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 Appellate Case: 16-3072 Page: 1 Date Filed: 09/23/2016 Entry ID: 4451561 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 Appellate Case: 16-3072 Page: 3 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-3 Filed: 09/25/15 Page: 1 of 10 PAGEID #: 15268 Appellate Case: 16-3072 Page: 4 EXHIBIT 2 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-3 Filed: 09/25/15 Page: 2 of 10 PAGEID #: 15269 Appellate Case: 16-3072 Page: 5 EXHIBIT 2 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-3 Filed: 09/25/15 Page: 3 of 10 PAGEID #: 15270 Appellate Case: 16-3072 Page: 6 EXHIBIT 2 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-3 Filed: 09/25/15 Page: 4 of 10 PAGEID #: 15271 Appellate Case: 16-3072 Page: 7 EXHIBIT 2 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-3 Filed: 09/25/15 Page: 5 of 10 PAGEID #: 15272 Appellate Case: 16-3072 Page: 8 EXHIBIT 2 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-3 Filed: 09/25/15 Page: 6 of 10 PAGEID #: 15273 Appellate Case: 16-3072 Page: 9 EXHIBIT 2 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-3 Filed: 09/25/15 Page: 7 of 10 PAGEID #: 15274 Appellate Case: 16-3072 Page: 10 EXHIBIT 2 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-3 Filed: 09/25/15 Page: 8 of 10 PAGEID #: 15275 Appellate Case: 16-3072 Page: 11 EXHIBIT 2 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-3 Filed: 09/25/15 Page: 9 of 10 PAGEID #: 15276 Appellate Case: 16-3072 Page: 12 EXHIBIT 2 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-3 Filed: 09/25/15 Page: 10 of 10 PAGEID #: 15277 Appellate Case: 16-3072 Page: 13 EXHIBIT 2 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-4 Filed: 09/25/15 Page: 1 of 4 PAGEID #: 15278 Appellate Case: 16-3072 Page: 14 EXHIBIT 3 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-4 Filed: 09/25/15 Page: 2 of 4 PAGEID #: 15279 Appellate Case: 16-3072 Page: 15 EXHIBIT 3 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-4 Filed: 09/25/15 Page: 3 of 4 PAGEID #: 15280 Appellate Case: 16-3072 Page: 16 EXHIBIT 3 Date Filed: 09/23/2016 Entry ID: 4451561 Case: 2:11-cv-01016-EAS-MRM Doc #: 547-4 Filed: 09/25/15 Page: 4 of 4 PAGEID #: 15281 Appellate Case: 16-3072 Page: 17 EXHIBIT 3 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 18 Exhibit 2, Attachment A 1 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 19 Exhibit 2, Attachment A 2 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 20 Exhibit 2, Attachment A 3 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 21 Exhibit 2, Attachment A 4 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 22 Exhibit 2, Attachment A 5 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 23 Exhibit 2, Attachment A 6 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 24 Exhibit 2, Attachment A 7 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 25 Exhibit 2, Attachment A 8 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 26 Exhibit 2, Attachment A 9 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 27 Exhibit 2, Attachment A 10 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 28 Exhibit 2, Attachment A 11 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 29 Exhibit 2, Attachment A 12 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 30 Exhibit 2, Attachment A 13 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 31 Exhibit 2, Attachment A 14 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 Appellate Case: 16-3072 Page: 32 Exhibit 2, Attachment A 15 of 15 EXHIBIT 4 Date Filed: 09/23/2016 Entry ID: 4451561 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 EXHIBIT 5 Appellate Case: 16-3072 Page: 33 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.reprieve.org.uk/case-study/issues-helping-pharmaceutical-companies-stop-their-medicines-being-used-to-kill/[9/22/2016 1:58:00 PM] 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 EXHIBIT 5 Appellate Case: 16-3072 Page: 34 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.reprieve.org.uk/case-study/issues-helping-pharmaceutical-companies-stop-their-medicines-being-used-to-kill/[9/22/2016 1:58:00 PM] 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 EXHIBIT 5 Appellate Case: 16-3072 Page: 35 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.reprieve.org.uk/case-study/issues-helping-pharmaceutical-companies-stop-their-medicines-being-used-to-kill/[9/22/2016 1:58:00 PM] 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 EXHIBIT 5 Appellate Case: 16-3072 Page: 36 