IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Case No. 16-3072
In re: Missouri Related Cases:
Department of
Corrections. W.D. Mo.:
09005
S.D. Miss:
00295
DECLARATION OF M7
1, M7, declare the following:
1. I am over the age of 18 and am competent to make this Declaration.
2. M7 is a supplier of lethal chemicals to the Missouri Department of
Corrections (?Department?).
3. M7?s decision to provide lethal chemicals to the Department was
based on M7?s political Views on the death penalty, and not based on economic
reasons.
4. M7?s decision to supply lethal chemicals anonymously arises out of
M7?s fear of harassment and retaliation, both physical and ?nancial, if M7?s
identity is released.
5. Speci?cally, M7 fears that if its identity is disclosed to the public,
death penalty opponents will seek physical and/or economic harm on M7.
EXHIBIT A1
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6. M7?s fears described above are based, in part, on M7?s awareness of
documented reports of physical threats, harassment, and economic reprisals and
boycotts, including the information contained in Exhibits 1 through 17 attached
hereto.
7. I declare under penalty of perjury that the foregoing is true and
l?
M7
correct.
Executed on September 23, 2016.
EXHIBIT A1
Appellate Case: 16-3072 Page: 2 Date Filed: 09/23/2016 Entry ID: 4451561
Di Leos
From:
Sent: Wednesday. January 29. 2014 9:16 AM
To: Sarah Lees; DJ Lees
Subject: Apothecaly Tulsa Contact Us Form
Mame: Prof. Home):
Email:
Phonon: 4406222112 .
Message: Your site says ab0uL' pcntobarbltol. Do you compound it for the state of Missouri's
department of corrections, as has been publicly alleged In an AP story ran moming, and if Sn,
now that that story has gonupubllc. do you think than: prudent? Seems to me that manumckurlog a drug
oXpressly to poople ?les In the Face of one or those commandments Moses: got from Jehovah on small,
but maybe l?rnjust being werel you I?d at least want to beef up my security now that
yau'vo been put in the as. a Ilkoly suppllerand fallen! to issue a flat denial. As the folks at the
roclorol banding can tell you, It only takezl one fanatlc Wll'h a truckload of fertilizer to make a real dent In
business as usual. In yourplaco, I'd either swear to the natlon that my company make oxecukiun
drugo of ANY earn, and then make dang sum that's true, or else openly accept the burden of putting my
r?mployooe and myself or unacceptable (and possibly uninsurele risk. Just sayin'.
EXHIBIT 1
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Reprieve - Helping pharmaceutical companies stop their medicines being used to kill
MENU
Helping pharmaceutical
companies stop their
medicines being used to kill
In the last three years the landscape of capital
punishment in the United States has changed
dramatically, largely as a result of action by
responsible pharmaceutical companies and
their investors.
More stories
Mohsen Aboassy
DEATH PENALTY
Andy Tsege
Father from London
kidnapped and held in
secret detention
DEATH PENALTY
Abdul Basit
Paralyzed man facing
hanging in Pakistan
DRONE STRIKES
In this time, the vast majority of affected drug
manufacturers have acted to prevent their products
being sold to prisons for use in executions by lethal
injection (the method used by all states which retain
the death penalty).
Nabila and the Rehman
family
Strike targeted
grandmother and children
Manufacturer action on execution drugs
The SLIP story
Because the drugs used in these executions were not
designed to cause deadly harm and are administered
in experimental dosages they are frequently botched,
with recent examples including the disastrous
executions of Dennis McGuire in Ohio, Clayton Lockett
in Oklahoma, and Joseph Wood in Arizona.
LETHAL INJECTION
GUANTÁNAMO BAY
Nabil Hadjarab
Since 2011 more than a dozen pharmaceutical
manufacturers have
judged this to be a perverse
By continuing to use the site, you agree to the use of cookies. more information
misuse of medicines, often after close consultation
Accept
Accept
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Reprieve - Helping pharmaceutical companies stop their medicines being used to kill
with informed and engaged investors. These
companies have put controls in place to stop their
drugs being sold to death rows, and these controls
have been so effective that states are no longer able
to purchase ‘traditional’ execution drugs. This has led
a number to stop executing prisoners.
Huffington Post – Lethal injection drug shortage
becomes more acute
Other states, however, are turning to experimental
new execution drug ‘cocktails’, which rely on
medicines produced by a handful of manufacturers
which do not yet restrict sales of drugs to prisons for
use in executions.
NPR: Lacking lethal injection drugs, states find
untested backups
The risks for pharmaceutical companies
As the only manufacturers without distribution controls
in place, pharmaceutical companies in this eversmaller group risk becoming US states’ ‘go-to’
suppliers of execution drugs – leaving them exposed
to a range of commercial risks. Association with
executions can be extremely damaging to corporate
reputations, as demonstrated by media coverage of
botched lethal injections in Ohio, Oklahoma, and
Arizona.
Companies can be served with costly litigation, as in
the case of Hospira, which is currently being sued by
the family of a prisoner executed in Ohio. And
companies associated with capital punishment are
viewed increasingly warily by mainstream funds as
well as ethical portfolios. Drug maker Mylan takes $70
million hit in battle over lethal injection
What can pharmaceutical manufacturers do?
Today, manufacturers can benefit from the experience
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Reprieve - Helping pharmaceutical companies stop their medicines being used to kill
of several companies which have acted decisively to
prevent their drugs being sold to prisons for use in
executions.
These companies have designed and implemented
restricted distribution systems which have proven to
be effective at preventing abuse of medicines in
executions. Such systems maintain access for
legitimate medical users, while preventing drugs being
sold to third parties which could sell them on to prisons
for use in executions.
There are a number of models manufacturers can
follow to achieve this outcome, which can be adapted
to suit the drug in question’s current distribution model
and intended patient population. For two examples of
successful distribution systems, click the link below.
How manufacturers can prevent the sale of their drugs
for use in executions
Reprieve has advised a number of global
pharmaceutical manufacturers on implementing such
controls in a way that suits their business model and
preserves patient access. Reprieve continues to
provide such support for any company that requires it
on a confidential basis.
Any company seeking discreet, confidential advice
should contact Maya Foa at
maya.foa@reprieve.org.uk.
✉
Press Releases
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Reprieve - Helping pharmaceutical companies stop their medicines being used to kill
Second US state plans execution using ‘DIY
drugs’
November 13, 2012
South Dakota is joined by Pennsylvania, now the second
state set to kill a prisoner using so-called ‘DIY drugs’ –
produced in a compounding pharmacy of the same type
thought to be responsible for the recent meningitis outbreak
in the US.
South Dakota covers up source of ‘DIY’ death
penalty drugs ahead of execution
October 30, 2012
Prison authorities in South Dakota are refusing to release
information on contaminated drugs made to order for an
execution tonight (Tuesday 30 October).
South Dakota carries out execution using
contaminated compounded drugs
October 17, 2012
A prisoner who died this week in a potentially botched lethal
injection was killed using drugs from a compounding
pharmacy, it has emerged.
Read more
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Reprieve - Helping pharmaceutical companies stop their medicines being used to kill
Donate now
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Hospira to Stop Making Lethal-Injection Drug - WSJ
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U.S.
Drug Halt Hinders Executions in
the U.S.
By
NATHAN KOPPEL
Updated Jan. 22, 2011 12:01 a.m. ET
The sole U.S. maker of a key drug used in lethal injections halted its production amid a broad
global campaign by opponents of the death penalty, a decision likely to cause a substantial delay
in many executions across the country.
Journal Community
ENLARGE
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http://www.wsj.com/articles/SB10001424052748704754304576095980790129692[9/22/2016 1:59:28 PM]
Hospira to Stop Making Lethal-Injection Drug - WSJ
This November 2005 photo shows the death chamber at the Southern Ohio Corrections Facility.
Associated Press
The move by Hospira Inc. came after months of pressure by activists through a new campaign
aimed at pressuring pharmaceutical companies whose products are used in lethal injections. The
final decision came in the face of opposition from government figures in Italy, whose
constitution prohibits the death penalty, after Hospira announced plans to shift production of the
drug to a plant in Italy.
"We worried that if a drug made in Italy ended up in a lethal injection, it would put our facility
and our employees at risk of liability," said Thomas Moore, president, U.S. region, of the Lake
Forest, Ill., company.
The drug, sodium thiopental, is an anesthetic typically used to render a condemned inmate
unconscious before other lethal drugs, including a paralytic agent, are administered. Lethal
injection is the sole or primary execution method in the 35 states that carry out the death
penalty.
Previously
Law Blog: FDA Takes Stance on Lethal-Injection Drug (1/4/11)
Law Blog: A Death-Penalty First (12/17/10)
U.K. Limits Execution Drug's Export (11/30/10)
Animal Drug Clear for Okla. Executions (11/22/10)
Originally designed for a wide range of uses, including surgeries, sodium thiopental had become
more associated with the executions as other anesthetics supplanted it.
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Hospira to Stop Making Lethal-Injection Drug - WSJ
Societies are judged based on how they treat their least desirable citizens. If our response is to
kill those we cannot "deal" with, or understand, we stand up as a pathetic society.
—Barack Goldwater
Hospira has tried to distance itself from that association, even telling prison officials it opposed
its use in the procedures.
Now that it has halted production altogether, experts said, states have few immediate
alternatives. There are 3,261 inmates on death row in the U.S., according to the NAACP Legal
Defense and Educational Fund.
"There is no quick fix in place for departments of corrections," said Deborah Denno, a deathpenalty expert at Fordham University Law School in New York. "There will be more delays in
the death penalty after such a major [drug] provider has backed out of the market."
A number of states, including Arizona, California, Kentucky and Tennessee, already had been
struggling with a shortage of supply in sodium thiopental after Hospira halted production in
2009 because of manufacturing issues in a North Carolina plant. Until Friday, the company had
planned to resume production early this year at a company plant in Liscate, Italy.
Texas, which leads the nation in executions, has enough sodium thiopental to cover two
scheduled executions in February, according to Michelle Lyons, a spokeswoman for the Texas
Department of Criminal Justice. But it will have to obtain an additional supply to carry out a
lethal injection scheduled for May, she said.
ENLARGE
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Hospira to Stop Making Lethal-Injection Drug - WSJ
Kent Cattani, an attorney with the Arizona Attorney General's Office, said the legal wrangling
and publicity surrounding the sodium thiopental shortage have led to delays in a death-penalty
process already burdened with problems. Arizona has obtained two shipments from the U.K.
and likely has a sufficient supply to carry it through 2014, he said, but added that states could
have to turn to other drugs or "other viable alternatives, like a firing squad."
Prison officials now will have no choice but to find overseas suppliers of sodium thiopental. But
a growing number of lawyers, judges, and government officials on both sides of the Atlantic
have already started to question whether it is legal to ship the drug from overseas.
Some states might also decide to use a substitute anesthetic but that would almost surely require
court or legislative approval, according to legal experts. Late last year, a drug used to euthanize
animals was approved for executions in Oklahoma, but the state was engaged in court battles for
months.
Some officials were hesitant to predict what the impact would be of Hospira's decision. "We will
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Hospira to Stop Making Lethal-Injection Drug - WSJ
look at things and take the necessary time to review our options," said Dorinda Carter, a
spokeswoman for the Tennessee Department of Corrections.
Lethal injection has been used in most of the 1,237 executions that have occurred in the United
States since the Supreme Court allowed executions to resume in 1976 after a suspension.
ENLARGE
Death chambers like the one at San Quentin State Prison in Calif.ornia could be dormant while states seek solutions to the shortage of a
key drug.
Associated Press
Thiopental is little more than a revenue rounding error for Hospira, which spun off from Abbott
Labs in 2004 and is the world's largest manufacturer of generic injectable drugs. In 2009,
thiopental generated about $6 million in U.S. sales, less than 0.25% of Hospira's total drugs
sales that year, said a Hospira spokeswoman.
The thiopental shortage has prompted unprecedented scrutiny of the companies that make and
distribute execution drugs. Court filings, for example, have revealed the names of thiopental
makers and suppliers in Europe that distributed thiopental to prisons in Arizona and California,
disclosures that have touched off protests by human rights advocates in Europe.
In November, a U.K. nonprofit called Reprieve, which lobbies against the death penalty, filed a
lawsuit in London challenging overseas thiopental shipments. Shortly after the U.K. announced
plans to ban thiopental exports to prisons to underscore its "moral opposition to the death
penalty."
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Hospira to Stop Making Lethal-Injection Drug - WSJ
The European Commission is considering a European Union-wide ban on the export of
execution drugs, according to London lawyers.
Executions in many states could be delayed after the lone maker of a key drug used in lethal injections has decided to permanently halt its
production. WSJ's Nathan Koppel has the latest in an interview with Simon Constable.
Clive Stafford Smith, the head of Reprieve, also sent a letter to Sandoz, a unit of Novartis AG,
saying that it appeared Sandoz-manufactured thiopental had been sent to U.S. prisons.
Jeff George, the head of Sandoz, said in an interview that he was unaware of the issue, and
"ticked off" to hear about it. Sandoz makes thiopental because it is an important anesthetic, and
a treatment for certain kinds of epilepsy, he said. "Capital punishment certainly is not an
approved indication for this product," he said. Mr. George said Sandoz does not sell the drug
directly to U.S. buyers and has asked its subsidiaries not to sell the drug to third parties who
might, in turn, distribute it to the U.S.
Despite its recent notoriety, thiopental has been used as a surgical anesthetic for more than 70
years.
It has been largely supplanted in recent years by a newer, more effective anesthetics, doctors
said.
It steadily grew in prominence in the criminal-justice world, however, since the late 1970s when
Oklahoma became the first state to decide to use it for executions.
Death-penalty opponents, Mr. Smith said, now have a powerful new weapon in their quiver:
identifying and pressuring pharmaceutical companies that supply execution drugs to prisons.
"I've yet to find any pharmaceutical company that says their corporate ethos is to go around and
kill people," he said. "I've been doing [death-penalty] work for 26 years," he added. "I can't
believe it just occurred to me to target drug companies."
Write to Nathan Koppel at nathan.koppel@wsj.com
Show More Archives
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Hospira to Stop Making Lethal-Injection Drug - WSJ
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EXHIBIT 6
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Hospira to Stop Making Lethal-Injection Drug - WSJ
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The Hidden Hand Squeezing Texas’ Supply of Execution Drugs TIME.com
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NATIONAL
The Hidden Hand Squeezing Texas’ Supply of
Execution Drugs
After lobbying by human-rights groups, European drug companies are increasingly unwilling to supply
U.S. states with lethal medicine
By Josh Sanburn @joshsanburn
Aug. 07, 2013
Read Later
By September, Texas will run out of the sole drug it uses
in lethal injections thanks in part to an overseas effort
that has persuaded a European pharmaceutical company
PAUL BUCK / EPA
The death chamber inside the Huntsville Unit in Huntsville, Texas, seen
in 2000
to halt its supply to U.S. states for use in executions.
The Texas Department of Criminal Justice announced last
week that the state’s supply of pentobarbital — the sedative
Email
used in the lethal injections of its death-row inmates — would
expire in September. Pentobarbital has become the most
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common drug in lethal injections in the U.S. Of the 23
executions this year, 22 of them used pentobarbital by itself or in combination with other drugs.
Texas is facing a depleted supply after a Danish drugmaker announced two years ago that it would no longer supply the
drug for use in executions, thanks in part to pressure from multiple groups in Europe that have unexpectedly thrown up
obstacles to U.S. states carrying out the death penalty.
In early 2011, Danish drugmaker Lundbeck, which at that time manufactured pentobarbital (sold under the name
Nembutal), discovered that U.S. states were using its product in lethal injections. The complex international distribution
networks of pharmaceuticals often make it difficult for manufacturers to know exactly where their products end up. But
once pentobarbital’s use in U.S. executions came to light, many in Denmark were upset that medicine made in a country
that abolished the death penalty decades ago was being used for ending lives rather than saving them.
(MORE: Werner Herzog Dives Into the Abyss of the American Death-Penalty System)
By spring 2011, Danish newspapers were regularly publishing stories about pentobarbital’s use as several human-rights
organizations, including Amnesty International and U.K.-based Reprieve, issued press releases to highlight each new
execution that used drugs made by Lundbeck. In June 2011, Dr. David Nicholl — a neurologist and human-rights activist —
wrote an open letter to Ulf Wiinberg, the chief executive of Lundbeck. The letter, signed by more than 60 other doctors and
academics urging the company to halt its U.S. supply, was published in the medical journal the Lancet.
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The Hidden Hand Squeezing Texas’ Supply of Execution Drugs TIME.com
“As clinicians and prescribers of Lundbeck’s products, we are appalled at the inaction of Lundbeck to prevent the supply of
their drug, Nembutal [pentobarbital], for use in executions in the USA,” the letter stated. “Pentobarbital is rapidly proving
to be the drug of choice for U.S. executions. Lundbeck should restrict distribution of pentobarbital to legitimate users … but
not to executioners.”
Three weeks later, Lundbeck said it would no longer allow the drug to be used in U.S. executions and began reviewing all
orders of the drug and denying U.S. prisons looking to order it. Now, states like Texas, Georgia and Missouri are grappling
with how to continue their planned executions without their go-to drug.
“When I first approached this issue, I thought it would never work,” says Nicholl, referring to the decision to apply pressure
to drugmakers supplying states carrying out executions. “But our efforts have turned out to be quite effective. I don’t think
the pharmaceutical companies realized the bad p.r. that it was going to lead them to.”
To halt its supply, Lundbeck worked with human-rights group Reprieve to simplify its distribution model, essentially taking
out middlemen so the company could more easily identify who ended up with its products. Maya Foa, deputy director of
Reprieve’s death-penalty team, says her organization’s goal isn’t to end capital punishment in the U.S. but merely to get
pharmaceutical companies to follow the Hippocratic oath to do no harm.
“Their reason to be is to make medicine to save lives,” Foa says.
The struggle to obtain pentobarbital is the latest in a series of problems that have dogged lethal injection. In 2009, Hospira
Inc., a drugmaker headquartered in Lake Forest, Ill., stopped making sodium thiopental, a general anesthetic often used in
a three-drug method of lethal injection. That forced many states to look overseas, but both the U.K. and the E.U. blocked
their own manufacturers from supplying it to the U.S. for executions.
(MORE: Articles of Faith: Is the Death Penalty in Keeping With Catholic Doctrine?)
The obstacles to getting sodium thiopental pushed states to rely even further on pentobarbital — but now it appears that
states like Texas will once again have to find another drug to take its place. There are no generic versions of the drug, and
the alternatives available have yet to be either tested or used in lethal injections.
John Hurt, the director of public information for the Texas Department of Criminal Justice, says the state is considering
finding another supplier of pentobarbital, a different drug altogether or possibly working with a compounding pharmacy
that could create the drug specifically for the state’s executions. (Texas, which has executed 503 inmates since 1982, more
than any other state by far, has two executions scheduled in September, two more in October and one in November.)
It’s unclear where Texas would find another supplier. In December 2011, Lundbeck sold the rights to pentobarbital to
Illinois-based Akorn Inc. The new company, however, signed an agreement saying it would follow the same distribution
restrictions as Lundbeck.
Texas could turn to a compounding pharmacy, but according to the Death Penalty Information Center, those providers
don’t face oversight from the Food and Drug Administration. That often leads to questions about the drugs’ safety and its
intended effects of being a more humane alternative of execution.
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The Hidden Hand Squeezing Texas’ Supply of Execution Drugs TIME.com
“Compounding pharmacies are the underbelly of the industry,” says Maurie Levin, who has represented death-sentence
inmates for 20 years, referring to a sector of the pharmaceutical industry that often goes under the radar of federal and state
regulators.
Hurt says the most likely scenario is that Texas will simply find another drug to replace pentobarbital, and he cites
Missouri’s intention to switch to the general anesthetic propofol, which gained notoriety when an overdose of the drug was
blamed for singer Michael Jackson’s death. But last year, German drug manufacturer Fresenius Kabi announced last year
that it too would no longer sell the drug to states for executions, shifting its distribution with help from Reprieve.
The best hope for states like Texas is that a domestic manufacturer would agree to make drugs like propofol or
pentobarbital, far from a continent that has largely done away with the death penalty. But it should be no surprise that
pharmaceutical companies aren’t racing to distribute drugs that are often associated more with death than life.
MORE: A Brief History of Lethal Injection
Correction: An earlier version of this story stated that Fresenius Kabi is the only supplier of propofol in the U.S. Hospira
and Teva Pharmaceuticals restarted manufacturing and selling the drug earlier this year.
Josh Sanburn
@joshsanburn
Josh Sanburn is a Time.com writer.
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Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ
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PHARMALOT
Mylan Faces Investor Pressure
Over a Drug to be Used for
Executions
By
ED SILVERMAN
Oct 21, 2014 2:05 pm ET
0 COMMENTS
Mylan Laboratories is now the latest target of an
advocacy group urging investors to sell their
holdings in drug makers whose medicines could be
used in executions by U.S. prisons.
Reprieve, an advocacy group based in the U.K., is
pressing investors to sell their holdings in Mylan.
Why? The drug maker is the only U.S.-approved
ERIC KAYNE FOR THE WALL STREET JOURNAL
producer of a medicine known as rocuronium
bromide, a paralyzing agent used in surgeries. But Mylan has allegedly not taken steps to
prevent its use in executions.
For instance, the Alabama Department of Corrections reportedly plans to use the drug in a
cocktail for executions. In response, DJE Kapital, an investment firm based in Pullach,
Germany, recently sold about $60 million in Mylan holdings, a DJE Kapital spokeswoman
writes us. The sale was first reported by The Financial Times.
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Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ
As the paper notes, Alabama and other U.S. states have been forced to suspend executions in
recent months because of a shortage of effective drugs and controversies over a series of
executions that went awry. In one instance, a prisoner in Oklahoma died 43 minutes after
medicines were administered.
A Mylan spokeswoman writes us that the drug maker “dedicated to upholding the highest
standards of quality and integrity” and only distributed products “through legally compliant
channels, intended for prescription by healthcare providers consistent with approved labelling.”
She did not respond to a question about what, if any, steps Mylan may take to restrict the use of
its medicine for executions.
Over the past few years, more than a dozen drug makers have agreed to restrict the supply and
use of their medicines for executions, including Fresenius, Hospira, Hikma, Lundbeck and Teva
Pharmaceuticals. Their decisions have, in turn, made it more difficult for authorities in different
states to use medicines for executions.
As The Birmingham News notes, Alabama has not carried out an execution for more than a year
because of drug shortages but the state’s attorney general last month asked its Supreme Court to
set execution dates for nine prisoners after adopting a new cocktail of three medicines that
includes the Mylan drug. We asked the department for comment and we were referred to the
state attorney general. A spokeswoman for the attorney general declined to comment.
In a letter sent to Mylan, Reprieve wrote that “there is a very real risk that Mylan will become
the go-to provider of execution drugs across the country. There are simple and effective controls
that a company like Mylan can put in place to ensure its medicines are sold for legitimate
medical purposes, and not sold to prisons for use in lethal injections.”
In an e-mail, Reprieve director Maya Foa writes us that “more and more companies are putting
controls in place to protect their medicines from misuse in lethal injection executions.” But with
other states, including Alabama, “now announcing their intention to use the paralytic agent in
their execution protocols, Mylan’s product is increasingly at risk of being sold for use in lethal
injections.”
She adds that “we are engaging” Mylan, but she was not more specific.
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Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ
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Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ
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Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ
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Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ
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Akorn Takes Steps to Prohibit its Drugs From Being Used for Executions - Pharmalot - WSJ
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PHARMALOT
Akorn Takes Steps to Prohibit its
Drugs From Being Used for
Executions
By
ED SILVERMAN
Mar 4, 2015 1:34 pm ET
0 COMMENTS
Yet another drug maker is taking steps to ensure its
medicines are not used for executions. Akorn
Pharmaceuticals, which earlier this year stopped
taking orders from prisons, is now requiring that its
wholesalers agree to keep its medicines out of
correctional institutions.
As part of its effort, the drug makers sent letters
ERIC KAYNE FOR THE WALL STREET JOURNAL
about its policies to attorneys general and correction
departments in states that currently execute inmates or have death row prisoners. Akron is also
seeking the return of any of its medicines that may have been “inappropriately” purchased for
executions, according to a statement.
The move comes after Akorn was targeted by Reprieve, an advocacy group in the U.K., for
allowing its medicines to be used for executions. And the Death Penalty Information Center
noted that midazolam and hydromorphone hydrochloride, the two drugs that Akorn is
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Akorn Takes Steps to Prohibit its Drugs From Being Used for Executions - Pharmalot - WSJ
restricting, have been used by some states for executions. [UPDATE: We should also note
that New York State Comptroller Thomas DiNapoli last fall had issued a shareholder
resolution asking Akorn to issue a report about its policy].
“We have been in consultation with a number of shareholders and external stakeholders to
develop and formalize the policy covering midazolam and hydromorphone which publicly
aligns us with a number of our peers,” says an Akorn spokesman. The drug maker sent this letter
to DiNapoli.
Akorn is only the latest drug maker to make such a move in the face of growing controversy
over the use of prescription medicines for executions. Over the past few years, several others –
including Hospira, Fresenius Kabi and Lundbeck – have made similar commitments.
Last fall, Reprieve began urging investors to sell shares in drug makers that allow their
medicines to be used for executions and, in particular, targeted Mylan Laboratories for not
taking steps to ensure one of its drug is not used for this purpose. DiNapoli filed a similar
shareholder request with Mylan.
A Mylan spokeswoman says its drugs are sold through “legally compliant channels, intended for
prescription by health care providers with approved labeling and applicable medical standards of
care.” Its rocuronium bromide is made by a third party in India but is not marketed for use in
lethal injections, and is not distributed directly to prisons. She adds Mylan is not aware of the
drug being used for executions.
As more drug makers prohibit the use of their medicines for executions, though, officials in
some states have looked elsewhere for medicines. Georgia, for instance, reportedly purchases
pentobarbital from a compound pharmacy. However, the state had to postpone a pair of
executions this week because its supply became ‘cloudy,’ according to reports.
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Akorn Takes Steps to Prohibit its Drugs From Being Used for Executions - Pharmalot - WSJ
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Akorn Takes Steps to Prohibit its Drugs From Being Used for Executions - Pharmalot - WSJ
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Akorn Takes Steps to Prohibit its Drugs From Being Used for Executions - Pharmalot - WSJ
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Texas refuses to give back lethal drugs, proceeds with execution Fox News
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Texas refuses to give back lethal drugs, proceeds with
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By Barnini Chakraborty
· Published October 09, 2013
·
FoxNews.com
The gurney in the death chamber is shown in this May 27, 2008 file photo from Huntsville, Texas. (AP)
WASHINGTON – A Texas man convicted of killing his parents was executed as planned Wednesday
night despite a growing controversy over the drug used to carry out the punishment.
Last week, state prison officials refused a request from the compounding pharmacy that created and
sold Texas the pentobarbital -- a single-dose drug used in executions -- to return the drug.
Jasper Lovoi, owner of The Woodlands Compounding Pharmacy, claims Texas authorities put him “in
the middle of a firestorm” of protesters, hate calls and press requests after letting it leak that he sold
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World
S
Texas refuses to give back lethal drugs, proceeds with execution Fox News
eight 2.5-gram doses of pentobarbital to the state for upcoming executions.
Lovoi says he had been promised anonymity by the state.
But Jason Clark, a spokesman for the Texas Department of Criminal Justice, said the department
bought the drug vials legally and won’t return them.
Clark said the state has enough vials to carry out scheduled executions for the remainder of the year.
Death penalty states like Texas, which has executed 505 people since 1981, have been turning to
compounding pharmacies to purchase lethal doses of barbiturates used in executions.
The switch comes after the drugs’ primary makers shut off supplies to states following pressure from
anti-death penalty advocates.
Compounding pharmacies allow certified specialists to mix ingredients for medicine themselves and
sell them. For example, if there is only an adult-dose of a particular drug available, compounding
pharmacists can manipulate the active ingredients and change the dosage or strength.
However, the U.S. Food and Drug Administration does not vouch for the validity, safety or
effectiveness of drugs made in compounding pharmacies.
Earlier this year, these new go-to drug dens came under scrutiny following a deadly meningitis
outbreak that was linked to contaminated injections made at a Massachusetts compounding
pharmacy.
In Texas, attorneys for Michael Yowell, 43, had hoped to get a last-minute stay for their client. But
minutes before he was taken to the death chamber, the U.S. Supreme Court rejected a lawsuit he and
two other condemned prisoners had brought seeking execution delays on grounds the pentobarbital
could cause unconstitutional pain and suffering.
He was pronounced dead at 7:11pm CDT (8:11 ET) in Huntsville, Texas.
Yowell was convicted of killing his parents, Johnny and Carol Yowell, in 1998 and setting fire to their
home in Lubbock, Texas. According to court records, Yowell told authorities he shot his father and
then beat, strangled and killed his mother. He then blew up the house.
Yowell’s grandmother, who lived with them, was killed though Yowell was not convicted in her death.
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http://www.foxnews.com/politics/2013/10/09/texas-execution-to-proceed-despite-controversy-over-drug-and-compounding.html[9/22/2016 2:04:13 PM]
Texas refuses to give back lethal drugs, proceeds with execution Fox News
Last month, the House passed legislation aimed at regulating compounding pharmacies. The bill,
which is now in the Senate, would create a national set of standards to track the distribution chain of
pharmaceuticals. Proponents say the bill closes a pretty wide gap between state and federal oversight
of compounding pharmacies. In the Massachusetts meningitis outbreak, 64 people died and more
than 700 people got sick across 20 states from a bad batch of steroids produced at the New England
Compounding Center.
Other states like South Dakota and Georgia have had similar problems with purchasing drugs directly
through manufacturers.
Georgia's first use of an execution drug obtained through a compounding pharmacy was put on hold
in July after the condemned inmate challenged a new state law that bars the release of information
about where Georgia obtains its execution drug.
Separately, on Tuesday, the 5th Circuit Court of Appeals rejected a motion made by Yowell’s
attorneys who asked to supervise “every step of the execution process.”
The Associated Press contributed to this report.
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EXHIBIT 10
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http://www.foxnews.com/politics/2013/10/09/texas-execution-to-proceed-despite-controversy-over-drug-and-compounding.html[9/22/2016 2:04:13 PM]
Texas refuses to give back lethal drugs, proceeds with execution Fox News
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EXHIBIT 10
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ID:
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http://www.foxnews.com/politics/2013/10/09/texas-execution-to-proceed-despite-controversy-over-drug-and-compounding.html[9/22/2016 2:04:13 PM]
Pfizer death penalty drug decision welcomed by activists but states fight on World news The Guardian
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Capital punishment
Pfizer death penalty drug decision
welcomed by activists but states fight on
Pharmaceutical giant lands major blow on capital punishment states
Expert: ‘We still have tremendous concerns about the source of drugs’
Pfizer blocks use of its drugs in lethal injections
Pfizer ban raises fears of alternative execution methods
EXHIBIT 11
Appellate
Case:
16-3072
Page:
68
Date
Filed:
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Entry
ID:
4451561
https://www.theguardian.com/world/2016/may/14/pfizer-death-penalty-lethal-injection-drug-ban[9/22/2016 2:04:42 PM]
Pfizer death penalty drug decision welcomed by activists but states fight on World news The Guardian
The lethal injection chamber of the South Dakota State Penitentiary.
Photograph: Amber Hunt/AP
Tom Dart in Houston
@Tom_Dart
Saturday 14 May 2016 15.43 EDT
This article is 4 months old
“You got your justice right here,” the convicted child-killer Pablo Vasquez said as the
lethal injection took effect. He grew dizzy, snorted, dropped his head to the pillow on
the gurney and took his last breaths.
Pfizer blocks its drugs
from being used in
lethal injections in
prisons
Read more
When he died on 6 April at the state penitentiary near
Houston, Vasquez became the sixth person executed
by Texas this year. Eight more judicial killings are
scheduled in 2016 in the nation’s most prolific death
penalty state, but how much longer this brand of
justice will continue to be enacted in Texas and
elsewhere in the US is an open question.
EXHIBIT 11
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Case:
16-3072
Page:
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Date
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Entry
ID:
4451561
https://www.theguardian.com/world/2016/may/14/pfizer-death-penalty-lethal-injection-drug-ban[9/22/2016 2:04:42 PM]
Pfizer death penalty drug decision welcomed by activists but states fight on World news The Guardian
Growing opposition to capital punishment and the increasing logistical problems states
face in carrying it out were underlined when it emerged on Friday that Pfizer, the
largest pharmaceutical company on the planet, is imposing firmer controls to stop its
products from being used in executions.
Opposition among major drug companies is so complete that no Food and Drug
Administration-approved manufacturer is willing to let its wares be used in lethal
injections, campaigners say.
Pfizer’s bolstered stance is the latest victory for activists and attorneys whose pressure
has built a Europe-led boycott that has left states scrambling to locate their preferred
drugs and turning to experimental drug cocktails from dubious providers – if they are
still able to carry out lethal injections at all.
Yet while opponents are delighted at what they see as a substantial victory, it is
impossible to say what the precise impact will be. For years, state prison agencies have
resorted to desperate and questionable measures to replenish supplies, aided by
lawmakers who allow officials to cloak the process in secrecy.
The result is that the gravest act a state can perform on its citizens – killing them – is
also among its most secretive functions. Fundamental details such as who is facilitating
and participating in the executions, and the origin and quality of the drugs, are hidden
from public view.
With so little information available about the suppliers and makeup of drugs such as
the sedative that killed Vasquez, the past, present and future usage of drugs linked to
Pfizer is not measurable. Did Texas buy its compounded pentobarbital last month? Last
year? From within the state, elsewhere in the US, or abroad? From a legitimate or shady
source? That information is a state secret.
