document, John Doe 19 here is mentioned to have been a paramedic and be 20 licensed. 21 A I do not. 22 Q All right. 23 Who has those licenses now, do you know? Do you know who assessed John Doe? Doug Loen? 24 A Doug Loen for sure and maybe others. 25 Q Did you interview John Doe? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 Was it 62 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A 2 3 yes, sir. Q 4 5 I am aware of who he is, and I have talked to him, But did you interview him for his role that he took on in this execution? A Maybe after his qualifications had been established 6 and we -- interview as for the job, no. 7 with him about the job and about his qualifications, 8 yes. 9 Q But visit So in a sense, what happened is, Doug Loen or somebody 10 else in your office kind of preliminarily assessed 11 this guy, and I don't mean to sound flip, but then 12 brought him to you and then you discussed what his 13 role would be; is that right? 14 A I think that's fair, yes, sir. 15 Q Okay. 16 A Yes. 17 Q All right. And is that the same with Jim Doe? Did you or anybody on your staff determine 18 his ability to insert or access intravenous -- access 19 to the veins? 20 MR. SWEDLUND: 21 MR. BRADEN: 22 MR. SWEDLUND: Who are you talking about? Jim Doe. Jim Doe? 23 A I don't think -- Jim did not access the veins. 24 Q All right. 25 Was Jim basically the pusher then? that -Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 Is 63 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A In layman's terms, I assume, yes, sir. 2 Q Right. 3 Okay. And John Doe was the sticker under your protocol? 4 A Again, in layman's terms, yes. 5 Q Okay. 6 7 Did Jim Doe have any special qualifications on pushing or administering drugs? A Prior -- besides his experience and participating in, 8 as this document states, twenty successful executions 9 in several states, I'm not aware of any other. 10 Q All right. Did you assess any other background for 11 this guy other than -- for Jim Doe other than knowing 12 that he had been involved in other executions? 13 A 14 15 I think experience primarily was the main consideration. Q All right. And how do you know those executions were 16 successful? I mean the list mentions twenty 17 successful executions. 18 successful? How do you know they were 19 A I actually verified more than one. 20 Q And which ones did you verify, do you know? 21 A Texas executions. 22 Q Okay. 23 Were they mainly all Texas executions? MR. SWEDLUND: Well, I'm going to object from 24 here on out to the disclosure of where this person 25 worked could lead to his identification so... Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 64 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 MR. BRADEN: 2 3 to mark -Q 4 5 Let me just -- I assume you're not going to answer that question; is that correct? A 6 That's correct. MR. BRADEN: 7 8 Well, we'll ask the court reporter So I'm going to ask the court reporter to mark that question, please, for us. Q 9 Do you know whether he was involved in other executions besides in Texas? 10 A He was. 11 Q And do you know what those states were? 12 MR. SWEDLUND: 13 14 to answer. A 15 16 Q And just to make the record really clear, are you asserting a privilege? A 19 On the advice of counsel not to answer that question. MR. BRADEN: 20 21 I'm not going to answer that question on advice of counsel. 17 18 No, I'm going to instruct him not I'm going to ask the court reporter to mark that question as well. Q Other than these executions that he had been involved 22 in in the past, did he have any other qualifications 23 that recommended him to you as an executioner in this 24 proceeding? 25 A Nothing that I can recall. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 65 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Do you know what his training was other than these? 2 A Not that I recall. 3 Q Did anybody on your staff or under your control assess 4 his background, his criminal background, or did you 5 make any sort of background checks like that? 6 A As I already stated, my staff did not. 7 Q All right. 8 9 MR. SWEDLUND: A 10 11 Is Jim Doe a resident of South Dakota? Don't answer. I'm not going to answer the question on the advice of counsel. Q All right. And I'll assume that -- well, just to make 12 the record clear, I would ask you if you're asserting 13 a privilege and I'd ask the court reporter to mark 14 that question, please. 15 Do you know if John Doe, the first person up 16 here, was he qualified to establish a central line? 17 Well, first of all, do you know what a central line 18 is? 19 A No, I do not. 20 Q Do you know if Jim -- or John Doe was qualified to 21 establish a central line? 22 A I do not. 23 Q Do you know if anybody in your staff or under your 24 25 control made that determination or assessed that? A I do not. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 66 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q 2 3 MR. SWEDLUND: A 4 5 Is John Doe a resident of South Dakota? Again... I refuse to answer the question on the advice of counsel. Q And again, I would ask you if you're asserting a 6 privilege and I'd ask the court reporter to mark that 7 question, please. 8 MR. BRADEN: 9 If you don't mind, I need a break for just a few minutes. 10 (Recess taken at 9:45 a.m. and reconvened at 9:52 11 12 Okay. a.m.) Q (By Mr. Braden) We're back on the record here. And 13 as I'm sure you're aware, all the stuff about you 14 being under oath still applies, warden. 15 turn in Exhibit D, which is ERM A.12(B), and if you'll 16 turn to the second page there and look at section C. 17 This section lists a number of drugs and chemicals 18 here. 19 A And so let's Why did you choose sodium thiopental? It's a drug that's been used successfully in thirty 20 some states to carry out executions, and so we decided 21 to adopt a similar protocol. 22 Q Okay. 23 A Yeah, it's an anesthetic. 24 Q Okay. 25 Do you know what sodium thiopental does? Do you know what an ultimate short-acting barbiturate is? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 67 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A 2 I don't think I could define it, no, other than what it seems to say. 3 Q Why in this section did you use choose pentobarbital? 4 A Again, it's another substance that's been successfully 5 utilized in multiple states to carry out executions 6 humanely. 7 Q 8 In making your determination to use one of -- or of the other of these drugs, did you consult anybody? 9 A Absolutely. 10 Q And who did you consult? 11 A Counsel. 12 Q And I assume by counsel, you mean Susan and Paul; is 13 that right? 14 A That's the two primaries, yes, sir. 15 Q Do you know what backgrounds they have in 16 pharmacology? 17 A No, I do not. 18 Q Do you know if they have any background in 19 20 21 22 pharmacology? A I have no idea. MR. SWEDLUND: pharmacology. 23 MR. BRADEN: 24 MR. SWEDLUND: 25 I have a doctorate from Harvard, Pardon, sir? I have a doctorate from Harvard, pharmacology. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 68 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 MR. BRADEN: 2 MS. MOLAYEM: Note for the record, he's smiling. 3 THE WITNESS: Well, I don't know if we're playing 4 5 for real here or not to be honest with you. Q 6 7 Okay. Is sodium thiopental and pentobarbital interchangeable? A I don't know. 8 MR. SWEDLUND: Objection. 9 mean by interchangeable. I don't know what you 10 Q Do they do exactly the same thing? 11 A They are both very powerful sedatives; I know that 12 13 much. Q 14 Okay. know if they're interchangeable? 15 16 A 17 18 No. MR. SWEDLUND: Same objection. I don't know. I would have to -- and I would assume and I'm not going to assume. Q 19 20 But in a chemical and medical sense, do you Okay. Why did you choose in this schedule pancuronium bromide? A It's a drug that's used in a lot of different states 21 as well that's been successfully used to carry out 22 humane executions. 23 Q Do you know what this drug does? 24 A It's a paralytic. 25 Q Do you know what it paralyzes? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 69 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A I believe it collapses primarily the diaphragm and 2 ceases the condemned with the ability to not breathe 3 any longer. 4 Q 5 All right. Did you consult anybody in your selection of that drug? 6 A Yes. 7 Q And would that be counsel again? 8 A Again, yes, counsel. 9 Q Why did you choose -- well, the next question is: 10 11 What is potassium chloride? A I thought I answered that. Oh, I'm sorry, we're on to 12 the next drug? Pancuronium bromide. Potassium 13 chloride is a drug that will interrupt the electrical 14 impulses to the heart, thus stopping the heart if 15 there's a heartbeat present. 16 Q And why did you choose that drug in this protocol? 17 A Again, that drug has been used successfully in dozens 18 of executions in thirty states or so. 19 Q Did you consult anybody in making your choice? 20 A Yes, counsel again. 21 Q Okay. Going back up to sodium thiopental, why did 22 you -- in listing this, why did you and writing this 23 protocol choose to administer 1.5 grams? 24 25 A Those were the doses recommended again with the states who had successfully executed inmates. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 70 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q All right. Did you or your representatives consult 2 other states in assessing this protocol or drafting 3 this protocol? 4 A Yes. 5 Q Do you know what states they consulted? 6 A Texas for sure, and I believe counsel consulted with 7 other states as well. 8 states were. And I can't tell you what those 9 Q Did you or anybody on your staff consult physicians? 10 A I did not. 11 Q Did anybody on your staff consult a physician? 12 A I don't know the answer to that question. 13 Q All right. Did anybody in your staff consult -- you 14 or anybody in your staff consult pharmacists about 15 these drugs? 16 A I did not. 17 Q All right. 18 Did anybody in your staff consult pharmacists? 19 A I don't know the answer to that question. 20 Q Do you have an in-house pharmacist at the Department 21 of Corrections? 22 A We do not. 23 Q Do you know -- if you look at this schedule here and 24 you can see it marked as No. 1 and No. 2 under C1, 25 you're giving two doses of 1.5 grams of sodium Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 71 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 thiopental, which equals -- and I'm not real good in 2 fractions, but that equals 3 grams. 