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.reprieve.org.uk/case-study/issues-helping-pharmaceutical-companies-stop-their-medicines-being-used-to-kill/[9/22/2016 1:58:00 PM] Reprieve - Helping pharmaceutical companies stop their medicines being used to kill Donate now → Death Penalty Lethal Injection Torture Guantánamo Bay Drones Secret Prisons Join our mailing list → Home About Press Newsletter Take action → Reprieve PO Box 72054 London EC3P 3BZ 020 7553 8140 info@reprieve.org.uk EXHIBIT 5 Appellate Case: 16-3072 Page: 37 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.reprieve.org.uk/case-study/issues-helping-pharmaceutical-companies-stop-their-medicines-being-used-to-kill/[9/22/2016 1:58:00 PM] Hospira to Stop Making Lethal-Injection Drug - WSJ DJIA ▲ 18405.43 0.61%U.S. 10 Yr ▲ 5/32 Yield 1.636%Euro ▲ 1.1200 Subscribe 0.14% Sign In 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 EXHIBIT 6 Appellate Case: 16-3072 Page: 38 Date Filed: 09/23/2016 Entry ID: 4451561 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. EXHIBIT 6 Appellate Case: 16-3072 Page: 39 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.wsj.com/articles/SB10001424052748704754304576095980790129692[9/22/2016 1:59:28 PM] 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 EXHIBIT 6 Appellate Case: 16-3072 Page: 40 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.wsj.com/articles/SB10001424052748704754304576095980790129692[9/22/2016 1:59:28 PM] 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 EXHIBIT 6 Appellate Case: 16-3072 Page: 41 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.wsj.com/articles/SB10001424052748704754304576095980790129692[9/22/2016 1:59:28 PM] 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." EXHIBIT 6 Appellate Case: 16-3072 Page: 42 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.wsj.com/articles/SB10001424052748704754304576095980790129692[9/22/2016 1:59:28 PM] 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 POPULAR ON WSJ Most Popular Videos EXHIBIT 6 Appellate Case: 16-3072 Page: 43 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.wsj.com/articles/SB10001424052748704754304576095980790129692[9/22/2016 1:59:28 PM] Hospira to Stop Making Lethal-Injection Drug - WSJ 1. Scientists Reveal Biblical Text From Ancient Scroll 2. Witness Recounts Man Being Shot at Charlotte Protest 3. State of Emergency Declared in Charlotte, N.C. 4. 2016 MacArthur Genius Grant Fellows in Science 5. And the Title of World’s Best University Goes to… Most Popular Articles 1. Oxford Tops List of World’s Best Universities 2. Clinton Leads Trump by 6 Points in New WSJ/NBC Poll 3. ‘Pokémon Go’ Ends Its Reign at No. 1 4. One Person Shot as Charlotte Protests Continue 5. Opinion: Party Loyalty Can’t Make Me Vote for Clinton TOP Edition: U.S. U.S. Text Size: Small Small Subscribe NowSign In WSJ Membership BenefitsDownload WSJ AppsCustomer CenterLegal Policies Subscribe Sign In EXHIBIT 6 Appellate Case: 16-3072 Page: 44 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.wsj.com/articles/SB10001424052748704754304576095980790129692[9/22/2016 1:59:28 PM] Hospira to Stop Making Lethal-Injection Drug - WSJ n m v w y Privacy Policy Cookie Policy Copyright Policy Data Policy Subscriber Agreement & Terms of Use Your Ad Choices Copyright ©2016 Dow Jones & Company, Inc. All Rights Reserved. EXHIBIT 6 Appellate Case: 16-3072 Page: 45 Date Filed: 09/23/2016 Entry ID: 4451561 http://www.wsj.com/articles/SB10001424052748704754304576095980790129692[9/22/2016 1:59:28 PM] The Hidden Hand Squeezing Texas’ Supply of Execution Drugs TIME.com  Subscribe 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 Print Share Follow @TIME 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. EXHIBIT 7 Appellate Case: 16-3072 Page: 46 Date Filed: 09/23/2016 Entry ID: 4451561 http://nation.time.com/2013/08/07/the-hidden-hand-squeezing-texas-supply-of-execution-drugs/[9/22/2016 2:00:13 PM] 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. EXHIBIT 7 Appellate Case: 16-3072 Page: 47 Date Filed: 09/23/2016 Entry ID: 4451561 http://nation.time.com/2013/08/07/the-hidden-hand-squeezing-texas-supply-of-execution-drugs/[9/22/2016 2:00:13 PM] 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. Most Popular POPULAR AMONG SUBSCRIBERS FROM U.S. Japan's Booming Sex Niche: Elder Porn 1 Costly Flight Hours 2 The Navy SEALS’ Dying Words 3 You’re a SEAL Stranded in Hostile Territory: What’s in Your Survival Kit? 4 The Surveillance Society 5 From Messiah to Hitler, What You Can and Cannot Name Your Child Young Kids, Old Bodies Benedict Cumberbatch