No medical groups
want anything to
do with this.
There’s already a
strong argument
that the death
penalty is broken
Megan McCracken,
University of California,
Berkeley
“It’s hard to quantify what the effect is going to be,” said
Robert Dunham, executive director of the Death Penalty
Information Center. “It’s been getting progressively
more difficult for states to obtain these medicines for
executions and Pfizer’s stricter policy isn’t going to make
it any easier.
“If the states are not able to obtain medicines to use in
executions from the manufacturer, they will have to look
to compounding pharmacies [which make bespoke
prescriptions],” he said.
“That carries its own set of problems because the compounding pharmacies are less
EXHIBIT 11
Appellate
Case:
16-3072
Page:
70
Date
Filed:
09/23/2016
Entry
ID:
4451561
https://www.theguardian.com/world/2016/may/14/pfizer-death-penalty-lethal-injection-drug-ban[9/22/2016 2:04:42 PM]
Pfizer death penalty drug decision welcomed by activists but states fight on World news The Guardian
well regulated and the American Pharmacists Association and the International
Academy of Compounding Pharmacists have both adopted resolutions urging their
members not to participate in lethal injections … Experience has shown that there are
very significant safety risks.”
A compounding pharmacy in Oklahoma that sold drugs for executions in Missouri, for
example, was found to have committed nearly 1,900 violations.
Texas argues that privacy is essential both to protect the safety of employees who may
be subject to threats and to ensure the state can continue to locate drugs that allow it to
carry out the law. In a continuing court case, attorneys for two executed prisoners
contend threat claims are overblown and that the name of the provider whose product
killed the inmates should be released under public records laws.
Even if the compounding pharmacy’s identity is made public, the revelation would only
show who was providing drugs before last September, when a new state law making
supplier details confidential went into effect.
“We still have tremendous concerns about the source of the drugs and the fact there’s
no way to determine whether a drug being used to put people to death in the state
actually comports with the US constitution,” said Kristin Houle, executive director of
the Texas Coalition to Abolish the Death Penalty.
Why Texas county
known for death
sentences has given
none in 2015
A spokesman for the Texas department of criminal
justice did not respond to a request for comment
about the agency’s current efforts to source drugs and
whether the Pfizer decision would have an effect.
The clearest way to deliver a lethal blow to the death
penalty would be a US supreme court decision
striking it down. In a 5-4 decision in 2015, though
justices Sonia Sotomayor and Stephen Breyer wrote stinging dissents, the court upheld
the use of midazolam despite its role in several botched executions which critics argued
violated the constitutional ban on cruel and unusual punishment.
Read more
Polls suggest a majority of Americans still support the death penalty. But the
cumulative force of a series of smaller victories, such as Pfizer’s statement and legal
battles waged in individual states, appears to be having a substantial effect. The trend is
that fewer prisoners are being put to death in fewer states, and death rows are not being
replenished. Even in Texas, prosecutors are seeking the ultimate sentence less
frequently, often for pragmatic reasons.
Court challenges and practical issues mean executions are now rare or nonexistent even
EXHIBIT 11
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Case:
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Page:
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Date
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Entry
ID:
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https://www.theguardian.com/world/2016/may/14/pfizer-death-penalty-lethal-injection-drug-ban[9/22/2016 2:04:42 PM]
Pfizer death penalty drug decision welcomed by activists but states fight on World news The Guardian
in many states that technically still allow the death penalty. California, the most
populous state, has not held an execution since 2006. Ohio announced last year that it
was placing all executions on hold until at least 2017 because it could not obtain the
required drugs.
According to the Death Penalty Information Center, five states have carried out 14
executions this year: Texas (six), Georgia (five), and Florida, Missouri and Alabama
(one each). That tally is half the nationwide total from 2015, but currently only Texas
has more executions scheduled this year: eight between June and October.
The impact of Pfizer’s move is also tough to gauge because hardcore death penalty
states have shown a willingness to get creative and to consider extreme options. That
has included opening the door to alternative methods – last year Utah reintroduced
firing squads as a backup.
In 2012, with the boycott biting, Texas turned from a three-drug protocol to one using
only pentobarbital. The following year, it sourced supplies from a compounding
pharmacy. In the past couple of years, it has appeared to struggle to find enough
compounded pentobarbital to carry out its lengthy slate of lethal injections and has
flirted with the idea of finding backups.
Last year, Texas and Arizona tried to import sodium thiopental illegally from a dubious
and obscure operation in India. The shipments were stopped at American airports by
the FDA because the drug is not authorised for use by humans in the US, BuzzFeed
reported.
Still, last fall, Texas evidently felt secure enough in its stocks to dispatch three vials of
pentobarbital to Virginia as a thank you for its help in sending drugs to the Lone Star
state in 2013. Last month, Virginia governor Terry McAuliffe stopped at the last minute
a move to reintroduce the electric chair, given the difficulty of obtaining execution
drugs.
EXHIBIT 11
Appellate
Case:
16-3072
Page:
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Date
Filed:
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Entry
ID:
4451561
https://www.theguardian.com/world/2016/may/14/pfizer-death-penalty-lethal-injection-drug-ban[9/22/2016 2:04:42 PM]
Pfizer death penalty drug decision welcomed by activists but states fight on World news The Guardian
The firing squad execution chamber at the Utah state prison in Draper, Utah. Photograph: Trent Nelson/AP
Virginia governor
rejects plan to revive
electric chair as main
execution method
Read more
In 2014, the Colorado Independent revealed email
exchanges about shortages between officials in Texas
and Oklahoma, who joked that they might help in
return for college football tickets – “sideline passes
for Team Pentobarbital”, as they put it.
In 2011, it emerged that Arizona had been importing
drugs from a British wholesaler operating out of a
west London driving school. Also that year, lawyers for a Texas death row inmate
alleged that the state was using the name of a nonexistent hospital as a delivery address
for drugs that were in fact destined for the death chamber.
Megan McCracken, of the Death Penalty Clinic at the University of California, Berkeley,
School of Law, said the Pfizer announcement was “a sign of unity”.
“We see now the pharmaceutical industry does not want its products used in
executions,” she said. “The medical field does not want to be involved in executions, the
nursing field does not want to be involved in executions, the paramedic field does not
want to be involved in executions. No medical groups want anything to do with this.
“There’s already a strong argument that the death penalty is broken and it doesn’t
function as it is intended to function … [Drug shortages are] one of a myriad problems.”
EXHIBIT 11
Appellate
Case:
16-3072
Page:
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Date
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Entry
ID:
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https://www.theguardian.com/world/2016/may/14/pfizer-death-penalty-lethal-injection-drug-ban[9/22/2016 2:04:42 PM]
Pfizer death penalty drug decision welcomed by activists but states fight on World news The Guardian
More news
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09/23/2016
Entry
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4451561
https://www.theguardian.com/world/2016/may/14/pfizer-death-penalty-lethal-injection-drug-ban[9/22/2016 2:04:42 PM]
Pfizer death penalty drug decision welcomed by activists but states fight on World news The Guardian
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EXHIBIT 11
Appellate
Case:
16-3072
Page:
75
Date
Filed:
09/23/2016
Entry
ID:
4451561
https://www.theguardian.com/world/2016/may/14/pfizer-death-penalty-lethal-injection-drug-ban[9/22/2016 2:04:42 PM]
Pfizer death penalty drug decision welcomed by activists but states fight on World news The Guardian
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EXHIBIT 11
Appellate
Case:
16-3072
Page:
76
Date
Filed:
09/23/2016
Entry
ID:
4451561
https://www.theguardian.com/world/2016/may/14/pfizer-death-penalty-lethal-injection-drug-ban[9/22/2016 2:04:42 PM]
TEXAS DEPARTMENT OF PUBLIC SAFETY
~05 N U!.MAR BI..W • BOX 4@31• AUSTIN, TEXAS 1'3773..0001
5121424-2000
w;ww,sipll>texu.goy
March 1. ,?014
Mr. Brad livingston
Executive Director
Texas Department of Criminal Justice
PO Box99
Huntsvme. Texas n342..,0099 ·
..
Dear Direc~or Livlf}gston:
The purpose of this Jetter is to provide you the results of our'assessmenfof threats
including a terrorist threat. to pharmacies who have boon publicly identified as providing
controlled substances to corrections departments Including, the Texas Department of
Criminal Justice for the purpose of fUlflin.ng. its statutory obligation to execute prisoners.
lt·is our assessment that some of the threats made to the Woodlands Compounding_
Pharmacy that we identified should be taken seriously and we recommend that all ~hreats'
received by the Woodlands Compounding Pharm'acy be report~d to ~w-enfotcement
· "'
officials as soon a~ they receive them and that the empioyee~{reooive tmirting on the
detection and reporting of suspicious activity. ,
:
Pharmacies by design are easily accessible to the public and present a soft targef'to
vloient attacks. It is our assessment that publicly U,nklng a pharmacy or other drug supplier
·· to the production of oontrofled substapoos to .be used In executions .presents a substantial
threat of physical harm to the pharmacy, other drug supplier and its personnel a~ shoufd
be avoided to the greatest extent possible.
·
'
If you should like a detailed briefing of our assessment, please conta'cl me at (512) 4247771.
Sincerely,
~C1)1C~
Steven C. McCraw
Director
EQUAL OPPORTVN/TYEMPi.OY£R
COURTEsY • SERVICE •I'ROU:CTION
Appellate Case: 16-3072
EXHIBIT 12
Page: 77
Date Filed: 09/23/2016 Entry ID: 4451561
346
AF'FlDA 'VlT OF BRAD LIVIN(;STON
STATE OF TEXAS
COUNTY OF WALKER
§
§
§
Before me, the undersigned authority, personally appeared Brad Livingston, who, being
by me duly sworn, deposed as foJJows:
"My name is Brad Livingston. I am over 21 years of age, of sound mind, capable of
making this affidavit, and personally acquainted with the facts as stated herein. I am currently
employed as the Executive Director of the Texas Department of Criminal Justice (TDCJ) and
have held that position since November 2004. Prior to that I was the Chief Financial Officer for
TDCJ, a position I held from June 2001 to Jul 2005, and prior to that, I was the Deputy Chief
Financial Officer from October 1997 to June 200L
As the executive director, I oversee the entire Texas prison system and as such, I am very
familiar with issues concerning the procurement of lethal injection chemicals for use in the
executions we are required by Iaw to perform~ TDCJ and selling pharmacies have 16ng been
concerned about the safety of the phannacists providing the drugs used in executions, based on
hate mail arid threats to the pharmacists. TDCJ's present difficulty irt procuring lethal injection
chemicals arose after the names of the pharmacy and pharmacist involved in the 2013 sales to
TDCJ of compounded pentobarbital were disclosed to the public.
When it came time to consider the purchase of more pentobru·bital at the beginning of
March of 2014, I consulted with Steven McCraw, Director of the Texas Department of PubHc
Safety (TDPS), about providing a threat assessment of threats to pharmacies who have bee11
publicly identified as providing controlled substances to corrections departments, including the
Texas Department of Crimina{ Justice for use in executions. We had recently been made aware
of a very recent threat to a pharmacist and their pharmacy wherein it was threatened to place a
truck filled with fertilizer in front of the pharmacy and blow it up so that it would threaten the
pharmncy building, the pharmacist, the employees of the pharmacy, along with anyone else in
the immediate area with death and grave bodily harm, if the pharmacy supplied chemicals to be
used in executions.
Mr. McCraw's assessment of that threat, and of other material made available to law
enforcement, was that some of the threats made to the pharmacy involved in the 2013 sates of
pentobarbital should be taken seriously and that all threats should be reported to law enforcement
as soon as they are received. The assessment additionally included the conclusion that
pharmacies are by design easily accessible to the public and present a soft target to violent
attacks; and that publicly linking a pharmacy or other drug supplier to the production of
controlled substances to be used in executions presents a substantia] threat of physical harm to
the pham1acy, other drug supplier, and their personnel. A true and correct copy of the threat
assessment is attached to this affidavit.
1
Appellate Case: 16-3072
EXHIBIT 13
Page: 78
Date Filed: 09/23/2016 Entry ID: 4451561
558
Since the threat a<>sessment provided by TDPS, TDCJ has been able to purchase
pentobarbital only by ensuring that every effort would be taken to protect the identity and, thus,
safety of the pharmacists involved. TDCJ sought the threat assessment because the level of
potential harm to the suppliers of lethal injection drugs escalated from harassment to threats of
substantial physical harm and death. One graphic example on the Internet, dated October 6,
2013, shows a graphic of the screaming and violently exploding head of the pharmacist who
supplied TDCJ with lethal injection chemicals. A true and correct copy of that web page is
attached to this affidavit and wa':l downloaded March 26, 2014. The caption under the graphic is
"The Pharmacist who approves the business of killing, but only under the veil of secrecy."
I believe that TDCJ is in a different position than it wa.s in when-TDCJ was ordered to
publicly reveal the identities of the parties who participate in the process of supplying lethal
injection chemicals for use in executions. The threats of harm have certainly escalated in degree
and type, as I note in the previous paragraphs of this affidavit. I believe that revealing the
identity of pharmacists, pharmacies, other drug suppliers, and thqse involved in the supply of the
drugs, including the drug testing company, would only serve to jeopardize their personal
physical safety and the public safety.
"Further affiant sayeth not"
ANGS.Al MOORE
NOTAAY PUBLIC
STATE OF 1'&M
MY OOMM. S
d
My Ctlmmisskm ExpiwB
OCTOBER 14,2017
Notary's Printed Name
Date Commission Expires
8
Appellate Case: 16-3072
EXHIBIT 14
Page: 87
Date Filed: 09/23/2016 Entry ID: 4451561
637
Colonel Steven McCraw, 7/21/2014
Maurie Levin v. Texas Department of Criminal Justice
14
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A. But, I mean, I get the same request from like
Judge Specia. And he -- I get a number of requests
from other executive directors from time to time on
threat assessments. And depending upon what the issue
is is depending on how l respond.
Q, At that time did you ask him to provide you
specific infonnation?
A. No, not at all. He said he would provide the
information that he had. And l agreed, "Yes, l wiH
review it and !'II provide you my expert opinion on
this." And l did so.
Q, Okay. Anything else that you remember about
that conversation?
A. No.
Q, Okay. And you said -- can you estimate more
or less when that conversation happened in relation to
your March 7th letter?
A It was days before.
Q. So it could have been a week before?
A. No, it would have been sooner than that
Q, So fewer than seven days?
A Yeah, it would have been fewer than
seven days,
Q, So then you said you received some ··the
e-mails by fax from his office, correct'/
16
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ensure that we're -- you've got everything that l can
recall about this is that I did have two -- I had a
discussion with him about the wording and framing of
it.
Q. Okay.
A l preferred to --l use "significant" serious.
Okay? l don't want to use the term "substantial." And
to me they're synonymous.
Q. When was that conversation?
A. It would have been after the first day that l
looked at the information.
Q. Okay. How much time did you spend reviewing
those e-mails?
A l think it only took a couple of hours at the
most.
Q, Okay. You said this discussion was shortly
after yo\t reviewed the e-mails?
A You know, it was after! reviewed thee-mails.
Q, And so in relation to the phone call?
A Yeah. l mean, what-- l was telling you what
my findings were. Okay?
Q. Right But in relation -- go ahead. I'm
sorry.
A. That's all. lt was in relation to the
follow-up and during that discussion. I mean, it
15
Correct.
17
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1
A
2
Q, Okay. Was that the same day?
2
3
A l believe so.
4
Q, Okay. What happened next?
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A. l didn't review it that day. l think it was
later. Like I didn't take on that task until the next
day
Q, Okay. And what's the next thing that
happened?
A l reviewed it, and it was obvious to me that
it was an unnecessary risk to provide that infonnation
publicly. l'm surprised that they did-- quite
frankly, l was surprised that they did before and why
they didn't ask or at least make a better argument for
not providing that information publicly, because what
happened, obviously, is that the compounding-Woodlands-- as you would expect on something that's so
emotionally charged was -- received a number of-we'll cal! it-- at least one case was a threat, but
certainly a lot of attention.
Q Okay, And what is the next thing that
happened after that?
A. l wrote the letter and sent it to him.
Q, Okay.
A. Now, l can tell you this, is -- again, just to
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was-- you know, like I said, "substantial" is not a
term that -- I do recall that it was -- "significant"
is what my tem1 for the threat was.
Q, Okay.
A. Which is -- it doesn't make any difference to
me. It's the same thing. It's synonymous. But for
some reason it was important to him.
Q, Okay. And what I was trying to get at was at
the timing. Your letter was vvritten March 7th. You
said the initial phone call was no longer than a week
before that. The c-mails came later that day and you
reviewed them perhaps the next day. When did this
conversation happen in that timeframe?
A. Within the same period of time.
Q, Okay.
A. It was before l wrote the letter. And before
he received -- before the -- the letter on the -- well,
the March 7th letter is when I had the discussions.
It's when l had the request, when I had the finding,
when I had the discussions, and when I wrote the
letter.
Q, Okay. And if you needed to double-check the
timing or if we needed to double-check the liming,
could we do via -- certainly via the fax, correct, when
you received those documents?
5 (Pages 14 to 17)
Advanced Depositions
www.advanceddepositions.com I 855-811-3376
Appellate Case: 16-3072
EXHIBIT 15
Page: 88
Date Filed: 09/23/2016 Entry ID: 4451561
685
Colonel Steven McCraw, 7/21/2014
Maurie Levin v. Texas Department of Criminal Justice
18
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A. I don't -- l'm sure that-- I'm sure that his
fax machine-- I'm sure they might have some
information on that.
Q. Okay. And what about catllogs or anything
like that of times that-- the dates when you spoke to
him for the initial request and your subsequent phone
call, are those things that exist, if you know?
A. I don't believe those exist, but perhaps they
have -- they record their phone calls, outgoing phone
calls at TDCJ.
Q. Okay. And in terms of-- you've made
reference to having a discussion with
Director Livingston about some terminology in the
letter. In addition to that, who else had input into
the writing of the letter?
A. That's it.
Q. He had some input into -A. He had some input into the "substantial"
versus "significant." l mean, I know that because l
recall that directly.
Q. Okay. And, obviously, you had some input into
the content ofthe letter?
A. Of course.
Q. Okay.
A. l wasn't going to buy off on anything that l
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one I signed. And I've tried to retlect on that and
can't recall.
Q. If you were to send a draft, would that come
via e-mail or via fax? What would your typical -A. l wouldn't use a fax. l would use an e-mail.
Q. Okay.
A. Yet l can't find, you know-- we couldn't find
anything responsive to the request after looking.
Q. And so just to double-check, you've looked for
a draft in your e-mail and you haven't found one?
A. Oh,yeah.
Q. Okay.
A. And then in my secretary's file she keeps
pretty much everything, so -- once there's been an open
records request.
Q. Okay.
(Exhibit 2 marked)
Q. (BY MR. QUINTO-POZOS) l would like to show
you what's been marked as Exhibit 2. And ifi could
ask you to take a moment to reacquaint yourself with
that.
A. Okay.
Q. Okay, And so is this the March 7th letter
that we've been discussing?
A. That is correct.
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didn't absolutely firmly believe to be true.
Q. Did anyone else have input into the letter,
into the content of the letter?
A. No. No, just me.
Q. Anyone else from your-- from this department?
A. Absolutely not.
Q. Okay. Did he or anyone else send you any
proposed language?
A. No.
Q. Okay. Did he tell you why the terminology
"substantial" versus "significant" or "serious" was
important?
A. No. I just assumed it's his attorneys. There
was a lawyer somewhere that was -- l mean, that is a
pejorative. l just assumed. It sounded technical and
irrelevant to me.
Q. But you don't know the reason behind his -A. No.
Q. -- preference?
A. No.
Q. Okay. Did you at some point send a draft
letter to him?
A. You know, l don't know -- l can't recall
whether l did or did not, to tell you the truth. l
just know that the one that I -- that the 7th is the
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Yes, sir.
A. Yes, sir, it does.
Q. Okay. Ifi could direct your attention to the
first paragraph, and if you could follow along as l
read. lt says, "The purpose ofthis letter is to
provide you with the results of our assessment of
threats, including a terrorist threat, to pharmacies
who have been publicly identified as providing
control!ed substances to corrections departments,
including the Texas Department of Criminal Justice, for
the purpose of fulfilling its statutory obligation to
execute prisoners."
A. Uh-huh.
Q. Did I read that accurately?
A. You did.
Q. Okay. And one thing l note is that it refers
to pharmacies in the plural there -A. Uh-huh.
Q. --in that initial paragraph. How many
pham1acies did you consider when you were making -A. !looked at the Woodland compound, Woodland
Pharmacies.
Q. Okay.
6 (Pages 18 to 21)
Advanced Depositions
www.advanceddepositions.com I 855-811-3376
Appellate Case: 16-3072
EXHIBIT 15
Page: 89
Date Filed: 09/23/2016 Entry ID: 4451561
686
Colonel Steven McCraw, 7/21/2014
Maurie Levin v. Texas Department of Criminal Justice
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A. But! considered in the same circumstances
that J would address from Woodlands, you know, publicly
identifying it, its employees, and locations would be
relevant to a similar circumstance of any pharmacies.
Q. And so the specific situation you considered
was only regarding the Woodlands Compounding Pharmacy?
A. Yeah. That's the one I had the information
on.
Q. Okay.
A. l used pharmacies just to, you know, I
guess --you know-- well, I'll just let you go ahead.
Q. Okay. And the next paragraph says, "His our
assessment that some of the threats made to the
Woodlands Compounding Phannacy that we identified
should be taken seriously and we recommend that all
threats received by the Woodlands Compounding Pharmacy
be reported to law enforcement officials as soon as
they receive them and that the employees receive
training on the detection and reporting of suspicious
activity."
Did I read that accurately?
A. Cmrect.
Q. Okay. Why did you say some of the threats
should be taken seriously?
A. Well, maybe l should have said all threats
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was a reference to the Oklahoma City bombing?
A. Yeah, one of thee-mails.
Q. Okay. Were what were some ofthe other
threats that you identified?
A. That is a -- that's a threat, a threat in
terms of their-- the individual's access, the
accessibility of the compounding pharmacy, urban,
public, accessible to the public, days, web page,
employees all are Iisted. You can go back from it and
use open source information and track them down. You
can track family members down. So the threats were,
you know, obviously significant.
Q. Okay.
A. Anyone that wanted to --to use extreme
violence, okay, on the owner and some of the employees,
could easily do so.
Q. Okay. And sol don't want to use terminology
that you haven't used, so correct me if I use a word
that you wouldn't use. But I think you've been
describing sort ofthe visibility, perhaps, of some of
these pharmacies.
A. We use-- when you look at threats, okay, you
have to use, you know, a number of-- you've got to
use, you know, probability, you have to use-- use a-well, model, you use probability, you use
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should be taken seriously, but -Q. But you said "some,'' and so I'm curious to
know why-A. Well, l should have used the term "all" -· in
to day's threat environment all threats should be taken
seriously.
Q. Okay.
A. Even -- in fact, even implied threats should
be taken seriously.
Q. Okay.
A. It's one of the things we counsel, you know,
our state legislators and others that we are bound to
protect about. You know, and today you crumot -·you
cannot, you know, afford to underestimate the level of
extremists and violence that's out there.
Q. And then you made reference to threats that we
identified. And which ones were those?
A. The threats that we identified, one of them
was related to -- reference to the Oklahoma City
bombing, I think, was one that was an inference.
Q. Okay.
A. The fact that it's public location, the owners
were easily identified, including the family, how to
get to them.
Q. Okay. And so you said you considered there
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vulnerability, and you use consequences. lfyou use
it, you know, like-- they usually-- RAND model uses
risk is a factor as equal to threat, vulnerability, and
consequences.
We use in the depmtment, and have and
the other law enforcement agencies, use threat as a
product of-- of probability, vulnerability, and
consequence. It's essentially the same thing when
you're doing hurricanes, okay, or you're looking at
individual threats of locations.
Q. Okay.
A. For example, the Woodlands Pharmacy is higher
vulnerability to attack. Okay? The consequences of
someone -- you know, whether it's an lED or simply just
a mass shooting is substantial. l think l referenced
the public as well.
Q. lfyou know, what has been done to take these
threats seriously?
A. I hope they take --1 hope immediately-- l
hope they've been taken seriously from the beginning.
Q. But in terms of your knowledge, do you know
what measures have been taken to take these threats
seriously?
MS. BUNKER-HENDERSON: Objection, form
Q. (BY MR. QUINTO-POZOS) Go ahead.
7 (Pages 22 to 25)
Advanced Depositions
wvvw.advanceddepositions.com 1855-811-3376
Appellate Case: 16-3072
EXHIBIT 15
Page: 90
Date Filed: 09/23/2016 Entry ID: 4451561
687
Colonel Steven McCraw, 7/21/2014
Maurie Levin v. Texas Department of Criminal Justice
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MS. BUNKER-HENDERSON: Oh, yeah. I'm
sorry. Yeah, go ahead.
THE WITNESS: Fonn? You don't like the
way l -- my form or-MS. BUNKER-HENDERSON: Objection to his
fonn.
THE WITNESS: Yeah, I was asked-- you
know, the department was asked-- okay. And this was,
you know, after the fact, asked to assess the threats.
And that's what we were looking at, is to-- l did not
get into what the local authorities do, was the FBI
contacted, did they follow up along those things. You
know, we were specifically asked, you know, what-would we be willing to do a threat assessment, and
that's-- that's what we limited the scope to.
Q. (BY MR. QUINTO-POZOS) Okay. In your letter
you recommend that all threats received by the
Woodlands Phannacy be reported to law enforcement.
A Correct.
Q. Do you know if that has happened since your
letter?
A. You would like to think so. You would like to
think that my recommendations were taken seriously.
Q. But you don't know?
A. No, I don't.
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A Correct.
Q. What is that detailed briefing?
A. Just simply walk them through the matrix that
we use •• or I use in terms of assessing threats.
Q. And did you do that?
A. No. l had no request to do iL
Q. Okay. So tell me a little bit more about what
would go into that. You mentioned a matrix.
A Yeah. The thought-· how I do it, howl do
threats -- well, first of aH, we do threats a number
of different ways in the Department of Public Safety,
and the scope of it depends upon what we're being asked
to do.
For example, we set up a state
intelligence assessment process and we're using -- and
we're assessing public safety threats. And it could be
from disasters to pandemic flu that we address;
terrorism, for example. And we get the inputs and
expertise and the analysis from all agencies fed into.
So now you're looking at a formalized process, okay,
not unlike the national intelligence assessment that
we've adopted.
And we do production model for gangs, we
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Q. Okay. And, likewise, do you know if employees
have received training at the Woodlands Compounding
Pharmacy regarding reporting -A. I don't. l hope that they have.
Q. Okay. And, again, you don't have any
knowledge of that?
A. l don't have any knowledge of it
Q. Now, this talks about a specific pharmacy, the
Woodlands Compounding Phammcy. What about the current
supplier of lethal injection drugs for the Department
of Criminal Justice? Do you know if threats have been
reported from that phannacy'/
A. l don't know and l don't-- l actually don't
know where it is or who it is.
Q. Okay. And do you know ifthey --their
employees have undergone any training?
MS. BUNKER-HENDERSON: Objection, form.
THE WITNESS: l don't, but l hope so.
Q. (BY MR. QUINTO-POZOS) Okay.
A. l hope they've taken some of the measures that
l recommended.
Q. ln the last paragraph, you describe-- you
say, "lfyou should like a detailed briefing of our
assessment, please contact me," and you list your phone
number
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do it for public safety threat assessment, and at our
annual gang assessment, also recently a human traffic
assessment. That's a very formal one, obviously, with
inputs from other stakeholders and law enforcement
agencies. There's other assessments as wetl.
l mean, in fact, general counsel and I
were visiting about how really we require, you know,
troopers, agencies -MR. ADKINS: Don't talk about what the
general counsel and l were visiting about.
THE WITNESS: Okay.
MR. ADKINS: Sorry. l apologize.
MR. DURST: l was waiting for when that
was going to happen.
THE WI1NESS: Yeah, that's right.
But the bottom line is that troopers
agents and Texas Rangers, okay, on a daily basis do
threat assessments and quickly are required to make
decisions. And some of those decisions call off the
pursuit or exercising the use of deadly force or the
entire force continue based on the variables they come
to. So they're looking to mitigate risk or what that
threat is to them or the public.
And, you know, similarly, we do it, you
know, when the representatives want to travel to other
8 (Pages 26 to 29)
Advanced Depositions
www.advanceddepositions.com 1855-811-3376
Appellate Case: 16-3072
EXHIBIT 15
Page: 91
Date Filed: 09/23/2016 Entry ID: 4451561
688
Colonel Steven McCraw, 7/21/2014
Maurie Levin v. Texas Department of Criminal Justice
30
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countries. It's a little bit more formal --a little
bit more background, we do a little more research along
these lines. And, of course, something !ike this
requires, you know, requires-- you know, it's helpful
to nave some level of expertise.
And, obviously, in this situation I'm
ideally suited to make this call because I've been
involved in this, you know, for many, many years and
have done it for the Attorney General of the United
States, have done it for the director of the FBI in
terms of threat assessments and on a high level and on
a low level.
So, moreover, it keeps any of my
employees out of the public arena of being criticized
on such an issue that has generated so much pub I icity
and it minimizes any threats that civilians might have.
l don't want any of our employees or analysts exposed
to -- to threats from some ofthese types of people
that you can't-- you have no way to accurately predict
their actions.
Q. So in this specific instance the detailed
briefing as to this threat assessment would consist of
what?
A My process. And I could take them from -like l said, it's a little geek-ish, but l can take
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THE WITNESS: They have, have they not?
MR. ADKINS: Yes.
THE WITNESS: l mean, that's-Q. (BY MR. QUINTO-POZOS) Okay. And you made
reference a number of times to-- both in your letter
by stating that pharmacies are by design -- by design
are easily accessible, and you've mentioned among the
factors that you've considered the vulnerability. Did
you physically visit the Woodland Compounding Pharmacy?
A No. And today, unfortunately, you can conduct
surveillance online. l mean, it's that open and it's
something we're mindful of. It's put-- it's an
additional factor we're aware of when we're doing our
security assessments.
Q. Okay. And did you visit the department's
current supplier of lethal injection drugs?
A. First-- you mean TDCJ?
Q. TDCJ's.
A. Like I said before, l don't know where that
would be. l don't know who it would be.
Q. And, therefore, didn't visit?
A. Correct.
Q. Yeah. And have you visited prior suppliers of
TDCJ's lethal injection drugs?
A. Notatall.
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them trom the quadrants and the different variables and
explain it But no one really wanted to hear. They
just wanted my conclusions.
Q. Okay. And does that exist in written form
somewhere -A No.
Q. --the debriefing in this case?
A No.
Q. Okay.
A There's examples -- l better be careful here
because we do have-- we have examples of the process,
okay, or a threat process, a deliberative threat
process that -- that certainly l use for any type of
threat assessments published in a public -- law
enforcement sensitive pub! ic safety threat assessment.
And l think we even have it-- it may be in an unclass
version as well.
Q. And my next question to you is going to be, do
you have --are there any notes that exist of your
process in this case?
A. Yes.
Q. Okay. And have those been turned over to the
department's attorneys?
A. Yes.
Q. Okay.
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Q. Okay. Did you do-- how about any potential
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No.
suppliers-A No.
Q. -- that the TDCJ considered?
A
No.
MS. BUNKER-HENDERSON: Just let him
finish asking his question, because she's going to have
a hard time writing you both down.
THE WITNESS: Okay.
Q. (BY MR. QUINTO-POZOS) Did you go to the
Woodland Compounding Pharmacy's website?
A Yes.
Q. Okay. And how did you use that in your-A See if you can-- I wanted to see, you know,
what information was available to the public on the web
page.
Q. Okay. And what did you tind?
A The location, the owner, members.
Q. By "members," what do you mean?
A People that work there.
Q. Okay.
A Because it is a-- is a follow-up. The
concern we have is just not just-- l mean, the
---··----
--~--~-~------
J
9 (Pages 30 to 33)
Advanced Depositions
www.advanceddepositions.com! 855-811-3376
Appellate Case: 16-3072
EXHIBIT 15
Page: 92
Date Filed: 09/23/2016 Entry ID: 4451561
689
Colonel Steven McCraw, 7/21/2014
Maurie Levin v. Texas Department of Criminal Justice
38
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A
l didn't see anything that-- this doesn't
40
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bother me. It's just one of many people that are
Q. (BY MR. QUINTO-POZOS) l'm handing you what's
2
been marked as Exhibit 6. And I'll just ask you to
take a moment to review it, please
3
complaining. l mean, "The phmmacist sold medical
3
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ethics and shamed his profession for $2,800." l don't
4
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5
see anything in here other than the person's --
5
Q. ls this one of the materials that you received
6
Q. Did you research who authored this?
6
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A. Yes.
8
Q. The person's name, where they live?
8
Q. Okay. And is this something you reviewed?
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A
No.
No.
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Okay.
from Mr. Livingston?
A
Yes.
10
Q, What they do for a living?
10
Q. Okay. ls there anything in here that was of
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A No.
Q, Okay. Was there some sort of case or file
11
concern to you in respect to your threat assessment?
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open on this website?
A Not by us.
Q, Okay. Did you see where this website was
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A. Yeah, inference to the Oklahoma City bombing.
13
Q. Okay. And can you tell me where that is in
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hosted, you know --
what paragraph it is, or how do you want me to descnbe
it to you? Do you want me to read it?