3 whether that's a lethal dose or not? 4 A 5 Do you know I've certainly been told it is, and from firsthand experience, I believe it is. 6 Q Who told you it was a lethal dose? 7 A Again, the states that we have consulted with -- or 8 the state that I have consulted, and legal counsel who 9 have consulted with others as well. 10 Q 11 Do you know whether pancuronium bromide is painful when it's administered? 12 A I do not. 13 Q Do you know whether potassium chloride is painful when 14 it's administered? 15 A I do not have any firsthand information, no. 16 Q Why did you adopt under this protocol -- and you'll 17 find it on page 3 of Exhibit D -- a one-drug lethal 18 injection process? 19 A Again, other states have done this. And it's been 20 litigated to my knowledge, and it's been determined to 21 be a very safe and humane way to execute an inmate 22 without causing them pain or duress. 23 Q And just to make it clear to me, on this protocol, 24 basically what paragraph 2 and paragraph 3 on page 3 25 of Exhibit D are talking about are two different Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 72 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 one-drug protocols; is that right? 2 A Yes, that's right. 3 Q In other words, one using sodium thiopental and the 4 other using pentobarbital; is that correct? 5 A Yes. 6 Q Who decides which one to use at the time of execution? 7 A The secretary of corrections and I will decide. 8 Q All right. 9 Do you have a preference for one over the other? 10 A Do I personally? 11 Q Uh-huh. 12 A No. 13 Q This -- when you look at paragraph 2 on that page, it 14 looks to me like that adds up to 5 grams of sodium 15 thiopental. Do you know if that's a lethal dose? 16 A I've been told it is. 17 Q And who's told you that? 18 A The state of Texas for sure and counsel who's 19 20 consulted with experts. Q And if you look at paragraph 3, that adds up to 5 21 grams of pentobarbital. 22 lethal dose? Do you know whether that's a 23 A I've been told it is. 24 Q And again, by the state of Texas and counsel; is that 25 right? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 73 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A 2 3 Texas not in this case, but counsel and whoever they've consulted with. Q Okay. Can the condemned inmate choose which drug that 4 he's -- that you're going to use, or is that something 5 left solely to you and the secretary? 6 MR. SWEDLUND: 7 speaks for itself. 8 A The protocol Maybe I'm not -- have it available? 9 MR. SWEDLUND: 10 I'm going to object. Five on -- paragraph 5 at the top of page 4. 11 Q Let's talk about paragraph 5 for just a minute. 12 A Are you back on page 1? 13 Q We're on page 4 of D, paragraph 5. 14 MR. SWEDLUND: Right here (indicating). 15 A (Witness reviewing document.) 16 Q So do you -- under paragraph 5? 17 MR. SWEDLUND: 18 Can you give him a moment to read it? 19 MR. BRADEN: Oh, sure. 20 A (Witness reviewing document.) 21 Q Have you had a chance to read it, warden? 22 A I've reread the paragraph. 23 Q Okay. Under this paragraph it says that you as the 24 warden will give consideration to accommodate an 25 inmate's method of preference. What preference Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 74 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 will -- well, let me -- I'm stumbling on this 2 question. 3 different protocols that are used in this state -- the 4 three-drug, the two-drug, or the one-drug. 5 the inmate -- or would you let the inmate select the 6 drug or just the one-, two-, or three-drug protocol? I'm sorry. This mentions the three Do you let 7 A Ultimately, the decision is mine and the secretary's. 8 Q Right. 9 A The inmate can certainly express his preference. 10 Q I mean I know this is a little bit in the future, but 11 are you going to interview the inmate about this, or 12 how is that determination going to be made? 13 A 14 15 execution. Q 16 17 I will definitely talk to the inmate prior to the If the inmate doesn't express any preference, which drug would you use? A I don't think I can speculate on that today. I would 18 wait until that time and then would have to make the 19 decision. 20 Q 21 Well, what considerations do you take into account in making that decision? 22 A Availability of the drugs. 23 Q So having the sodium thiopental and the pentobarbital, 24 each as being a one-drug method so to speak, the 25 actual use of that is going to be based more on supply Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 75 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 than anything else; is that right? 2 A Are you talking about the one-drug method now? 3 Q Yes, sir. 4 A Either or? 5 Q Yes, sir. 6 A I think that would be the primary consideration. 7 Q If you had both of them, which one would you choose? 8 If you had both drugs available to you -- which you do 9 right now. 10 A 11 I don't know because I'd have to consult with my boss as well. He would weigh in on that decision, too. 12 Q Okay. 13 A Not to my knowledge. 14 Q All right. 15 Does he have a background in pharmacology? And we're talking about secretary of corrections here just to make it clear. 16 A We are. Sorry. 17 Q And who would he consult? 18 A I don't know. 19 Q Who would you consult besides him? 20 A Probably counsel. 21 Q Something that I want to -- well, let's stay on page 4 22 of Exhibit D, and let's look at section D here if you 23 would. 24 discusses that the staff selected for the execution 25 shall drill weekly for six to weight weeks. In paragraph 1 of section D, the protocol Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 How much 76 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 time do you normally have from the time an execution 2 date is set and when you carry that out? 3 much time did you have in the Elijah Page execution? I mean how 4 A I would expect months; probably five to six months. 5 Q Okay. 6 7 Who monitors or supervises or prepares these practice drills? A 8 There's several questions there: Who monitors, who prepares, and who conducts. 9 Q Well, let me -- 10 A Would you please ask them individually? 11 Q Yeah, let me -- who sets these up? 12 A I do. 13 Q Okay. 14 15 And do you do that individually without the assistance of anybody else? A 16 I'm not sure what you mean or where you're headed with that question. 17 Q Well, I know you're obviously a very busy man. 18 A Right. 19 Q So do you take time out of your schedule to set these 20 drills up and get all the players together you 21 yourself, or do you have an assistant or somebody help 22 you do that? 23 A I understand. Usually what will happen is we'll have 24 a meeting -- my deputy warden and Susan -- and we 25 would determine the appropriate dates. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 And then 77 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 deputy warden and staff would then get all the folks 2 in the area that need to be there. 3 be there and I would -- I would be the one conducting 4 or in charge of the exercise. 5 Q And then I would Do you have any drills or rehearsals so to speak for 6 this anytime other than when there's an execution date 7 set? 8 A Drills rehearsed of the actual execution? 9 Q Yes. 10 A No. 11 Q So until an execution date is set, there's no 12 preparation for an execution by rehearsing it so to 13 speak? 14 A That's correct. 15 Q Who all participates in these drills or rehearsals? 16 A Myself, the senior staff, counsel, the tie-down team. 17 18 That's about it. Q We've discussed Jim and John Doe earlier today. Are 19 they or who they -- are they involved in the -- were 20 they involved in the rehearsal for Elijah Page? 21 22 MR. SWEDLUND: You mind if I talk to my client about that? 23 MR. BRADEN: 24 (Recess taken at 10:09 a.m. and reconvened at 25 Sure. We can take a break. 10:15 a.m.) Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 78 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Okay. Warden, before the break, I think I asked you 2 if Jim and John Doe had participated in the practices 3 or rehearsals you had for the Elijah Page execution. 4 A They did not. 5 Q Okay. Will -- whoever will be Jim or John Joe in the 6 future, will they participate in any practice you 7 might have for a future execution? 8 A 9 10 I think going forward, yes. Yes, I would require that of them. Q Okay. Are there -- when you have these trainings, you 11 must -- I assume -- and I don't mean to put words in 12 your mouth -- but I assume you must have a general 13 meeting first before you begin the process, is that 14 right, of all the staff that's involved? 15 A That's fair, yes. 16 Q Are there any handouts or any visual aids used in 17 these meetings or trainings? 18 A No, other than maybe referring to the policy. 19 Q Are there any summaries of the policy or breakdowns of 20 21 individual roles given to the different participants? A No, we don't break the policy out per se and hand 22 pieces of the policy to different people, but there 23 are people with very unique roles. 24 tie-down team. 25 Q For example, the Right. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 79 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A And those folks have very specific jobs. So there 2 would be a handout I believe that would outline what 3 they do and who on that team does what. 4 Q 5 And do you know who has possession of those handouts now? 6 A I do not. 7 Q Okay. 8 9 And your recollection is those were made for the Elijah Page execution and the rehearsal phase? A I can't say today that I actually remember seeing 10 those, but I believe -- it would make sense -- that 11 there would be something like that available. 12 Q 13 Do you know, if they existed, who would have prepared them? 14 A I'm sorry? 15 Q If they exist, do you know who would have prepared 16 those checklists I guess for lack of a better term? 17 A Probably counsel, Doug Loen. 18 Q Okay. In the -- well, let me ask -- do you 19 contemplate in these drills that you actually obtain 20 I.V. access to a person as a practice in this, or is 21 it more kind of a dress rehearsal all but that? 22 you understand what I'm saying? 23 A If you're asking if we actually poke somebody -- 24 Q Right. 25 A -- or access a vein, we do not. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 Do 80 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q 2 Okay. How many times do you go through these rehearsals or practices? 