Talks Secrets, Leaks, and Sherlock FROM TIME.COM Obama's Trauma Team 1 Russian Forces Double Along Ukraine Border EXHIBIT 7 Appellate Case: 16-3072 Page: 48 Date Filed: 09/23/2016 Entry ID: 4451561 http://nation.time.com/2013/08/07/the-hidden-hand-squeezing-texas-supply-of-execution-drugs/[9/22/2016 2:00:13 PM] SUBSCRIBE The Hidden Hand Squeezing Texas’ Supply of Execution Drugs TIME.com 2 Gangs of ‘Powerfully Built’ Women Are Mugging Tourists on the Streets of Hong Kong 3 Putin Phones Obama To Discuss Ukraine, White House Says Get all access to digital and print SUBSCRIBE CONNECT WITH TIME 4 Colbert Tweet Draws Accusations of Racism and #CancelColbert 5 There’s A Scientific Reason for Why You Look Weird In Selfies © 2016 Time Inc. All rights reserved. EXHIBIT 7 Appellate Case: 16-3072 Page: 49 Date Filed: 09/23/2016 Entry ID: 4451561 http://nation.time.com/2013/08/07/the-hidden-hand-squeezing-texas-supply-of-execution-drugs/[9/22/2016 2:00:13 PM] Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ DJIA ▲ 18407.82 0.62%U.S. 10 Yr ▲ 5/32 Yield 1.634%Euro ▲ 1.1203 Subscribe 0.17% Sign In 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. EXHIBIT 8 Appellate Case: 16-3072 Page: 50 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2014/10/21/mylan-faces-investor-pressure-over-a-drug-to-be-used-for-executions/[9/22/2016 2:01:28 PM] 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. EXHIBIT 8 Appellate Case: 16-3072 Page: 51 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2014/10/21/mylan-faces-investor-pressure-over-a-drug-to-be-used-for-executions/[9/22/2016 2:01:28 PM] Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ Share this: http://on.wsj.com/1ny889O EXECUTIONS LUNDBECK FRESENIUS PREVIOUS Vertex Faces a Litmus Test for its Cystic Fibrosis Combo Treatment HIKMA MYLAN LABORATORIES HOSPIRA LETHAL INJECTIONS TEVA PHARMACEUTICALS NEXT Parkinson's Drugs Need Warnings About Compulsive Behaviors: Study Editors’ Picks CAPITAL ACCOUNT EXHIBIT 8 Appellate Case: 16-3072 Page: 52 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2014/10/21/mylan-faces-investor-pressure-over-a-drug-to-be-used-for-executions/[9/22/2016 2:01:28 PM] Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ Central Bank Tools Lose Their Edge MARKETS Wall Street’s IPO Business: The Worst in 20 Years U.S. Turkey’s Battle With Muslim Cleric Careens Through U.S. Classrooms MIDDLE EAST EXHIBIT 8 Appellate Case: 16-3072 Page: 53 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2014/10/21/mylan-faces-investor-pressure-over-a-drug-to-be-used-for-executions/[9/22/2016 2:01:28 PM] Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ As Violence in Syria Again Soars, One Neighborhood Relents HEARD ON THE STREET Samsung’s Fires Unlikely to Warm Apple U.S. San Francisco Panel to Grill Inspectors Over Sinking Luxury Tower COLLEGE FOOTBALL EXHIBIT 8 Appellate Case: 16-3072 Page: 54 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2014/10/21/mylan-faces-investor-pressure-over-a-drug-to-be-used-for-executions/[9/22/2016 2:01:28 PM] Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ Why Tennessee Volunteered to Be Bad MIDDLE EAST CROSSROADS Excommunicating Saudis? A New Fracture Emerges in Islam ARTS & ENTERTAINMENT 'Westworld' Returns to Television Screens POPULAR ON WSJ Most Popular Videos 1. Scientists Reveal Biblical Text From Ancient Scroll 2. Witness Recounts Man Being Shot at Charlotte Protest 3. State of Emergency Declared in Charlotte, N.C. 4. 2016 MacArthur Genius Grant Fellows in Science 5. And the Title of World’s Best University Goes to… Most Popular Articles 1. Oxford Tops List of World’s Best Universities EXHIBIT 8 Appellate Case: 16-3072 Page: 55 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2014/10/21/mylan-faces-investor-pressure-over-a-drug-to-be-used-for-executions/[9/22/2016 2:01:28 PM] Mylan Faces Investor Pressure Over a Drug to be Used for Executions - Pharmalot - WSJ 2. Clinton Leads Trump by 6 Points in New WSJ/NBC Poll 3. ‘Pokémon Go’ Ends Its Reign at No. 1 4. One Person Shot as Charlotte Protests Continue 5. Opinion: Party Loyalty Can’t Make Me Vote for Clinton TOP Edition: U.S. U.S. Subscribe NowSign In WSJ Membership BenefitsDownload WSJ AppsCustomer CenterLegal Policies Subscribe n m v w Sign In y Privacy Policy Cookie Policy Copyright Policy Data Policy Subscriber Agreement & Terms of Use Your Ad Choices Copyright ©2016 Dow Jones & Company, Inc. All Rights Reserved. EXHIBIT 8 Appellate Case: 16-3072 Page: 56 