Q. Yeah, if you could just read the language.
A. No.
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Q. --in Texas, outside of Texas?
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A. l just looked at the documents that were
A Do you want me to give you which-- exactly
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this message?
A. "As the !olks in the federal building can tell
20
provided to me.
20
you, it only takes one fanatic with a tmckload of
21
Q, Okay.
21
fertilizer to make a real dent in business as usual.
22
ln your place, l would either swear to the nation that
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(Exhibit 5 marked)
Q, (BY MR. QUINTO-POZOS) I'm handing you what's
23
my company didn't make execution dmgs of any sort and
24
been marked for identification purposes as Exhibit 5,
24
then make dang sure that that's true or else openly
25
and I would just ask that you to take a minute to
25
accept the burden of putting my employees and myself in
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review it, please.
2
A
3
Q. This is
Okay.
about a ten-page document. And my
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an unacceptable (and possibly uninsurable) risk Just
2
saying."
3
Q. And this appears to be a message that was sent
4
first question is, are these the -- what you refer to
4
by someone named Professor Humez to --judging from the
5
5
subject line, to Apothecary Tulsa; is that correct?
A Uh-huh.
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15
as the e-m ails that you reviewed that you had received
from Mr. Livingston?
A. They appear to be.
Q. Okay. And your analysis of these
communications partially is what went into your letter?
A ! looked at these, yeah.
Q. Okay. And let's take them one by one. Let's
start with Page!. And if you could just tell me what
it is in here, if anything, that you see of concern to
you with regard to the threat assessment
A Nothing in all of it These are just-- all
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Did you do any research into these
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Q. Okay.
A. I'll assume you have it correct Okay?
Q. All right ls there anything else in this
e-mail that appears to be threatening to you?
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A. That's threatening enough.
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Q. And apart from that, is there any other
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specific language in here that's threatening?
A I think that pretty much does it
Q. Did you do anything to investigate who this
Professor Humez was?
17
A No.
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Q. Okay. Did you call this number that appears
19
individuals --
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A. No.
20
Q. -- who they were --
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A. Absolutely not
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l did so based on the information. l did not do any
Q.
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investigations. We didn't look at any people. We
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Okay.
A. They have a right to express their opinions.
(Exhibit 6 marked)
here or e-mail this --
A
!'II go back to what l started with. l was
asked to do a threat assessment based on my expertise.
24
didn't do anything. Simply conduct a threat
25
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11 (Pages 38 to 41)
Advanced Depositions
wvvw.advanceddepositions.com 1855-811-3376
Appellate Case: 16-3072
EXHIBIT 15
Page: 93
Date Filed: 09/23/2016 Entry ID: 4451561
690
Colonel Steven McCraw, 7/21/2014
Maurie Levin v. Texas Department of Criminal Justice
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Q. So you didn't research who this person was?
A. Absolutely not.
Q. Okay. Do you know ifDPS opened a case file
on this person?
A. Of course not.
Q. Okay.
MS. Bu'NKER-HENDERSON: Just let him ask
his question.
Q (BY MR. QUINTO-POZOS) The answer was, no,
there was no case file opened by -A. There was no case.
Q. Okay. By DPS?
A. That's correct.
Q. Okay. Now, we can go back to it, if you would
!ike. But in your letter there's a-- there's
reference to threats, including a terrorist threat.
And in this e-mail we've made reference to -- this
writer made reference to the Oklahoma City federal
building bombing, correct?
A. Uh-huh.
Q. Did you ever refer any ofthese terroristic
threats to another law enforcement entity?
A. Are you talking about-- what-- what threats
are you talking about?
Q. Well, there's a reference to a threat in this
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defined or it can be an extremist violent threat is
what I laid out.
But as far as specific threats, l did a
threat assessment. And what I'm saying is -- and what
I've concluded is that the Woodlands Compounding
Pham1acy was vulnerable to, you know, an attack, and it
could be -- also relate to a terrorist attack defined
as domestic terrorism under statute.
Q. Okay. This-- this e-mail that you have in
front of you marked as Exhibit 6, is this the terrorist
threat that's referred to in your letter?
A. No.
Q. What is the terrorist threat that's referred
to in your letter?
A. The terrorist threat would be a domestic -someone that would do it for ideology. Their
vulnerability is a-- as I viewed it from the compound
pharmacy would be someone that could attack !hem. lf
they do it specifically on ideology and used violence
for a political purpose or ideology or religion, for
that matter, it would be defined as a domestic
terrorism attack. And they were vulnerable to that.
Q. And was there anything in the materials that
you reviewed that-- that you judge to fit under that
description of a terrorism threat?
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e-mail, and in your letter there are references -- or
there's a reference to a terroristic threat. As part
of your work, were any of those threats referred to -MS. BUNKER-HENDERSON: Objection, form.
Go ahead.
Q. (BY MR. QUINTO-POZOS) As part of your-- as
part of your work, did you refer any terroristic
threats?
A. I probably need to go back and stmt from the
beginning. Okay'?
MS. BTJNKER-HENDERSON: Objection, form.
THE WITNESS: What I did was a threat
assessment. Okay? A threat assessment, okay, is a
product of probability, vulnerability, and
consequences. Okay? To say that-- from a terrorist
attack, you know, having been involved with
Eric Robert Rudolph ar.d the San Antonio Park bombing is
an example. We were involved. And not just in terms
of anti-government, but also anti-abortion and
anti-gay, for example. We can say thats --but it's a
use of violence and we can argue that, "Yeah, that's a
terrorist type of threat scenario."
But when we say threats, absolutely. You
know, l talked about it, is that there has to be
concern It could be a domestic terrorism threat as
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A. My expertise and knowledge of assessing
threats throughout my career, in particular over the
last 20 years.
Q. But nothing tied to thee-mails that we've
reviewed?
A. No.
MS. BUNKER-HENDERSON: Objection, fonn.
ls it okay if we take a quick break?
MR. QUINTO-POZOS: Sure.
(Recess from 9:58a.m. to 10:11 a.m.)
Q. (BY MR. QUINTO-POZOS) Did you have a chance
to take a break?
A. What was the question?
Q. Did you have a chance to take a break'!
A. Oh, yes.
Q. Okay. Good. Do we need to revisit any
answers that you previously gave?
A. No,sir.
Q. Okay.
(Exhibit 7 marked)
Q. (BY MR. QUINTO-POZOS) I'm handing you what's
been marked as Exhibit 7. And l would just ask you to
take a minute to look at it and familiarize yourself
with it, please.
A. Okay.
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20 percent chance?
A l don't think that's a possible -MS. BUNKER-HENDERSON: Objection, form.
Go ahead.
THE WITNESS: That's impossible to do.
Again, it goes back to the totality of circumstances.
l mean, this could be from a friend. This could be,
you know, to siblings thinking it's funny. I'm just
telling you it should be taken -- something like that
that's that specific as you read it should be taken
seriously.
Q. (BY .t>.1R. QUINTO-POZOS) Okay. And can you tell
the statement like that should be taken-- can you tell
if a statement that should be taken seriously will
likely amount to an actual physical action?
A. Not necessarily.
MS. BUNKER-HENDERSON: Objection,fonn.
Q. (BY MR. QU!NTO-PQZOS) Okay. So let's take a
different statement Okay. So let's set the
hypotheticals aside and let's focus on the threat
assessment that you did for this situation, the
provider of lethal injection drugs. l believe you said
this, but let me ask you again.
A Okay.
Q. Do you believe that the threats to pharmacies
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Q. Okay. You made reference to other types of
protests, types of protests that could happen in Texas
Do you know ifthere has been any violence in the State
of Texas regarding abortion clinics or-A. l didn't say anything about protests.
MS. BUNKER-HENDERSON: Objection, form.
Sorry. Let him go ahead and ask it.
THE WITNESS: l didn't say anything about
protests.
Q. (BY MR. QUINTO-POZOS) So let me ask you
outright. Do you know if there's been any violence in
Texas regarding, for example, abortion clinics?
A Not that l'm aware of
Q. Regarding LGBT rights? l think that's another
category that you made reference to.
A. What rights?
Q. Gay rights.
A. No.
Q. Okay. To your knowledge-A. Not that I'm aware of
Q. Okay. To your knowledge, have there been-has there been violence involving protests regarding
religious rights or different religious?
A. Nidal Hasan killed l3 people in the-- at Fort
Hood.
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that provide lethal injection drugs are threats that
should be taken seriously?
A. Yes.
Q. Okay. Do you believe that thee-mails and
documents on which you relied for making that
assessment are statements or a threat that could
possibly lead to violence?
A l think it leads to one -- it needs to be
taken seriously. But all of them need to be -- you
know, in terms of making the assessment, it's the
totality of not just --l want to go back to the
e-mails. It's not just thee-mails that's considered
in the threat assessment. We've discussed that before.
Q. And Exhibit 5 contains thee-mails tbat you
received from Mr. Livingston.
MR. ADKINS: 6. Sorry.
THE WITNESS: Exhibit 6.
Q. (BY MR. QUINTO-POZOS) Pardon me. Exhibit 6,
the e-mail regarding the federal building.
A. Yes, sir.
Q. Could that be somebody just trying to be funny
or trymg to blow olr steam mstead of a threat"
A. Not funny, but 1t could be blowmg off steam.
You don't know until you look into It It certainly is
L~-~--_::~----
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Q. And is that something that DPS investigated?
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Q. Okay.
A. There's --the Smadi incident was prevented,
the terroristic attack in Dallas.
Q. The what incident? l'm sorry.
A. Smadi.
Q. How do you spell that?
A. S-m-a-d-i. Based on religion.
Q. And is that something that DPS investigated?
A. Yes, part of the joint terrorism task force.
Q. What about situations in other states? You
are aware that there are other states that make the
source of execution drugs public. Are you not aware of
that?
A. No, l'm not.
Q. Okay. Did you look into whether that's, in
fact, the case in other states?
A. No.
Q. Okay. Were there any other documents that you
reviewed for your threat assessment other than what
you've seen today in the exhibits?
A. No, sir.
Q. Okay. We talked a little bit earlier about,
in general, what is used in determining whether
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Colonel Steven McCraw, 7/21/2014
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something is a terroristic threat. And l would !ike to
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geoeral what goes into making that determination ±or
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A. I'll say it-- where I have personally handled
it, three.
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Q. Okay. Can you tell us what those were?
you.
A. Well, a terroristic threat was probably
deflned by statute. That sounds like a criminal
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person going to a particular location.
violation. So that -- you're talking about a -- a
potential for a terrorist attack. Again, l go back.
There's a number of different factors that play into
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that scenario.
Q. And l want to make sure that we're on the same
page and l want to use the phrase that you used in your
letter, "a terrorist threat."
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A. Okay.
Q. Okay. And so let's go over some of those
factors that you would take into account. What would
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those be?
A. It would be -- well, certainly as -- as anyone
expressed an act of violence or a potential violence.
1nat would be one factor that would be considered.
Q. Okay. What else?
A. Vulnerability to attack, the -- certainly
would be another factor that's considered.
Q. Okay.
A. Has there been attacks -- has there been
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Q. Okay.
A. And the agency hand Iing it has handed
several -- many more of those particular requests. And
assessment threats against Child Protective Service
caseworkers Judge Specia asked us to do an
assessment, vulnerability assessment, and work with him
on it, and an appropriate response also to protect
them.
And then this is an assessment that I've
done.
Q. The current one?
A. Current one.
Q. In those three assessments that you've been
personally involved in, have you concluded in any of
them that there-- there is no serious or significant
or substantial threat assessment?
MS. BUNKER-HENDERSON: Objection, form.
THE WITNESS: On these three, no There
have been others that we have followed up on on threats
that we've been able to because they were specific that
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attacks before on like issues?
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A. Such as-- for example, we mentioned gay
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lt could be threats, a combination of
threats, a combination of vulnerability, and the
consequences of those threats.
Q. Is there anything else that formed the basis
of your threat assessment that we have not talked about
today?
A. Yeah, just all my experience that we've
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already discussed in dealing with other threats and
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Q. Okay. You made reference to having received
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requests to make threat assessments in the past,
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correct?
A. Correct.
Q. Okay. And you've done a number of them?
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A. Yes, in varying different forms.
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years in your capacity as director ofDPS?
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we followed up on. And at-· at the end oflhe day
there appeared that there was no threat of violence to
one of our officials.
Q. (BY MR. QUINTO-POZOS) But those were ones
that you were not involved in personally?
A. Well, l was-- well, l was personally involved
in, you know, knowing the results of it.
Q. And I think you said that those were follow-up
assessments?
A Individual threats, individual threats to
individual members of Legislature.
Q. And what you mean is that -- or is this what
you mean, that it didn't come to fruition as an actual
incident?
A. Correct.
Q. Okay ln that particular situation someone
had made a threat initially and then nothing happened,
nothing came of it?
MS. BUNKER-HENDERSON: Objection, form.
THE WITNESS: Whenever we receive a
threat we follow up on it. And in each of the
ones none ofthem --nothing happened. As was
mentioned, we followed up on on those threats.
MR. QUINTO-POZOS: Okay.
Can we just take a couple minutes to see
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Colonel Steven McCraw, 7/21/2014
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A. My -- my discussions ·- well, I don't know
that they -- that it wasn't-- we didn't have
discussions during the course of it. But l didn't
discuss any of the formulas with him or anything like
that.
Q. And so these notes -A. But I see at least one location where I've got
Brad Livingston, which is "bum it to the ground.
Owner in fear oflife." But l don't know that
Brad Livingston said that or not.
Q. Okay.
A. l can't tell.
Q. And so what are these notes of if they're not
notes of your discussions with him?
A Before l did the -- before l wrote the letter,
!just went through a deliberative process that I've
talked about and looked at the totality and
circumstances. And I'm looking here. l won't be
surprised to find that this -- we were concerned
about -- l know, for example, the executive director-l got a call when the executive director in Colorado,
their prison system, was killed by my counterpart over
there, former FBI, as they say, that I work with.
And we had some dealings here in Texas
because our fusion center identified-- was able to
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in here, because it's something ! know I considered as
a factor. In fact, l went back and looked at -- it's
probably -- l looked at in terms of all recent, you
know ·- because, like l say, routine we have to testify
and certainly talk to our elected officials as to,
"Let's go back and talk about all the violent attacks
against political officials or the public," and then
going back to the timeline. So l take all ofthose
into consideration.
But, again, it's my experience to take it
into consideration. I look at all of those as part of
the process of determining is there threat or not, is
to take all of that into consideration. So the Kaufman
County murders, the Nidal Hasan situation, Eric Robert
Rudolph, going back to even Ted Kaczynski from an
anarchist's position. You know, you take into
consideration the full-- the full spectrum of
information out there to make these assessments.
Q. And I'm going to have to ask you to educate me
here, at least with regard to the Colorado situation
and the Kaufman County situation. Did either one of
those involve the death penalty in any form -A. No.
Q. -- to your knowledge?
A. No.
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link it up to someone that was down here. We had
talked about protection -- his -- the necessary
requirement to protect aH of his staff: cabinet level
staff, 24 and seven.
And the Kaufman County murders, for
example, because it wasn't just on the front end we
lost an assistant district attorney and then, of
course, the murder of the district attorney and his
wife at their location, but we were concerned about who
else we had to protect at that regard and go through
the same process. And you had to -- you know, you have
to presume-- even though there was no specific threats
to any of the county commissioners or the county judge,
you know, or anyone else connected, we had an
obi igation, you know, to take it seriously and to
provide the type of coverage, you know, to provide the
type of protection that we did.
Similarly, you know-- I can give you
other instances, as well, where we've had to react that
way based upon the -- based upon the information that
we received.
Q. Okay. And do you see reference in your notes
to the Colorado situation you were referencing?
A. Wei!, that's what l said. l'm surprised it's
not-- it may the dates-- these dates may be
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Q. Okay. I want to ask you to go over some of
these dates that are here.
A Uh-huh.
Q. There's -- there's a date of December 8th,
2013.
A Uh-huh.
Q. Do you remember what that is in reference to?
A. No.
Q. Okay. What about the date March lst, 2014?
A No.
Q. And there's a date range here of April 5th, it
looks like, to April 8th of20l3.
A. l think that's 10. I think that's 10-5. But
I don't know what is, yeah.
Q. l'm sorry. I meant to say October.
October 5th to October 8th, yes.
A. No.
Q. Do you know what that's in reference to?
A. No.
Q. And then it -A Well, l could-- but I've got the same date
down here underneath where I'm talking about pictures,
information, location, owner information, map,
Woodlands. Sol know that looking from that range-Q. Can you tell me again about this quote "bum
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it down to the ground"?
A No, l really can't.
Q. You don't know who said that?
A. No, l don't.
Q. And you don't know how that quote came to you?
A. No.
Q. And what about this duration at the bottom
right, !0-13 to 3-14. What is that?
A lt looks like-- almost like 3-1 to 14. I'm
not sure.
Q. You don't know what that duration refers to?
A. No.
Q. Okay. So if we could go to Page 2.
A. Okay.
Q. Does that say conspiring?
A. Conspiracy. lt looks like-- yeah,
conspiracy. l can't make out the other part.
Q. And then we see "V equals." Does that also
refer to vulnerability, as you mentioned?
A. Yeah, location, names, map, accurate, public
access, countermeasures, soft target, employees,
public.
Q. And then the bottom has, again,
Mr. Livingston's name and that same quote, "bum it to
the ground."
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A l don't know that it is. l don't know that it
is, to tell you the truth.
Q. Okay. This says, "Need" -- l think you said
this reads, "Needs letter from DPS on findings ASAP."
A. Yeah.
Q. What does it say after that?
A. "Court actions review."
Q. Okay.
A. So that would be his justification why ASAP.
Q. And then there's that sort ofbolded arrow?
A, Uh-huh.
Q. What does it say after that?
A. That's a good question. I don't-· l can't-·
underneath it, "Public threat assessment, determined,
approximate."
Okay. This is some of the stuffthat
I've done before, things that I've done before.
Attorney General, the U.S. that l reflected on, the
director ofthe FBI, some of the things that l had done
before that l had called back upon when l was looking
at some of the things I had to do.
Q. And referring to those prior investigations,
did those investigations lead you to the conclusion
that there was no threat?
A. No, just the opposite.
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A. Yeah.
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Q. And then it says, "Owner in fear of life."
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A. Yep.
Q. Who does that refer to?
A. The owner of the compounding pharmacy is what
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I would presume.
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Q. Do you remember where that information carne
from?
A. No, l don't.
Q. Okay.
A. "Family customers will no longer work with
state because of threats." This would be a discussion
l would have -- "needs letter from DPS on findings
ASAP."
Q. What-- what kind of threats are you referring
to here?
A l don't-- again, that's not my-- all I do is
put the quotations there, "threats." "Will no longer
work with state because of threats."
So at least-- you know, it could be an
Oklahoma City reference or just threats-- it could be
even threats J:l·om his standpoint, I guess, the owner's
standpoint. lt could even be threats to lose business.
Q. Is this your-- is this section of your notes,
notes of your conversation with--
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MS. BUNKER-HENDERSON: Objection, form,
THE WITNESS: 011, I'm sorry.
MS. BUNKER-HENDERSON: Go ahead.
THE WITNESS: Just the opposite. There
was substantial threat both to the Attorney General and
to the director of the FBI.
Q. (BY MR. QUINTO-POZOS) Okay. And so if we
could just go to the last page. What is that symbol
there at the top?
A "C," consequences.
Q. Uh-huh.
A. "Violent extremism" -- well, l then referenced
Eric Robert Rudolph, gay and race. People don't miss
that part, that he was also a racist.
Tim McVeigh; Ted Kaczynski, which is the Oklahoma City
reference in that regard. Congresswoman, which-Congresswoman was Gifford that was shot in Tucson.
Q. And then what does it say below there, " 100"
is-A. "1 00 percent probability that threats will be
made." Okay.
Q. And what does it say to the left of the equals
sign?
A "100 percent," okay, probability, "P of
threats." So there's going to be threats. And the
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question mark is the follow-through. There's no way of
knowing whether -- whether there's going to be a
follow-through on a threat or not.
Q. And what is the first word before 100 percent?
It starts with an R. It looks like -A. Yeah. Yeah. l can't tell you.
Q. And then below that it says, "Bottom line" ••
A. Yes.
Q. ..- umai' --
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A. "Many against. Interest to do so." And then
there's, "Wood and violence, percent, extremist, mental
issues, fixation, celebrity issue, roadmap,
coordinated, south targets, unacceptable risk, owners,
employees, public, security, and foolish to divulge
company owner and location."
Q. Overall, could you estimate how much time you
spent on making your threat assessment?
A. l don't think it's more than -- it couldn't be
more than a morning offour hours. This is like -this is -- this is -- it may not -- it may be more
difficult for others, but this is-- this is a slam
dunk case.
Q. And where did this percentage, 90 percent,
come from?
A. Me. This is my mental map of going through
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obligation, okay, to-- and here at the Department of
Public Safety is to protect people. And we try to do
it in a protective way. And the most proactive way you
can is to mitigate risk. And if we can find a way to
mitigate it, in my view when I concluded it, it was
foolish to provide this-- if we can mitigate, we
can-- if we can ellminate the threat altogether just
by not providing this information, why would we not do
so, is my point.
Q. And you're speaking in terms of your
experience and you drew from that experience to make
this threat assessment?
A Yes, sir.
Q. My question was more directed at anything else
that-- in terms of e-mails or documents about the
specific situation that we haven't discussed today.
A. No.
Q. Okay. You mentioned that there have been some
situations in which, unfortunately, you have been
\Nrong. Can you give us examples of when that happened?
A Well, I can --I've been wrong. It didn't
necessarily result in death of people, but I've been
wrong in-- l would like to tell you l'm right
100 percent of the time, but l'm not.
l developed an undercover operation based
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and tracking it.
Q. And so that figure of90 percent probability
is a figure you came up with?
A. Yeah.
Q. Okay.
A. But there-- you know, it looks like
100 percent that there's going to be hate mail and
90 percent that there would be a terrorist threat as
part of that hate mail.
Q. Okay. Aside from the document~ that we have
looked at today and the e-mails, etcetera, is there
anything else that went into your assessment that we
haven't seen or talked about today?
A. Yeah, I'm afraid there is. l just can't -· to
list it all, it really -- it's just-- going back to -you know, l can skip forward to at least, you know, my
first-- we'll call it national convention where I was
involved in -· in threat assessments. But even going
back as a trooper. I mean, it's -·you use the
totality of-· of experiences that I've had in this
business. And, you know, for the most part,
unfortunately, I've been right. Unfortunately, I've
been wrong on a couple of occasions.
But in today's threat environment we have
to presume-· we have to-- you know, it's my
73
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3
4
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on a flmlty assessment at how well corruption works on
the border to the tune of a-- and as a result, it took
several redirection -- a substantial redirection before
the operation was successful, just based on a faulty
conclusion that l had that it works •• corruption on
the border works the same way as big city corruption.
That wasn't the case.
And -- but that's -- l can •• you know, l
can go -- l can find other mistakes I've made as well,
going back through my career.
Q. And so --I'm sorry. l didn't mean to
interrupt.
A. No, that's -- that's just one example.
Q. Okay.
A. But one thing, I can assure you this, is what
we try to do. And there's a reason why the director
asked me to come back and stand up at the FBI's office
of intelligence after 9-ll is because I had dealt with
the intelligence process and risk and enterprise-wide
approach to address the Sicilian mafia, Cosa Nostra.
Again, there are some things that are
relevant, you know, in the organized crime world to the
terrorism world which gets us what we cal! today or
what the federal government calls violent extremism and
is a term of art being used.
19 (Pages 70 to 73)
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696
Colonel Steven McCraw, 7/21/2014
Maurie Levin v. Texas Department of Criminal Justice
76
l
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3
4
5
6
7
8
9
10
ll
12
13
14
15
16
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24
And in today's society you cannot afford
to take-- every threat must be considered serious.
You have to follow up on each particular threat.
to the extent we can mitigate it and educate, you
people in terms of how to mitigate those things,
helpful, but we-- we have to remain proactive in
regards
As a professional, I can tell you that l
would rather not have to investigate a crime if we
prevent it. And .to the extent that whether it's -know, another unpopular decision or assessment
mine-- and, unfortunately, l have been correct-don't send your kids to Mexico during spring
There's some things that-- you know, right now
threat environment as such is not a good place. l
don't care where it is right now. And that's
we've been consistent and, unfortunately, been
1
2
4
5
!, COLONEL STEVEN MCCRAW, have read ihe
foregoi11g deposition and hereby affix my signature that
same is true and correct) except as noted above
6
7
COLONEL STEVEN MCCRA.W
8
9
THE STATE OF _______)
COUNTY OF _______________J
Before me, -----------·-------·------------'on !his day
personally appeared COLONEL STEVEN MCCRAW, known to me
(or proved to me under oatl1 or through
---·--- _____________, .J (description of identity
card or other document) to be the person whose name is
subscribed to the foregoing instrument and acknowledged
to me that they executed the same for the purposes and
consideration therein expressed.
Given under my hand and seal of office this
________ day of-·-~---------- ________, - - - -.. ".
at.
MR. QUINTO-POZOS: We'll go ahead
pass the witness at this point
MS. BUNKER-HENDERSON: We'll
questions for trial.
MR. QUINTO-POZOS: Thank you very
(Proceedings concluded at 10:55 a.m.)
NOTARY PUBLIC IN AND FOR
THE STATE OF...... ·---------- , , _
COMMISSION EXPIRES· ______ _
25
77
1
CHANGES AND SIGNATURE
WITNESS NAME: COLONEL STEVEN MCCRAW
DATE OF DEPOSITION: JULY 21,2014
PAGE LINE
CHANGE
4
REASON
1
2
NO. D-1-GN-14-000908
l\.1AURffi LEVIN, NAOM1 TERR, ) IN THE DISTRICT COURT
and HILARY SHEARD,
)
Plaintiffs,
)
)
) TRAVIS COUNTY, TEXAS
VS.
)
7
9
10
11
12
TEXAS DEPARTMENT OF
CR!M1NAL JUSTICE,
)
Defendant.
) 201 ST JUDICIAL DISTRICT
REPORTER'S CERTrFlCATlON
DEPOSlTION OF COLONEL STEVEN MCCRAW
JULY2!,2014
!, DONNA WRIGHT, Certified Shorthand Reporter in
l3
and for the State of Texas, hereby certify to the
14
following:
That the witness, COLONEL STEVEN MCCRAW, was duly
sworn by the officer and that the transcript of the
oral deposition is a true record of the testimony given
by the witness;
That the deposition transcript was submitted on
---------,-----:---------:· 2014, to the witness or to the
for examination, signature and
'" .,..____ , 2014;
used by each party at the
deposition is as follows:
Mr. Manuel Quinto-Pozos- l hr. 34 min.
Ms. Nichole Bunker-Henderson -
15
Thm pursuant to information given to the
20
(Pages 74 to 77)
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1
timing-wise, or do you know when that phone call
2
was?
3
A
Yes, sir, that would be right.
4
Q
Okay.
And so he also testified that you
5
or TDCJ sent him some information.
Do you recall if
6
that was before or after the phone call?
7
A
It would have been after the phone call.
8
Q
Okay.
9
So he didn't have anything in front
of him that he got from you when the -- when the
10
call comes?
11
A
Correct.
12
Q
And was the call sort of scheduled, or can
Right.
13
you pick up the phone and reach Colonel McCraw like
14
when I got arrested I call him directly?
15
A
I can't speak to when you're arrested, but
16
I can pick up the phone and call him.
17
good about either answering immediately or calling
18
back.
19
Q
Oh.
And he's very
And do you recall in this instance
20
did you get him the first time or did he call you
21
back?
22
23
24
25
A
I believe he answered or his assistant
answered and transferred him to me.
Q
All right.
Was anybody
th you when you
called and spoke to him?
12
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Brad Livingston, 7/24/2014
Levin v. Texas Department of Criminal Justice
1
A
No.
2
Q
Okay.
3
Do you know if he had anybody else
on his end of the phone?
4
A
I'm not advised.
5
Q
Okay.
6
7
Why were you calling him then?
What was the issue in late February or early March?
A
Okay.
The context of -- of the call and
8
the timing of it I think is important, because if --
9
if you go back to October of 2013, our at that time
10
supplier of compounded pentobarbital was -- the name
11
of the pharmacy and pharmacist was made public.
12
We were, in the spring of 2014, nearing
13
the end of -- of the pentobarbital that we had, and
14
we needed to ensure that we could find another
15
supplier.
16
the harassment and the threats that occurred in late
17
October with -- or in early October with respect to
18
the Woodlands Pharmacy and that particular
19
pharmacist.
20
forward we could ensure, to the extent possible,
21
that any pharmacist that we would do business with
22
moving forward would not be subject to potential
23
violence and -- and the threats that are associated
24
v-Jith that.
25
Q
I was very concerned about the nature of
And I wanted to ensure that as we moved
And the supplier in 2013 when it became
13
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Brad Livingston, 7/24/2014
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1
he -- "I must demand that TDCJ immediately return
2
the vials of compounded pentobarbital in exchange
3
for a refund."
4
5
Did the State refund the drugs -- or
return the drugs?
6
A
No.
7
Q
Okay.
8
was no refund.
So I'm guessing that means there
Correct?
9
A
That's a fair assumption.
10
Q
All right.
I know you have your point of
I respect that.
I know you have your own
11
view.
12
personal ideas of what the firestorm was or is, and
13
I respect that.
14
But you do agree that nowhere in this
15
letter does he mention violence or any physical
16
acts.
Correct?
17
A
Let me re-read the letter.
18
Q
Sure.
19
A
The words he used are not in dispute.
20
They're right here on
23
24
25
on the paper.
The word violence does not appear in his
21
22
--
I -- I --
letter.
Q
Or anything about fearing for his or his
employees' physical safety.
A
Correct?
Correct.
30
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Brad Livingston, 7/24/2014
Levin v. Texas Department of Criminal Justice
Q
1
Before your conversation with McCraw in
2
February or March, did you have any other contact
3
with DPS about this lethal injection drug issue?
4
A
No.
5
Q
Okay.
7
assurance or a promise or anything about
8
confidentiality going forward?
MS. MATLOCK:
Objection; form.
10
A
Prior to my conversation with Mr.
11
Q
(By Mr. Durst) Yes.
12
A
I
13
Q
Okay.
~-kCraw?
Yes, sir.
don't know.
And so the purpose of the call and
wanting the letter at that time was why?
15
16
A
I'm sorry.
What was the last word of your
question?
17
Q
Okay.
Why was the last word.
18
Let me ask it better.
19
What was the purpose of your call?
What
20
did you want from Colonel McCraw when you called
21
him?
22
I
Had any vendor up until the time of
your conversation with Colonel McCraw asked for an
14
I
I
6
9
I
A
I wanted him to utilize his expertise as a
23
law enforcement officer and the head of the largest,
24
most sophisticated Police Department in the State of
25
Texas to review anything he deemed to be pertinent
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Brad Livingston, 7/24/20 14
Levin v. Texas Department of Criminal Justice
.,
..... -.--------------···~-···--···----~-----,
1
as it relates to pharmacies and drug suppliers who
2
supply drugs to departments of corrections.
We provided some information to him.
3
And
4
the information we provided to him, again, within
5
the context of all -- all of the information and the
6
timing of it all caused me great concern that if
7
someone -- if -- if the name of the pharmacist
8
and/or pharmacy that we do business with or -- or
9
would do business with in any time in the future,
10
that they would be subject to -- you know, ve
11
likely subject to violent threats and -- and actual
12
violence.
13
Q
That concerns me.
Okay.
And so what was the purpose of
14
wanting the letter or a written statement from --
15
from Colonel McCraw?
16
A
17
I
The purpose was multiple.
First of all,
I wanted to get his sense of
18
whether he viewed the threat environment, so to
19
speak, surrounding these issues and surrounding this
20
area of government to be as serious as we thought
21
they were.
22
in my view, nexus betvveen when a compounding
23
pharmacy is made public and the immediacy or nearly
24
irnmediacy of the hara.ssing E-mails and threats -- it
25
happened both in this case and in January of 2014
And knowing that there is an immediate,
32
1.
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Brad Livingston, 7/24/2014
Levin v. Texas Department of Criminal Justice
1
with respect to The Apothecary Shop in Oklahoma.
2
The day after it was reported that they were the
3
likely supplier of compounded drugs to the
4
Department of Corrections in Missouri, a very
5
significant and real threat -- threatening E-mail
6
was sent.
7
Those -- those factors specific to -- to
8
my knowledge, the two times compound pharmacies had
9
been utilized by departments of corrections, the
10
nexus between when they're being made public and the
11
threats were -- the -- the -- the nexus is -- is
12
there and nearly immediate, i.Yithin a day or two,
13
both in -- in the case of the January '14 Oklahoma
14
E-mail and the Woodlands Pharmacy, October -- early
15
October, 2013 timeframe.
Also, again, the context that -- that I
16
17
was living in, in the world I live in, during that
18
spring of 2014 was a very unsettled and dangerous
19
world.
20
inherent in -- in the criminal justice world that
21
had escalated in general and specifically over the
22
last number of months and years to include -- at
23
that point we're just roughly a year removed from
24
the director of the Colorado Department of
25
Corrections being assassinated on March the 19th,
The context included security risks that are
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Brad Livingston, 7/24/2014
Levin v. Texas Department ofCrimil1al Justice
1
2
2013.
At that same time there were specific
3
death threats to me, both just prior to the
4
Executive Director in Colorado's assassination and
5
just shortly after it.