3 A For the Elijah Page? 4 Q Well, let's do it two ways: 5 6 For the Elijah Page and then what do you anticipate in the future? A I think it's the same for both: Six to eight practice 7 runs until I'm satisfied that the team is well 8 rehearsed and know what their jobs are. 9 Q 10 11 And how many people actually participate overall in this? A I can give you a rough number. There are probably, on 12 the day of the rehearsals themselves, probably a dozen 13 staff or so there. 14 Q 15 Are there any people there outside that are nonemployees of the Department of Corrections? 16 A No. 17 Q All right. 18 19 Is attendance mandatory at these trainings? A 20 21 Referring to paragraph 3 -- I'm sorry. Yes. If you're going to participate, you need to be at the training. Q Looking at paragraph 3, this discusses the preparation 22 of the chemicals, and we're looking at page 4 of 23 Exhibit D -- section D, paragraph 3. 24 A I'm with you. 25 Q Where are all of those chemicals mixed or prepared? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 81 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 MR. SWEDLUND: 2 3 Are you talking prospectively or retroactively? Q Where were they prepared for the Elijah Page 4 execution, and where would they be prepared in the 5 future? 6 7 MR. SWEDLUND: A 8 9 Start with Elijah Page. They were prepared in the chemical room where the actual executioners are staged. Q Okay. And how -- and I'm talking about Elijah Page -- 10 how soon before his execution were they actually 11 prepared? 12 A I don't recall specifically. 13 Q And do you know who prepared them? 14 A It would have been the folks that were hired to come 15 16 in. Q 17 Okay. we're talking about? 18 A Yes. 19 Q Okay. 20 Do you know if any of those drugs need to be refrigerated? 21 22 So this would be the John and Jim Doe that MR. SWEDLUND: Q Objection. What drugs? Do you know if any of the chemicals used in the lethal 23 injection process need to be refrigerated after 24 they're prepared? 25 A My understanding: That there was refrigeration Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 82 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 required on -- I don't know specifically which drug 2 but on a drug or maybe more than one prior to the 3 mixing and possibly after. 4 Q Were they actually refrigerated? 5 A They were, yes. 6 Q Is there a refrigeration -- or refrigerator in the 7 8 chemical room? A 9 10 There may have been one brought in for the day of the execution. Q 11 12 I know that. I can't recall specifically. Well, if they weren't stored there, where would they have been refrigerated? A 13 In another area of the institution where there was refrigeration available. 14 Q Would that be in the armory? 15 A In the Elijah Page execution drugs, no. 16 Q So those chemicals were stored someplace besides the 17 chemical room or the armory at some point? 18 19 MR. SWEDLUND: Q I'm sorry, I didn't hear. 20 MR. SWEDLUND: 21 22 Again, which chemicals? I'm sorry, which chemicals? I don't know which chemicals you're talking about. Q Any three of them. Any three that were required to be 23 refrigerated were refrigerated someplace besides the 24 armory or the chemical room; is that right? 25 A Yes. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 83 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Do you know who -- after they were mixed in the 2 chemical room, do you know who took them to that 3 refrigeration place in the Elijah Page execution? 4 A No. 5 Q Do you know in paragraph 3 here that we're discussing 6 what manufacturer's instructions are you referring to 7 here when you talk about the temperatures of 8 22 degrees Celsius, 71.6 degrees Fahrenheit? 9 MR. SWEDLUND: I'm going to object to the extent 10 it requires the identification of any manufacturer. 11 If you're talking about a type of document, then you 12 can go ahead and answer. 13 14 (Ms. Anderson exits the room.) Q Well, let's make this clear. A manufacturer's 15 instruction is actually a type of document drug 16 companies produce to tell people -- doctors or 17 whoever -- how to deal with their drugs. 18 paragraph, you refer to in your protocol that there 19 are certain temperatures. 20 you're referring to here that needs this temperature 21 control? 22 A 23 24 25 So in this Do you know what drug No, I can just tell you that we would comply with whatever those recommendations were. Q Okay. Do you know who told you that there needed to be temperature control? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 84 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A No. 2 Q Do you recall whether the drugs that you bought from 3 Kayem Pharmaceuticals had manufacturer's instructions? 4 A No, I don't believe I've looked at them. 5 Q So you don't know? 6 A I don't know. 7 Q Do you know whether there are manufacturer's 8 instructions for the pentobarbital you have in your 9 possession? 10 A There is. 11 Q Do you inspect those drugs once those drugs are 12 13 obtained by your facility? A 14 MR. SWEDLUND: 15 Again, object. I don't know what you mean by inspect. 16 17 I do not inspect them. (Ms. Anderson enters the room.) Q 18 How is it that you know that there's -- sorry. Do you need to take a minute? 19 A No, no, I'm fine. Just a little raspy throat. 20 Q How is it that you are aware that there are 21 manufacturer's instructions for the pentobarbital, but 22 you don't know for sure whether there's any Kayem 23 sodium thiopental? 24 25 A I wasn't involved in receiving and storing the sodium thiopental. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 85 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q If you have a drug that doesn't have manufacturer's 2 instructions that tells you what to do, how would you 3 go about reconstituting these drugs or storing them? 4 A 5 6 I didn't say there wasn't drugs. I just said I wasn't aware of them -- or wasn't instructions for the drug. Q 7 Well -- but if there weren't, what would you do? MR. SWEDLUND: Objection. Calls for speculation. 8 Q I need for you to answer that question. 9 A I would do my -- 10 THE WITNESS: 11 MR. SWEDLUND: 12 A 13 14 I'm sorry, Paul? Go ahead. I would do my darndest to ensure my staff got that information. Q 15 Okay. And who would you talk to or seek out to get that information? 16 A I would start with my counsel. 17 Q Would you use any drugs that don't have manufacturer's 18 instructions? 19 A No, I don't think it would be prudent. 20 Q All right. 21 Let's move down in that same document, Exhibit D, section D, paragraph 8. 22 A (Witness reviewing document.) 23 Q In this paragraph in the second sentence, you talk 24 about the I.V. team possibly not being able to 25 establish a peripheral line or basically an I.V. line, Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 86 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 and in that event, they will establish a central line. 2 Who determines whether they can't establish a 3 peripheral line? 4 A 5 I think they would establish and then would communicate that. 6 Q Do you know what a peripheral line is? 7 A Yeah, it's a line that's accessed in an arm or maybe a 8 lower leg. 9 Q Have you ever established a peripheral line before? 10 A Have I? 11 Q Yes, sir. 12 A I have not. 13 Q Did you have any training about that in your EMT 14 15 training? A 16 When I took my EMT certification, that was not a requirement, no. 17 Q Okay. Do you know what a central line is? 18 A I've been told it's accessing a major vein in the 19 body. Usually the jugular vein or something very 20 substantial. 21 Q Do you know what a percutaneous method is? 22 A I do not. 23 Q Okay. 24 A It would have been counsel who consulted with medical 25 Who told you about a central line? experts. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 87 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Do you know what medical experts they consulted? 2 A No. 3 Q Did they consult doctors? 4 A I don't know for sure. 5 Q Do you think they did? 6 A Well, yes, I do. But again, I don't know what his 7 degree is. Whether he's a doctor of pharmaceutical or 8 an MD, I don't know. 9 Q Have you ever consulted Dr. Dershwitz? 10 A Have I personally? 11 Q Has counsel? 12 A Yes, to my knowledge they have. 13 Q In the creation of this protocol? 14 A Yes, I believe that to be so. 15 16 MR. SWEDLUND: Q 17 No. Object to the term "creation." Well, the drafting or the preparation of this protocol, has your counsel consulted Dr. Dershwitz? 18 A To my understanding, yes. 19 Q Do you know whether the establishment of a central 20 line is a one- or two-person job? 21 A I don't know that. 22 Q Are you aware that there are major problems that can 23 happen with the establishment of a central line if 24 it's not done correctly? 25 A Based on my training, I can imagine that it would be a Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 88 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 very serious ordeal if it wasn't done correctly. Q 3 4 Are you aware it could cause a stroke if it's not done properly? A 5 6 All right. I think anytime you access a vein or an artery that's a possibility. Q Do you -- when you select the I.V. team members for an 7 execution, do you assess whether they actually have 8 the training to establish a central line? 9 A 10 Specifically, I don't recall if that issue was discussed. 11 MR. SWEDLUND: Are you referring again in 12 connection with Page or what? 13 talking about? What time frame are you 14 A With Page I don't recall if that was discussed. 15 Q Okay. 16 A In the future I believe that would be important to 17 18 determine. Q 19 Okay. Are you aware that a central line is basically a surgical emergency procedure? 20 MR. SWEDLUND: 21 Object. Calls for speculation. Lacks foundation. 22 Q Do you have any knowledge of that, sir? 23 A Nobody's ever told me that, no. 24 Q Okay. 25 MR. SWEDLUND: Also assumes facts not in Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 89 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 evidence. Q 3 Do you know whether nondoctors can establish a central line? 4 A I don't know that for sure. 5 Q Who would you consult about that? 6 A Counsel. 7 Q Do you know whether counsel consulted Dr. Dershwitz 8 about that? 9 A I believe they did. 10 Q Did Dr. Dershwitz see any drafts of the October 13, 11 2011 protocol? 12 A It's my understanding he did. 13 Q Did he make changes or recommendations? 14 A I don't recall. 15 Q Did you see any drafts or edits that he may have done? 16 A I'm aware of one very minor, but it escapes me right 17 now. But it wasn't anything that was very 18 significant. 19 Q Is Dr. Dershwitz consulted frequently by your counsel? 20 A For this purpose of this drafting this ERM? 21 22 Q 23 24 25 Q MR. SWEDLUND: Objection. MR. SWEDLUND: Vague. Yes. For the establishment or creation of ERM A.12(B) dated October 13, 2011, was Dr. Dershwitz consulted Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 90 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 frequently by your counsel? 2 MR. SWEDLUND: Objection. Vague. 3 Q Was he consulted -- 4 A He was consulted. I don't know if it was frequently 5 or infrequently. I don't know the definition of that 6 or your definition of that. 7 Q Was he consulted more than two times? 8 A Yes. 9 Q Was he consulted more than five times? 10 A I don't know. 11 Q Do you know if he was consulted more than ten times? 12 A I don't know. 13 Q Okay. 14 A Well, yes, I can definitely testify to that under 15 16 All right. But we know it was more than two? oath. Q 17 Okay. Were you involved in any of those consultations? 18 A I have never talked to him like I stated earlier. 19 Q Have you ever met him? 20 A I have never met him. 21 Q Okay. 22 Did Dr. Dershwitz consult in the creation of the May 2011 protocol? 23 A I don't recall. I can't state for certain. 24 Q Do you think he did? 25 A I really don't want to guess. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 91 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Okay. All right. If you'll look on page 5 of the 2 protocol, paragraph 9 at the top of the page, in the 3 second sentence here you state in the protocol that if 4 the inmate desires, and it won't interfere with the 5 efficacy of the drugs basically, the inmate's head 6 will be propped up on a cushion. 7 would be -- would -- well, let me... 8 propping up somebody's head interfere with the 9 efficacy of any drug, do you know? What drug, if any, How would 10 A I'm not sure it would. 11 Q Did somebody tell you that it would? 12 A No. 13 Q All right. 14 A I think there might have been a concern that people Why is that sentence in there? 15 who needed to or were witnessing the execution and 16 those who needed to see the inmate's face and head, 17 that just so there was never a problem in doing that. 18 That the wedge or the pillow option would be 19 available. 20 Q 21 Okay. How would that interfere do you think propping somebody's head up? 22 A I don't know that it would. 23 Q Who would determine that? 24 A I would assume that the experts that were there to 25 administer the drugs. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 92 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Would that be a pharmacologist? 2 A Not necessarily. 3 Q Would it be a physician? 4 A Not necessarily. 5 Q Why did you include this if you're not really sure 6 7 what it does? A Well, I'm just -- I think I told you what it does in 8 terms of what I believe would be a use for it. 9 the inmate's face and head were visible. 10 Q So if In paragraph 11 you discuss how if after an hour 11 attempting to gain I.V. access it becomes difficult 12 that the secretary will be contacted. 13 isn't he? 14 A He is. 15 Q All right. 16 He's present, And he was present in the Elijah Page execution? 17 A He was. 18 Q What role does the secretary have at the actual 19 execution in those couple hours when the execution is 20 being carried out in the Elijah Page execution and 21 what role do you expect him to have in the future? 22 A The primary role for the secretary is to be the last 23 point of contact with the governor's office, the chief 24 justice of the South Dakota Supreme Court, and the 25 attorney general's office to ensure there are no Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 93 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 last-minute stays of execution. 2 none, he steps out as he did in the Page execution and 3 states such and tells me to proceed with the 4 execution. 5 Q Assuming there are Does he have any role in preparing or carrying out the 6 execution other than -- I know you consulted about the 7 choice of the drugs, but other than that, does he have 8 any other role? 9 A No. 10 Q Is he present at any of the trainings? 11 A You know what? He may have been present in at least 12 one of the training sessions that we did for the 13 Elijah Page execution. 14 I could be mistaken, but I believe Secretary Reisch 15 was there for at least one. 16 Q I seem to remember that. But Have you ever asked or contacted the secretary -- and 17 I guess on the Elijah Page execution would be the only 18 one -- saying that there was problems but he didn't go 19 to the governor? 20 A I'm sorry, I didn't understand the question. 21 Q Well, I guess -- let me back up here. His role is to 22 go to the governor if you're having problems getting 23 I.V. access; is that right? 24 25 A Go to the governor is not stating it correctly I don't believe. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 94 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Okay. 2 A He'll have the governor actually on the phone from the 3 execution room or from the chemical room. 4 Q Right. 5 A And he will check with the governor one last time at 6 the scheduled date and time of the execution to ask if 7 there is any planned stay. 8 assume something here now based on the ERM, which I'm 9 willing to do, that if there's a problem establishing So you're asking me to 10 the I.V. lines and I then would go to the secretary 11 and indicate such, then he would communicate that to 12 the governor. 13 Q Have you ever had a situation where you've gone to the 14 secretary but nothing's -- well, let me just strike 15 that. 16 execution? 17 A How does he signal to you to begin the Is it verbally or by hand signal or... He actually steps out of the room, opens a curtain so 18 that he and I have a face-to-face discussion in front 19 of the witnesses to the execution. 20 Q 21 22 And when you say "curtain," you're referring to the blinds that are mentioned -- A The blind that separates -- I'm sorry, we're talking 23 over one another. A blind that separates everybody 24 else from the actual execution room where Elijah Page, 25 myself, and Associate Warden Young were positioned Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 95 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 that night. Q Obviously I've never attended an execution in 3 South Dakota, but I've been witness to numerous 4 executions. 5 that have different roles in those last few minutes. 6 And some are on one side of the glass and some are on 7 the other side of the glass basically. 8 people are in the actual execution room with you 9 besides the inmate? And I know there's a variety of people How many 10 A One. One other. 11 Q And who's that? 12 A Associate Warden Darin Young. 13 Q And what's his role? 14 A Excuse me. 15 Q Sure. 16 A Darin was there that night as my direct assistant to 17 ensure that all the witnesses got into the four 18 distinct rooms on a timely manner, and once they were 19 all there, step inside the room where I'm at and 20 indicate such and then just be there available to me 21 in the event I needed something from anyone else maybe 22 in the course of the evening. 23 information or get that for me and then return. He could get that 24 Q In the future will he carry out that same role? 25 A Somebody in a like position would. Darin's no longer Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 96 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 my employee. Q 3 Okay. But somebody in his equivalent position would probably be there? 4 A I see that as happening, yes. 5 Q Will there be anybody else in the execution room 6 besides him -- that person and yourself and the 7 inmate? 8 A There's no plan as of today for that. 9 Q And during the Elijah Page execution, Jim Doe and John 10 Doe, were they both in the chemical room? 11 A Yes. 12 Q Okay. 13 A Secretary Reisch as we already established I believe. 14 Q But didn't you say he stepped out at some point? 15 A Stepped out to talk to me but then returned. 16 Q Oh, I see. Was there anybody else in the chemical room? Okay. And his -- you basically wait for 17 his okay so to speak to start the execution; is that 18 correct? 19 A There's an execution time that we've established when 20 the execution will take place. 21 and at that point in time, the secretary will make one 22 last check with those three agencies or entities that 23 I talked about, and then he will step out and instruct 24 me to proceed. 25 Q We'll reach that time, And you in your role as warden is the person or the Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 97 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 official that actually sets that time; is that right? 2 A After consulting with the secretary. 3 Q And what goes into your determination of whatever time 4 5 you pick for an execution? A Well, I take a couple things into consideration. 6 Based on what I've been told, it's important 7 throughout the country who have done executions and 8 that is we want to remember we're still running a 9 prison at the same time we're doing the execution. So 10 I think it's wise to enter into the execution when all 11 the rest of the prison is locked down so there are no 12 other potential distractions that you may have to deal 13 with. 14 South Dakota. So 10 p.m. was chosen for that reason in 15 In addition to that, we wanted to make sure that 16 we didn't do it terribly late into the night or early 17 morning because I know that there are Supreme Court 18 justices both on a federal level and a state level 19 that also have a role, or at least are asked whether 20 or not they're planning on intervening. 21 the governor's involved and a lot of other staff are 22 involved with the witnesses and folks that are there. 23 So I don't want to do it terribly late, but yet I 24 needed to do it late enough so the institution was in 25 a lockdown mode. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 And I know 98 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q 2 And do you anticipate that that probably will be your plan in the future? 3 A It worked extremely well the first time. 4 Q All right. Well, let's go down to paragraph 7 on that 5 same page 5. 6 and I just can't point to it right offhand -- that you 7 list a number of ways that you check for consciousness 8 after three minutes. 