6
Those -- those examples and the context of
7
what I would consider the elevated intensity of the
8
criticism, harassing E-mails and -- and so forth,
9
all contributed to my interest in having Steve
10
11
McCraw look into this.
In addition to that -- first of all, I'm
12
not likely to remember the entire list of all of the
13
factors that I -- that I considered at that time.
14
But I'm listing those that I recall now.
15
And because of this ever more volatile
16
world, I live with a security detail.
17
subject to change given the overall threat
18
consideration of the environment that we -- that we
19
operate in.
20
That is
There were -- I think a -- there's a -- to
21
me, a significant substantive difference, too, when
22
we transitioned from utilizing drugs provided
23
primarily by big pharma and/or distributors.
24
that point the criticism and the -- the -- for lack
25
of a better phrase, a corporate logo or corporate
At
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Levin v. Texas Department of Criminal Justice
1
r face is what would, in essence, be printed in the
l
newspapers.
2
3
4
A transition to compounding pharmacies,
I
l
j
it's a different magnitude and a different reality.
For example, those harassing E-mails,
5
6
which on their face may not specifically reference
7
violence, they are very personalized.
8
reference individuals by name.
9
location or proximity of that pharmacy to their
They
They reference the
So what that said to me was while these
10
homes.
11
harassing E-mails weren't in and of themselves a
12
threat of physical violence, it puts a vulnerable,
13
real face on the individual and the pharmacy, a --
14
and a storefront, a location, an office, a -- an
15
individual.
Okay?
And given that and given the velocity, I
16
17
think,
18
blog posting, that coupled with the immedia
19
of -- of that criticism and -- and those threats
20
caused me to -- to want Steve McCraw and -- and his
21
resources to evaluate that and -- and see if -- if
22
they shared -- shared that view.
23
of the ramping up of the
ticism and the
of
And that -- again, that's -- that's what I
24
recall at this point.
I'm sure there were other
25
factors I considered.
But that's -- again, that's
35
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Brad Livingston, 7/24/20 l4
Levin v. Texas Department of Criminal Justice
1
what I can recall now.
2
Okay.
Q
3
Thank you.
Did you want a letter or a piece of
4
written communication for a lawsuit or an AG opinion
5
or any opinion specific or not specific in that kind
6
of realm?
MS. MATLOCK:
7
8
9
A
and
Objection; form.
It was, I think, important to have a
and Steve and I talked about the -- the
10
things that we would provide to him for his
11
assessment.
12
do an assessment and -- and send me a letter.
13
He indicated at that time that he would
It -- certainly, in my mind, the ability
14
to keep confidential the name of the supplier, both
15
the individual and the -- the name of the pharmacy
16
are inextricably linked with being able to also
17
ensure that their safety is -- is protected.
And -- and so from that perspective, I was
18
19
anxious to see Steve's assessment overall as to
20
whether he shared our view about the threat --
21
threat level and that it might also be helpful in
22
our ability to legally protect that name and not
23
disclose it.
24
Q
25
(By Mr. Durst) Did he volunteer the idea
of let me send you a letter?
36
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Page: 109
Date Filed: 09/23/2016 Entry ID: 4451561
707
IN THE
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
DAVID S. ZINK et al.,
Plaintiffs,
v.
GEORGE A. LOMBARDI et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
No. 2:12-CV-4209-NKL
SECOND AMENDED COMPLAINT
Through a succession of changes to the previous protocol, and
changes of announced policies for implementing the protocol, while
simultaneously seeking execution dates and defying their discovery
obligations, the defendants have managed to execute two plaintiffs—in
both instances with pending pleadings before federal courts. The
underlying flaws in the protocol continue to fester. It is only a matter of
time until Missouri will present the world with another atrocity like the
torture of Dennis McGuire in Ohio. Defendants’ behavior is lawless on
multiple levels. It is unworthy of government officials, officers, and
employees in any organized society. The surviving plaintiffs seek relief
anew in light of facts arising since their previous complaint.
Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 1 ofEXHIBIT
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17
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Date Filed: 09/23/2016 Entry ID: 4451561
Table of Contents
Table of Contents ...................................................................................... 2
Nature of the Action .................................................................................. 7
Jurisdiction and Venue ........................................................................... 10
Parties...................................................................................................... 11
Table of Exhibits ..................................................................................... 21
Factual Basis for Claims ......................................................................... 25
I.
II.
Defendants are using compounded-pharmacy “pentobarbital”
as the lethal chemical in executions, and have not
conclusively abandoned the practice of central line access. .......... 25
A.
Central line access increases the length of an execution
as experienced by the condemned person, is invasive,
and has known adverse side-effects...................................... 30
B.
The efficacy of pentobarbital as a means of execution
that will bring about death without substantial risk of
serious harm depends on the purity and potency of the
batch that the defendants use. ............................................. 34
C.
Compounding pharmacies are substantially
unregulated and depend on sources of raw materials
that are not of the grade an FDA-compliant
pharmaceutical company would use. .................................... 36
D.
Defendants refuse to disclose the identity of
compounding pharmacy. ....................................................... 57
The change of protocols results in an increase in the
quantum of pain and suffering over the previous protocol
-2-
Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 2 ofEXHIBIT
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17
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Date Filed: 09/23/2016 Entry ID: 4451561
that the Eighth Circuit and subsequently this Court held
constitutional.................................................................................. 63
III.
Defendants adhere to their pattern of discovery avoidance
and shifting of “facts” to suit their litigation position when
the premise of lethal injection is that the plaintiffs are
supposed to be treated in a clinical, therapeutic manner as if
they were going in for an operation. .............................................. 68
IV.
Defendants M3, M2, M6, M5,
and all John Doe
defendants who are health-care providers or functioning as
such have treated and intend to treat condemned persons
with substandard substances or they have provided or
passed off, and intend to provide or pass off, such substances
as adequate for the treatment of the plaintiffs. ............................ 69
V.
Recognition of the documented facts indicating the dangers
posed by the defendants’ provision, processing, and use of
compounding-pharmacy substances in executing the
plaintiffs creates emotional distress for the plaintiffs and for
their loved ones. ............................................................................. 70
VI.
Adding a compounding pharmacy, a report-writing
“laboratory,” and an off-site prescribing osteopath to the
“execution team” is an exercise of legislative power by
executive branch............................................................................. 72
VII. Defendants have denied the plaintiffs notice and an
opportunity to be heard on their constitutional and other
legal grievances with the succession of protocols they have
uttered, in one instance after they had obtained an execution
date. ................................................................................................ 79
VIII. Defendants Executed Joseph Paul Franklin and Allen
Nicklasson when each had a motion or a petition pending
before this Court or the Eighth Circuit, respectively. ................... 93
-3Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 3 ofEXHIBIT
171
17
Appellate Case: 16-3072 Page: 112
Date Filed: 09/23/2016 Entry ID: 4451561
IX.
X.
Promulgation of the latest protocol and actions take under
color of it are administrative action in violation of
constitutional, statutory, rule-based, and regulatory
authority and otherwise unlawful and amenable to judicial
review. .......................................................................................... 112
A.
Defendants are violating the state statute governing
the performance of executions for the purpose and with
the effect of violating the federal and state
constitutional protections against cruel and unusual
punishments and Ex Post Facto Laws. .............................. 112
B.
Defendants are violating the Federal Rules of Civil
Procedure............................................................................. 116
C.
Defendants are violating legal ethics. ................................ 117
D.
Defendants are violating federal statutes and
regulations governing the manufacture and
distribution of pharmaceuticals. ......................................... 118
E.
Defendants are violating Missouri statutes and
regulations regarding the practice of pharmacy. ............... 123
F.
Defendants are violating Oklahoma statutes and
regulations regarding the practice of pharmacy. ............... 132
G.
Denial of the remedy Mo. Rev. Stat. § 536.150.1 when
the plaintiffs need to invoke it to prevent the
defendants from torturing them to death would be
arbitrary. ............................................................................. 135
The defendants’ construction of the protocol to cloack from
scrutiny, suasion, and professional regulation the persons
and entities not participating in the execution is an invasion
of freedom of expression that undercuts the legitimacy of
their practice of capital punishment. ........................................... 136
Counts .................................................................................................... 146
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171
17
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Date Filed: 09/23/2016 Entry ID: 4451561
I.
Defendants’ means of lethal injection violates the prohibition of
cruel and unusual punishments in the United States Constitution
and, as amenable to enforcement here under 28 U.S.C. § 1367, the
Missouri Constitution. ................................................................. 146
II.
Defendants’ Conduct violates the prohibitions on Ex Post Facto
Law in the United States and Missouri Constitution. ................ 147
III.
Defendants’ acts and omissions as set forth in this complaint are
deliberate indifference to serious medical need and hence violative
of the Due Process Clause Fourteenth Amendment as well as the
Eighth Amendment’s different guaranty, and likewise Mo. Const.
art. I, §§ 10 & 21. .......................................................................... 148
IV.
Defendants M3, M2, M5, M6,
, and all John Doe defendants
who are health-care providers or functioning as such are
committing malpractice by administering or aiding and abetting
in the administration of substandard substances for the purpose of
bringing about a quick death without gratuitous pain and
suffering.150
V.
Defendants’ ongoing use of substandard substances for the
purpose of executing the plaintiffs by lethal injection has
intentionally inflicted and is tortiously inflicting emotional
distress on the plaintiffs and their loved ones. ........................... 151
VI.
Defendants’ conduct in holding out parties beyond the language or
history of the state statute providing anonymity and immunity
from regulation to persons not present at executions violates the
separation of powers guaranty of the Missouri Constitution. .... 154
VII. Defendants’ manipulation of execution dates, changes of protocol,
and failure or refusal to honor their discovery obligations deprives
the plaintiffs of liberty without due process of law. .................... 155
VIII. Defendants’ conduct as aforesaid denies plaintiffs the equal
protection of the laws and deprives them of life and liberty
without due process of law. .......................................................... 156
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IX.
Defendants’ conduct is unlawful administrative agency action
remediable under Missouri Administrative Procedure Act ........ 161
X.
Plaintiffs’ Conduct Violates the First Amendment and Mo. Const.
art. I, §§ 8-9. ................................................................................. 164
Prayer for Relief .................................................................................... 167
Certificate of Service ............................................................................. 171
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Nature of the Action
1.
Petitioners brought this action in the Circuit Court of Cole
County on June 26, 2012, by filing a petition for declaratory and
injunctive relief attacking the first lethal-injection protocol the
defendants had adopted after the one which another division of this
Court required them to submit in Taylor v. Crawford1 and which the
United States Court of Appeals for the Eighth Circuit held to be
consistent with the Eighth and Fourteenth Amendments.2
2.
Their original action sought a declaration that the
defendants’ use of the execution protocol defendant Lombardi issued on
May 15, 2012, violated the Ex Post Facto Clauses of Mo. Const. art. I,
§ 13, and U.S. Const. art. I, § 10; the Supremacy Clause, U.S. Const.
art. VI, cl. 2; the Eighth and Fourteenth Amendments to the United
States Constitution; Mo. Const. art. I, § 21; and the separation of
1No.
05-4173-CV-C-FJG, 2006 WL 1779035 (Doc. No. 195) at 5 &
7-9 (Order of June 26, 2006).
2487
F.3d 1072 (8th Cir. 2007), cert. denied, 553 U.S. 1004 (2008).
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powers guaranty of Mo. Const. art. II, § 1, and therefore, as well, a
permanent injunction against its application.
3.
Subsequently, the defendants removed this action to this
Court. Doc. No. 1. As to the cruel and unusual punishments count and
the ex post facto law count, this Court denied a motion to dismiss. Doc.
No. 31.
4.
The parties had agreed on a scheduling order, Doc. No. 14,
which the Court followed in substantial part, setting the case for trial
on a docket beginning October 7, 2013. Doc. No. 28. After the deadline
for discovery had closed, the defendants changed the propofol protocol
twice, introducing new chemicals in each new protocol. Doc. Nos. 115 &
139. In the most recent protocol, which they announced on October 22,
2013, they ceased for the time being to press the completely novel
notion of using propofol, in favor of using compounding-pharmacy
pentobarbital. Doc. No. 144. Remaining relatively constant throughout
the four post-Taylor protocols was the use of central line access as a
default procedure. E.g., ¶ C.1.’s in Doc. No. 1, Exh. A (state-court
petition, Exh. 1, Affidavit of Mark J.S. Heath, M.D.) (Heath Affidavit
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Exhibit 2) (protocol of May 15, 2012), with Doc. No. 117-1 (protocol of
August 1, 2013) with Doc. No. 139-1 (protocol of Sept. 24, 2013); see also
Doc. 84, Exh. 4 (“Summary of Facts and Opinions of M3”), and Doc. No.
3 at 6 n.1 (first motion to dismiss). Although defendant Dormire gave
an affidavit on November 15, 2013—the Friday before an execution—
that left the decision to use central line access more in the air (Exhibit 7
at 6-7), defendants have not abandoned completely either the option of
using central line access or the option of using propofol. The one
constant in the widening gyre of changes to these defendants’ protocols
is that the protocols, and the oath-taking and press releases in lieu of
changes in the actual protocols as the Eighth Circuit contemplated to
allow meaningful judicial review,3 do not stay the same.
5.
This Court has the authority to issue declaratory judgments
and injunctions against state actors when, as here, the plaintiffs show
that the state actors’ enforcement of a state-law provision (whether in
3E.g.,
Taylor v. Crawford, 487 F.3d 1072, 1080 (8th Cir. 2007),
cert. denied, 553 U.S. 1004 (2008).
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the form of statutes or analogous to the protocol) is in conflict with the
United States Constitution.
Jurisdiction and Venue
6.
This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1331, in that it arises under the Constitution of the United
States; under 28 U.S.C. § 1343(a)(3), in that it is brought to redress
deprivations, under color of state law, of rights, privileges, and
immunities secured by the United States Constitution; under 28 U.S.C.
§ 1343(a)(4), in that it seeks to secure equitable relief under an Act of
Congress, i.e., 42 U.S.C. § 1983, which provides a cause of action for the
protection of rights, privileges, or immunities secured by the
Constitution and laws of the United States; under 28 U.S.C. § 2201(a),
in that one purpose of this action is to secure declaratory relief; under
28 U.S.C. § 2202, in that one purpose of this action is to secure
permanent injunctive relief; and under 28 U.S.C. § 1367, in that
plaintiffs ask the Court to exercise supplemental jurisdiction over their
state-law claims.
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7.
Venue is proper in this federal judicial district under 28
U.S.C. § 1391(b)(1)‐(3) in that (1) defendant Lombardi resides in its
territorial jurisdiction; (2) defendant Lombardi’s decisions regarding the
specific means of using lethal injection are made in its territorial
jurisdiction, and (3) defendant Lombardi may be found in its territorial
jurisdiction.
Parties
8.
Plaintiffs are citizens of the United States and residents of
the State of Missouri.
9.
Plaintiffs are persons within the jurisdiction of this Court.
10.
Plaintiffs have been convicted of first degree murder and
sentenced to death. The following table sets out the county and date of
each plaintiff’s sentence. Plaintiffs are listed in reverse alphabetical
order.
Name
County
Date of sentence
David S. Zink
St. Clair County
July 27, 2004
Michael Worthington
St. Charles County
November 4, 1998
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John Winfield
St. Louis County
September 18, 1998
Michael A. Taylor
Jackson County
June 17, 1994
Leon Taylor
Jackson County
April 22, 1999
Walter T. Storey
St. Charles County
December 17, 1999
Herbert Smulls
St. Louis County
September 18, 1992
William Rousan
St. Francois County October 23, 1996
Earl Ringo
Boone County
July 26, 1999
Roderick Nunley
Jackson County
May 10, 1994
John C. Middleton
Adair County/
April 14, 1997/
Callaway County
March 30, 1998
Paul T. Goodwin
St. Louis County
December 2, 1999
Jeffrey R. Ferguson
St. Louis County
December 8, 1995
Andre Cole
St. Louis County
March 9, 2001
Reginald Clemons
City of St. Louis
April 10, 1993
Cecil Clayton
Jasper County
October 27, 1997
Mark Christeson
Vernon County
October 8, 1999
Russell Earl Bucklew
Boone County
May 19, 1997
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David M. Barnett
11.
St. Louis County
May 2, 1997
Counsel for the State of Missouri have sought execution
dates against plaintiffs Zink, Worthington, Winfield, M. Taylor, L.
Taylor, Storey, Smulls, Rousan, Ringo, Nunley, Middleton,
Goodwin, Ferguson, Cole, Clemons, Clayton, Christeson,
Bucklew, and Barnett.
12.
Defendant George A. Lombardi is the Director of the
Department of Corrections of the State of Missouri.
13.
Defendant Lombardi’s office is at 2729 Plaza Drive, Jefferson
City, Cole County, Missouri 65109, in Cole County, Missouri.
14.
On information and belief, defendant Lombardi works
primarily at the Department’s central office as aforesaid.
15.
Missouri statute specifically authorizes and directs
defendant Lombardi to prescribe and direct the means by which the
Department of Corrections carries out executions within the statutorily
named methods of lethal gas or lethal injection.4
4Mo.
Rev. Stat. § 546.720.
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16.
Plaintiffs sue defendant Lombardi in his official capacity.
17.
At all times and in all respects referred to in this complaint,
defendant Lombardi acted and will act under color of state law.
18.
Defendant David R. Dormire is the Director of the Division
of Adult Institutions of the Department of Corrections of the State of
Missouri.
19.
Defendant Dormire’s office is at 2729 Plaza Drive, Jefferson
City, Cole County, Missouri 65109, in Cole County, Missouri.
20.
On information and belief, defendant Dormire works
primarily at the Department’s central office in Cole County as
aforesaid.
21.
Defendant Dormire is the chief executive officer of the
Division of Adult Institutions, and has command-and-control authority
over the officials, officers, and employees of the Department directly or
indirectly involved in carrying out executions in the State of Missouri
(including defendant Russell), and specifically with respect to the
implementation of the current execution protocol.
22.
Plaintiffs sue defendant Dormire in his official capacity.
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23.
At all times and in all respects referred to in this complaint,
defendant Dormire acted and will act under color of state law.
24.
Defendant Matthew Barton Briesacher is General
Counsel of the Department of Corrections of the State of Missouri.
25.
Defendant Briesacher’s office is at 2729 Plaza Drive,
Jefferson City, Cole County, Missouri 65109, in Cole County, Missouri.
26.
Defendant Briesacher works primarily at the Department’s
central office in Cole County as aforesaid.
27.
Defendant Briesacher participated in developing and
changing of the succession of protocols since before the inception of this
litigation; in procuring John Does, M’s and
s; in redaction of
discovery; and in other concealment of information from counsel for the
plaintiffs.
28.
Plaintiffs sue defendant Briesacher in his official capacity.
29.
At all times and in all respects referred to in this complaint,
defendant Briesacher acted and will act under color of state law.
30.
Defendant Terry Russell is the Warden of the Eastern
Reception Diagnostic & Correctional Center (ERDCC), 2727 Highway
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K, Bonne Terre, St. Francois County, Missouri 63628, in St. Francois
County, Missouri, where the State of Missouri has been conducting its
executions since April 27, 2005.
31.
By virtue of his authority over the staff of ERDCC,
defendant Russell is responsible for the way in which executions are
conducted in Missouri.
32.
Plaintiffs sue defendant Russell in his official capacity.
33.
At all times and in all respects referred to in this complaint,
defendant Russell acted and will act under color of state law.
34.
Defendants John Does 2-40 are officials, officers,
employees, agents, and servants (however denominated) of the State of
Missouri who, by virtue of their employment or other status (including
independent contractors and volunteers under the supervision of the
defendants and their designees), participate in the planning of,
purchasing and preparation for, carrying out of, and covering up of
details about executions in the State of Missouri.
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35.
Plaintiffs cannot provide the Court the natural names of
these individuals because since 2007, a Missouri statute has purported
to require that the names be kept secret.5
36.
Plaintiffs sue John Does 2-40 in their official capacities.
37.
Specifically, defendant M3 is an unidentified physician
whom the defendants represent to be a board-certified anesthesiologist
and who is an independent contractor of the State of Missouri actively
participating in the formulation of execution protocols, training of other
executioners, other preparation for executions, personal actions in the
course of each execution, and covering up of details about executions.
38.
Plaintiffs cannot provide the Court the natural name of M3
because neither he nor the other defendants will release it.
39.
Plaintiffs sue M3 in his capacity as an independent
contractor and agent of the State of Missouri.
40.
Defendant M2 is an unidentified licensed practical nurse
and who is an independent contractor of the State of Missouri actively
5Mo.
Rev. Stat. § 546.270.2-3, as amended by MO. LAWS 2007, H.B.
No. 820, § A.
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participating in training and other preparation for executions, personal
actions in the course of each execution, and covering up of details about
executions.
41.
Defendants will not acknowledge for purposes of this
litigation the natural name of M2.
42.
Plaintiffs sue M2 in his capacity as an independent
contractor and agent of the State of Missouri.
43.
Defendant M5 is an osteopathic physician who writes a
“prescription” for a deadly drug, naming the condemned prisoner as if
he or she were the patient of M5. M5’s co-defendants have tendered a
redacted copy of the contract between M5 and the Missouri Department
of Corrections that the latter provided to the plaintiffs as a partial
response to a Missouri Sunshine-Law request. Exhibit 13 at 8-9.
44.
Plaintiffs cannot provide the Court the natural name of M5
because neither he nor the other defendants will release it.
45.
Plaintiffs sue M5 in his capacity as an independent
contractor and agent of the State of Missouri.
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46.
Defendant the
(a/k/a “M6”) is a
“compounding pharmacy” that the defendants who head, or work for,
the Missouri Department of Corrections have contracted with to provide
a substance which the defendants represent to be pentobarbital.
47.
Defendant the M6 is located in the State of Oklahoma.
48.
Plaintiffs are able to provide the Court M6’s actual name,
and would be able to provide its specific location, only because third
parties have disclosed this name, whereas its co-defendants refuse to
identify it.
49.
Plaintiffs sue defendant M6 in its capacity as an
independent contractor to the State of Missouri.
50.
Defendant
(
) is a
“laboratory” that has provided M6 a series of reports, as M6’s contract
with its co-defendants specifies (e.g., Exhibit 9 at 9), about a substance
which the defendants represent to be pentobarbital.
51.
defendant
Plaintiffs provide the Court the name and address of
because although its co-defendants maintain that its
identity is a “state secret”, they presented reports from it that showed
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its initials in open exhibits which they filed in this Court on November
25, 2013 (Doc. No. 178-2 at 2), December 5, 2013 (Doc. No. 187-12),
December 6, 2013 (Doc. No. 189-1 at 55), and December 10, 2013 (Doc.
No. 290-6 at 1-2).6
52.
Plaintiffs sue defendant
in its capacity as an
independent contractor or subcontractor and pro tanto agent of the
State of Missouri.
53.
On information and belief, defendants Does 2-40 (including
M3 and M2) may be found at the Eastern Reception Diagnostic and
Correctional Center as aforesaid.
54.
At all times and in all respects referred to in this complaint,
defendants Does 2-40 (including M3, M2, and M5), M6, and
acted
and will act under color of state law.
6Doc.
No. 295: “Plaintiffs may publicly discuss the documents
filed by Defendants, which were specifically identified during the
teleconference, media publications, such as the Wall Street Journal
article, and any inferences drawn therefrom.”
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55.
Each and all of the foregoing defendants Lombardi, Dormire,
Russell, Does 2-40 (including M3, M2, and M5), M6, and
at all
times relevant to this complaint were acting or are intending to act in
their official capacities with respect to all acts and omissions described
in this complaint, and were in each instance acting or are intending to
act under color of state law.
56.
Defendants and each of them intend to act in their
respective official capacities and under color of state law to execute the
plaintiffs by lethal injection in the manner set forth in this complaint.
Table of Exhibits
1.
Press Release from Governor Jay Nixon, October 11,
2013, State v. Franklin, Case No. SC79735 (Mo. Oct.
22, 2013), Response Exhibit B
2.
Execution Protocol dated October 18, 2013 (disclosed
October 22, 2013), Doc. No. 144-1
3.
News Release from Missouri Department of
Corrections, “Missouri Department of Corrections
adopts new one-drug execution protocol,” dated October
22, 2013
4.
Expert Report of Mark Dershwitz, M.D., State v.
Franklin, Case No. SC79735 (Mo. Oct. 22, 2013),
Response Exhibit C
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5.
Declaration of Mark J.S. Heath, M.D., executed Nov. 7,
2013
6.
Affidavit of Larry D. Sasich, Pharm.D., M.P.H.,
FASHP, executed Nov. 7, 2013
7.
Exhibits to Respondent’s Suggestions in Opposition to
Motion for Stay of Execution, State v. Franklin, No.
SC-79735 (Mo. Nov. 18, 2013)
8.
Supplemental Declaration of Larry D. Sasich,
Pharm.D., M.P.H., FASHP, executed Nov. 15, 2013
9.
Defendants’ Missouri Sunshine-Law Response to St.
Louis Public Broadcasting
10.
Defendants’ Missouri Sunshine-Law Response to
ACLU of Missouri
11.
Defendants’ Missouri Sunshine-Law Response to
Senator Joan Bray
12.
Defendants’ Missouri Sunshine-Law Response to
Plaintiffs Edwards and Worthington (received Nov. 21,
2013)
13.
Defendants’ Missouri Sunshine-Law Response to
Plaintiffs Bucklew and M.A. Taylor (received
November 29, 2013)
14.
Associated Press Report of President’s Signature of
Federal Statute Regulating Compounding Pharmacies
15.
Execution Warrant Against Joseph Paul Franklin
16.
District-Court Order Granting Stay in Franklin v.
Luebbers on Ford-Panetti Grounds
17.
E-Mail Transmitting District-Court Order Granting
Stay in Franklin v. Luebbers on Ford-Panetti Grounds
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18.
Eighth-Circuit Order Granting Motion to Vacate This
Court’s Order Granting Stay in This Case
19.
E-Mail Transmitting Eighth-Circuit Order Vacating
Stay in This Case
20.
Order Vacating District-Court Order Granting Motion
to Vacate Stay in Franklin v. Luebbers on Ford-Panetti
Grounds
21.
E-Mail Transmitting Eighth-Circuit Order Granting
Motion to Vacate District-Court Order Granting Stay
in Franklin v. Luebbers on Ford-Panetti Grounds
22.
Eighth Circuit Order Denying Rehearing of Vacatur of
Stay in This Case (in e-mail format showing time)
23.
Eighth Circuit Order Denying Rehearing of Vacatur of
Stay in Franklin v. Luebbers on Ford-Panetti Grounds
(in e-mail format showing time)
24.
Application to United States Supreme Court for Stay of
Execution in This Case
25.
E-Mail Transmitting Application to United States
Supreme Court for Stay of Execution in This Case
26.
Application to United States Supreme Court for Stay of
Execution in Franklin v. Luebbers on Ford-Panetti
Grounds
27.
E-Mail Transmitting Application to United States
Supreme Court for Stay of Execution in Franklin v.
Luebbers on Ford-Panetti Grounds
28.
Notice of Electronic Filing (showing recipients) of Doc.
No. 167 at 5:01 a.m. on November 20, 2013
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29.
United States Supreme Court Order Denying Stay in
This Case
30.
United States Supreme Court Order Denying Stay in
Franklin v. Luebbers on Ford-Panetti Grounds
31.
E-Mail Transmitting Orders of United States Supreme
Court Denying Stays
32.
E-Mail from Joseph W. Luby to Opposing Counsel of
5:24 a.m. on November 20, 2013
33.
New York Times Article Covering Execution of Joseph
Paul Franklin with Pending Motion Before This Court
on Grounds for Stay Timely Presented, Reserved by
this Court, and Never Reached by Any Court
34.
E-Mail from Michael Joseph Spillane, Mo. Bar No.
40704, to Joseph W. Luby on November 26, 2013, at
6:00 p.m., sent from Blackberry
35.
“Chronological Sequence of Execution” from
defendants’ discovery responses in No. 2:09-04095-NKL
(W.D. Mo.)
36.
Nicklasson v. Lombardi, No. 13-3664 (8th Cir. Dec. 11,
2013) (panel denial of motions for stay)
37.
E-Mail from Eighth Circuit in Nicklasson v. Lombardi,
No. 13-3664 (8th Cir. Dec. 11, 2013) (reflecting its filing
of petition previously tendered to seek rehearing en
banc of panel’s denial of stay)
38.
Missouri Board of Pharmacy Complaint, Dec. 30, 2013
39.
Letter from Missouri Board of Pharmacy, Jan. 22, 2014
40.
Petition for Rehearing from Eighth Circuit opinion and
judgment of Jan. 24, 2014
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41.
Redacted Transcript of Deposition of David R. Dormire
42.
Third Supplemental Declaration of Dr. Larry Sasich
Factual Basis for Claims
I.
Defendants are using compounded-pharmacy
“pentobarbital” as the lethal chemical in executions, and
have not conclusively abandoned the practice of central
line access.
57.
In order to replace the protocol that the courts have
approved for their use in executing the plaintiffs, the defendants first
proposed to use propofol, a substance they knew to cause pain on
injection in a portion of persons into whom it is injected. Having
changed their litigation positions several times about this protocol, on
October 22, 2013, they represented to the press (Exhibit 3) without
supplementing their discovery responses that they intended to use
another substance (which they represent to be pentobarbital) from a
compounding pharmacy, and did not disclose which specific
pharmacy. Exhibit 2. Because the products of compounding
pharmacies do not reflect the FDA regulation that patients, physicians,
and forensic experts rely on in making judgments about medications,
the October 22, 2013, protocol was no more likely to satisfy the Eighth
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Amendment and its Missouri constitutional analog than the previous
three. It could not replace the FDA-approved and -regulated sodium
thiopental that the courts found to satisfy the Eighth Amendment in
previous lethal-injection litigation in Missouri. Refusal to disclose the
compounding pharmacy aggravates the likelihood that the substance to
be injected is not pentobarbital at all, or that it is nowhere near the
purity, potency, and efficacy that counsel, experts, courts, and the
public have relied on in judging previous lethal-injection protocols.
58.
Again without supplementing their discovery, the
defendants continued to make changes in the way they intended to
execute the plaintiffs, which the plaintiffs discovered from defendants’
responses to Missouri “Sunshine Law” requests by collateral sources,
including a former state senator (see Exhibit 11) who was involved in
amending the statute under which the defendants seek to avoid judicial,
professional, and public scrutiny of their practices, and by the plaintiffs
themselves through their own counsel. Among these changes was the
introduction of a medical doctor or osteopath, here M5, to write a
“prescription” for their latest deadly drug as if the condemned plaintiff
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were his patient. Another was the requirement that defendant M6 have
its deadly drug tested by a laboratory, and that M6 had in fact done so
and submitted the results to its codefendants.
59.
M5 willfully participates in joint activity with the state or its
agents in carrying out executions under the protocol in force at any
given time. Their activities are pervasively entwined with those of
state officials, officers, and employees in the conduct of executions.
60.
With a November 20, 2013, execution date against Mr.
Franklin looming, the defendants once more changed their stated
execution procedure without changing the protocol. On Friday,
November 15, they filed a pleading to which they appended an affidavit
collateral to their latest protocol, in which a nonphysician—defendant
David R. Dormire—represented to the Missouri Supreme Court that
whether its executioners would use central line access would depend on
unidentified persons’ opinions about the plaintiff’s “medical condition”:
If the prisoner’s medical condition allows, both
the primary and secondary lines will be inserted
as peripheral lines. The Department will only
utilize a central venous line if the prisoner’s
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medical condition makes placing a peripheral line
impracticable.7
61.
Like the propofol protocols, the October 22, 2013,
compounding-pharmacy “pentobarbital” protocol would aggravate the
punishment to which the plaintiffs were subject before they filed this
action. Its adoption would constitute the exercise of the legislative
power by the executive branch. Its application in the near term—as
they have done twice, and plan to do in two days and then again in less
than a month—would deprive the plaintiffs of due process of law and
their right of access to the courts. It would do so by the defendants’ use
of cascading protocols, litigation-driven epicycles to the protocols, and
execution dates to foreshorten the notice and opportunity to be heard of
the plaintiffs, the health-care professions, and the public. Most
particularly, these tactics affect the ability of counsel to muster expert
evidence on the scientific and clinical aspects of the grave constitutional
issues each of these protocols have raised. Defendants have behaved in
an arbitrary manner so as to do all within their power to make it
7Doc.
No. 157, Exhibit 10.
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impossible for the plaintiffs to litigate the constitutional issues the
defendants keep presenting to plaintiffs for the first time before the
plaintiff with the most pressing need to do so is dead at their hands.
62.
They have refused to abide by their own promulgated
protocol, in particular, in respect to stoppage of an execution when there
is “pending legal activity to halt the execution process,” and have now
killed two plaintiffs with a live motion and a live petition pending
before courts of competent jurisdiction—one of them, this Court. It
reflects unlawful administrative agency action when the State of
Missouri has by statute committed itself to keep administrative action
within the law. In an effort to shield their other constitutional
violations and the particulars of their behavior from judicial relief,
professional discipline, and the general effects of evolving standards of
decency on which judicial relief is predicated, the defendants have
violated the First Amendment and Mo. Const. art. I, §§ 8-9.
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A.
Central line access increases the length of an
execution as experienced by the condemned person, is
invasive, and has known adverse side-effects.
63.
Although the defendants’ chosen chemical to kill the
plaintiffs has changed, one element of their protocols has remained the
same: “Medical personnel may insert the primary IV line as a
peripheral line or as a central venous line (e.g., femoral, jugular, or
subclavian) provided they have appropriate training, education, and
experience for that procedure. The secondary IV line is a peripheral
line.” Exhibit 2, ¶ C.1.