9 determinations to use -- well, let's just -- how do 10 11 I know that in this current protocol -- How do you come to those you check for consciousness of a person? A The obvious is just looking for life signs or looking 12 for signs of consciousness -- blinking, eye movement, 13 any other movement of the body. 14 heaving, breathing or not. 15 person being awake. 16 Q 17 18 You, know, chest Just any signs of the What training have you had in determining the consciousness of an individual? A 19 Well, I rely back on my EMT training to determine consciousness. 20 Q Do you have any other training other than that? 21 A No. 22 Q Is it possible that a person could be conscious but 23 yet not awake? 24 A I would assume so. 25 Q Is it possible a person could be conscious and not be Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 99 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 able to respond to your stimuli? 2 A I don't know. 3 Q Would you expect their eyes to be open or closed? 4 A My experience and what I've been told is their eyes 5 6 will be closed. Q You list in paragraph 8 actually a number of tests 7 that you plan to do to determine consciousness. Did 8 you do any of those in the Elijah Page execution? 9 A I did not. 10 Q How did you determine his consciousness or lack of 11 consciousness there? 12 A He stopped breathing. 13 Q What physical stimulation do you plan or expect to use 14 to assess consciousness? 15 A In future executions? 16 Q Yes, sir. 17 A My plan would be to bring in a current EMT or 18 paramedic or somebody with that training today and 19 they would establish and indicate to me in their 20 opinion whether the person was unconscious. 21 Q So in a roundabout way -- and I'm not trying to put 22 words in your mouth -- you're going to delegate that 23 assessment to somebody with a little bit more 24 training; is that fair? 25 A Yeah, I think that's fair. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 100 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q 2 3 Okay. What qualifications do you expect that person to have? A They should be, I think at a minimum as we indicated 4 earlier in the procedure, corpsman, paramedic, EMT, 5 somebody that's been trained to establish 6 consciousness. 7 Q 8 And in the Elijah Page execution, none of this was done; is that right? 9 A No. 10 Q So that assessment was made on your visual 11 12 observation; is that right? A 13 14 Yes. I observed him stop breathing and then I observed his skin color actually change. Q Well, just to make it a little bit more clear here, we 15 may be kind of talking about apples and oranges. What 16 I'm talking about is to determine whether somebody's 17 unconscious from the effects of the sodium 18 thiopental -- or actually Elijah Page -- before you 19 proceed with the other two chemicals. 20 your protocol at the time required a two-minute pause; 21 is that right? And I believe 22 A Yes, that sounds right. 23 Q Right. 24 A Yes. 25 Q And in that two-minute pause, did you make any And you did make that two-minute pause, right? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 101 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 assessment of Elijah Page at that time? A 3 4 Other than to see that he had ceased breathing and stopped breathing, no. Q 5 So did he stop breathing before the other two chemicals were administered? 6 A Yes. 7 Q Well, I know you're not a doctor, but are you 8 basically saying he died from the result of the 9 administration of the sodium thiopental? 10 A That's my opinion, yes. 11 Q Okay. 12 Do you know how many grams of sodium thiopental he was administered? 13 A No, I can't say for certain. 14 Q But you followed the protocol? 15 A That would be my understanding that they followed the 16 protocol. 17 Q So that was the ERM of June 14, 2007 I believe? 18 A We would have complied with the policy. 19 Q Right. 20 A I've been told by numerous sources that that's a 21 22 23 24 25 Okay. lethal dose. Q Right. MR. BRADEN: Hang on just one second. pause? (Pause.) Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 Can we 102 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q So is it a requirement under this protocol that an EMT 2 be present now, or is that something you plan to do in 3 the future? 4 A 5 That's something I plan to do in the future to determine consciousness. 6 Q So that's not set out in this protocol right yet? 7 A No. 8 MR. SWEDLUND: 9 Sorry, what was the question again? 10 A Yeah, want to make that clear, too. 11 Q Yeah. Go ahead. The question is -- or actually the warden said 12 that he most likely in the future will have an EMT 13 present to help him make the assessment of 14 consciousness before the lethal drugs are given after 15 in that three-minute window and -- 16 MR. SWEDLUND: Except that the thiopental itself 17 is lethal, but I understand what you mean. 18 two. 19 MR. BRADEN: 20 Right. But that EMT presence is not in the protocol currently. 21 MR. SWEDLUND: 22 MR. BRADEN: 23 MR. SWEDLUND: 24 MR. BRADEN: 25 The other Q Well, it is under paragraph 8. All right. Paragraph 8 on page... Five. Oh, I was on the wrong page. Sorry. (By Mr. Braden) But is -- do you plan to have this Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 103 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 EMT in the execution chamber with you? A 3 4 You know, maybe just right outside the door, but certainly right there at my beck and call. Q 5 Why in the protocol do you use the term "if possible"? What would prevent that? 6 A I don't see anything from preventing that. 7 Q Do you know why you use the term "if possible"? 8 mean... 9 A Counsel language. 10 Q Okay. 11 12 I If it's not possible for whatever reason, would you stop the execution? A Look, my goal here is to provide for a humane 13 execution, and I'm going to do everything in my power 14 to ensure that happens. 15 other certified person that are available to determine 16 and tell me whether or not the individual in their 17 opinion has been rendered unconscious. 18 Q And I will have an EMT or Well, basically you're just saying that if you don't 19 have an EMT there, if it's not possible, you're not 20 going to go forward with the execution? 21 A That's -- that's the way I'm going to conduct it, yes. 22 Q Okay. Thank you, sir. If you look at page 6, 23 paragraph 9, at the very top of the page you talk 24 about in your protocol that you will continuously 25 monitor the I.V. and infusion sites. How do you do Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 104 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 that or how are you planning to do that? A The Elijah Page execution, I can go back to that. I 3 personally observed after the lines had been inserted 4 and the saline solution was flowing that there was a 5 good flow and that the vein had been accessed by just 6 the sheer volume of liquid that was being put into the 7 inmate. 8 there's usually some weeping around the insertion site 9 or maybe even some swelling in that area. 10 11 Also, if the I.V. is inserted incorrectly, So I would look for obvious signs. Q Well, this may be a little repetitive, but I'm just 12 following my list here. 13 was wrong? 14 a little bit more detail, what would you be looking 15 for? 16 A What would indicate something I think you kind of answered that, but in I'd be watching the I.V. site primarily looking for 17 signs of swelling or signs of leakage from where the 18 needle had accessed the vein; whether it's bleeding or 19 clear fluid or any leakage whatsoever. 20 Q 21 The I.V. team that you refer to in this paragraph are not actually in the execution chamber, are they? 22 A No, they're in the chemical room. 23 Q Okay. 24 A Well, let me just make sure it's perfectly clear. 25 They're in the room during the insertion and Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 105 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 determining whether or not they have a good I.V. line 2 sort of accessing both rooms at that point in time. 3 But then just prior to the execution actually taking 4 place, then they're back in the chemical room and 5 that's where they stay. 6 Q And so they observe through the window then? 7 A Yes, sir. 8 Q All right. Do you know, sir, whether sodium 9 thiopental or pentobarbital, both, either -- how long 10 each one of them -- do they take -- let me start over. 11 I stumbled all over that one. 12 thiopental and pentobarbital take the same amount of 13 time to take affect on a human body? Does the sodium 14 A I've been told it's very similar. 15 Q Okay. 16 A Counsel. 17 Q Do you know what the timing of that is? 18 A No. 19 Q Okay. And who told you that? Within minutes, though. Why did you choose three minutes as a time to 20 make this assessment as opposed to five or two like 21 you had in your previous protocol? 22 A 23 Counsel recommendation after consulting with the experts. 24 Q Okay. 25 A Yes. Dr. Dershwitz? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 106 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 MR. SWEDLUND: I'm going to correct that. I 2 don't know that Dr. Dershwitz was involved in earlier 3 iterations of the protocol. 4 before I arrived there, I don't know who they 5 consulted with so -- but certainly, medical personnel 6 were consulted as well as the case law that is pretty 7 clear that three minutes is an appropriate time period 8 to wait. 9 A 10 11 When it was changed, Would you mind reasking the original question so that I have it right in my head? Q Let me see if I can think of -- well, the original 12 question I think was: Does sodium thiopental and 13 pentobarbital take effect in the same amount of time? 14 And my recollection was you think it does and you've 15 been told by counsel that you think it takes a similar 16 amount of time. 17 A That's right. 18 Q And then I followed up with: 19 Dr. Dershwitz about that? 20 of the question. 21 A 22 23 24 25 Did counsel consult I believe that's a summary So are we talking about -- are we going back to Elijah Page again, or are we going back to today's -- Q Well, today. MR. SWEDLUND: Actually, what you were talking about was the switch from two minutes to three Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 107 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 minutes. 