64.
Dr. Mark Dershwitz, a physician whom the defendants have
sought to endorse as an expert witness out-of-time, has given a
statement which the defendants’ privies have filed in the Missouri
Supreme Court to the effect that defendant M3 will continue to be the
physician who participates directly in Missouri executions under the
latest proposed protocol and “will insert the intravenous catheter.”
Exhibit 4, ¶ 5. See also Exhibit 5, ¶ 14 (plaintiff’s expert Dr. Mark
Heath draws same factual conclusion from record).
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65.
Along with M2, M3 willfully participates in joint activity
with the state or its agents in carrying out executions under the
protocol in force at any given time. Their activities are pervasively
entwined with those of state officials, officers, and employees in the
conduct of executions.
66.
The new protocol features substantially the same language
as previous protocols concerning the use of a central line, and the
defendants’ own filings have insisted that central line access would be
the primary intravenous line. Compare the ¶ C.1.’s in Doc. No. 1, Exh.
A (state-court petition, Exh. 1, Affidavit of Mark J.S. Heath, M.D.)
(Heath Affidavit Exhibit 2) (protocol of May 15, 2012), with Doc. No.
117-1 (protocol of August 1, 2013) with Doc. No. 139-1 (protocol of Sept.
24, 2013); see also Doc. 84, Exh. 4 (“Summary of Facts and Opinions of
M3”), and Doc. No. 3 at 6 n.1 (first motion to dismiss).
67.
Missouri is the only state whose protocol features the routine
use of central line access; other states “require that central access is
only available if peripheral access has been attempted and determined
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to be impossible.” Doc. No. 124-2 (declaration Mark J.S. Heath, M.D., of
August 18, 2013), ¶ 17.
68.
Central line access is “inherently more invasive and painful.”
Id. ¶ 18; Exhibit 5, ¶ 16. It presents widely recognized and painful
complications such as suffocation by collapsed lung; perforation or
laceration of large blood vessels leading to severe and fatal hemorrhage
or suffocation; perforation of the bowel or bladder; and cardiac
arrhythmia leading to hemodynamic collapse and death. Id. ¶ 18;
Exhibit 5, ¶ 16. These foreseeable complications are “inevitable” when
“conducted on a large series of patients or prisoners.” Exhibit 5, ¶ 16.
69.
Especially as the defendants’ counsel and physicians
expound them, the defendants’ proposed change of chemicals is no
panacea for the defects of its previous three protocols.
70.
On November 15, 2013, the Friday before the Franklin
execution set for 12:01 a.m. on Wednesday, November 20, 2013,
defendant Dormire purported to back off of the position the physicianexecutioner M3 had taken in M3’s depositions (including his
discounting of the negative externalities of central line access in his
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non-execution practice), on which experts for both sides had relied for
the premise that M3 would use central line access by default. Doc. No.
157, Exhibit 10, ¶ 6. Unless there are more terms which should be in
the protocol, but which the defendants are holding back for the next
execution eve, M3 is still the person who decides what “medical
condition” and “impracticable” mean in practice, i.e., he determines
what type of intravenous access to use. On November 18, the plaintiffs
brought Mr. Dormire’s statement to this Court’s attention, in light of
the fact that the continued use of central line access was relevant to the
question whether the change of deadly drugs rendered this action moot.
In its Order of November 19, 2013, the Court denied the defendants
motion to dismiss the action as moot notwithstanding the broad swath
of discretion that the last-minute Dormire affidavit confers on M3 in
light of his attitude toward central line access. Doc. No. 163 at 2-5. In
a phone conference on November 26, 2013, with both sides represented,
the Court granted leave to amend and further authorized the plaintiffs
to alter the amended pleading tendered as an exhibit to their motion for
leave to amend. Doc. No. 181.
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B.
The efficacy of pentobarbital as a means of execution
that will bring about death without substantial risk of
serious harm depends on the purity and potency of
the batch that the defendants use.
71.
Pentobarbital is a short-acting barbiturate.8 “Barbiturates
act by depressing the central nervous system, particularly on certain
portions of the brain, though they tend to depress the functioning of all
the body’s tissues.”9
72.
Pentobarbital’s effects depend on the dosage administered:
“Barbiturates are capable of producing all levels of CNS [i.e., central
nervous system] mood alteration from excitation to mild sedation, to
hypnosis, and deep coma. Overdosage can produce death. In high
enough therapeutic doses, barbiturates induce anesthesia.”10
8ENCYCLOPEDIA
BRITANNICA ONLINE, “barbiturate,”
http://www.britannica.com/EBchecked/topic/52936/barbiturate (last
visited Oct. 29, 2013).
9Id.
10National
Institutes of Health, DailyMed, “NEMBUTAL
SODIUM (pentobarbital sodium) injection,”
http://dailymed.nlm.nih.gov/dailymed/lookup.cfm?setid=5c380ab04386-48b6-80ab-ca594b23bc74 (last visited Oct. 29, 2013).
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“Barbiturates are respiratory depressants. The degree of respiratory
depression is dependent upon dose. With hypnotic doses, respiratory
depression produced by barbiturates is similar to that which occurs
during physiologic sleep with slight decrease in blood pressure and
heart rate.”11
73.
It is a general rule that the effects of a pharmaceutical
depend on the dose. In the case of pentobarbital, a tiny dose will cause
little or no effect, a very large dose will cause death, and there is a
range of outcomes when the dosage falls between these extremes.
74.
But the dose is not simply the gross quantity of the
substance. Purity or concentration determines whether or not a given
quantity of a substance has a given effect.
75.
According to the defendants’ expert from the Taylor
litigation, Dr. Mark Dershwitz, the defendant’s latest protocol will
purportedly work because it will shut down the supply of blood to the
condemned person’s brain and other vital organs:
11Id.
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Pentobarbital causes significant effects on the
cardiovascular and respiratory systems.
Pentobarbital causes a significant decrease in
blood pressure by two distinct mechanisms; it
produces a direct effect on the heart to decrease
its ability to pump, and it dilates blood vessels.
Pentobarbital also inhibits the respiratory
centers in the central nervous system to cause
apnea, the cessation of breathing. The dose of
pentobarbital mandated by the Missouri protocol,
5,000 mg, is an enormous overdose compared to
the doses that are administered acutely to
patients over the same time frame. The inmate
will cease to breathe, and his blood pressure will
fall significantly, probably to an unmeasurable
value. There will therefore be a lack of delivery
of oxygen to vital organs such as the brain and
heart that will lead to the inmate’s death.
[Exhibit 4.]
C.
Compounding pharmacies are substantially
unregulated and depend on sources of raw materials
that are not of the grade an FDA-compliant
pharmaceutical company would use.
76.
Previous lethal-injection protocols had included the option of
a pharmacist to assist in preparing the chemicals. ¶ A’s in Doc. No. 1,
Exh. A (state-court petition, Exh. 1, Affidavit of Mark J.S. Heath, M.D.)
(Heath Affidavit Exhibit 2) (protocol of May 15, 2012); Doc. No. 117-1
(protocol of August 1, 2013); Doc. No. 139-1 (protocol of Sept. 24, 2013).
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77.
The latest protocol’s definition of the “execution team”
sweeps beyond previous ones that had defined the “team” as the people
who performed the actions which would occur on an execution night.
The current definition includes the verbs “compound” and “supply”:
The execution team consists of department
employees and contracted medical personnel
including a physician, nurse, and pharmacist.
The execution team also consists of anyone
selected by the department director who provides
direct support for the administration of lethal
chemicals, including individuals who prescribe,
compound, prepare, or otherwise supply the
chemicals for use in the lethal injection
procedure.
78.
Defendants have announced that they will obtain the
pentobarbital they intend to use to execute the plaintiffs from a
compounding pharmacy: “The department also announced that it has
added a compounding pharmacy to its execution team. The
compounding pharmacy will be responsible for providing pentobarbital
for executions carried out under the new protocol.” Exhibit 3 (press
release from Department of Corrections dated Oct. 22, 2013).
79.
On information and belief, that compounding pharmacy is
the M6.
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80.
Defendant M6 willfully participates in joint activity with the
state or its agents in carrying out executions under the protocol in force
at any given time. Its activities are pervasively entwined with those of
state officials, officers, and employees in the conduct of executions.
81.
For generations, American health-care providers and
patients have relied on the regulation of pharmaceutical manufacturers
by the Food & Drug Administration (FDA) under the auspices of the
Food, Drug & Cosmetic Act (FDCA), in order to set the standard for
identity, purity, potency, and efficacy of prescription medications.
Exhibit 6, ¶ 6 (Affidavit of Larry D. Sasich, PHARM.D., M.P.H., FASHP).
82.
In the vast majority of situations, the only time our society
relies on pharmaceuticals that have not been produced subject to FDA
regulation is when a prescribing physician believes an individual
patient requires a customized preparation rather than a commerciallyavailable product of an FDA-regulated or -approved manufacturer, for
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example, “medication for a patient who is allergic to an ingredient in a
mass-produced product.”12 Exhibit 6, ¶¶ 5-6.
83.
Beginning in 1992, the FDA has been concerned that “some
pharmacists were manufacturing and selling drugs under the guise of
compounding, thereby avoiding the FDCA’s new drug requirements.”13
It has issued and periodically revised a Compliance Policy Guide
(hereinafter “Guide”) with the intent of confining pharmacies’
compounding activities to the traditional limits rather than allowing
them to undertake the functions of pharmaceutical manufacturers
subject to FDA regulation as such.14
84.
In 1997, Congress sought to amend the FDCA to exempt
“compounded drugs” from the FDA’s standard drug approval
requirements, so long as the providers of the compounded drugs abided
12Thompson
v. Western States Medical Center, 535 U.S. 357, 360-
64 (2002).
13Id.
at 362.
14Id.
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by several restrictions, including that the prescription be “unsolicited,”
and that the providers did “not advertise or promote the compounding
of any particular drug, class of drug, or type of drug.” The Court held
that the amendment impermissibly regulated commercial expression.15
85.
Because neither party sought a writ of certiorari on the
Ninth Circuit’s decision that the advertising provisions of the new
statute were nonseverable, the decision left standing a decision that
invalidated the amendment in its entirety.16 As a result, FDA
regulation extended only to traditional pharmacy compounding, which
is limited to a pharmacist’s use of “active and inactive ingredients to
meet the needs of an individual patient that cannot be met with an
FDA-approved product for medical reasons, according to a legal
prescription for an individual patient.” Exhibit 6, ¶ 5.
15535
U.S. at 366-77.
16535
U.S. at 366.
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86.
The current Guide reflects the Supreme Court’s holding that
the 1997 legislation was unconstitutional.17
87.
For the most part, the Guide continues to defer compounding
pharmacy regulation to the states. Cf. Exhibit 6, ¶ 5 (nontraditional
compounding-pharmacy practice “regulated if at all only by the states”).
At the same time, it notes the FDA’s concern with the blurring of the
line between the long-established practice of pharmacists’ preparing
specific medications for specific patients pursuant to a physician’s
prescription and the abuse of this professional discretion to get around
the rules Congress and the FDA have established for the manufacture
of pharmaceuticals:
an increasing number of establishments with
retail pharmacy licenses are engaged in
manufacturing and distributing unapproved new
drugs for human use in a manner that is clearly
outside the bounds of traditional pharmacy
practice and that violates the [FDCA]. Such
establishments and their activities are the focus
of this guidance. Some “pharmacies” that have
sought to find shelter under and expand the scope
17http://www.fda.gov/ICECI/ComplianceManuals/ComplianceP
olicyGuidanceManual/ucm074398.htm (last visited Oct. 29, 2013).
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of the exemptions applicable to traditional retail
pharmacies have claimed that their
manufacturing and distribution practices are only
the regular course of the practice of pharmacy.
Yet, the practices of many of these entities seem
far more consistent with those of drug
manufacturers and wholesalers than with those
of retail pharmacies.18
88.
The FDA does not have the resources to inspect and
otherwise regulate compounding pharmacies even with the limits it has
set, as a matter of policy, on its role in regulating them.
89.
Compounding pharmacies “are generally not subject to the
drug approval process and rigorous checks and regulatory procedures
required” of pharmaceutical manufacturers. Exhibit 6, ¶ 9.
90.
State regulation of compounding pharmacies varies
substantially from state to state; but no state regulates compounding
pharmacies in a manner that would replicate the FDA’s regulation of
pharmaceutical manufacturers.
18Id.
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91.
State regulation of compounding pharmacies is subject to
limitations on resources at least as pronounced as those applying to the
FDA’s recessive role in regulating them.
92.
On November 18, 2013, after voice votes in each chamber,
Congress passed—and on November 27, 2013, the President signed—
H.R. 3204, entitled the Drug Quality and Security Act. See Doc. No.
160, 160-1 & 160-2 and Exhibit 14 (President signed bill).
93.
This action reflects a rare bipartisan consensus at the
national level that compounding pharmacies are under-regulated, and
their products are not presently suitable for use with the exception of
specific circumstances in which, in the clinical judgment of a physician
having regard for the life rather than the death of an actual patient, an
FDA-compliant medication would do more harm than good.
94.
One of the principal reasons that the products of
compounding pharmacies are unreliable as to identity, purity, potency,
and efficacy is that there is no telling where they got the precursor
chemicals (the “Active Pharmaceutical Ingredients” or API’s) from
which they purport to “compound” the product they sell as a given
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substance. Exhibit 6, ¶¶ 16-35. “Ethical chemical manufacturers who
adhere to professional Responsible Care principles are unlikely to sell
chemicals that may be used in grey market drug production
operations[.]” Id. ¶ 21. Compounding-pharmacy businesses operating
beyond the traditional function of pharmacists to fashion non-FDA
medications for individual patients according to their physician’s lawful
prescription when FDA-approved pharmaceuticals would be medicallyinappropriate are likely to obtain their raw materials from India or
China or other sources not registered with or inspected by the FDA. Id.
¶ 20. “Chemicals used in compounding are highly suspect, and there is
no practical way to verify their quality, constitution or uniformity in
limited pharmacy settings.” Id. ¶ 19. Compounding pharmacies
generally do not have the institutional competence to test their own
products—let alone the API’s they use, to confirm their identity or to
rule out the presence of harmful contaminants. Id. ¶ 17.
95.
Compounding-pharmacy products do not meet the
requirements for identity, purity, potency, efficacy, and safety that
pharmaceuticals produced under FDA regulation must meet. Exhibit 6,
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¶¶ 11-12. In the context of a lethal injection predicated on the use of
pentobarbital, the foregoing flaws in the source and the lack of
regulation result in at least several causes for substantial risks of
serious, unnecessary, and lingering pain and suffering as well as
mental anguish:
a.
Lack of identity as to the product the label represents the
substance to be;
b.
“[S]ub- and super-potency,” resulting in unanticipated
effects such as pulmonary embolism, nausea and
vomiting, suffocation and gasping for breath before the
hoped-for loss of consciousness, and partial or complete
lack of effect;
c.
Contamination with dangerous allergens or substances
capable of causing immediate anaphylactic reactions;
d.
Contamination with bacteria or fungus with immediate
excruciating effects, such as “[h]ighly unpredictable,
rapidly evolving, and potentially painful and agonizing
reactions” before the condemned person is unconscious
(assuming it works even to that extent);
e.
Incorrect pH (acidity level) resulting in serious pain from
the burning sensation on injection analogous to the effect
of injecting an unanesthetized condemned person with
potassium chloride; and, without limitation,
f.
Formation of precipitates, i.e., solid particles, with the
foreseeable result of a painful pulmonary embolism in the
most serious of cases. [Id. ¶¶ 28-35 & 41-46.]
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96.
Without troubling themselves to include the asserted fact in
the protocol, the defendants have represented first to the Missouri
Supreme Court and then to this Court that they have obtained various
“tests” of the substance defendant M6 holds out as pentobarbital by a
“lab”,
. In his original affidavit, the plaintiffs’ pharmacology expert
Dr. Sasich explains that after-the-fact testing cannot make up for the
lack of raw materials or API’s obtained from reputable suppliers.
Exhibit 6, ¶¶ 16 & 24.
97.
Defendant
willfully participates in joint activity with
the state or its agents in carrying out executions under the protocol in
force at any given time. Its activities are pervasively entwined with
those of state officials, officers, and employees in the conduct of
executions.
98.
In specific response to the defendants’ last-minute
revelations of some testing by someone, Dr. Sasich explains further that
the American Association for Laboratory Accreditation (A2LA)—the
entity purporting to accredit
—has qualifications of “unknown”
probative value as to analytical testing of compounding-pharmacy
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products. Having made it his work to monitor the regulation of
compounding pharmacies, Dr. Sasich is aware of no governmental
entity, federal or state, that recognizes “accreditation” by A2LA as
anything but evidence of membership in a mutual admiration society of
substandard drug dealers. Exhibit 8, ¶ 1. He points out that
’s
indication of a given concentration level was “not validated.” His
expertise reinforces logic in pointing out that this admission “erodes
confidence in the reported concentration.” Id. ¶ 3. He points out that
the report leaves at least as many questions unanswered as it purports
to answer:
A.
What is the source of the pentobarbital
sodium active pharmaceutical ingredient
(API)?
B.
Does this pentobarbital sodium API meet
USP standards?
C.
Was this pentobarbital sodium produced in
a Food and Drug Administration facility
meeting Good Manufacturing Practice
Guidelines?
D.
Was the compounded pentobarbital sodium
produced in a facility that would assure that
cross-contamination would not occur with
drugs that could cause potentially serious
allergic reactions?
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E.
99.
Why was this pentobarbital sodium not
tested for adulterants, endotoxins, and
sterility?19
The only pharmacology and drug regulatory expert in the
case, Dr. Larry Sasich, discusses the compounded-pharmacy product
that the defendants used to execute Joseph Franklin on November 20,
2013, and the compounded-pharmacy product that they later used to
execute Allen Nicklasson on December 11, 2013. Exhibit 42 (Third
Supplemental Declaration) at 1-4. He explains that the stability of
compounding-pharmacy products is unknown, and that, therefore, the
expiration dates required on FDA regulated drugs do not apply to these
substances. Dr. Sasich goes on to explain that USP Chapter <797>
defines the “Beyond Use Date” (BUD) as the date or time after which a
compounded sterile preparation should not be administered, stored or
transported. Chapter <797> of the USP assigns BUDs for drugs
compounded from non-sterile Active Pharmaceutical Ingredients (High
Risk Compounding). If the drug is stored at room temperature, the
19Exhibit
8, ¶ 3.
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BUD is 24 hours; if refrigerated, 3 days, and if frozen, 45 days. Id. at 12.
100. From documents the plaintiffs’ counsel were able to wrench
from the defendants for this expert to review, Dr. Sasich had learned
that quantity of pentobarbital sodium was received by the laboratory on
November 27, 2013, and stored at room temperature, at least in the
report-writing “laboratory.” Dr. Sasich concludes: “The storage
conditions under which the sodium pentobarbital injection was
subjected from the time of initial preparation until it is used in an
execution is not known.” Id. at 3.
101. Dr. Sasich concludes further that if the drug was
compounded November 26, 2013, sixteen days before December 11,
2013, the date scheduled for Mr. Nicklasson’s execution, the BUD would
have been exceeded if the drug was stored at room temperature or in a
refrigerator. Id.
102. Considering the eight-day gap between the defendants’
receipt of the compounded drugs and their use in the executions of
Joseph Franklin and Allen Nicklasson, the Department of Corrections’
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practice “clearly falls outside the requirements of USP Chapter <797>
stating that high risk compounded drugs such as pentobarbital should
not be used after one day if stored at room temperature.” Sasich
Declaration of Jan. 17, 2014 (Doc. No. 285-3) ¶ 20.
103. Dr. Sasich is particularly troubled by
and its subsequent storage at room temperature for at least
fifteen days. Such storage represents a “very troubling deviation from
USP standards,” and it creates a “very high risk that the compounded
drug will degrade or allow for more rapid growth of bacteria before it is
used for Mr. Smulls execution.” Id. ¶ 9.
104. Dr. Sasich explained that the improper storage could result
in growth of bacterial contamination or the production of endotoxins in
the compounded drug. Id. He also opined that the compounding
pharmacy’s “failure to adhere to nationally recognized and widely
accepted standards also suggests that it may lack the equipment,
facility, knowledge or expertise to properly compound sterile
pentobarbital sodium injection.” Id. ¶ 10.
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105. Noting that compounded pentobarbital sodium is a “high
risk injectable according to the USP Chapter <797> definition,” Dr.
Sasich stated that it should be kept at room temperature for no more
than 24 hours, and that even if refrigerated, compounded pentobarbital
is considered safe and effective for no more than three days, and found
the failure of the pharmacy to instruct the Department of Corrections
on proper storage of the drug to be “deeply troubling.” Id. ¶ 11 The
improper storage creates “a very substantial, even grave, risk that the
prisoner will suffer severe pain and/or an immediate severe allergic
reaction.” Id. ¶ 15.
106.
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See Sasich Declaration of
Jan. 24, 2014 (Doc. No. 291-1) ¶¶ 7-14.
107. Dr. Sasich observes that tests carried out by “contract
testing laboratories” such as
create “great concerns.” Id. ¶ 15.
“Clearly, there are serious problems with contract testing laboratories
that call into serious question whether these companies are competent
to determine if compounded drugs are safe, effective, and pure,” he
explains. Id. “The word ‘testing’ carries weight that gives health
professionals, the public, and policy makers a feeling of security if a
product is tested. Great concerns arise if the reliability and validity of
the testing is not deserved.” Id.
108. Notwithstanding the defendants’ laboratory tests from an
unaccredited laboratory that operates as part of the compoundingpharmacy industry’s grey market, Dr. Sasich remains of the view that
the defendants’ compounded drugs create a “high likelihood that this
drug may cause [the plaintiffs] to suffer extreme pain and harm.” Id. ¶
16.
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109. Dr. Sasich concludes by citing the public FDA investigation
of “five commercial analytical laboratories [like
] for more than 70
safety problems.” These were not drawn at random: the same entities
run tests like the one the defendants rely on “for about 90 percent of the
large compounding pharmacies” in the United States. Id. at 2.
110. From these facts Dr. Sasich has formed the expert opinion
that the defendants’ “report” does virtually nothing to rule out the welldocumented threats of sub- or super-potency or other flaws which would
result in an excruciating death or a brain-dead prisoner no longer
competent to be executed again:
The documents provided by the Missouri
Department of Corrections only indicate that the
product that was tested may contain
pentobarbital sodium. There is no indication that
this product was sterile, free from crosscontamination or other adulterants that could
pose a serious risk to the prisoner receiving an
injection of this product.20
111. With respect to the execution the defendants have obtained a
date for in less than forty-eight hours, defendant Dormire testified in
20Id.
at 2.
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deposition that the compounding-pharmacy substance the defendants
intend to be used to execute Mr. Smulls had been picked up on January
14, 2014, and was being stored in a locked location by the Department.
Exhibit 41 at 73, 105-08 & 110. He testified that
it was stored at room temperature, and that he had been informed that
the drug was “good for 30 days” after it was compounded. Id. at 106-07.
Because the defendants plan to kill plaintiff Smulls at 12:01 a.m. on
January 29, 2014, which means they will have stored this compoundedpharmacy product at room temperature for a minimum of 15 days by
that date.
112. Dr. Sasich’s expert critique extends beyond this count.
Defendants’ use of an expired drug increases the already substantial
risk that any plaintiff thereby executed will suffer excruciating pain or
other severe harm in violation of the Eighth Amendment; increases
each prisoners’ penalty in violation of federal and state ex post facto
protections; reflects deliberate indifferent to the prisoners’ medical need
to be free of excruciating pain, so as to offend due process; is arbitrary
and capricious, contrary to law, and an abuse of discretion under the
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Missouri Administrative Procedure Act; and worsens the medical
malpractice being committed by the defendants, whose conduct violates
yet another standard of care.
113. Under the defendants’ latest protocol, regardless of their
incognito status, one would know one fact about any compounding
pharmacy or compounding pharmacist that would provide its “execution
teammates” with what it represents to be pentobarbital: they do not
abide by the norms of the health-care professions with respect to using
their skills to assist in killing human beings. These norms do not stop
with the Hippocratic Oath’s commitment to give no deadly drug and the
admonition “First, do no harm.” The first Principle of the American
Pharmacists Association’s Code of Ethics for Pharmacists is that “[a]
pharmacist respects the covenantal relationship between the patient
and pharmacist”, which the Code elaborates to mean that a pharmacist
“promises to help individuals achieve optimum benefit from their
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medications, to be committed to their welfare, and to maintain their
trust.”21
114. There is a causal relationship between a health-care
provider’s willingness to adhere to professional ethics and the quality of
health-care the health-care provider delivers.
115. In all previous lethal injection litigation before this Court—
and the bulk of lethal-injection litigation generally—when parties have
contested the use of a given substance as a lethal agent or an anesthetic
to be used in advance of the lethal agents, the parties have been able to
rely on the identity of the substance and the fact that it would be of the
identity, purity, potency, and efficacy required by the FDA and
reflecting the FDA’s supervision of the preparation of the substance.
The effects of the administration of a given amount of a given substance
were amenable to prediction, without speculation, based on expert
21http://www.pharmacist.com/code-ethics
(last visited Nov. 6,
2013).
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opinions working from the known facts about FDA-compliant
production.
D.
Defendants refuse to disclose the identity of
compounding pharmacy.
116. In the press release through which the plaintiffs’ counsel
received much of their “notice” to date about how the defendants plan to
carry out their latest protocol, the defendants say, “[t]he department [of
corrections] announced that it has added a compounding pharmacy to
its execution team.” Exhibit 3.
117. The Missouri statute on methods of execution provides that
“[t]he director of the department of corrections shall select an execution
team which shall consist of those persons who administer lethal gas or
lethal chemicals and those persons, such as medical personnel, who
provide direct support for the administration of lethal gas or lethal
chemicals.”22
22Mo.
Rev. Stat. § 546.720.2 (emphasis supplied).
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118. Defendants appear to construe the foregoing statute to
delegate to the Director of the Department of Corrections the power to
define the members of the team, and thereafter to make the identity of
the “members” the Department designates a state secret: “The
identities of members of the execution team, as defined in the execution
protocol of the department of corrections, shall be kept confidential.
Notwithstanding any provision of law to the contrary, any portion of a
record that could identify a person as being a current or former member
of an execution team shall be privileged and shall not be subject to
discovery, subpoena, or other means of legal compulsion for disclosure
to any person or entity . . . .”23
119. Subsection 4 of the same statute shields members of the
“execution team” from disciplinary action, without expressly limiting
this immunity to state agencies:
Notwithstanding any provision of law to the
contrary, if a member of the execution team is
licensed by a board or department, the licensing
board or department shall not censure,
23Id.
(emphasis supplied).
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reprimand, suspend, revoke, or take any other
disciplinary action against the person’s license
because of his or her participation in a lawful
execution. All members of the execution team are
entitled to coverage under the state legal expense
fund established by section 105.711 for conduct of
such execution team member arising out of and
performed in connection with his or her official
duties on behalf of the state or any agency of the
state, provided that moneys in this fund shall not
be available for payment of claims under chapter
287.24
120. Although the latest protocol itself does not use the same
language, the press release through which the defendants’ counsel
chose to apprise the plaintiffs of their actual intentions sweeps more
broadly than Mo. Rev. Stat. § 546.720.2 to say that the execution team
will include a “compounding pharmacy.” In light of the defendants’
conduct in this litigation to date, there is no reasonable likelihood that
the non-identity of the language in the two documents would mean that
the plaintiffs or the public would be allowed to know which
compounding pharmacy was the proximate source of the substance.
24Mo.
Rev. Stat. ch. 287, in turn, is the workers’ compensation
statute.
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121. Consequently, if the defendants are allowed to continue with
their latest protocol, they will be able to kill the plaintiffs without
providing their counsel, their experts, this Court, or any other court the
slightest information whatsoever about the provenance of the substance
they tender to the courts and the public as pentobarbital. The only
assurance the judiciary, the people of Missouri, or the plaintiffs who
face execution would have that the actual substance the executioners
will use is in fact pentobarbital would be the word of the defendants.
122. The facts previously pleaded about the unreliability of
products that are not FDA-compliant (paragraphs 80-115) are
exponentially more compelling when one does not know the track-record
of the compounding pharmacy from which the defendants purchase the
substance they claim to be pentobarbital, the source from which the
compounding pharmacy received the materials it compounds, and the
degree to which the compounding pharmacy deviates from the practices
the FDA would impose if the compounding pharmacy were a real
pharmaceutical company.
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123. Within the known range of effects of an unknown effective
dose of pentobarbital, there is a zone in which a person will be
unconscious but not dead. The “apnea” of which the defendants’
putative expert speaks is but a general case of a common medical
condition that is usually not fatal.25 In a proportion of cases that will
be calculated only if this protocol is tried time after time, the
condemned person will not breathe at all well, but will just lie on the
gurney for a period of time, then recover from the anesthetic effect of
the dose of nonstandard identity, purity, potency, or efficacy—but not
from the brain damage which is a known consequence of the respiratory
depression which was supposed to have killed them. The foreseeable
consequence of using unregulated pentobarbital from an unknown
source is that the condemned person will become incompetent to be re-
25Compare
MediLexicon, “apnea,”
http://www.medilexicon.com/medicaldictionary.php?t=5507 (last
visited Oct. 28, 2013) (defining term as “Absence of breathing”) with
National Institutes of Health, MedLinePlus, “Sleep Apnea,”
http://www.nlm.nih.gov/medlineplus/sleepapnea.html (last visited
Oct. 28, 2013).
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executed due to the defendants’ choice of a protocol. Exhibit 5, ¶ 9
(Declaration of Mark J.S. Heath, M.D.).
124. By any measure, such an execution would come within
either side’s definition of risk or harm.
125. With neither FDA regulation nor the ability to assess the
competence of the compounding pharmacy in question, one does not
even know what substance the defendants will administer to kill a
given plaintiff on the first attempt or any second or subsequent
attempt.
126. This is one reason why the defendants’ promised death check
(Exhibit 2, ¶ E.4-5) does not eliminate the foregoing problem. If the
condemned person is not dead when he or she was supposed to have
been, then that means something is wrong with the product which was
first administered. Either it is not in fact pentobarbital, or the purity,
potency, and efficacy of the batch the defendants have used is (as one
would expect) sub-par. Administering more of the same substance that
had failed before would not have a scientific basis, because if the first
dose had worked, one would not need the second. One has no way of
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knowing whether the effective dose of the second or subsequent batch is
even lower than that of a previous one. Exhibit 5, ¶ 9.
127. Despite one’s inability to learn which compounding
pharmacy (or compounding pharmacist) is on the “team,” one knows
that they pick and choose which norms of the health-care professions
they will follow. Cf. para. 113, supra.
128. The challenged procedure presents a risk of pain the State
can avoid while still being able to enforce the sentence ordering a lethal
injection.
II.
The change of protocols results in an increase in the
quantum of pain and suffering over the previous protocol
that the Eighth Circuit and subsequently this Court held
constitutional.
129. In Taylor v. Crawford, another division of this Court
required the defendants’ predecessors in office to issue a written
protocol.26
26Taylor
v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035
(Doc. No. 195) at 5 & 7-9 (Order of June 26, 2006).
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130. While the federal district court’s order in Taylor was on
appeal, the defendants’ predecessors in office terminated the services of
a surgeon they had employed to assist in executions even after plaintiff
Michael Anthony Taylor demonstrated that this defendant, John Doe 1,
admitted to being dyslexic and to getting dosages mixed up—in some
instances giving less than the amount of sodium thiopental the
unwritten protocol required in order to anesthetize the condemned
person before injecting him with the other two lethal chemicals.
131. Eventually, after the changes that the district court had
ordered after an evidentiary hearing in Mr. Taylor’s case, the federal
courts rejected remaining issues with the three-chemical sequence and
with the Missouri defendants’ practices for implementing it at the
time.27
27Clemons
v. Crawford, 585 F.3d 1119 (8th Cir. 2009), cert. denied,
130 S.Ct. 3507 (2010); Taylor v. Crawford, 487 F.3d 1072 (8th Cir.
2007), cert. denied, 553 U.S. 1004 (2008).
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132. The Eighth Circuit held that the protocol the defendants
adopted under this Court’s Order in Taylor met the constitutional
standard for lethal injection that the Supreme Court had set in Baze v.
Rees.28
133. At every stage, the Taylor decision presumed the use of
substances produced consistently with the FDCA, including FDA
regulation and supervision; counsel, experts, and courts alike were able
to predict the effects of the substances involved based on this
presumption.
134. The Taylor and Clemons decisions presumed the use of drugs
that were not past their “beyond use date.”
135. In the instant case, because compounding pharmacies are
not regulated by the FDA and do not have the institutional competence
of the pharmaceutical manufacturers that are (Exhibit 6, ¶ 9), the
names in protocols mean, at most, the names printed, typed, or
28553
U.S. 35 (2008). See Clemons v. Crawford, 585 F.3d at 112628; Taylor v. Crawford, 487 F.3d at 1085.
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scrawled on the bottles or syringes. That the labels say “pentobarbital”
does not mean that “pentobarbital” as defined by the FDA standards for
the purity of the drugs is actually what is inside.
136. In 2012, the defendants in Ringo v. Lombardi represented to
the Eighth Circuit that their stock of sodium thiopental had gone out-ofdate, and they were unable to obtain more because the manufacturer
would not sell it to them for use in executions. The Eighth Circuit
accepted this premise, and held the case moot.29
137. Under the Taylor decision, the initial injection of FDAcompliant sodium thiopental would render the condemned person
unconscious and therefore unable to experience suffocation from the
second substance, FDA-compliant pancuronium bromide, and the
burning and heart attack caused by the third, FDA-compliant
potassium chloride.30
29677
F.3d 793 (8th Cir. 2012).