2 MR. BRADEN: 3 Oh, Paul, you're totally right. I totally got that mixed up. 4 MR. SWEDLUND: 5 MR. BRADEN: 6 MR. SWEDLUND: Yeah. Yeah. And that occurred I can tell you 7 before I got there, and I don't know who was consulted 8 at that point in time about it. But we -- 9 MR. BRADEN: 10 THE WITNESS: I'm on the same page now, too. 11 MR. BRADEN: I got totally lost on that one. 12 THE WITNESS: 13 I -- That's all right. I'm on the same page now. 14 MR. SWEDLUND: Suffice it to say that since that 15 time, since I've been involved, we have verified that 16 three minutes is an appropriate time frame so far as 17 we've been told. 18 Q 19 Okay. And I guess just to make it clear, on page 9 of this protocol, that's your signature, right? 20 A Yes. 21 Q And so you approved all this? 22 A Yes. 23 Q And I know that you said that you've done this with 24 consultation of counsel, but basically this is your 25 protocol that you approved individually, right? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 108 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A Yes, sir. 2 Q Okay. 3 4 Did you write any of this protocol without consulting somebody? A No, I think it would have been a collaboration from 5 the very beginning, from the very first one that was 6 established, until it's been revised to today's form. 7 It was always under consultation with counsel, the 8 current boss, and maybe even others in general 9 meetings. 10 Q 11 12 so to speak the ERM? A 13 14 How often do you review with an eye towards amending Every year at a minimum and sooner than that if the situation warrants. Q 15 Okay. After the Elijah Page execution, did you have any debriefing meetings so to speak? 16 A Sure. 17 Q Do you know how many? 18 A No. 19 Q Were any minutes or notes taken of those meetings? 20 A No, I don't believe so. 21 Q Were there any handouts or -- 22 A No. 23 Q Okay. 24 A The team members. 25 Do you know who attended these meetings? The secretary on at least one occasion, Secretary Reisch. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 109 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q 2 Were there any changes made to the ERM as a result of the Elijah Page execution? 3 A I don't believe so, sir. 4 Q All right. Warden, I think we're getting pretty close 5 to the end, but if we could take a five-minute break 6 and regroup for a minute if you don't mind. 7 A Absolutely. 8 (Recess taken at 10:58 a.m. and reconvened at 9 10 11:06 a.m.) Q (By Mr. Braden) Warden, we talked some about the 11 Elijah Page execution off and on through this this 12 morning. 13 about that. 14 the Elijah Page execution? 15 I want to ask some questions specifically Who supplied the drugs, the chemicals in MR. SWEDLUND: 16 We're not going to answer. Instruct you not to answer on the advice of counsel. 17 Q Are you asserting a privilege? 18 A I'm not going to answer on advice of counsel. 19 Q Was the supplier -- 20 MR. BRADEN: 21 Again, I'd ask the court reporter to mark that question. 22 Q Was the supplier a United States manufacturer? 23 A Yes. 24 Q Who obtained those drugs at that time? 25 I mean I'm sure you didn't call whoever the supplier was. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 Who in 110 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 your supervision or control obtained those drugs? 2 MR. SWEDLUND: You can go ahead. 3 A It would have been me and my staff obviously. 4 Q Well, who on your staff? 5 A It would have been counsel. And then I'm the one by 6 statute allowed to receive these drugs from any 7 supplier without a prescription from a physician. 8 Q And that would have been Doug Loen? 9 A Yes. 10 Q Once -- and during the Elijah Page execution, 11 obviously you had a protocol which -- that was dated 12 June 14, 2007 and that protocol was created by you 13 about a month before the execution; is that right? 14 A 15 16 Q How many practices or rehearsals did you have under that protocol before the Elijah Page execution? A 19 20 I don't recall specifically but... 17 18 That's probably a correct time frame. I think we did at least a half a dozen; maybe a few more. Q When you -- during the actual execution, which was on 21 July 11, 2007 I believe, once you determined that 22 Mr. Page was unconscious -- even though I know you 23 mentioned earlier that you think he actually already 24 died by that time -- but once you made that assessment 25 under the protocol, that two-minute protocol, how did Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 111 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 you signal the execution team to begin with the other 2 drugs? 3 hand signal? 4 second part of the process should begin? Do you just tell them, or do you give them a 5 A 8 Q Does that, 10 A I don't know 11 Q Okay. Or how do you let them know that the 9 12 . And is that the method you'll probably use in the future? 13 A That's the plan today. 14 Q Okay. During the Elijah Page execution, did you have 15 the protocol with you, or did you just know it from 16 memory? 17 A From rehearsal and memory. 18 Q Was there anybody in that process whose responsibility 19 it was to ensure that you didn't forget a step or make 20 sure you followed the protocol to the letter? 21 A My deputy warden was there as well in the chemical 22 room, which was following protocol I'm sure to ensure 23 that all the steps were adhered to. 24 Q And who was the deputy warden at that time? 25 A Daryl Slykhuis. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 112 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Once the Elijah Page execution was completed, what did 2 you do or how did you dispose of the drugs that 3 weren't used in that execution? 4 A I don't recall. 5 Q Whose responsibility would it have been to dispose of 6 7 them? A Ultimately, the responsibility rests on my shoulders, 8 and I'm sure it would have been a combination of me 9 and counsel to ensure that they were disposed of. 10 I just don't recall specifically when and how that 11 happened. 12 Q And Now you stated that in the Elijah Page execution the 13 sodium thiopental was administered first; is that 14 right? 15 A That's right. 16 Q And then there was a two-minute pause and you made 17 this assessment which you believe, as I say, Mr. Page 18 was dead, and then the second portion began; is that 19 right? 20 A That's correct. 21 Q And let's mark this I believe Exhibit F. 22 23 (Exhibit F marked for identification.) Q This is Exhibit F and this is a newspaper article 24 actually printing a release from the prison setting 25 out the timeline here. And if you'll notice on this, Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 113 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 the lethal injection began at 10:02, and then your 2 official record notes that the execution was completed 3 by 10:04. 4 explain this discrepancy? 5 A 6 Well, that is two minutes. How do you I can't explain -- go ahead, Paul. MR. SWEDLUND: First of all, I object as to 7 hearsay; second of all, lack of foundation; third, 8 assumes facts not in evidence. 9 discrepancy because I see two minutes between here That there is a 10 and -- 10:02 and 10:04 and I'm not sure what 11 discrepancy you're talking about exactly. 12 Q Well, let's go -- this timeline here that's on this, 13 do you dispute that this is the official timeline of 14 the Department of Corrections? 15 MR. SWEDLUND: 16 MR. BRADEN: 17 A Well... I'm asking the warden. No, I don't think I can say that. I would prefer to 18 see the DOC official timeline, not some news 19 organization's timeline. 20 Q 21 22 been presented to me. A 23 24 25 Well, I would prefer to see it, too, but it hasn't So, no, I cannot say this is -- would match up with the DOC timeline. Q Okay. How do you -- well, under the protocol, under the June 14, 2007 protocol, I believe that there is a Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 114 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 two-minute pause before you begin the lethal chemicals 2 or the pancuronium bromide and the potassium chloride, 3 and then there is a pause before you announce somebody 4 or pronounce somebody to be dead. 5 at 10:04 the lethal injections were completed. 6 that be the potassium chloride and the pancuronium 7 bromide? So this notes that Would 8 A I don't know what this KELOLAND reporter is reporting. 9 Q Okay. Do you dispute that there's a discrepancy in 10 the two minutes between when the execution began and 11 it seemed to be completed? 12 A I can tell you that I would have complied with the 13 protocol that was in place at the time of the 14 execution. 15 Q Okay. So you don't think this is accurate? 16 A You know, one can read that a couple different ways. 17 I can tell you that I would have complied with the ERM 18 as it was written on the day of the execution. 19 Q Now you have mentioned several times that in choosing 20 these drugs in the current protocol and even in the 21 past protocol that you've done that after consulting 22 with counsel; is that correct? 23 A Yeah, it's one of the things I did. 24 Q What back -- or how have you made a determination or 25 assessed counsel's background in pharmacology? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 Do 115 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 they have any background in that? 2 MR. SWEDLUND: 3 MR. BRADEN: 4 A I'm a doctor remember. Oh, right. They have access to and have consulted with experts. 5 I also went on to explain that I consulted with other 6 states, specifically with Texas and Montana, and 7 talked to wardens who have carried out executions. 8 I'm aware of appellate court discussions throughout 9 the country that have determined that lethal injection 10 and the way it is administered currently is a safe and 11 humane way to carry out executions, and with all that 12 considered, determined that would be appropriate for 13 South Dakota as well. 14 Q Do you know if when you make a determination about the 15 chemicals and you consult counsel, that counsel has to 16 consult somebody else? 17 A I think that's a fair assumption, absolutely. 18 Q Do you know if that was Dr. Dershwitz? 19 A For what are you talking about now? 20 Q For the -- 21 A Elijah Page -- 22 23 (Discussion off the record.) Q Do you know if whichever counsel you consulted for the 24 choice -- and actually, we're talking more about the 25 protocol than the actual executions because you chose Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 116 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 in the June 14, 2007 protocol those three chemicals. 2 You did that with a consultation of counsel. 3 know who counsel consulted? 4 A I do not. 5 Q Okay. Do you In the October 13, 2011 protocol, you've listed 6 a number of drugs in there to be used that you've 7 chosen with your discretion under the statute. 8 consulting with counsel, do you know if counsel 9 consulted anybody to assist you in making those 10 11 choices? A 12 13 Q Okay. Do you have any knowledge of counsel's personal expertise in pharmacology or in choosing drugs? A 16 17 Yeah, I've been told they've consulted with Dr. Dershwitz. 14 15 After I know they're trained lawyers. I don't know beyond that much of their training. Q So basically the information that they're providing 18 you is coming from other consultations other than just 19 themselves? 20 A Their experts that they're consulting, yes. 21 Q Okay. Who keeps you aware of the status of lethal 22 injection chemicals? I'm sure -- let me preface this 23 question a little bit. 24 there's a growing controversy in the United States 25 about the shortage -- not the country -- but the I'm sure you're aware that Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 117 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 shortage of various drugs. 2 posted on that. Somebody must keep you Who does that? 3 A Counsel. We talk about it periodically. 4 Q Have you -- in creating the October 13, 2011 protocol, 5 did you consider any other drugs in that protocol but 6 yet reject them? 7 A No. 8 Q So the only drugs that were considered were the drugs 9 that actually were enumerated in that protocol; is 10 that right? 11 A Yes. 12 Q Have you or any member of your family ever been 13 threatened because of your role in the execution 14 process? 15 A I have been on one occasion. 16 Q And could you tell me about that a little bit? 17 A It was an inmate threat from a distance, from afar, 18 shouting an obscenity and referring to me as a 19 murderer, something like that. 20 Q 21 Has any of your family been threatened because of your -- 22 A Not to my knowledge. 23 Q All right. Do you know if anybody on your staff that 24 works with you on this, have they been threatened by 25 anybody? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 118 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A Not that I'm aware of. 2 Q Now I want to ask you a series of questions that I 3 know -- wait a minute. 4 you. 5 just bear with me. Oh, I know what I want to ask This is -- I'm cleaning up all my loose ends so 6 A I'm a patient man usually. 7 Q So I want to mark this as Exhibit G, and if you'll 8 take a look at this. 9 (Exhibit G marked for identification.) 10 Q Do you know what this is, sir? 11 A If you give me a chance to read it, I might. 12 Q Oh, sure. 13 A (Witness reviewing document.) This looks like the 14 form that would have been completed on the 15 importation, declaration from U.S. Customs for the 16 sodium thiopental that we purchased from India. 17 Q 18 Did you prepare this form or your secretary so to speak or... 19 MR. SWEDLUND: Hold on a minute. You know, once 20 again, counsel, I know you're frustrated, but I'm 21 going to advise the witness to not identify who 22 prepared the form so... 23 Q Well, are you asserting a privilege, warden? 24 A I am on the advice of counsel refusing to answer the 25 question. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 119 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 MR. BRADEN: 2 3 that question. Q Did you prepare the form? 4 5 Ask the court reporter to certify MR. SWEDLUND: Q 6 Again, same advice. What privilege are you asserting in not answering this question? 7 A I'm going to comply with counsel's advice. 8 Q So you don't -- you're not asserting privilege, you're 9 just -- you're just refusing to answer on the advice 10 11 of counsel, right? A Yeah, I guess. 12 13 MR. SWEDLUND: Q That seeks a legal conclusion. Do you know who Phil Patterson is? 14 MR. SWEDLUND: You can go ahead. 15 A No, I don't believe I do. 16 Q Did you have any dealings with Phil Patterson? 17 A No. 18 MR. SWEDLUND: 19 THE WITNESS: Again, go ahead. Sorry. 20 Q Is that your signature at the bottom left-hand corner? 21 A It is. 22 Q And did you sign that on March 25, 2011? 23 A I would have, yes. 24 Q Now I want to ask you some questions that I -- after 25 we've gone round and round a little bit this morning, Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 120 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 but I want to make my record really clear so I'm going 2 to ask you a series of questions I'm sure counsel's 3 going to object to, but I just -- so bear with me, 4 please. 5 A Understand. 6 Q On the pentobarbital that you have in your possession, 7 did you obtain it from the United States? 8 MR. SWEDLUND: 9 from, but I will represent to you that, yes, it came 10 11 He doesn't know where it came from a domestic source. Q Well, counsel just made a statement. Would you 12 disagree with him on what he just stated for the 13 record? 14 A No, I won't disagree. 15 Q Okay. 16 And is that pentobarbital in your possession, in your facility's possession? 17 A It is. 18 Q And how long has it been in your possession? 19 MR. SWEDLUND: 20 advice of counsel. 21 the source so... Don't answer that. Same advice, It might aid you in determining 22 Q Well, are you asserting a privilege? 23 A I'm going to comply with counsel's direction. 24 Q And just to make the record clear, what privilege are 25 you asserting, sir? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 121 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A Advice of counsel. 2 MR. BRADEN: 3 And I'd ask the court reporter to certify that. 4 Q How much pentobarbital do you have in your possession? 5 A I believe we have a total of 200 -- I believe 6 7 200 grams. Q Do you know how much that cost? 8 MR. SWEDLUND: 9 10 Don't. Again, that can aid you in determining the source and advising him not to answer. Q Well, I assume, warden, what you would say -- and stop 11 me if I'm wrong -- that you're not going to answer 12 that on the advice of counsel. 13 you: 14 And you're going say: 15 that correct, sir? 16 A 17 19 Are you asserting a privilege and which one? On the advice of counsel. Is That's correct, sir. MR. BRADEN: 18 Then I'm going to ask Okay. And I'd ask the court reporter to mark that, please. Q 20 Have you received pentobarbital from any other prison facility in the United States? 21 MR. SWEDLUND: You can go ahead and answer. 22 A No, sir. 23 Q Have you given pentobarbital or sodium thiopental to 24 25 any other prison in the United States? MR. SWEDLUND: Go ahead. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 122 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A No, sir. 2 Q Has any other prison sought chemicals from you in the 3 lethal injection process but you've refused to provide 4 them? 5 A No, sir. 6 Q How did you receive the pentobarbital when you -- did 7 it come by mail, did somebody go pick it up from 8 someplace or... 9 MR. SWEDLUND: 10 Advice of counsel. 11 Q Again, I'm going to object. Question certified. And I'll go through the same litany and I -- that 12 what, you know, privilege are you going to assert? 13 Would you agree that that's probably the answers you 14 would give me -- 15 A Yes, sir. 16 Q -- if we went through that whole thing? 17 A Yes. 18 MR. BRADEN: 19 20 certify that. Q 21 22 And I'd ask the court reporter to Why did you buy 200 grams of pentobarbital? MR. SWEDLUND: A 23 Go ahead. To ensure we had an adequate supply for possible future executions. 24 Q Aren't there only three people in your death row? 25 A That's right. Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 123 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 Q Are you expecting more? 2 A I can't speculate on that. 3 Q Do you have pancuronium bromide in your possession 4 today? 5 A I do not. 6 Q Do you have potassium chloride in your possession 7 today? 8 A I do not. 9 Q And when I say "your possession," you understand the 10 facility's? 11 A I understand, sir. 12 Q All right. 13 A Not today. 14 Q And at what time will you seek to acquire those drugs? 15 A To be fair, to assume after an execution date has been 16 I understand, sir. Are you seeking to obtain those drugs? established. 17 Q And who will acquire those drugs for you? 18 A Myself and counsel. 19 Q Okay. 20 Is it possible that if you only use the one-drug protocol, you won't need those drugs? 21 A It's possible. 22 Q All right. Now you told us earlier that you most 23 likely would not use a drug that you have in your 24 possession that didn't have a manufacturer's 25 instruction; is that true? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 124 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A Yes. 2 Q All right. Are you aware that the Kayem 3 Pharmaceuticals' sodium thiopental doesn't come with 4 manufacturer's instructions? 5 MR. SWEDLUND: 6 question as vague. 7 Q 8 9 You need to answer that, sir. Are you aware that they don't have manufacturer's instructions? A 10 No, I'm not aware of that. MR. SWEDLUND: 11 12 I'm going to object to the And also assumes facts not in evidence. Q Do you understand that Kayem Pharmaceuticals is 13 basically a middleman? 14 the sodium thiopental that your agency purchased from 15 Kayem Pharmaceuticals? 16 A No, I don't. 17 Q Okay. Do you know who manufactured Did anybody on your staff or under your control 18 investigate who actually manufactured the sodium 19 thiopental? 20 A I don't know. 21 Q I think I'm out of steam. Warden -- well, first off, 22 I appreciate your patience. 23 opportunity now to cross-examine you or ask you other 24 questions if they want to. 25 Your counsel has the EXAMINATION Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 125 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 BY MR. SWEDLUND: 2 Q I'll just ask you a couple questions, warden. Though 3 the method of execution statute does not use the words 4 "humane" or "safe," do you feel that the statute in 5 some way guides you to perform a humane and safe 6 execution? 7 A All things considered, yes, it does. 8 Q How so? 9 A I think it's well-established. First of all, the 10 Eighth Amendment guarantees the right to protection 11 against cruel and unusual punishment. 12 business of executions has been litigated for a long, 13 long time. 14 across the country in multiple appellate courts and 15 the supreme court that lethal injection is the 16 preferred method certainly and probably the most 17 humane method of carrying out an execution. 