30487
F.3d at 1082-85.
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138. Removal of FDA regulation and supervision from the
substance the defendants propose to use in their latest protocol means
that the likelihood of pain and suffering is greater than it was under the
protocol the Eighth Circuit approved in Taylor.
139. Like his three previous attempts to change the Taylorapproved protocol, defendant Lombardi’s change of the protocol
occurred after the offenses for which the plaintiffs were sentenced to
death.
140. By obtaining unreliable compounded drugs, and by
arranging for those drugs to be “tested”—i.e., laundered in the courts of
both law and public opinion—by a rogue laboratory whose interest is to
prop up the grey market in compounded pharmaceuticals rather than
reliably to assure the safety of these products, defendant Lombardi
utterly fails in any claimed effort to employ what the Eighth Circuit
recently described as “the most humane method of execution available.”
In re Lombardi, No. 13-3699, slip op. at 14 (8th Cir. Jan. 24, 2014) (en
banc).
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III.
Defendants adhere to their pattern of discovery avoidance
and shifting of “facts” to suit their litigation position when
the premise of lethal injection is that the plaintiffs are
supposed to be treated in a clinical, therapeutic manner as
if they were going in for an operation.
141. In an execution by lethal injection, the delivery of the
medication necessary to bring about a rapid death without gratuitous
pain and suffering is a serious medical need. It is an aspect of the
process without which this general method of execution would not have
been introduced, and without which it would not be maintained.
142. Defendants have actual knowledge of this need.
143. Defendants have actual knowledge of the substantial risk
that the plaintiffs will suffer an allergic reaction or be rendered
comatose or suffer burning in his vascular system or other serious harm
(see e.g., paras. 95 & 123 supra) that the defendants are expected to
prevent.
144. Defendants disregard the foregoing risk by intentionally
refusing or intentionally failing to take reasonable measures to deal
with the problem but instead by adhering to their shell-game of shifting
protocols and epicycles to protocols, discovery delay, and outright denial
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of information that an innocent party would make available subject to
reasonable restrictions on access.
145. Defendants use outdated compounded-pharmacy substances
with knowledge of their unreliable nature rather than through
negligence or inadvertence.
IV.
Defendants M3, M2, M6, M5,
, and all John Doe
defendants who are health-care providers or functioning
as such have treated and intend to treat condemned
persons with substandard substances or they have
provided or passed off, and intend to provide or pass off,
such substances as adequate for the treatment of the
plaintiffs.
146. The critique of compounding-pharmacy products that the
plaintiffs first presented to this Court in their first amended complaint
and accompanying papers is not new or idiosyncratic, but reflects the
consensus of all three branches of the federal government.
147. Provision of reliable anesthesia to a person whom their codefendants wish to kill is part of the requisite standard of care for any
health-care provider or health-care products manufacturer or inspector.
148. Use of compounding pharmacy products fails to meet the
foregoing standard of care.
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149. Plaintiffs imminently stand to suffer damage from the use of
substandard substances in lethal-injection executions by allergic
reaction, being rendered permanently comatose, burning in their
vascular system or other serious harm (see e.g., paras. 95 & 123 supra).
V.
Recognition of the documented facts indicating the
dangers posed by the defendants’ provision, processing,
and use of compounding-pharmacy substances in
executing the plaintiffs creates emotional distress for the
plaintiffs and for their loved ones.
150. Defendants intend to physically contact plaintiffs in order to
kill them, but without plaintiffs' consent, and by inflicting a greater
injury than is needed to bring about death. Such conduct is offensive.
151. The physical effects of this touching go beyond the statutory
objective of bring about the death of the plaintiffs to include the
superadded pain and suffering referred in paras. 95 & 123 supra.
152. Defendants intend to cause pain and suffering over and
above the statutory objective of causing the death of the petitioners or
act with deliberate indifference toward the likelihood of causing this
superadded pain and suffering.
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153. Over and above the battery that the foregoing unconsented
offensive touching constitutes—yet growing out of both the threat and
the consummation of it—the defendants’ conduct and intended conduct
causes emotional distress at the prospect of a death with more pain and
suffering than the courts have found to result from the protocol they
approved in Baze v. Rees, Clemons v. Crawford, and Taylor v. Crawford.
154. The foregoing intentional infliction of emotional distress
affects not only the plaintiffs but their loved ones.
155. Based on knowledge in the public domains, the defendants
are on notice of the reasonably foreseeable consequences of their acts
and omissions, yet continue their conduct as set forth in this complaint.
156. Defendants inflict the foregoing emotional distress
intentionally or recklessly.
157. Defendants the defendant should realize that their conduct
involves an unreasonable risk to the plaintiffs.
158. Defendants intend that the plaintiffs be present at their
executions.
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159. Plaintiffs are in the zone of danger, or the defendants intend
to place them in the zone of danger, where they will be in reasonable
fear of physical injury to their own persons as a result of the
defendants’ conduct of executions using compounding-pharmacy
substances as set forth in this complaint, for example, at paras. 95 &
123 supra.
160. The foregoing negligent infliction of emotional distress
affects not only the plaintiffs but their loved ones.
VI.
Adding a compounding pharmacy, a report-writing
“laboratory,” and an off-site prescribing osteopath to the
“execution team” is an exercise of legislative power by
executive branch.
161. As set forth in para. 118, supra, Mo. Rev. Stat. § 546.720.2
provides: “The identities of members of the execution team, as defined
in the execution protocol of the department of corrections, shall
be kept confidential. Notwithstanding any provision of law to the
contrary, any portion of a record that could identify a person as being a
current or former member of an execution team shall be privileged and
shall not be subject to discovery, subpoena, or other means of legal
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compulsion for disclosure to any person or entity . . . .” Id. (emphasis
supplied).
162. In the press release announcing how the defendants intend
to obtain compounding-pharmacy pentobarbital, they say that the
Department of Corrections “has added a compounding pharmacy to its
execution team.” Exhibit 3.
163. Whereas the core sentence in the statute saying what its
protection means in practice refers to “person,” and the provisions
immunizing such persons from professional regulation uses the term
expression “his or her” as a relative pronoun phrase, the language on
which the defendants rely in making a company part of the “team” uses
the word “member.”
164. Since the Taylor order that first required a written execution
protocol in this state, the only written protocols have limited the “team”
to medical personnel and nonmedical staff who would be present in
person at the execution:
1.
The execution team consists of contracted
medical personnel and department
employees.
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2.
A physician, nurse, or pharmacist prepares
the chemicals used during the lethal
injection.
3.
A physician, nurse, or emergency medical
technician (EMT-intermediate or EMTparamedic) inserts intravenous lines,
monitors the prisoner, and supervises the
injection of lethal chemicals by nonmedical
members of the execution team.
4.
Two department employees inject the
chemicals into the prisoner.31
165. The past practice of the Department of Corrections reflects
that the original understanding and the plain meaning of the statute is
to cover individuals present at the execution.
166. Regardless of what the General Assembly intended, the
defendants now have a litigation incentive to make the company a
member of the “team” in order for it to be free from scrutiny as to its
track-record for regulatory violations and absence of extraordinary
31¶A’s
in Doc. No. 1, Exh. A (state-court petition, Exh. 1, Affidavit
of Mark J.S. Heath, M.D.) (Heath Affidavit Exhibit 2) (protocol of May
15, 2012); Doc. No. 117-1 (protocol of August 1, 2013); Doc. No. 139-1
(protocol of Sept. 24, 2013). The same language appears in the protocol
at issue in Ringo v. Lombardi, No. 2:09-04095-NKL (W.D. Mo.), e.g.,
Doc. No. 155, Exh. 1.
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indicia of reliability that might conceivably put it in the FDA-regulated
category (a proposition the plaintiffs do not suggest could be established
in any event).
167. Making the compounding pharmacy or compounding
pharmacist a member of the “team” is also necessary to immunize them
from the enforcement of professional norms by professional associations
and regulators, by other compounding pharmacies, by health-care
professionals who would otherwise write prescriptions for them to fill,
by suppliers who would otherwise sell them raw materials, and by
customers who do not choose to trade with pharmacies or pharmacists
that use their professional skills to facilitate executions.
168. The fact that a litigation incentive has arisen subsequent to
the passage of the bill does not change the words of the resulting
statute.
169. Mo. Rev. Stat. § 546.720.1-2 does not give defendant
Lombardi a general authority to make whomever or whatever he
chooses a “member” of the “execution team” in the way that it gives him
the responsibility of providing a “suitable and efficient room or place,
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enclosed from public view” and the “necessary appliances” for carrying
out a method of execution from the two-method list the statute provides.
It provides that he “shall select an execution team which shall consist of
those persons who administer lethal gas or lethal chemicals and those
persons, such as medical personnel, who provide direct support for the
administration of lethal gas or lethal chemicals.” (Emphases
supplied.)
170. The statute’s use of the noun “persons”, the example of
“medical personnel”, the adjective “direct” modifying “support”, and the
noun “administration,” indicate that the General Assembly intended his
discretion to extend only to natural persons who are personally present
and active in the execution itself.
171. Even if one were to discount the defendants’ representations
in Exhibit 3 that they will use a compounding pharmacy, a
compounding pharmacist would not need to be, and in fact could not be,
present on an execution night. Compounding an injectable drug such as
pentobarbital requires a separate facility designed for that specific
purpose. See 20 C.S.R. § 2220-2.200(1)(H) (defining injectables as
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“compounded sterile medications”); 20 C.S.R. § 2220-2.200(5) (governing
“facilities and equipment” for sterile compounded medications).
172. The compounder therefore does not provide “direct” support
as do statutorily-encompassed “medical personnel” such as
anesthesiologist M3, who oversees the execution itself and supervises
nonmedical personnel as they inject the drug by pushing the syringes.
Exhibit 2, ¶ E1.
173. The General Assembly intended to provide anonymity and
professional-disciplinary immunity to executioners and “those persons,
such as medical personnel, who provide direct support for the
administration of lethal gas or lethal chemicals.” Mo. Rev.
Stat.§ 546.720.2.
174. Whatever or whoever makes the substance does not
administer it or assist someone else in doing so. As a matter of
Missouri law, the names of vendors, suppliers, and contracts of state
agencies are presumptively matters of public record. See Mo. Rev. Stat.
§ 610.010.6 (Sunshine-Law definition of “public record”).
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175. Unlike the details of the protocol per se, suppressing the
identities of participants in a process does not call for specialized,
scientific knowledge beyond the competence of a legislative body.
176. Because the General Assembly is democratically elected and
makes the laws concerning regulation of professions and occupations,
and defendant Lombardi runs prisons and is not elected by the people of
the State of Missouri, he is not in a superior position to say who should
be anonymous and who should not be in relation to the board or
department the General Assembly has charged with regulating them.
177. By purporting to make a compounding pharmacy and an
osteopath who simply writes prescriptions rather than attending the
execution members of the team, defendant Lombardi has changed the
terms of the statute as if he were the General Assembly.
178. In the alternative, if the words of the statute are plastic
enough that this is not an involuntary act from the legislature’s point of
view, but within its intent, then the General Assembly has conferred its
own power on an appointed executive official.
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179. Regardless whether the legislature or the executive actor is
dominant in effecting this change to composition of the “execution team”
for secrecy purposes, the protocol attempting to do so is an exercise of
the legislative power by an unelected official or officer of the executive
branch.
180. Defendants’ conduct places the plaintiffs at risk of physical
harm and excruciating pain as a result of the foregoing violation of the
separation of powers, which violation allows the defendants to keep
secret the supplier of compounding-pharmacy substances, and thereby
to choose a supplier and report-writer whose product and whose work,
respectively, are substandard and will not reliably serve the defendants’
putative purpose of causing a “quick and painless death.
VII.
Defendants have denied the plaintiffs notice and an
opportunity to be heard on their constitutional and other
legal grievances with the succession of protocols they have
uttered, in one instance after they had obtained an
execution date.
181. The protocol that is the subject of this amended complaint is
the fourth since May 2012.
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182. Defendants covertly adopted the first propofol protocol on
May 15, 2012.
183. Defendants did not give notice to plaintiffs of the first
propofol protocol until May 17, 2012.
184. Plaintiffs’ first notice of this protocol was a set of ex parte
contacts with the bulk of the plaintiffs, all of whom were then and are
now represented by counsel, either before or simultaneously with the
filing of nineteen motions in the Missouri Supreme Court to set
execution dates.
185. Defendants resisted all efforts by the plaintiffs and their
counsel to see that execution dates were set under the first propofol
protocol only after the courts had been able to decide on its
constitutionality.
186. Defendants adopted the second propofol protocol on August
1, 2013.
187. Plaintiffs and their counsel first learned of the second
propofol protocol on August 2, 2013.
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188. Defendants’ counsel, ex parte, provided a copy of the second
propofol protocol and the affidavit of defendant Dormire containing
terms appurtenant it to the Missouri Supreme Court on August 2, 2012.
189. On August 14, 2013, the Missouri Supreme Court set
execution dates against plaintiff Nicklasson and then-plaintiff Franklin,
as October 23, 2013, and November 20, 2013, respectively.
190. On September 24, 2013, less than a month before the
scheduled execution of plaintiff Nicklasson, defendants issued the third
propofol protocol. Doc. No. 139, Exh. 1.
191. In a press release on October 11, 2013, the Governor
announced that the state had chosen not to proceed with the use
propofol, but that it would prepare yet another protocol. He cancelled
the October 23 execution date against plaintiff Nicklasson on October
11 (Exhibit 1), and the Missouri Supreme Court vacated it on October
22. The November 20 execution date against Mr. Franklin remained
standing. Defendants obtained a new execution date of December 11
against plaintiff Nicklasson.
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192. Defendants perform Missouri executions at 12:01 a.m., with
the effect that absent pending court action drawing the execution in
question at the latter time, the last day on which counsel or the courts
could take any action on Mr. Franklin’s case was November 19 and on
Mr. Nicklasson’s case was December 10.
193. Neither in the foregoing press release (Exhibit 1) nor in any
other public statement did Governor Nixon commit that the
Department of Corrections would never use propofol as a killing agent.
The current protocol does not include propofol. It is impossible to
ascertain at this time how propofol might be used by the Department of
Corrections in a future execution protocol. Plaintiffs’ failure to include
averments and counts in this amended complaint concerning the use of
propofol is not intended as an admission that any of defendants’
propofol protocols were constitutional.
194. On October 18, 2013, the defendants adopted the protocol
that is at issue (for the time being) in this case.
195. Without changing the protocol as another division of this
Court contemplated in ordering them to issue them for the first time,
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the defendants uttered a collateral document changing the de facto
protocol five days before the then plaintiff Franklin.
196. Defendants announced this protocol to the plaintiffs and
their counsel on October 22, 2013.
197. When counsel for Mr. Franklin sought an order from the
Missouri Supreme Court vacating the outstanding execution date of
November 20 against him, the defendants’ privies in the Attorney
General’s Office opposed the motion.
198. On October 25, 2013, the Missouri Supreme Court
summarily overruled Mr. Franklin’s motion to vacate its execution date
of only one month from the defendants’ announcement of their current
post-Taylor execution protocol.
199. Defendants’ conduct in this matter is calculated, or is so
likely as to be attributable to them as if it were calculated, to prevent
the plaintiffs from ascertaining the facts about each of the past
protocols as well as the present protocol in such a manner as to
determine whether any of the protocols is consistent with the
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constitutional guaranties against cruel and unusual punishments and
with the other provisions of law set forth in this complaint.
200. Defendants’ actions are calculated and likely to force the
plaintiffs to litigate the claims and issues resulting from their change of
protocols—including their claim to a day in court—under the harsher
standard for issuance of a stay of execution rather than under the legal
standard that would apply but for the defendants’ conduct.
201. Each and every plaintiff is indigent, confined in a maximum
security prison, and represented by appointed counsel.
202. Forcing counsel to litigate these technical issues—requiring
expert consultations and discovery with execution dates looming as
imminently as in this case creates a burdensome strain that places the
plaintiffs at an artificial disadvantage created by the defendants.
203. For example, in its one-page order vacating this Court’s stay
of execution as to Mr. Franklin, the Eighth Circuit cited the lack of
evidence to support the plaintiff’s assertion that his execution under the
most recent protocol would constitute cruel and unusual punishment.
Exhibit18. That lack of evidence was largely due to the defendants’
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repeated changes of protocols and failure to answer legitimite discovery
requests in order to keep the plaintiffs’ counsel and experts from
learning and presenting the truth.
204. Plaintiffs have a liberty interest under the Due Process
Clause of the Fourteenth Amendment in not being executed by the state
in violation of the Cruel & Unusual Punishments Clause of the Eighth
Amendment or any other state or federal law.
205. Plaintiffs have a liberty interest under the First Amendment
and the Due Process Clause of the Fourteenth Amendment in access to
the courts.
206. At the time of each of the last three adoptions of post-Taylor
execution protocols, the plaintiffs, including former plaintiffs
Nicklasson and Franklin, were parties to this litigation, which the
defendants removed to this Court.
207. Defendants’ conduct would deprive the plaintiffs of their
liberty by means of denying them a day in federal court on their claims
that the protocol, and the means of its adoption and enforcement,
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violate the Constitution and statutes of both Missouri and the United
States.
208. Allowing the defendants to hide the ball until after the
Missouri Supreme Court has set execution dates renders 42 U.S.C.
§ 1983 a dead letter, whether a condemned person’s action was brought
in state or federal court.
209. De facto deprivation of a federal-court remedy for the
plaintiffs’ underlying constitutional violations would violate Due
Process Clause of the Fifth Amendment.
210. On December 12, 2013—in the immediate wake of the
Nicklasson killing—the district court held a teleconference to address
the defendants’ objections to producing certain discovery that their most
recent change of protocol and of protocol-administration rendered
necessary. Specifically, the plaintiffs sought the identities of the
pharmacist who compounds the pentobarbital used in executions, the
physician who provides a prescription for the drug, and the laboratory
that tests the drug. After hearing arguments regarding Mo. Rev. Stat.
§ 546.720 and the defendants’ claims of federal common-law privileges,
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the district court ordered defendants to produce the requested
information, and to do so no later than December 16, 2013. Doc. Nos.
203-04. The district court also denied the defendants’ motion for a
protective order regarding the same information. Doc. No. 205.
211. Defendants subsequently filed a petition for writ of
prohibition or mandamus in the Eighth Circuit, asking that court to
prohibit the district court from enforcing the orders in Docs. 203, 204 &
205. Defendants also requested from the Eighth Circuit a stay of the
district court’s orders.
212. Defendants also filed two motions in the district court
seeking a stay of the district court’s order during the defendants’
extraordinary-writ proceeding before the Eighth Circuit. After hearing
arguments from both sides during a second teleconference, the district
court denied both motions for stay. Doc. Nos. 213 & 215.
213. Recognizing the sensitivity of the requested discovery, the
district court took steps to limit dissemination of the information,
ordering that the information be provided to only two of the plaintiffs’
attorneys (Joseph Luby and Cheryl Pilate), that the disclosure of
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information to any additional attorneys would require a court order,
that Mr. Luby and Ms. Pilate refrain from directly identifying to any
other person the pharmacist, physician or laboratory, that the
defendants’ counsel cooperate with the plaintiffs’ counsel to maintain
confidentiality when information is sought from state agencies, and,
further, that the plaintiffs’ counsel and the defendants’ counsel confer
on drafting a confidentiality agreement to be used with any third party
from whom information is sought concerning the pharmacist, physician
or laboratory.
214. After the district court denied the defendants’ motions at
4:37 p.m. and 5:30 p.m. on December 16, 2013 (Doc. Nos. 213, 215), the
plaintiffs’ counsel sent several e-mails to the defendants’ counsel
indicating they anticipated compliance with the district court’s orders
and were awaiting the discovery.
215. They indicated they would be working into the evening and
asked that the discovery be immediately provided via e-mail.
216. Counsel sent the first of several emails at 5:47 p.m.:
From: Cheryl Pilate cpilate@morganpilate.com
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Date: Mon, Dec 16, 2013 at 5:47 PM
Subject: Zink v. Lombardi - compliance with
discovery order - CONFIDENTIAL
To: Mike Spillane ,
Stephen Hawke
Cc: Joe Luby
Dear counsel: The district court has denied the
motion for stay, and the date for compliance with
the discovery order remains December 16, 2013.
We are aware that you have pending litigation in
the 8th Circuit. That said, the district court's
order was explicit that the discovery was to be
provided no later than today. Please be advised
that both Mr. Luby and I are both in our offices
awaiting the discovery. I will be in front of my
laptop until midnight, given today's deadline for
compliance. Mr. Luby and I are well aware of the
requirement of confidentiality as explicitly
addressed by the Court. Until we have
agreement on the confidentiality agreement to be
used with third parties, please be advised that
Mr. Luby and I will take no steps to discuss the
discovery with anyone or to conduct any
investigation whatsoever. Such investigation will
only occur once we have the confidentiality
agreement in place. We are awaiting your
compliance. As stated, there is no stay order in
place so we are anticipating receiving the
discovery today. Thank you.
217. Counsel sent follow-up e-mails at 7:00 p.m., 7:13 p.m., and
7:21 p.m. Counsel received “read” receipts from defense counsel,
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indicating that the addressees had had been received and opened the emails. At 7:13 p.m., counsel attached to their e-mail a proposed
confidentiality agreement (Exhibit 46), that the plaintiffs’ counsel had
adapted from standard language used in civil cases when third parties
are asked to view material covered by a protective order. Defense
counsel did not respond in any way to the proffered confidentiality
agreement, not did defense counsel respond to any of the e-mails.
218. On December 17, 2013, without direction by this Court, the
defendants lodged with this Court the identities of the compounding
pharmacy, the report-writing lab, and the prescribing physician. Doc.
No. 218. The same day, the Eighth Circuit panel issued a temporary
stay of the district court’s order to produce this information to two
designated attorneys for the plaintiffs. Doc. No. 225.
219. On December 27, 2013, the Eighth Circuit panel granted the
defendants’ petition that the identity of the prescribing physician be
kept secret, but denied it as to the compounding pharmacy and the
report-writing laboratory, and vacated the temporary stay it had issued
regarding the district court’s order. Doc. No. 238. The same day, sua
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sponte, the Eighth Circuit en banc granted rehearing on the panel’s
decision to deny the motion for temporary stay, and vacated the panel’s
order denying the motion for temporary stay. It granted a motion for a
temporary stay pending disposition of the petition for rehearing en banc
of the defendants’ extraordinary writ petition. Doc. No. 248.
220. Unaware of the latter sua sponte order, the district court
released the identities to Mr. Luby and Ms. Pilate. Doc. No. 242 at 2
(“No stay of this Court’s order of December 27 has been sought in this
Court nor has any stay been issued by the Eighth Circuit. In addition,
the stay previously issued by the Eighth Circuit as to the December 12
order has now been lifted”).
221. In a telephone conference the following Monday, December
30, 2013, the district court ordered Mr. Luby and Ms. Pilate to destroy
all trace of the information, to cause any of their staffs who may have
received it to do so, and not to use the information or any fruits of it.
Doc. No. 251. Nonetheless, the defendants immediately called for the
recusal of the district judge who had released the information without
knowledge of the sua sponte order of the Eighth Circuit en banc. Id.
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Later that day, the Hon. Nanette K. Laughrey recused herself, and the
Hon. Beth Phillips was assigned to the case in her place. Doc. Nos. 25354.
222. Subsequently the defendants have tendered sets of belated
discovery after two executions before which the bulk of it should have
been delivered and within two weeks or less of the next execution date
they have procured. E.g., Doc. No. 298-99.
223. Although the media discovered and published the identities
of the compounding pharmacy and the report-writing “lab”, the
plaintiffs cannot ascertain the bona fides of the laboratory and to
determine how far from the FDA model of regulation the compounding
pharmacy lies. But the media have established a strong basis to believe
that at least one of them does not have the kind of record a defendant
would wish to have in an institution responsible for his or her own
medications. See, e.g., Doc. No. 299 & Exhs. A, G, H & I.
224. After the media had rendered the defendants’ extraordinarywrit proceeding moot, the Eighth Circuit issued an opinion purporting
to decide the issue no longer before it as well as others not before it.
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Doc. No. 302. This opinion is pending rehearing at this writing.
Exhibit 40.
225. Insofar as Mo. Const. art. I, § 10, is to be construed
coterminously with the Due Process Clauses of the Fifth and
Fourteenth Amendments, denial of a day in court on the merits of the
petitioners’ claims of cruel and unusual punishments and the
application of an ex post facto law would violate the state guaranty of
due process as well.
226. To the extent that Mo. Const. art. I, §§ 8-9, are to be
construed coterminously with corresponding guaranties of the First
Amendment, denial of a day in court on the merits of the petitioners’
claims of cruel and unusual punishments and the application of an ex
post facto law would violate the state guaranty of freedom of expression
as well.
VIII.
Defendants Executed Joseph Paul Franklin and Allen
Nicklasson when each had a motion or a petition pending
before this Court or the Eighth Circuit, respectively.
227. On August 14, 2013, the Missouri Supreme Court issued a
warrant for the execution of Joseph Paul Franklin to occur on
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November 20, 2013. Exhibit 15. Pursuant to Missouri law, the
execution could properly be carried out any time before 12:00 a.m. on
November 21. It is the practice of the state defendants and their
predecessors in office to carry out executions at 12:01 a.m. on the date
the Missouri Supreme Court has set.
228. Governor Nixon’s press release of October 11, 2013 (Exhibit
1), cancelling the October 23 date against plaintiff Nicklasson did not
address the pending date against Mr. Franklin, then of course a
plaintiff before this Court. On the same date as the Governor’s press
release, Mr. Franklin moved the Missouri Supreme Court to stay the
pending date of November 20, 2013, in order to allow him to assess the
legality of the yet-undisclosed new protocol. On October 25, 2013, the
Missouri Supreme Court overruled the motion.
229. On November 18, 2013, Mr. Franklin moved this Court for
an order staying his execution. The motion attached documents
showing recent changes that the defendants had not disclosed by
supplementation of their discovery responses in the instant case before
this Court. It also included a supplemental declaration from Dr. Sasich
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showing the flaws and unanswered questions in on such late-disclosed
or nearly-undisclosed document from the defendants. Doc. No. 157.
230. At 4:19 p.m. on November 19, 2013, this Court stayed Mr.
Franklin’s execution. Doc. No. 163. Mr. Franklin had sought the stay
on four grounds; this Court granted relief on one ground—the violation
of the Eighth Amendment to the United States Constitution—and
expressly refrained from reaching the remaining grounds:
Because the Court finds that the stay of execution
must be granted on the grounds that Plaintiffs
have shown a substantial likelihood of success on
the merits of their Eighth Amendment claim, the
Court declines to discuss Plaintiff’s other
arguments on the merits at this time.32
231. At 5:40 p.m., a division of the United States District Court
for the Eastern District of Missouri stayed Mr. Franklin’s execution, on
the basis of his claim that he was incompetent to be executed. Exhibits
16-17. Defendants appealed both orders to the United States Eighth
Circuit Court of Appeals. In orders issued by e-mail at 12:09 and 12:18
32Doc.
No. 157 at 12.
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a.m. on November 20, 2013, that court vacated both stays of execution.
Exhibits 18-21.
232. Thereafter, the Eighth Circuit denied Mr. Franklin’s motions
for rehearing and for rehearing en banc, over three dissenting votes,
with three additional judges not participating in the decision. Exhibits
22-23.
233. At 3:40 a.m. on November 20, 2013, counsel for Mr. Franklin
then filed in the United States Supreme Court a motion for stay.
Exhibits 24-25.
234. At approximately 5:01 a.m. on November 20, 2013, while the
United States Supreme Court proceedings were still pending, counsel
for Mr. Franklin filed in this cause a renewed motion for stay on the
basis of the grounds this Court had reserved ruling on in the Order it
had issued at 4:19 p.m. the previous day—explaining that these
grounds did not require the heightened evidence that the Eighth Circuit
held to be missing from Mr. Franklin’s Eighth Amendment claim.. Doc.
No. 167. Opposing counsel received notice of this filing through the
Court’s electronic filing system at that time. Exhibit 28.
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235. Joseph W. Luby, counsel for Mr. Franklin, called the
emergency number for the clerk of this Court at approximately 5:10
a.m. to insure that the Court was alerted to the filing.
236. At 5:18 a.m., counsel for Mr. Franklin and the defendants
received notice, via e-mail, that the United States Supreme Court had
denied the motion for stay. Exhibits 29-31.
237. At approximately 5:24 a.m., November 20, 2013, Mr. Luby
sent an e-mail to Susan D. Boresi and Michael J. Spillane, counsel for
defendants, Exhibit 32, reminding them of the filing and stating his
expectation that no execution would occur while it was pending:
As you know, we have filed a renewed motion for
stay of execution, asking the Court to consider
the grounds that it declined to consider after
finding that Mr. Franklin had sufficiently proven
a viable Eighth Amendment claim. I have
contacted the emergency number [for] the U.S.
District Court, and the clerk with whom I spoke
is contacting Judge Laughrey to alert her of our
motion. In the meantime, I expect you and your
clients to refrain from executing Mr. Franklin
while this matter remains pending.
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238. Mr. Luby never received any electronic notice that might
have indicated that his email to defendants’ counsel was not
successfully delivered. However, he received no response to this e-mail.
239. Despite the electronic notice of filing from this Court and the
foregoing e-mail from appointed counsel, the defendants injected Mr.
Franklin with some substance at 6:07 a.m. and pronounced him dead at
6:17 a.m. Exhibit 33.
240. At that time, the motion that the plaintiffs had filed in this
Court (Doc. No. 167) remained pending.
241. On November 20, 2013, after the defendants had executed
Mr. Franklin, this Court denied his motion for stay as moot. Doc. No.
170.
242. In anticipation that the defendants would proceed with the
execution of Mr. Nicklasson while his federal judicial remedies were
still pending, his counsel filed a motion for stay of execution with this
Court, citing some of the same facts as the plaintiffs set out here. Doc.
No. 184 at 4. See also Doc. No. 188 at 8-10.
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243. On Monday, December 9, 2013, the Eighth Circuit granted a
stay to Mr. Nicklasson on the basis of a claim arising in light of
Martinez v. Ryan, 132 S.Ct. 1309 (2012). Nicklasson v. Roper, No. 133091. Respondent’s counsel sought rehearing en banc. The next
evening, the Eighth Circuit en banc denied rehearing by a vote of 8-2-1.
Respondent’s counsel filed an application to vacate the stay in the
Supreme Court of the United States.
244. At 8:32 the same evening, Mr. Nicklasson’s counsel lodged
in this Court in this action a conditional motion for stay in the event
that the Supreme Court of the United States vacated the Martinezbased stay. Doc. No. 194.
245. At 10:50 a.m. on Wednesday, December 11, 2013, counsel
filed the motion for conditional stay. Doc. No. 195. Eighteen minutes
later, the district court denied the motion. Doc. No. 196. At 12:44 p.m.,
counsel filed a notice of appeal of the denial. Doc. No. 198.
246. In its Order denying the conditional motion for stay, the
Court opined that the defendants should not be expected to violate their
own procedures in the very next case:
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Because Defendants have violated a portion of
their protocol on one occasion does not mean
Defendants are likely to do it again. Mr.
Nicklasson has provided nothing more than
speculation that at some point in the future, a
condemned prisoner may be executed in a
manner different than another prisoner. Without
more, proof of Defendants’ one time violation is
not sufficient to create a significant likelihood of
success on his equal protection claim.33
247. At 3:46 p.m., counsel filed a motion for stay in the Eighth
Circuit’s Appeal No. 13-3664. At 3:55 p.m., counsel filed an emergency
motion for conditional stay filed in the same appeal.
248. At about 10:00 p.m., by a vote of five to four, the Supreme
Court vacated the Martinez-based stay by the Eighth Circuit en banc.
249. At 10:11 p.m., the Eighth Circuit panel in No. 13-3664
denied the stays Mr. Nicklasson had sought on appeal. Exhibit 36. By
10:31 p.m., the petition for rehearing earlier transmitted was officially
filed in No. 13-3664 as reflected by an e-mail from the Eighth Circuit.
Exhibit 37.
33Doc.
No. 196 at 10.
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250. According to MissouriNet: “…Attorney General Chris Koster
informed the Department of Corrections at 10:43 p.m. that there were
‘no legal impediments’ to the execution.” Mike Lear, UPDATE:
Missouri executes killer of ‘good Samaritan’, MISSOURINET, Dec. 12,
2013, http://www.missourinet.com/2013/12/12/update-missouriexecutes-killer-of-good-samaritan/ (last visited Jan. 8, 2014).
251. The next minute, the defendants injected Mr. Nicklasson
with something, and at 10:52, they pronounced him dead.
http://www.theguardian.com/world/2013/dec/12/allen-nicklassonexecuted-missouri-pentobarbital (last visited Jan. 23, 2014).
252. It is the written policy of the Missouri Department of
Corrections that the prisoner will not be escorted from the holding cell
to the execution chamber while there is pending legal activity to halt
the execution process.
253. In the written procedure that the defendants and their
predecessors in office provided to the plaintiffs in Ringo v. Lombardi,
No. 2:09-CV-04095-NKL, they set forth the state-created protection for
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the condemned person requiring an absence of legal impediments for an
execution to proceed:
at 1200 a.m., the Director of the Department of
Corrections asks the Attorney General, “Are
there any legal impediments or reasons why the
lawful execution of (Inmate Name) should not
proceed?”34
254. At all times when defendants took Mr. Franklin from the
holding cell, established IV lines and then executed him via lethal
injection, there was legal activity in progress to prevent the execution—
the renewed motion for stay that was pending in this Court.