18 intend to comply with all of those decisions, 19 requirements, recommendations, procedures that I 20 possibly can to ensure that South Dakota carries out 21 its second, if it comes to this, lethal injection 22 under the most humane means possible and as the courts 23 have determined. 24 25 Q And this I think it's been pretty well-established One further question. And I Are you aware or do you have knowledge of whether the drugs pancuronium bromide and Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 126 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 potassium chloride would cause pain in the absence of 2 the administration of an anesthetic? 3 A You know, not being trained as a pharmaceutical 4 person, I don't have any direct information. 5 I have read and I have heard that they can cause 6 pain -- and I've read, as a matter of fact, 7 excruciating pain -- if the person has not been 8 rendered unconscious before administering those drugs. 9 MR. SWEDLUND: 10 However, Nothing further. EXAMINATION 11 BY MR. BRADEN: 12 Q Okay. 13 A You really weren't out of stickies. 14 Q And I just got my steam back. Well, now I have a couple questions. Under the statute, 15 under Section 32, 23A-27A-32, the method of execution 16 is totally in your discretion; is that right? 17 A 18 Which statute? MR. SWEDLUND: 19 A Okay. 20 Q Right. 21 A Yes, sir. 22 Q Okay. Right here. Assuming it's a lethal injection. So the method and process of how to go about 23 that is completely your discretionary action; is that 24 right? 25 A I want to make sure we're still talking about lethal Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 127 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 injections and we're not talking about hangings or -- 2 Q No. 3 A I want to be clear, though. 4 Q Right. 5 A Yes. 6 Q And that is totally in the discretion of your 7 I'm not trying to trick you. I just -- Right. successor should somebody become warden in the future? 8 A Yes, sir. 9 Q And they can change that in any way they want, right? 10 11 MR. SWEDLUND: A 12 13 You're leaving out the secretary. Of course, my boss is involved like I've stated earlier. Q Right. But you are the person that is delegated to, 14 by the legislature, to draft the process. 15 secretary basically has a veto power in a sense; is 16 that right? 17 A 18 19 Well, he or she approves what my recommendations are. I think mine are a recommendation, too. Q 20 21 The What is your understanding under the Eighth Amendment? What would be an unconstitutional execution? A Boy, I don't know. That's tough for me to say. It's 22 not for me to determine. 23 decisions that have already been rendered, and I guess 24 that's what I would... 25 Q I rely heavily on the What does the Eighth Amendment mean to you? Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 128 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 A 2 Protection against cruel and unusual punishment, that portion. 3 Q Okay. Well, what would be cruel? 4 A I don't know. I really don't care to speculate on 5 that. I mean one can use your imagination I guess and 6 imagine all sorts of cruel scenarios. 7 Q Do you know what an intercardiac injection is? 8 A I can probably define it just by the language you've 9 used, but I've never actually looked at its definition 10 in a medical journal, no. 11 Q Would you use that in the lethal injection process? 12 A I don't believe so, no. 13 Q Why would you not use that? 14 A Well, it sounds like you're going directly into the 15 16 heart. Q Right. I think that's right. I mean I'm not a doctor 17 either, but that's my understanding of it. 18 process that you would reject? 19 A Yeah, I believe I would. 20 Q Okay. 21 22 25 Well, let me stop. Do you know what a cutdown is? A 23 24 Would you use a cutdown? Is that a I'm not sure. I think it's a drastic way to access a vein or artery. Q Basically, just to be clear -- and I'm not trying to trick you, sir -- it's basically where a surgeon or Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 129 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 somebody actually cuts open the limb and then produces 2 the vein. 3 it out so to speak. 4 procedure but highly risky even in a surgery. 5 something that you would use? 6 A Instead of trying to puncture it, they pull And it's a legitimate medical Is that Based on what you described, it sounds like something 7 that would require a physician or a surgeon to do, and 8 that person would not be there; so, no. 9 Q 10 Right. Do you think that those methods would be painful? 11 A Without proper anesthetic, probably. 12 Q I know you say that the secretary -- you consult the 13 secretary and the secretary approves your protocols 14 and your methods, but you're the person actually 15 delegated under the statute to create these; is that 16 right? 17 A 18 Statute also talks about the secretary's approval or -- 19 Q But you're the named party, right? 20 A Yeah, absolutely. 21 22 MR. BRADEN: Okay. Do you have any more questions, Paul? 23 MR. SWEDLUND: 24 MR. BRADEN: 25 I'm out of steam. No further questions. I didn't even think about this, but I suppose here -- you have the right -- and you had Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 130 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 your deposition taken before. 2 THE WITNESS: 3 MR. BRADEN: Yes, sir. You have the right to read over the 4 deposition and make any corrections that Ms. Risty may 5 have -- errors she may have made in transcribing your 6 deposition, or you can waive that right and just let 7 her prepare that. 8 the record whether you want to review the transcript 9 for any possible errors or waive that right. 10 But you need to tell her and us on can talk to your counsel, 11 THE WITNESS: 12 MR. SWEDLUND: 13 And you What do you recommend, Paul? I would say under the circumstances, why don't you review it first. 14 THE WITNESS: Okay. 15 MR. SWEDLUND: That's what we'll do then. You can't change your answers. 16 You can't go from night and day, but if there's 17 something -- an error in transcription -- 18 19 MR. BRADEN: If she accidentally put a yes or misspelled the word or whatever, you can change that. 20 THE WITNESS: Right. 21 MR. BRADEN: 22 (Deposition concluded at 11:36 a.m.) Okay? Right. Okay. I think we're done. 23 24 25 Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 131 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 C E R T I F I C A T E 2 STATE OF SOUTH DAKOTA 3 COUNTY OF MINNEHAHA ) : ss ) 4 5 I, MAXINE J. RISTY, Registered Professional 6 Reporter and Notary Public, hereby certify that the 7 deponent aforenamed was first duly sworn prior to the 8 taking of this deposition; that as of the time I affix my 9 signature to this transcript, it contains a true and 10 correct record of the proceedings so had; and that the 11 witness did not waive the reading and signing of the 12 deposition. 13 I further certify that I am not related by 14 consanguinity or affinity within the fourth degree to any 15 party, his attorney, or an employee of any of them; that I 16 am not financially interested in this action; and that I am 17 not the attorney or employee of any party. 18 19 To all of which I have affixed by signature this day of , 2011. 20 21 22 23 24 MAXINE J. RISTY, RPR 48390 266th Street Brandon, South Dakota 57005 (605) 757-7144 25 Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 132 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 CORRECTION SHEET 2 4 Pursuant to the Rules of Civil Procedure, I have read the foregoing pages 1-130, inclusive, and have noted any and all changes in form or substance desired in my testimony, and have signed below on the _______________ day of _________________, 2011. 5 PAGE & LINE 3 CHANGE IN ANSWER REASON FOR CHANGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ______________________________ MR. DOUGLAS WEBER 23 24 25 Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 133 REPORTER'S REVISED TRANSCRIPT DUE TO GLOBALING ERROR 1 2 EXPLANATION OF CHANGE TO ORIGINAL TRANSCRIPT 3 STATE OF SOUTH DAKOTA 4 COUNTY OF MINNEHAHA ) : ss ) 5 6 I, MAXINE J. RISTY, Registered Professional 7 Reporter and Notary Public, have corrected a globaling 8 error that occurred in the original transcript. 9 "prison" was inadvertently globaled/changed to the number 10 "11." 11 12 13 14 MAXINE J. RISTY, RPR 48390 266th Street Brandon, South Dakota 57005 (605) 757-7144 15 16 17 18 19 20 21 22 23 24 25 Maxine J. Risty ~ Brandon, SD ~ (605)757-7144 The word CORRECTION SHEET Pursuant to the Rules of Civil Procedure, I have read the foregoing pages 1430, inclusive, and have noted any and all changes in form or substance desired in my testimony, and have signed below on the 5% day oily?" 1-. ("gig 2011. PAGE 8r LINE CHANGE lN ANSWER REASON FOR CHANGE Page 15, tine 8 Change from "i agree with that I did not understand the entire question at the time statement, yes.? to agree with that it was asked. Specifically, I disagree with the statement, yes, in that the statute does not question's premise that the statute does not provide use the terms ?safe' or ?humane,? but I directive in the manner of execution. The manner of disagree insofar as the statute does provide execution is, in fact prescribed by the statute as lethal the directive concerning the manner of injection. I understand the statute to require that it be execution, which is lethal injection. Lethal done in a safe and humane manner even though those injection is widely regarded as the most words are not used in the statute because every humane manner of execrrtion, and the SDDOC's execution must he performed in accordance with protocots, modeled on U.S. Supreme Court constitutionai standards. authority, are tailored to Eighth Amendment requirements for the humane performance of an execution by lethal injection.? throughout throughout the transcript the numeral "11? transcription error appears in places where i believe the proper word should be ?penitentiary? Page 85, tine 17 Change from "No, i don?t think it would be i think the question is too broad. As warden, witi prudent" to "No; I don?t think it would be ensure that drugs are used safely. Sources other than prudent, unless reliable, scientific information manufacturer?s instructions may convince me a drug regarding the proper administration of the can be used safely. For exampte, I cannot categoricain drug were availabie from another scurce.? say that I would withhold a drug needed to save an inmate's life simply because the manufacturer's instructions were not available. lam 7% Douglas L. Weber