255. Defendants had notice of this legal impediment in at least
two ways: (a) by automatic notice sent to defendants’ counsel via this
Court’s ECF filing system at the time Mr. Franklin’s counsel filed the
renewed motion for stay; and (b) by the e-mail from Mr. Franklin’s
counsel to defendants’ counsel. Exhibits 28 & 32.
256. Accordingly, at all times when defendants took these actions
that explicitly deviated from the written execution protocol, defendants
34Exhibit
35 at 4.
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knew that their actions were in violation of the written execution
protocol.
257. In the case of Mr. Nicklasson, not only were counsel for the
defendants on record notice of these pleadings and orders as they were
posted by the courts: they told counsel for Mr. Nicklasson by phone
that they knew there was a petition for rehearing en banc pending, and
that they did not care.
258. Equal protection under the law requires “minimal
procedural safeguards” providing at least some assurance that the
rudimentary requirements of equal treatment and fundamental
fairness are satisfied.
259. The private interest that will be affected by the official
action in question is whether the plaintiff will be tortured to death.
260. Defendants’ demonstrated proclivity for ignoring the protocol
this Court required them to adopt entails the risk of an erroneous
deprivation of a judicial determination of any given plaintiff’s
grievances with the substance the defendants intend to use to kill him.
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261. The probable value of observing the procedural safeguards
the defendants hold out as part of their protocol is that an independent
factfinder will review the substance the defendants say they intend to
use and how they say they intend to use it, with whatever discovery the
defendants have chosen to provide as close to the execution date as the
courts will allow them to stall.
262. The State of Missouri has no interest in any given execution
that competes with the obligation of its official, officers, employees, and
contractors to obey the law themselves in the way the punish people for
having violated the law decades before the defendants propose to kill
them.
263. Any fiscal and administrative burdens of allowing the courts
to decide pending motions and petitions on issues previously filed and
not yet resolved are self-inflicted, because the defendants’ penchant for
executing plaintiffs with live judicial remedies pending is a novelty, and
the state managed to exist through 68 previous executions since 1937
alone without the behavior the Court witnessed in the Franklin and
Nicklasson executions. Although he criticizes the state’s history of
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forcing condemned men to seek stays from the federal courts in order to
litigate federal grievances, Judge Bye points out how aberrant the
recent killings with judicial proceedings in train have been: “In my
near fourteen years on the bench, this is the first time I can recall this
happening.”35
264. The Equal Protection Clause’s requirements have practical
consequences here, where the United States Supreme Court has
emphasized the necessity of procedural safeguards in a state’s lethal
injection execution policy, especially including the written protocol, to
ensure against Eighth Amendment and Fourteenth Amendment
violations.
265. Plaintiffs have an interest protected by the Due Process and
Equal Protection Clauses of the Fourteenth Amendment to the United
States Constitution and by Mo. Const. art I, §§ 2 & 10, in having the
35Nicklasson
v. Lombardi et al., No. 13-3664 (8th Cir. Dec. 23,
2013), supra, at 14.
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State of Missouri follow its announced policies and protocol in their
executions.
266. In their deviations or their variations from their execution
policy and written execution protocol, defendants are violating the
Equal Protection Clause’s guarantee of equal treatment for similarly
situated persons.
267. In light of the plaintiffs’ and this Court’s experience in the
execution of Allen Nicklasson, the individual or pattern of deviations or
variations from defendants’ execution policy and written execution
protocol exhibited by many of the actors involved, intentionally or
recklessly, combined with their wholly subjective, discretionary
construction and application of the execution policy and written
execution protocol, along with substantial evidence of incompetence or
inability to perform in the execution context cumulatively present an
unacceptable risk of violating the plaintiffs’ rights.
268. Defendants’ execution policy and written execution protocol,
including their wholly discretionary approach thereto if not disregard
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therefor, violates the plaintiffs’ rights to equal protection under the law
as guaranteed by the Fourteenth Amendment.
269. Plaintiffs are each similarly situated to other condemned
prisoners to whom the defendants will apply their execution protocol.
270. Defendants’ willful violation of execution policy violated Mr.
Franklin’s and Mr. Nicklasson’s right to due process and equal
protection of the laws in a manner that threatens the repetition of the
same against every surviving plaintiff.
271. Defendants have in effect deceived this Court once, leading it
to believe it did not need to issue a stay to Mr. Nicklasson because the
defendants violated the relevant policy once “does not mean Defendants
are likely to do it again.” Doc. No. 196 at 10. As Judge Bye later
explained, however, Mr. Nicklasson was dead right: the defendants
executed him before the Eighth Circuit had completed its review, and
“Missouri put Nicklasson to death before the federal courts had a final
say on whether doing so violated the federal constitution.” 36
36Nicklasson
v. Lombardi et al., No. 13-3664 (8th Cir. Dec. 23,
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272. Defendants’ actions administering their execution policy and
written execution protocol show a pattern of deviations or variations
from the execution policy or written execution protocol, intentionally,
recklessly or arbitrarily, such that the safeguards allegedly contained in
the defendants’ execution policy and written execution protocol are
applied to a particular inmate arbitrarily and disparately, and that
such deviations or variations are arbitrary and irrational, or not
necessary to achieve a compelling governmental interest.
273. This denies the plaintiffs the guarantee that they will
receive the full panoply of procedural safeguards in the written protocol,
including their right to access to the courts.
274. Thus, the defendants’ pattern of deviations or variations
from their execution policy and written execution protocol results in
each condemned inmate being treated differently and such disparate
treatment severely burdens the fundamental rights of the plaintiffs.
2013) (amended order denying rehearing en banc, at 2) (dissenting
opinion).
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275. Defendants’ disparate treatment arising from their
individual or pattern of deviations or variations from their execution
policy and written execution protocol are not necessary to achieve any
compelling governmental interest, nor are they the least restrictive
means to achieve any compelling governmental interests.
276. By arbitrarily or inconsistently following, deviating or
varying from the procedural safeguards in the defendant’s execution
policy and written execution protocol, and without any justification
related to any specific condemned inmate or to any compelling
governmental interest, the defendants are arbitrarily denying the
fundamental rights of the plaintiffs under the First, Sixth, Eighth,
Ninth, and Fourteenth Amendments.
277. Each plaintiff has been or will be singled out arbitrarily and
irrationally as a “class of one” who will not be afforded equal protection
as represented by the procedural safeguards in the defendants’ written
execution protocol, when such written safeguards are disregarded,
ignored, deemed discretionary, advisory, or illusory only, or otherwise
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not followed, intentionally or otherwise, during administration of the
execution policy.
278. Defendants’ individual or pattern of deviations or variations
from their execution policy and written execution protocol arbitrarily
and irrationally treat similarly situated inmates differently.
279. Defendants’ disparate treatment arising from their
individual or pattern of deviations or variations from their execution
policy and written execution protocol are arbitrary, they are irrational,
they further no legitimate state interests, or there is no relationship
between the deviations or variations and any legitimate state interest.
280. Any justifications that defendants might offer for their
deviations or variations are without any rational relationship to a
particular condemned inmate.
281. Any justifications that defendants might offer for their
deviations or variations amount to claims of administrative
convenience, or claims of simply ensuring that an execution is carried
out at all costs, neither of which is a legitimate governmental interest.
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282. Defendants’ execution policy and written execution protocol
are binding state law, and thus defendants violate state law when they
fail to abide by the explicit mandates of their execution policy or written
execution protocol.
283. State actions that are clearly contrary to law are irrational,
and therefore the defendants’ deviations or variations are irrational.
284. Plaintiffs are dissimilar from each other only in immaterial
respects as it relates to the defendants’ pattern of deviations or
variations, or the defendants’ deviations or variations are not rationally
founded on differences that are real and not illusory.
285. Defendants’ pattern of deviations or variations is irrational
because it is arbitrary and capricious; it is a pattern of random
deviations or variations that changes from execution to execution.
286. In all the foregoing ways, the defendants violate the
plaintiffs’ rights to equal protection of the laws and to due process of
law, in violation of the Fourteenth Amendment to the United States
Constitution and Mo. Const. art. I, §§ 2 & 10.
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IX.
Promulgation of the latest protocol and actions take under
color of it are administrative action in violation of
constitutional, statutory, rule-based, and regulatory
authority and otherwise unlawful and amenable to judicial
review.
A.
Defendants are violating the state statute governing
the performance of executions for the purpose and
with the effect of violating the federal and state
constitutional protections against cruel and unusual
punishments and Ex Post Facto Laws.
287. As set forth in para. 118, supra, Mo. Rev. Stat. § 546.720.2
provides that the identities of members of the “execution team”—“as
defined in the execution protocol of the department of corrections”—
shall not be disclosed even in response to legal process.
288. As the facts set forth in paras. 116-176, supra, demonstrate,
Mo. Rev. Stat. § 546.720.1-2 does not give defendant Lombardi a
general authority to make whatever he chooses—such as his dog or cat,
his favorite horse, or the People’s Republic of China—a “member” of the
“execution team”.
289. The statute does provide that defendant Lombardi “shall
select an execution team which shall consist of those persons who
administer lethal gas or lethal chemicals and those persons, such as
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medical personnel, who provide direct support for the administration
of lethal gas or lethal chemicals.” (Emphasis supplied.)
290. Because the General Assembly makes the laws concerning
regulation of professions and occupations, and defendant Lombardi
runs prisons, he is not in a superior position to say who should, or
should not be, anonymous in relation to the board or department the
General Assembly has charged with regulating them.
291. By purporting to make a compounding pharmacy or a
compounding pharmacist, and a prescribing medical doctor or
osteopath, a member of the team, defendant Lombardi has changed the
terms of the statute as if he were the General Assembly.
292. Missouri law purports to hold out a remedy for executive
action beyond the bounds of the law. Mo. Rev. Stat. § 536.150.1
provides for judicial review of administrative agency action for which
there is no formal administrative-hearing process when an aggrieved
party believes to be “unconstitutional, unlawful, unreasonable,
arbitrary, or capricious or involves an abuse of discretion[.]”
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293. Defendants have removed the plaintiffs’ action, which seeks
relief on both federal-law and state-law grounds from the defendants’
cascading execution protocols, from state court to federal court. Doc.
No. 1.
294. This Court has elected to exercise supplemental jurisdiction
to decide the state-law claims as long as there is one pending federallaw claim. Doc. No. 181.
295. The State of Missouri has chosen to provide a remedy for
administrative action that is “unconstitutional, unlawful, unreasonable,
arbitrary, or capricious[,] or involves an abuse of discretion.” Mo. Rev.
Stat. § 536.150.1.
296. Defendant Lombardi’s adoption of the latest protocol is
amenable to relief under several of the bases for relief in section
536.150.
297. Plaintiffs have pleaded as a separate count that defendant
Lombardi’s purporting to make companies and off-site individuals
members of the “execution team” for secrecy and immunity from
discipline purposes violates the state constitutional guaranty of
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separation of powers because it is an exercise of the legislative power by
an executive official. In addition to being remediable in this section
1983 action, the same act is amenable to relief under the express terms
of section 536.150.1.
298. Defining “execution team” to include a company or
corporation (or, if one discounts Exhibit 3, an individual compounding
pharmacist operating off-site and before the execution) is for the
purpose of avoiding discovery in the courts, professional regulatory
action or ethics enforcement by agencies, associations, cognate
professionals, and consumers—all in order to facilitate constitutional
violations by precluding the plaintiffs and their counsel and experts
from knowing what the source of the substance is so that they can
evaluate it.
299. In deposition, defendant Lombardi admitted that the
purpose of designating an entity as a member of the “team” was to
make it easier to obtain the chemicals.
300. By facilitating the commission of an underlying
unconstitutional act, the statutory violation defendant Lombardi has
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committed and other defendants have conspired to further is on that
additional basis amenable to relief under Mo. Rev. Stat. § 536.150.1, in
that the defendants’ actions are unlawful, unreasonable, arbitrary, or
capricious, or involve an abuse of discretion. The chosen action is
arbitrary and capricious, and it is unreasonable for the Department of
Corrections to carry out executions using compounding-pharmacy
drugs, which subject the plaintiffs to an unnecessary and substantial
risk of severe pain during their executions.
B.
Defendants are violating the Federal Rules of Civil
Procedure.
301. Under Fed. R. Civ. P. 26(e), the defendants are under an
ongoing legal duty to supplement discovery in this very action, yet
instead of notifying the plaintiffs’ counsel about their recentlyannounced protocol and implementing press release before they
tendered them to the media, they concealed them in order to spring
them on appointed counsel and thereby avoid a fair trial on their latest
protocol.
302. Violation of this provision of legal ethics is therefore
remediable under section 536.150.
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C.
Defendants are violating legal ethics.
303. Mo. S. Ct. R. 4 receives the American Bar Association’s
MODEL RULES OF PROFESSIONAL CONDUCT, giving the force of law to this
nationally-recognized body of norms for the legal profession. Mo. Const.
art. V, § 5. E.g., State ex rel. Koster v. Cain, 383 S.W.3d 105, 117 (Mo.
Ct. App. W.D. 2012).
304. Rule 4.3.3 provides that attorneys shall be candid to the
courts. It contains no exception for courts that do not always rule in
counsel’s favor.
305. Rule 4.3.4 requires “A lawyer shall not: (a) unlawfully
obstruct another party's access to evidence . . . [and] (d) in pretrial
procedure, . . . fail to make reasonably diligent effort to comply with a
legally proper discovery request by an opposing party.”
306. Violation of these and other provisions of legal ethics is
therefore remediable under section 536.150.
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D.
Defendants are violating federal statutes and
regulations governing the manufacture and
distribution of pharmaceuticals.
307. In the previous iterations of the post-Taylor protocol, and in
the protocol that the Eighth Circuit eventually approved in Taylor, the
defendants did not obtain a prescription for the deadly drugs du jour.
308. Among the earliest of the foregoing Sunshine-Law responses
include a “Professional Medical Services Agreement” that includes the
following language: “Upon request from the Department, Contractor
will provide the Department with the requested prescriptions for the
drug pentobarbital in the name of the offender to be executed.” Exhibit
9 at 10.
309. Defendants’ response to plaintiffs Bucklew and M.A. Taylor’s
Sunshine-Law requests includes copies of a document with what
appears to be a watermark repeating the word “illegal” that appears to
be copies of a “prescription” for pentobarbital. Exhibit 13 at 25-26.
310. Defendants had previously used the same or substantially
the same document offensively in support of pleadings filed in the
Missouri Supreme Court, and the plaintiffs presented it to this Court as
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an exhibit to the reply in support of their motion to stay the execution of
Mr. Franklin.37
311. In the first of the responses, the defendants provided the
initial order form dated October 21, 2013, for the deadly drug they have
used and intend to use again, which referred to it as “phenobarbital.”
Exhibit 9 at 8. In this response, the defendants also included a version
of the order, manually changed—ten days later—to read “pento” where
the original had read “pheno”. Id. at 12. Subsequent versions of
responses to Sunshine-Law requests did not contain the original,
mistaken, order that defendant M6 had received ten days earlier.
Exhibits 10-13.
312. Defendants have revealed a purported “prescription” for the
“patient” to receive compounded pentobarbital, and the state attached
heavily redacted copies of that “prescription” to a November 15, 2013,
37Doc.
No. 157-6, which for the reader’s convenience the plaintiffs
submit as Exhibit 7 to this complaint.
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filing in the Missouri Supreme Court. See Doc. No. 157-7; Exhibit 7 to
this complaint at 1-2.
313. The “prescription” the defendants have tendered is not a
prescription at all.
314. The federal regulation 21 C.F.R. § 1306.04(a) requires that
“A prescription for a controlled substance to be effective must be issued
for a legitimate medical purpose by an individual practitioner acting in
the usual course of his professional practice.” A prescription is a
medical practitioner’s clinical judgment that a particular drug will
appropriately treat a particular medical issue.
315. A prescription issued without such a clinical judgment is no
prescription at all.
316. Under the FDCA—as now supplemented by the Drug
Quality & Security Act—the defendants’ compounded “copy” of an FDAapproved drug constitutes an illegal and unapproved “new drug” under
21 U.S.C. § 355. See Pub. L. No. 113-54, 127 Stat. 587 (Nov. 27, 2013), §
102(a) (modifying scope of FDCA § 505). Even in the unlikely event
that the defendant compounding pharmacy were validly registered as a
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federally-regulated “outsourcing facility,” its product here is forbidden
as “essentially a copy of an approved drug.” Id. (FDCA, new section
503B(a)(5)).
317. Before providing the prescription, the osteopath who
prescribes it does not examine the patient, review medical records or
make any medical judgment that such a prescription is needed. He or
she simply provides to the Director of the Department of Corrections
the prescription when requested and for a fee. There is no
determination that the prescription will treat a particular medical
issue, and he or she makes no judgment of a medical need.
318. In the absence of a valid prescription, defendants’ actions
violate the Controlled Substances Act and the Food, Drug and
Cosmetics Act by dispensing and administering a controlled substance.
See 21 U.S.C. § 829(b); 21 U.S.C. § 353(b).
319. Title 21 U.S.C. § 846 makes it a crime for the state official
defendant who is his codefendants’ drug courier to conspire with
defendants M5 and M6 to facilitate their offenses.
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320. When state actors violate these federal statutes pursuant to
state policy, their acts and omissions also violate the Supremacy
Clause. U.S. Const. art. VI, cl. 2.
321. Here, the plaintiffs have no medical need for compounded
pentobarbital; the only “need” for the compounded drug arises from the
fact that defendants cannot obtain the real drug from legitimate
channels.
322. The “prescriptions” attached to the State’s pleading before
the Missouri Supreme Court and shown in exhibits to this complaint
are therefore ineffective, and constitute multiple counts of a federal
crime.38
38See,
e.g., 18 U.S.C. § 841(a). See, e.g., United States v. John
Maye,
http://www.democratandchronicle.com/story/news/local/2013/10/13
/rochester-doctor-convicted-of-illegally-dispensing-drugs/2969053/ (last
visited Dec. 3, 2013) (licensed physician convicted of illegal drug
distribution for prescribing without legitimate medical reason); 21
C.F.R. § 1306.04(a).
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E.
Defendants are violating Missouri statutes and
regulations regarding the practice of pharmacy.
323. Assuming that M3 is the “practitioner” for the purpose of the
transfer to be even arguably permitted by state regulations, he or she is
not a “prescriber,” performing executions is not “in the course of
professional practice” for a physician, and M3’s victim is not a “patient.”
324. Defendants represent the substance they intend to obtain
from a compounding pharmacy to be pentobarbital.
325. FDA-compliant pentobarbital is commercially available:
FDA-compliant pentobarbital is widely available in the marketplace to
practitioners who seek to administer it for legitimate medical purposes.
326. The principal defendants obtain their deadly drug from
defendant M6 of Oklahoma, which makes a drug that the defendants
contend to be compounded pentobarbital.
327. In order for defendant M6 to compound and furnish the
other defendants’ deadly drug, the principal defendants first provide to
defendant M6 a prescription calling for the prisoner to receive
pentobarbital.
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328. Defendant M6 accepts the prescription provided to it by the
Department of Corrections, compounds a drug that the defendants
purport to be pentobarbital, and sells that drug to the Department of
Corrections for a sum of $8000 per execution.
329. An official within the Department of Corrections obtains the
execution drug by driving to defendant M6, retrieving the purported
pentobarbital, and taking it to an office in the Department of
Corrections, where the drug is stored at room temperature.
330. Defendant M6 does not have a Missouri pharmacy license.
331. The individual within the Department of Corrections who
retrieves the pentobarbital is not licensed as a pharmacist, pharmacy
wholesaler, or pharmacy distributor. Nor is he a licensed medical
practitioner.
332. In order for defendant M6 to compound and furnish its
codefendants their deadly drug, the principal defendants first provide to
defendant M6 a prescription calling for the prisoner to receive
pentobarbital.
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333. Under the terms of his contract with the Department of
Corrections, defendant M5, an osteopath, writes a prescription for the
prisoner to receive pentobarbital “as ordered per Death Warrant.”
334. The contract between M5 and the Department of Corrections
requires M5 to issue the prescription on the demand of the Department.
It does not provide for him or her to exercise medical or other
professional discretion, to examine the prisoner, or even to review the
prisoner’s medical records. M5 therefore lacks a medical relationship
with the prisoner as to whom he or she issues a prescription.
335. Defendant M6 accepts the prescription issued by M5 and
provided to it by the Department of Corrections, compounds a drug that
defendants purport to be pentobarbital, and sells that drug to the
Department of Corrections for a sum of $8000 per execution.
336. The purported pentobarbital compounded by Defendant M6
is a copy or “essentially a copy” of the FDA-approved drug Nembutal,
which is commercially manufactured with FDA-approved ingredients,
in FDA-approved facilities, and through FDA-approved processes.
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337. In addition to the foregoing statutory, federal-rule, legalethical, and federal statutory and regulatory grounds, the protocol
violates multiple portions of the Missouri state regulations on
compounding pharmacies.
338. A Missouri agency’s duly promulgated “rules,” including
those promulgated by the Board of Pharmacy,39 carry the force and
effect of law.40 Such rules include those enacted by the Board of
Pharmacy under its statutory authority.41 Plaintiffs have a private
right of action to enforce such regulations under the Missouri
Administrative Procedure Act, which allows for judicial review of
agency action that is “unconstitutional, unlawful, unreasonable,
arbitrary, capricious or involves an abuse of discretion.”42 Plaintiffs fall
squarely within the zone of interests of the regulatory framework,
39See
Mo Rev. Stat. §§ 338.010, 338.140, 338.240 & 338.280.
40Page
Western, Inc. v. Community Fire Protection Dist., 636
S.W.2d 65, 68 (Mo. banc 1982).
41See
Mo Rev. Stat. §§ 338.010, 338.140, 338.240, 338.280.
42See
Mo. Rev. Stat. § 536.150.1.
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which serves to protect the public health and safety, including the
persons who actually receive pharmaceuticals. The Department of
Corrections seeks to administer an illegally- and unsoundlycompounded pharmaceutical simply because it says it cannot purchase
the real thing from a legitimate vendor. That practice puts the
plaintiffs at risk of precisely the sort of negative outcomes that their
expert evidence documents. See Exhibit 6, ¶ 15.
339. In light of the legal significance of Missouri pharmacy
regulations, the most recent protocol renders the defendants amenable
to relief under Mo. Rev. Stat. § 536.150.1 many times over.
340. The protocol and the defendants’ scheme or plan to effect it
violate the prescription requirement of 20 C.S.R. §§ 2220-2.400(9), (10)
& (12). “The compounding of any drug product to be sold without a
prescription is prohibited.” Id. § 2.400(10). Compounding pharmacies
must maintain “sufficient documentation” of their prescription records,
which must reflect whatever specific medical need justified a particular
variation of a particular “commercially available compound” for a
particular patient. Id. § 2.400(9).
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341. Title 20 C.S.R. Sec. 2220-2.400(10) provides that “[a]ny
alteration, change or modification to the contents of a commercially
manufactured over-the-counter product shall require a prescription or
prescription drug order from an authorized prescriber. The
compounding of any drug product to be sold without a prescription is
prohibited.”
342. Title 20 C.S.R. Sec. 2220-2.400(12) provides that
“[p]harmacists shall not offer compounded drug products to other
pharmacies, practitioners or commercial entities for subsequent resale
or administration, except in the course of professional practice for a
prescriber to administer to an individual patient by prescription.” Cf.
Exhibit 6, ¶ 5, 6 & 15.
343. Defendants’ execution protocol and practice violates 20
C.S.R. § 2220-2.400(9), which prohibits the compounding of (a) any drug
products “that are essentially copies of commercially available Federal
Drug Administration (FDA) approved drug products” or (b) any drug
products that are “commercially available in the marketplace”:
(9)
Compounding of drug products that
are commercially available in the
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marketplace or that are essentially
copies of commercially available
Federal Drug Administration (FDA)
approved drug products is prohibited.
There shall be sufficient
documentation within the prescription
record of the pharmacy of the specific
medical need for a particular variation
of a commercially available compound.
344. The state-official defendants have contracted with a
compounding pharmacy, defendant M6, to obtain and administer a
“compounded” version of pentobarbital. Defendants seek to custommanufacture their own pentobarbital, which is to say, “essentially
cop[y]” an FDA-approved drug, and then to execute prisoners with it.
345. The violation places the plaintiffs at risk of harm cognizable
under the Eighth Amendment and Mo. Const. art. I, § 21, because the
non-FDA-compliant substance is not reliably potent, pure, and effective.
See Exhibit 6, ¶¶ 8-15.
346. The state regulation 20 C.S.R. § 2220-2.400(9) applies to the
defendants. It makes it illegal to “copy” an FDA-compliant drug
whether it is “commercially available” or not. It prohibits the
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compounding of “commercially available” drugs or the compounding of
drugs that are “essentially copies” of FDA-approved drugs.
347. The purpose of the rule is to protect those who receive the
substances in question from dangerous and otherwise non-FDAcompliant drugs. That danger persists whether or not the legal drugs
are “commercially available” to executioners.
348. Missouri regulations prohibit the administration of
compounded drugs after their “beyond use date.” See 20 C.S.R. § 22202.200 & -2.400.
349. Missouri law forbids an out-of-state pharmacy from sending
prescription drugs into Missouri unless the out-of-state pharmacy has a
Missouri pharmacy license. See Mo. Rev. Stat. § 338.337; 20 Mo. C.S.R.
§ 2220-2.025(1).
350. Missouri law forbids a party, other than a patient, from
accepting delivery of a prescription at any facility that is not licensed by
the Missouri board of Pharmacy. See Mo. Rev. Stat. § 389.095.5.
351. Missouri law forbids any party who acts as a principal or
agent of an out-of-state pharmacy, and who is not licensed by the
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Missouri Board of Pharmacy to distribute drugs, to distribute or sell
drugs within the State of Missouri. See Mo. Rev. Stat. § 338.340.
352. Because it is not licensed by the Missouri Board of
Pharmacy, defendant M6 violates Mo. Rev. Stat. §§ 338.337 and
338.095.5, as well as 20 Mo. C.S.R. § 2220-2.025(1), by accepting
prescriptions for the prisoners’ execution drugs, and also by acting in
concert with the Missouri Department of Corrections to send such drugs
into Missouri.
353. Defendants violate Mo. Rev. Stat. § 338.340 by retrieving the
compounded drug from defendant M6 in the State of Oklahoma, and
thereafter distributing it in the State of Missouri through an official
within the Department of Corrections who is not licensed as a
pharmacist, a pharmacy distributor, or a pharmacy wholesaler.
354. Violations of the above-listed statutes are class C felonies
under Missouri law, and they are punishable by up to seven years’
imprisonment. See Mo. Rev. Stat. §§ 338.195, 338.370 & 558.011.1(3).
355. Defendants’ actions in violation of Mo. Rev. Stat. §§ 338.337,
338.340 & 389.095.5, as well as 20 Mo. C.S.R. § 2220-2.025(1), are
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unlawful, unreasonable, arbitrary, capricious, and an abuse of
discretion within the meaning of the Missouri Administrative Procedure
Act, specifically Mo. Rev. Stat. § 536.150.1.
F.
Defendants are violating Oklahoma statutes and
regulations regarding the practice of pharmacy.
356. Numerous Oklahoma statutes forbid the dispensing of drugs
such as pentobarbital without a valid medical prescription reflecting a
medical practitioner’s clinical judgment that the drug in question serves
a legitimate medical purpose for the patient in question.
357. Oklahoma regulations require a pharmacy or pharmacist to
ensure that a prescription “has been issued for a legitimate medical
purpose by an authorized practitioner acting in the usual course of the
practitioner’s professional,” and it forbids the pharmacy or pharmacist
to dispense a prescription drug “if the pharmacist knows or should have
known that the prescription was issued without a valid preexisting
patient-practitioner relationship.” Okla. Stat. tit. 59, §§ 535:15-3-13(c)(d). Oklahoma statutory law defines “compounding” as “the
preparation, mixing, assembling, packaging, or labeling of a drug or
device . . . in accordance with a licensed practitioner’s prescription drug
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order under an initiative based on the practitioner/patient/pharmacist
relationship in the course of professional practice.” Okla. Stat. tit. 59,
§ 353.1(6)(b).
358. Defendant M6 acts outside the scope of “compounding” as
defined by Oklahoma law, and violates Okla. Stat. tit. 59, §§ 535:15-313(c)-(d), by dispensing compounded pentobarbital as “prescribed” by
M5, because M5 and the prisoner do not have a doctor-patient
relationship, and the issuance of the prescription is outside the scope of
M5’s professional practice.
359. Oklahoma law forbids the compounding of a drug that is
“commercially available in the marketplace or that is essentially a copy
of an available FDA-approved drug,” unless “patient therapy is
compromised.” Okla. Stat. tit. 59, § 535:15-10-53.
360. Defendant M6 violates Okla. Stat. tit. 59, § 535:15-10-53, by
issuing compounded “pentobarbital” to the Missouri Department of
Corrections, because the compounded drug “is essentially a copy of an
available FDA-approved drug,” and also because the FDA-approved
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drug Nembutal (the trade name of real pentobarbital) is “commercially
available in the marketplace.”
361. Oklahoma law requires that business conducted as a
pharmacist “will at all times be in conformity with all federal, state and
municipal law.” Okla Stat. tit. 59, § 535:10-3-3.1. As described above,
and elsewhere in this complaint, defendant M6’s conduct violates Okla
Stat. tit. §§ 535: 15-3-13(c)-(d) & 535:15-10-53; the Food, Drug and
Cosmetic Act; and the Controlled Substances Act.
362. Oklahoma regulations require that compounded sterile drug
preparations bear a “beyond use date” that accords with the
requirements of USP Chapter <797>. See Okla Stat. tit. 59, § 535:15-1061.
363. Because the implementation of defendants’ execution
protocol involves the violation of numerous provisions of Oklahoma law
that are binding upon the defendant M6 and its co-conspirators, the
defendants’ actions are unlawful, unreasonable, arbitrary, capricious,
and an abuse of discretion within the meaning of the Missouri
Administrative Procedure Act, specifically Mo. Rev. Stat. § 536.150.1.
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G.
Denial of the remedy Mo. Rev. Stat. § 536.150.1 when
the plaintiffs need to invoke it to prevent the
defendants from torturing them to death would be
arbitrary.
364. This Court has ruled that the plaintiffs do not have a private
right of action under 42 U.S.C. § 1983 to seek enforcement of the Food,
Drug & Cosmetics Act or the Controlled Substances Act. Doc. No. 31 at
7-9.
365. Plaintiffs face execution by a specific means that they have
demonstrated in counts I and II to create a substantial risk of serious
harm in the form of gratuitous pain and suffering, pain and suffering in
excess of the likelihood of pain which the Taylor and Clemons courts
found to be involved in the protocol they held to be constitutional.
366. Under the facts and circumstances of this case, denial of the
remedy that Mo. Rev. Stat. § 536.140 tenders to the plaintiffs would be
arbitrary.
367. Under the facts and circumstances of this case, the remedy
to which Mo. Rev. Stat. § 536.140 entitles the plaintiffs relates to the
quantum of punishment on criminal convictions.
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X.
The defendants’ construction of the protocol to cloack from
scrutiny, suasion, and professional regulation the persons
and entities not participating in the execution is an
invasion of freedom of expression that undercuts the
legitimacy of their practice of capital punishment.
368. Associations of health-care professionals, individual healthcare professionals, and suppliers of precursor chemicals have a
cognizable interest in policing the conduct of individuals and companies
in the practice areas of the foregoing associations, professionals, and
manufacturers.
369. It was such an interest that led the FDA-compliant
manufacturer of propofol to announce its policy against supplying its
product for use in executions.
370. It was such an interest that led the FDA-compliant
manufacturer of pentobarbital to withhold its product for use in
executions.
371. In addition, the public has a cognizable interest in learning
the quality of the goods and qualifications of the persons involved in the
execution of persons in their name.
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372. American government is founded on the principle that
governments derive their just powers from the consent of the governed.
373. Freedom of expression exists in large part to facilitate the
working of the will of the people, i.e., the ongoing consent of the
governed to what the temporary occupants of public office are doing in
their name.
374. Under the view of government underlying our Constitution,
a policy whose implementation in fact the state cannot defend in the
free marketplace of ideas is a policy it should not be pursuing in the
first place.
375. The Supreme Court has held that the Eighth Amendment
“‘must draw its meaning from the evolving standards of decency that
mark the progress of a maturing society.’”43
376. It is only through dissemination of knowledge about the
processes of lethal injection that society can show what its “evolving
43Atkins
v. Virginia, 536 U.S. 304, 311-12 (2002) (quoting Trop v.
Dulles, 356 U.S. 86, 101 (1958).
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standards of decency” are with respect to it. A temporary majority of
elected officials could not legally freeze these standards by making it
illegal to express oneself about the practice of capital punishment or the
method their executive officials and employees choose for carrying it
out.
377. At the very least, the officials making the policy but
concealing the details they know the health professions and related
industries and the general public alike would find unseemly cannot say
that their policy is consistent with “the evolving standards of decency
that mark the progress of a maturing society.”
378. As to lethal injection in particular, the question whether any
given means of performing it conforms to “the evolving standards of
decency that mark the progress of a maturing society” depends on more
than speech by citizens. Whether a given substance or a given
procedure will cause excruciating pain depends on the raw materials
from which it is manufactured, the details of its manufacture, the
incidents of its procurement, the background and training of its endusers, the execution team, and the other factors that the defendants are
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denying this Court, the plaintiffs, the health professions, the
pharmaceutical manufacturers, and the public generally.
379. In order to decide what to think and what to say, people and
their advocacy institutions need the information on the basis of which to
form opinions, whether factual or normative.
380. Denying the public the information it needs to judge whether
the officials’ actions are consistent with the standards of society has the
same effect as denying the people the right to express their judgments
about the actions of these officials. It is a form of thought control.
381. If allowed, it would artificially freeze the standards that the
Supreme Court envisions as evolving.
382. Concealing the identities of manufacturers, suppliers, and
others involved in supplying the deadly drugs that the actual “execution
team” has used and intends to use to kill the plaintiffs prevents the
people from judging whether the method the defendants are using at
any given moment conforms to the people’s standards of decency.
383. Concealing the identities of manufacturers, suppliers, and
others involved in supplying the deadly drugs that the actual “execution
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team” has used and intends to use to kill the plaintiffs prevents the
plaintiffs and their associates as well as the suppliers’ associations,
customers, and prescribing or referring physicians from censuring or
boycotting them—let alone reasoning with them about the nature and
priority of their state-affiliated activities. The latter would be the most
dangerous: the still, small voice of free speech might lead them not to
violate the norms of their professions.
384. At least in the absence of a showing that licensed healthcare professionals are personally and directly engaging in the process of
carrying out an execution, and are not thereby violating the criminal
law, concealing their identities unreasonably restricts the federal and
state government from charging them with criminal offenses and their
respective associations and colleagues from de-certifying or otherwise
censuring them or boycotting them—or even from discussing their
conduct intelligently.
385. Concealing the identities of manufacturers, suppliers, and
others involved in supplying the deadly drugs that the actual “execution
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team” has used and intends to use to kill the plaintiffs sweeps beyond
any arguable necessity to protect the safety of individual executioners.
386. In January 2007, the St. Louis Post-Dispatch published the
name of an immediate former leader of the “execution team,” and no
cognizable harm has come to him as a result of it in spite of the large
numbers of deaths over which he presided and the flaws in his
performance documented in the Taylor litigation.
387. In 2008, the St. Louis Post-Dispatch published the name of
one member of the present execution team, and no cognizable harm has
come to him as a result of it.
388. Concealing the identities of the health-care professionals
who actually perform the executions sweeps beyond the practical need
to protect their safety.
389. , The practical reason for concealing the identities of the
ostensible health-care professionals who actually perform the
executions is to prevent them from being de-certified by the boards on
whose certification the defendants rely in making arguments to courts
and the public.
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390. Any marginal contribution the nondisclosure of the names of
the regulated health-care professionals who choose to participate in
executions would make toward their personal safety is not
proportionate to the violation of freedom of expression it entails.
391. Protecting the supply chain of deadly drugs and the veneer
of board-certification for its executioners is not a compelling state
interest sufficient to override the fundamental right of freedom of
expression.
392. As applied to manufacturers, suppliers, and others involved
in supplying the deadly drugs that the actual “execution team” has used
and intends to use to kill the plaintiffs, protecting the supply chain of
deadly drugs and the veneer of board-certification for its executioners is
not a compelling state interest sufficient to override the fundamental
right of freedom of expression.
393. Denying the public and all others concerned the information
about these chemicals is not the least invasive means of reconciling the
dealers’ and licensed executioners’ fear of retaliation with the public
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interest in a robust debate about their choices and a correct resolution
of the factual questions it entails.
394. Denial of the right of associations of health-care providers
and legitimate manufacturers, individual health-care providers and
manufacturers, and consumers to exercise suasion over or withhold
their custom from those members of the health-care community that
choose to be executioners or to supply executioners contributes to the
likelihood that the products and the performance involved in executions
are of low quality by enabling the existence of companies and practice of
individuals who do not adhere to the standards of their respective
professions and trades.
395. As the objects or involuntary consumers of the products and
performance of the currently incognito suppliers, compounder,
“laboratory,” and health-care professionals, the plaintiffs are among the
intended beneficiaries of public knowledge of the identities of these
entities and persons.
396. the plaintiffs themselves have a right to find out the
information which Mo. Rev. Stat. § 546.720.2-4 would deny them. At a
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minimum, this right is incident to their right of access to the courts. Cf.
para. 61, supra. Insofar as the Supreme Court envisions the cognizable
standards of decency to grow from society rather than from any given
government official, employee, or contractor, they are also beneficiaries
of diffusion of knowledge among the public and the health-care
professions and industries about the actual practice of lethal injection
and about the characteristics of the companies from which the
defendants obtain the deadly drugs with which the defendants intend to
kill them, and the documents laundering these illegal drugs. In
addition to their attorneys’ efforts on their behalf in the courts, the
plaintiffs have a right to communicate with relatives, friends, and the
public generally to advocate their own interests.
397. More profoundly, they have a right to do so whether or not
they can succeed in showing that the latest specifics of the defendants’
plan for performing lethal injections on them are unconstitutional. It is
profoundly consequential to the dignity of these human beings that they
know by what means their government is planning their demise. If
they must anticipate a ghastly death as a result of purchasing bootleg
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drugs from only nominally regulated processors who obtain raw
materials from Communist China and other less developed countries—
because reputable suppliers will not sell to contract killers—the
plaintiffs should not be fooled along with the electorate into thinking
that they would simply be put to sleep. Like voters and health-care
professionals, their right to freedom of expression depends on their
knowledge of the facts the defendants seek to keep hooded.
398. When the plaintiffs have sought to report ongoing crimes to
governmental authorities, the defendants’ refusal to provide the
identities has caused these authorities not to act, thereby infringing on
the right to petition the government for a redress of grievances.
399. Specifically, on December 30, 2013, counsel for the plaintiffs
reported the statutory and regulatory violations of which they were
then aware in the defendants’ implementation of their latest protocol.
Exhibit 38. At 12:03 p.m. on January 3, 2014, a representative of the
Board e-mailed the attorney who had written it, asking him to “provide
the name/address of the pharmacy that you believe to be in violation of
our regulations.” In light of the protocol and the defendants’ acts and
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omissions in connection with it, he could not. On January 22, 2014, the
Board wrote the attorney who had made the initial report and informed
him that it was taking no action, citing the fact that he was “unable to
provide the name of a specific pharmacy.” Exhibit 39. Of course this
attorney could indeed have provided the name, but could not due to the
pending enforcement, in federal litigation, of the defendants’ state
secrecy pretext for stopping evolution.
Counts
I.
Defendants’ means of lethal injection violates the
prohibition of cruel and unusual punishments in the
United States Constitution and, as amenable to
enforcement here under 28 U.S.C. § 1367, the Missouri
Constitution.
400. Plaintiffs restate and reallege the premises in paras. 1-385.
401. Defendants’ use of what they represent to be pentobarbital
from an undisclosed compounding pharmacy or compounding
pharmacist as set forth in their latest protocol creates a substantial risk
of severe pain or an objectively intolerable risk of severe pain.44
44Baze
v. Rees, 553 U.S. at 52 & n.3 (Roberts, C.J.).
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402. Defendants’ recent, last-minute ostensible change of practice
in respect to the use of central line access when it is not clinically
indicated is not reliable enough in the absence of a judicial finding and
order to remove the pre-existing substantial risk of severe pain or an
objectively intolerable risk of severe pain resulting from the
longstanding practice of its use by default.
403. The challenged procedure presents a risk of pain the State
can avoid while still being able to enforce the sentence ordering a lethal
injection.
404. Plaintiffs concede that other methods of lethal injection the
Department could choose to use would be constitutional.
405. Defendants’ intended actions as set forth in this Count I
violate the Cruel and Unusual Punishments Clauses of Mo. Const. art.
I, § 21, and of the Eighth Amendment to the United States
Constitution, as applied to the states by its Fourteenth Amendment,
and enforceable through 42 U.S.C. § 1983.
II.
Defendants’ Conduct violates the prohibitions on Ex Post
Facto Law in the United States and Missouri Constitution.
406. Plaintiffs restate and reallege the premises in paras. 1-139.
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407. Defendants’ intended use of compounding-pharmacy
pentobarbital as set forth in their new protocol involves the infliction of
a greater quantity of pain and suffering and a greater likelihood of
harm than existed under pre-existing law.
408. The facts set forth in this complaint exceed the showing of a
“significant risk of an increased punishment.”45
409. For these reasons, the defendants’ intended routine use of
central line access and of compounding-pharmacy pentobarbital as set
forth in their new protocol violates the Ex Post Facto Clauses of Mo.
Const. art. I, § 13, and U.S. Const. art. I, § 10, as enforceable against
the states through the Fourteenth Amendment and 42 U.S.C. § 1983.
III.
Defendants’ acts and omissions as set forth in this
complaint are deliberate indifference to serious medical
need and hence violative of the Due Process Clause
Fourteenth Amendment as well as the Eighth
Amendment’s different guaranty, and likewise Mo. Const.
art. I, §§ 10 & 21.
410. Plaintiffs restate and reallege the premises in paras. 1-145.
45Garner
v. Jones, 529 U.S. 244, 255 (2000).
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411. The defendants that are not officials, officers, or employees
of the State of Missouri are nonetheless willful participants in joint
activity with the state or its agents in carrying out executions under the
protocol in force at any given time, and their activities are pervasively
entwined with those of state officials, officers, and employees in the
conduct of executions.
412. These ostensibly private actors are therefore state actors
within the meaning of 42 U.S.C. § 1983.
413. In an execution by lethal injection, the delivery of the
medication necessary to bring about a rapid death without gratuitous
pain and suffering is a serious medical need. It is an aspect of the
process without which this general method of execution would not have
been introduced, and without which it would be maintained.
414. By their behavior in the treatment of the plaintiffs, they are
acting with deliberate indifference toward the latter serious medical
need.
415. Defendants are thereby violating the Eighth Amendment to
the United States Constitution and Mo. Const. art. I, § 21.
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416. Insofar as the defendants generally are acting or causing
their codefendants to act as set forth in this count on behalf of the state
to provide needed medical attention to the plaintiffs, who are
involuntarily in state custody, and are causing or threatening to cause
physical harm to the plaintiffs by deliberate indifference as also set
forth in this count, their conduct additionally violates the Due Process
Clause of the Fourteenth Amendment and Mo. Const. art. I, § 10.
IV.
Defendants M3, M2, M5, M6,
, and all John Doe
defendants who are health-care providers or functioning
as such are committing malpractice by administering or
aiding and abetting in the administration of substandard
substances for the purpose of bringing about a quick death
without gratuitous pain and suffering.
417. Plaintiffs restate and reallege the premises in paras. 1-149.
418. Defendants M3, M2, M6, M6,
, and all John Doe
defendants who are health-care providers or functioning as such have
treated and intend to treat condemned persons with substandard
substances or they have provided or passed off, and intend to provide or
pass off, such substances as adequate for their treatment.
419. Provision, passing off as adequate, and administration of
compounding-pharmacy substances held out to be pentobarbital for the
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purpose of lethal injection is beneath the standard of care for the
manufacture, testing, or use of medications.
420. Plaintiffs are imminently threatened with damage as a
result of the negligent conduct set forth in this count.
421. Plaintiffs are entitled to declaratory and injunctive relief for
medical malpractice as defined by Missouri common law within this
Court’s supplemental jurisdiction. See 28 U.S.C. § 1367; Doc. No. 181.
V.
Defendants’ ongoing use of substandard substances for the
purpose of executing the plaintiffs by lethal injection has
intentionally inflicted and is tortiously inflicting emotional
distress on the plaintiffs and their loved ones.
422. Plaintiffs restate and reallege the premises in paras. 1-160.
423. Defendant’s use of compounding-pharmacy substances on
the plaintiffs occurs in the context of an unwanted offensive touching.
424. The foregoing battery goes beyond the statutory purpose of
bringing about the death of the plaintiffs to include the use of
substances the plaintiffs have demonstrated, and all three branches of
the federal government have recognized, to be unreliable.
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425. Use of such substances in a lethal-injection execution is
extreme and outrageous conduct by defendants who intentionally or
recklessly causes severe emotional distress that results in bodily harm.
426. Defendants’ conduct is so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community.
427. Assuming that an execution consistent with Baze v. Rees,
Clemons v. Crawford, and Taylor v. Crawford would be lawful, the
conduct must be intended only to cause extreme emotional distress to
the victim.
428. The emotional distress the defendants cause by the use of
substances known to be unreliable for the purpose of lethal-injection
executions extends beyond the plaintiffs themselves to their loved ones.
429. Defendants are therefore liable to the plaintiffs for
intentional infliction of emotional distress. See 28 U.S.C. § 1367; Doc.
No. 181.
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430. In addition and in the alternative, the defendant should
realize that their conduct involves an unreasonable risk to the plaintiffs
of pain and suffering over and above the statutory sanction assigned
and not reversed by previous courts.
431. Defendants intend that the plaintiffs be present at their own
executions, botched or otherwise.
432. Defendants intend to place each plaintiff in the zone of
danger of superadded pain and suffering resulting from the defendants’
choice of unreliable substances for lethal injections.
433. Defendants have placed the plaintiffs in reasonable fear of
physical injury to their own persons, in the form of superadded pain and
suffering which were adjudicated not to exist in the protocols approved
in Baze v. Rees, Clemons v. Crawford, and Taylor v. Crawford.
434. The emotional distress the defendants cause by the use of
substances that are unreliable for the purpose of lethal-injection
executions extends beyond the plaintiffs themselves to their loved ones.
435. Without waiver of liability for intentional infliction of
emotional distress, the plaintiffs note that the defendants are therefore
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liable to the plaintiffs for negligent infliction of emotional distress. See
28 U.S.C. § 1367; Doc. No. 181.
VI.
Defendants’ conduct in holding out parties beyond the
language or history of the state statute providing
anonymity and immunity from regulation to persons not
present at executions violates the separation of powers
guaranty of the Missouri Constitution.
436. Plaintiffs restate and reallege the premises in paras. 1-179.
437. The Missouri method-of-execution statute purports to confer
on defendant Lombardi power to select the “manner of inflicting the
punishment of death” by either lethal gas or lethal injection.
438. In purporting to add a either company or a compounding
pharmacist to the “execution team”—which would insulate from
discovery and other fact-finding the source and nature of the
substances to be used in a form of execution uniquely dependent on
their provenance—and would thereby to add a new level of secrecy to
the method of execution, defendant Lombardi has gone beyond the
executive branch’s discretion to implement the statutory direction to
exercise a law-making power that the General Assembly declined to
confer on him.
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439. In the alternative, if defendant Lombardi is acting within
the meaning of the statute, the statute itself is a legislative violation of
the state’s constitutional guaranty of separation of powers.
440. In either event, the defendants’ intended actions as set forth
in this count violate the separation-of-powers guaranty of Mo. Const.
art. II, § 1.
441. This Court has the authority to address this claim under the
Court’s pendent jurisdiction, particularly in light of the fact that the
defendants removed this action from state to federal court over the
plaintiffs’ objections.
VII.
Defendants’ manipulation of execution dates, changes of
protocol, and failure or refusal to honor their discovery
obligations deprives the plaintiffs of liberty without due
process of law.
442. Plaintiffs restate and reallege the premises in paras. 1-226.
443. Defendants’ conduct in obtaining execution dates before the
plaintiffs have had a reasonable opportunity to seek and complete
adversary proceedings denies the plaintiffs a day in court on their
underlying federal and state constitutional claims concerning their
execution protocols.
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444. The foregoing denial of an effective remedy for the
deprivation of the plaintiffs’ civil rights violates 42 U.S.C. § 1983.
445. The foregoing de facto denial of notice and an opportunity to
be heard in federal court violates the Due Process Clauses of the Fifth
and Fourteenth Amendments of the United States Constitution and Mo.
Const. art. I, § 10, and the First Amendment and Mo. Const. §§ 8-9.
446. The foregoing changes to the defendants’ execution protocol
creates uncertainty which enhances the anxiety and suffering that the
plaintiffs will experience prior to and during their executions. That
unjustifiably enhanced punishment violates the Cruel and Unusual
Punishments Clause of the Eighth Amendment and Mo. Const. art. I, §
21, as well as the Ex Post Facto Clauses of Mo. Const. art. I, § 13, and
U.S. Const. art. I, § 10.
VIII.
Defendants’ conduct as aforesaid denies plaintiffs the
equal protection of the laws and deprives them of life and
liberty without due process of law.
447. Plaintiffs restate and reallege the premises in paras. 1-286.
448. Defendants’ execution protocol is binding law of the State of
Missouri, and it creates cognizable life, liberty, and property interests
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in the plaintiffs to expect that the defendants will strictly follow their
execution policies and protocol, and cognizable life, liberty, and property
interests in the plaintiffs’ actually receiving the benefit of the
defendants’ strictly following their execution policies and protocols in
the course of their respective executions.
449. Defendants have no discretion whether to strictly follow
their execution protocol and policies; adherence to the protocol and
policies is mandatory.
450. These interests are rights vested in a small class of
individuals who have a legitimate claim of entitlement to expect and
receive strict application of the defendants’ execution policies and
procedures.
451. As prisoners subject to a death sentence under Missouri law,
the plaintiffs are the intended beneficiaries of the state-created
guarantees and procedural safeguards represented by the defendants’
execution protocol and policies.
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452. These plaintiffs’ interests arising under state law are
protected as rights under the substantive and procedural aspects of the
Due Process Clause of the Fourteenth Amendment.
453. Defendants, having granted the plaintiffs interests in
expecting and receiving an execution that strictly complies with the
written execution protocol, may not deprive the plaintiffs of those rights
in violation of procedural and substantive due process consistently with
the Fourteenth Amendment and Mo. Const. art. I, § 10.
454. Defendants’ denial of the plaintiffs’ rights to expect and
receive an execution that is in strict compliance with the written
protocol, especially in the circumstances such as those demonstrated in
the execution of Messrs. Franklin and Nicklasson, is arbitrary and
shocks the conscience.
455. The individual deviations and pattern of deviations or
variations from the defendants’ execution policy and written execution
protocol engaged in by many of the actors involved, intentional or
otherwise, including the egregious facts surrounding the executions of
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Messrs. Franklin and Nicklasson, point to an unacceptable risk of
violating the plaintiffs’ rights.
456. By what defendants include and exclude from their
execution policy and protocol, and by their knowing disregard for
critical portions of their protocol that, combined with the facts known to
defendants at the time, would have prevented the execution of Messrs.
Franklin, the defendants’ manifest deliberate indifference towards, or
intentional deprivation of, the plaintiffs’ state-created liberty, life, and
property interests in expecting and receiving an execution that is in full
and strict compliance with defendants’ execution protocol and policies,
which interests are protected as rights by the substantive and
procedural aspects of the Fourteenth Amendment’s Due Process Clause.
457. These rights are separate and distinct from the rights
protecting the plaintiffs against cruel and unusual punishment as
provided in the Eighth Amendment.
458. In all the foregoing ways, the defendants violate the
plaintiffs’ rights protected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.
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459. Plaintiffs have been or will be treated differently from other
similarly situated individuals, burdening their fundamental rights as
members of a class of persons subject to a death sentence under
Missouri law, without a compelling governmental interest, in violation
of the guarantees of the Equal Protection Clause of the Fourteenth
Amendment and Mo. Const. art. I, § 2.
460. Plaintiffs have been or will be treated differently from other
similarly situated individuals without any rational basis for the
difference in disparate treatment as a class of one, irrationally and
arbitrarily, in violation of the guarantees of the Equal Protection Clause
of the Fourteenth Amendment and the guaranty of Mo. Const. art. I,
§ 2.
461. In respect to the defendants violations of both due process
and equal protection, their conduct trenches on a fundamental right
without a showing of a compelling state interest or that the violation is
narrowly tailored to serve any such interest.
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IX.
Defendants’ conduct is unlawful administrative agency
action remediable under Missouri Administrative
Procedure Act
462. Plaintiffs restate and reallege the premises in paras. 1-367.
463. Defendant Lombardi’s action in adding a company or
corporation or a “compounding” pharmacist to the “execution team”
under color of a protocol he purports to allow him to do so is in violation
of constitutional provisions, most particularly Mo. Const. art. II, § 1, but
also the Ex Post Facto Clauses of Mo. Const. art. I, § 13, and U.S.
Const. art. I, § 10; the First Amendment to the United States
Constitution and Mo. Const. art. I, §§ 8-9; the Due Process Clauses of
the Fifth and Fourteenth Amendments and Mo. Const. art. I, § 10; and
the Cruel and Unusual Punishments Clauses of the Eighth Amendment
(as applied to the state through the Fourteenth) and Mo. Const. art. I,
§ 21.
464. Defendant Lombardi’s action in adding a company or
corporation or a “compounding” pharmacist to the “execution team”
under color of the protocol is unconstitutional, unlawful, unreasonable,
arbitrary or capricious, or involves an abuse of discretion.
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465. Defendants’ solicitation, provision, and acceptance of a
“prescription” for compounding-pharmacy pentobarbital, together with
their act of dispensing and administering compounding-pharmacy
pentobarbital without a legitimate clinical purpose to be served by that
drug, violates the Controlled Substances Act and the Food, Drug &
Cosmetic Act, as well as a binding regulation implementing both
statutes. See 21 U.S.C. § 353(b), 21 U.S.C. § 355, 21 U.S.C. § 829(b) &
21 C.F.R. § 1306.04(a). See also Pub. L. No. 113-54, 127 Stat. 587 (Nov.
27, 2013), § 102(a) (modifying scope of FDCA § 505) & FDCA, new
section 503B(a)(5). These violations of federal law pursuant to state
policy place the defendants in violation of the Supremacy Clause, U.S.
Const. art. VI, cl. 2. It is therefore unconstitutional, unlawful,
unreasonable, arbitrary or capricious, or involves an abuse of discretion.
466. Defendants’ threatened use of a compounding-pharmacy
product that they hold out to the Court as pentobarbital and the acts
and omissions involved in it violate Mo. Rev. Stat. §§ 338.195, 338.337,
338.040, 389.095.5, and 20 C.S.R. §§ 2220-2.025(1); 20 C.S.R. § 22202.200 & -2.400; 2220-2.400(9), 2220-2.400(10) & 2220-2.400(12). It is
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therefore unlawful, unreasonable, arbitrary or capricious, or involves an
abuse of discretion.
467. Defendants’ threatened use of a compounding-pharmacy
product from Oklahoma that they hold out to the Court as pentobarbital
and the acts and omissions involved in it include separate violations of
the Food, Drug, and Cosmetic Act and the Controlled Substances Act
and also violate Okla. Stat. tit. 59, §§ 535.1(6)(b), 535:15-3-13(c)-(d), 1510-3-3.1 & 15-10-53, and § 535:15-10-61. It is therefore unlawful,
unreasonable, arbitrary or capricious, or involves an abuse of discretion.
468. The foregoing violations inherent in defendant Lombardi’s
action and the acts and omissions following from them, enabled by
them, or done in furtherance of them render the foregoing acts and
omissions amenable to declaratory relief under Mo. Stat. Rev.
§ 536.150.1 and under this Court’s pendent jurisdiction. Cf. para. 441.
469. In light of the factual averments and legal claims relating to
the denial of due process, equal protection, and freedom of expression as
set forth in counts VII, VIII, and X, the plaintiffs need to be able to seek
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judicial relief on the foregoing grievances in order to avoid being
tortured to death as explained in counts I and II.
470. Denying the plaintiffs the relief that the State of Missouri
has tendered under Mo. Rev. Stat. ch. 536 would be arbitrary.
471. Under the facts and circumstances of this case, denial of the
remedy tendered by section 536.150 would violate the Due Process
Clause of the Fourteenth Amendment.
X.
Plaintiffs’ Conduct Violates the First Amendment and Mo.
Const. art. I, §§ 8-9.
472. Plaintiffs restate and reallege the premises in paras. 1-399.
473. Denial of the identities of licensed health-care professionals
who choose to participate in executions violates the right of patients,
colleagues, professional associations, and the public not to patronize
them or to certify them in spite of their violation of professional norms.
474. Denial of the identities of suppliers, manufacturers, reportwriters, and other commercial enterprises that choose to participate in
executions violates the right of patients, colleagues, trade and
professional associations, and the public not to patronize them or to
certify them on account of their violation of professional norms.
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475. Denial of the identities of suppliers, manufacturers, reportwriters, and other commercial enterprises that choose to participate in
executions violates the right of patients, colleagues, trade and
professional associations, and the public to petition the government for
a redress of grievances in respect to their violation of professional
norms.
476. Denial of the identities of licensed health-care professionals,
suppliers, manufacturers, testers, and other commercial enterprises
that choose to participate in executions violates the right of the
plaintiffs, the professions, and the public to learn the facts necessary to
evaluate the behavior of the government in respect to lethal injection.
477. Protection of unlawful retaliation against health-care
professionals is a pretextual ground for violating the freedom of
expression of the plaintiffs, the health-care professions and industry,
and the public.
478. Concealing the identities of licensed health-care
professionals, suppliers, manufacturers, testers, and other commercial
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enterprises that choose to participate in executions is not narrowly
tailored to serve a compelling state interest.
479. To the extent that it purports to conceal this information,
Mo. Rev. Stat. § 546.720.2-4 violates the guaranties of freedom of
speech and of the press, and of the right of the people peaceably to
assemble and to petition the government for a redress of grievances in
the First Amendment to the Constitution of the United States, made
applicable to the states by the Fourteenth Amendment, and in Mo.
Const. art. I, §§ 2 & 8-9.
480. In refusing to provide information in discovery and in
response to Missouri Sunshine-Law requests, the defendants have
violated the same guaranties.
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Prayer for Relief
1.
Plaintiffs request a declaratory judgment that carrying out a
lethal injection using the October 18, 2013, protocol relying on
pentobarbital as the lethal agent violates—
I.
the Cruel and Unusual Punishments Clauses of Mo. Const.
art. I, § 21, and of the Eighth Amendment to the United
States Constitution, as applied to the states by its
Fourteenth Amendment;
II.
the Ex Post Facto Clauses of Mo. Const. art. I, § 13, and U.S.
Const. art. I, § 10;
III.
the right of an institutionalized person to be free from
deliberate indifference to serious medical need arising from
the Due Process Clause of the Fourteenth Amendment as
well as the separate protection of the Eighth Amendment
and likewise Mo. Const. art. I, § 10 & 21;
IV.
the right to be free from medical malpractice under Missouri
common law;
V.
the right to be free from the intentional or, in the
alternative, negligent infliction of emotional distress under
Missouri common law;
VI.
the separation of powers guaranty of Mo. Const. art. II, § 1;
VII. 42 U.S.C. § 1983; the Due Process Clause of the Fifth
Amendment the United States Constitution; the Due Process
Clause of the Fourteenth Amendment and Mo. Const. art. I,
§ 10; the First Amendment and Mo. Const. art. I, §§ 8-9; and
the Cruel and Unusual Punishments Clauses of Mo. Const.
art. I, § 21, and of the Eighth Amendment to the United
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States Constitution, as applied to the states by its
Fourteenth Amendment;
VIII. the Equal Protection Clause of the United States
Constitution, and Mo. Const. art. I, § 2, and the Due Process
Clause of the United States Constitution and Mo. Const. art.
I, § 10;
IX.
Mo. Const. art. II, § 1; the Ex Post Facto Clauses of Mo.
Const. art. I, § 13, and U.S. Const. art. I, § 10; the First
Amendment to the United States Constitution and Mo.
Const. art. I, §§ 8-9; the Due Process Clauses of the Fifth and
Fourteenth Amendments and Mo. Const. art. I, § 10; the
Cruel and Unusual Punishments Clauses of the Eighth
Amendment (as applied to the state through the Fourteenth)
and Mo. Const. art. I, § 21; 20 C.S.R. § 2220-2.400(9), (10) &
(12); 21 U.S.C. § 829(b); 21 U.S.C. § 353(b); 21 C.F.R.
§ 1306.04(a); Okla. Stat. tit. 59, §§ 535.1(6)(b), 535:15-313(c)-(d), 15-10-3-3.1 & 15-10-53, and § 535:15-10-61; and the
Supremacy Clause, U.S. Const. art. VI, cl. 2, inter alia, all as
cognizable through the Missouri Administrative Procedures
Act; and
X.
the First Amendment to the United States Constitution,
made applicable to the states by the Fourteenth, and Mo.
Const. art. I, §§ 8-9.
2.
Plaintiffs request an injunction commanding the defendants
not to carry out a lethal injection as described in the present protocol or
any protocol falling within the wrongs denounced by this complaint on
account of the violations of state and federal law, or any of them, set
forth in the foregoing paragraph.
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3.
Plaintiffs seek this Court’s order granting them reasonable
attorney fees as well as the costs of suit, and such further relief as this
Court deems just and proper.
WHEREFORE, the plaintiffs pray the Court for its order and
judgment as aforesaid.
Respectfully submitted,
/s/ John William Simon
John William Simon
Joseph W. Luby
Constitutional Advocacy, LLC
Death Penalty Litigation Clinic
7201 Delmar Blvd., Suite 201
6155 Oak Street, Suite C
St. Louis, Missouri 63130-4106 Kansas City, Missouri 64113
314-604-6982 FAX 314-754-9083 816-363-2795 FAX 816-363-2799
Counsel for Plaintiffs Bucklew,
Counsel for Plaintiffs Winfield
Ringo, and M.A. Taylor
and Cole
Elizabeth Unger Carlyle
P.O. Box 30418
Kansas City, Missouri 64112
816-525-6540 FAX 866-764-1249
Counsel for Plaintiffs Barnett,
Clayton, L. Taylor,
and Zink
Cheryl Ann Pilate
Morgan Pilate LLC
926 Cherry Street
Kansas City, Missouri 64106
816-471-6694 FAX 816-472-3516
Counsel for Plaintiffs Bucklew and
Smulls
Charles M. Rogers
Wyrsch Hobbs & Mirakian, P.C.
1000 Walnut, Suite 1600
Kansas City, Missouri 64106
816-221-0080 FAX 816-221-3280
Counsel for Plaintiff Smulls
Lowell D. Pearson
Husch Blackwell LLP
235 East High Street
Jefferson City, Missouri 65102-1251
573-761-1115 FAX 573-634-7854
Counsel for Plaintiff Clemons
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Jennifer A. Herndon
224 Hwy 67 North, # 122
Florissant, Missouri 63031
314-831-5531 FAX 314-831-5645
Counsel for Plaintiffs Franklin,
Ferguson, Goodwin,
Nicklasson, Nunley,
and Storey
Richard H. Sindel, Mo. 23406
Kathryn B. (Kay) Parish #61781
Sindel Sindel & Noble, P.C.
8000 Maryland, Suite 350
Clayton, Missouri 63105
314-721-6040 FAX 314-721-8545
Counsel for Plaintiffs Barnett,
Middleton, Ringo, and Zink
Michael J. Gorla
555 Washington Ave., Suite 600
St. Louis, Missouri 63101
314-621-1617 F (314) 621-7448
Counsel for Plaintiffs Ferguson,
Goodwin, and Nunley
Eric W. Butts
555 Washington Ave., Suite 600
St. Louis, Missouri 63101
314-621-1617 FAX 314-621-7448
Counsel for Plaintiffs Christeson
and Rousan
Susan M. Hunt
819 Walnut Street
Kansas City, Missouri 64106
816-221-4588 FAX 816-220-0856
Counsel for Plaintiff Clayton
S. Paige Canfield
3889 Juniata
St. Louis, Missouri 63116
314-664-7635
canfieldlaw@yahoo.com
Counsel for Plaintiffs Franklin
and Nicklasson
Gary E. Brotherton
Legal Writes, LLC
601 West Nifong Blvd.
Building 1, Suite C
Columbia, Missouri 65203
573-875-1571 FAX 573-875-1572
Counsel for Plaintiff L. Taylor
Phillip M. Horwitz
640 Cepi, Suite A
Chesterfield, Missouri 63005
636-536-9644 FAX 636-536-7729
Counsel for Plaintiffs Christeson
and Rousan
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Kevin L. Schriener
Law & Schriener, LLC
141 N. Meramec Ave. # 314
Clayton, Missouri 63105-3705
314-480-3389 FAX 314-863-7096
Counsel for Plaintiff Storey
Jessica E. Sutton
Death Penalty Litigation Clinic
6155 Oak Street, Suite C
Kansas City, Missouri 64113
816-363-2795 FAX 816-363-2799
Counsel for Plaintiff Cole
Gino F. Battisti
Kent E. Gipson
Foley & Mansfield, PLLP
121 E. Gregory Boulevard
1001 Highlands Plaza Dr. W.
Kansas City, Missouri 64114
Suite 400
816-363-4400
St. Louis, Missouri 63110
kent.gipson@kentgipsonlaw.com
314-925-5700 FAX 314-925-5701 Counsel for Plaintiff Worthington
Counsel for Plaintiff Worthington
Certificate of Service
I hereby certify a true and correct copy of the foregoing was
forwarded for transmission via Electronic Case Filing (ECF) this
twenty-seventh day of January 2014, to the offices of:
Susan D. Boresi, Esq.
Michael Joseph Spillane, Esq.
Stephen David Hawke, Esq.
Assistant Attorneys General
P.O. Box 899
Jefferson City, Missouri 65102
/s/ John William Simon
Attorney for Plaintiffs Bucklew,
Ringo, and M.A. Taylor
- 171 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 171 EXHIBIT
of 171 17
Appellate Case: 16-3072 Page: 280
Date Filed: 09/23/2016 Entry ID: 4451561