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2014/10/21/mylan-faces-investor-pressure-over-a-drug-to-be-used-for-executions/[9/22/2016 2:01:28 PM] Akorn Takes Steps to Prohibit its Drugs From Being Used for Executions - Pharmalot - WSJ ▲ DJIA 18286.00 -0.58%U.S. 10 Yr ▲ 2/32 Yield 1.615%Euro ▲ 1.1232 Subscribe 0.21% Sign In 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 EXHIBIT 9 Appellate Case: 16-3072 Page: 57 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2015/03/04/akorn-takes-steps-to-prohibit-its-drugs-from-being-used-for-executions/[9/23/2016 2:20:55 PM] 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. Share this: http://on.wsj.com/1aLBiNv AKORN PHARMACEUTICALS FRESENIUS KABI DEATH PENALTY HOSPIRA DEATH ROW LETHAL INJECTIONS MYLAN LABORATORIES PREVIOUS EXECUTIONS LUNDBECK REPRIEVE NEXT EXHIBIT 9 Appellate Case: 16-3072 Page: 58 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2015/03/04/akorn-takes-steps-to-prohibit-its-drugs-from-being-used-for-executions/[9/23/2016 2:20:55 PM] Akorn Takes Steps to Prohibit its Drugs From Being Used for Executions - Pharmalot - WSJ A University's Clinical Trial Oversight Practices are Skewered Pharmalot, Pharmalittle: We're Reading About AbbVie, Bristol-Myers and Much More!! Editors’ Picks IN DEPTH An Era in Hong Kong Is Ending, Thanks to China’s Tight Embrace EXHIBIT 9 Appellate Case: 16-3072 Page: 59 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2015/03/04/akorn-takes-steps-to-prohibit-its-drugs-from-being-used-for-executions/[9/23/2016 2:20:55 PM] Akorn Takes Steps to Prohibit its Drugs From Being Used for Executions - Pharmalot - WSJ MIDDLE EAST Kingdom Comedown: Falling Oil Prices Shock Saudi Middle Class MARKETS Wall Street Bonus Outlook: Blah, Except for Techies PERSONAL TECHNOLOGY: REVIEW iOS 10 Lock Screen: Battling Apple’s Frustrating Change EXHIBIT 9 Appellate Case: 16-3072 Page: 60 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2015/03/04/akorn-takes-steps-to-prohibit-its-drugs-from-being-used-for-executions/[9/23/2016 2:20:55 PM] Akorn Takes Steps to Prohibit its Drugs From Being Used for Executions - Pharmalot - WSJ THE NUMBERS Congress Gives Itself Extra Time, Then Asks: What’s the Rush? A-HED At 13 Pounds, This Novel is Bound to Be the Season’s Biggest BUSINESS ARTS & ENTERTAINMENT De Beers Bets Big on Canadian Mine The Magnificent Seven: A Western for a New Generation? EXHIBIT 9 Appellate Case: 16-3072 Page: 61 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2015/03/04/akorn-takes-steps-to-prohibit-its-drugs-from-being-used-for-executions/[9/23/2016 2:20:55 PM] Akorn Takes Steps to Prohibit its Drugs From Being Used for Executions - Pharmalot - WSJ POPULAR ON WSJ Most Popular Videos 1. Great Wall of China Repairs Provoke Outrage 2. Best Moments in Presidential Debate History 3. Police Release Footage of Deadly Tulsa Shooting 4. Fix iOS 10's Frustrating Lock Screen 5. Clinton’s ‘Funny or Die’ Bid for Millennials Most Popular Articles 1. Hillary Clinton Proposes 65% Top Rate for Estate Tax 2. Facebook Overestimated Key Video Metric for Two Years 3. Kingdom Comedown: Falling Oil Prices Shock Saudi Middle Class 4. Opinion: The Year of the Reticent Voter 5. Yahoo Says Breach Affected at Least 500 Million Users TOP Edition: U.S. U.S. EXHIBIT 9 Appellate Case: 16-3072 Page: 62 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2015/03/04/akorn-takes-steps-to-prohibit-its-drugs-from-being-used-for-executions/[9/23/2016 2:20:55 PM] Akorn Takes Steps to Prohibit its Drugs From Being Used for Executions - Pharmalot - WSJ Subscribe NowSign In WSJ Membership BenefitsDownload WSJ AppsCustomer CenterLegal Policies Subscribe n m v w Sign In y Privacy Policy Cookie Policy Copyright Policy Data Policy Subscriber Agreement & Terms of Use Your Ad Choices Copyright ©2016 Dow Jones & Company, Inc. All Rights Reserved. EXHIBIT 9 Appellate Case: 16-3072 Page: 63 Date Filed: 09/23/2016 Entry ID: 4451561 http://blogs.wsj.com/pharmalot/2015/03/04/akorn-takes-steps-to-prohibit-its-drugs-from-being-used-for-executions/[9/23/2016 2:20:55 PM] Texas refuses to give back lethal drugs, proceeds with execution Fox News Politics Home Video Politics U.S. Opinion Search Entertainment Tech Science Health Travel Lifestyle STATES RIGHTS Texas refuses to give back lethal drugs, proceeds with execution 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 EXHIBIT 10 Appellate Case: 16-3072 Page: 64 Date Filed: 09/23/2016 Entry ID: 4451561 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] 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. EXHIBIT 10 Appellate Case: 16-3072 Page: 65 Date Filed: 09/23/2016 Entry ID: 4451561 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. Politics Politics Home Presidential Approval Approve Executive Disapprove More details → Senate House of Representatives Congressional Approval Defense Approve Disapprove Judiciary Scandals More details → Congress To-Do List EXHIBIT 10 Appellate Case: 16-3072 Page: 66 Date Filed: 09/23/2016 Entry ID: 4451561 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 ©2016 FOX News Network, LLC. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. All market data delayed 20 minutes. Privacy - Terms - FAQ EXHIBIT 10 Appellate Case: 16-3072 Page: 67 Date Filed: 09/23/2016 Entry ID: 4451561 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 sign in home › world search UK europe jobs americas asia middle east africa US edition australia cities all dev 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: 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 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 Appellate Case: 16-3072 Page: 69 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 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 Appellate Case: 16-3072 Page: 71 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 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: 72 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 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: 73 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 More news Topics Capital punishment Texas Pfizer Pharmaceuticals industry Reuse this content View all comments > popular election 2016 US world UK europe americas asia middle africa australia east development cities opinion sports soccer soccer live MLS NFL tables MLB NBA competitions NHL results fxtures clubs scores tech arts movies tv & music games books radio lifestyle food art & stage classical design health & love & ftness sex family women home & garden fashion EXHIBIT 11 Appellate Case: 16-3072 Page: 74 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 economics business travel USA environment climate sustainable diversity & equality in small business business business europe UK wildlife skiing energy pollution change science media crosswords blog editor quick cryptic prize quiptic genius speedy everyman azed video world › capital punishment Sign up to our daily email Email address Sign up Facebook Twitter jobs guardian labs subscribe all topics all contributors solve technical issue about us contact us complaints & corrections terms & conditions 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 privacy policy cookie policy securedrop © 2016 Guardian News and Media Limited or its affiliated companies. All rights reserved. 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. Sd 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 1 A 2 Q, Okay. Was that the same day? 2 3 A l believe so. 4 Q, Okay. What happened next? 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25 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 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 21 1 2 Q. The final draft, correct? 3 Q. And it has your signature at the bottom? 4 5 6 7 e 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A 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 22 1 2 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 25 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 26 1 2 3 4 5 6 7 8 9 10 1.1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. 28 1 A. Uh-huh. 2 Q. Did l read that accurately? 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 27 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1.5 16 17 18 19 20 21 22 23 24 25 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. 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. 33 1 Q. Okay. Did you go to any of their websites? 2 A 3 Q. Okay. Did you do-- how about any potential 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 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 1 2 A l didn't see anything that-- this doesn't 40 1 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 4 ethics and shamed his profession for $2,800." l don't 4 A 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 7 A 7 A. Yes. 8 Q. The person's name, where they live? 8 Q. Okay. And is this something you reviewed? 9 A No. No. 9 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 11 A No. Q, Okay. Was there some sort of case or file 11 concern to you in respect to your threat assessment? 12 13 14 15 16 open on this website? A Not by us. Q, Okay. Did you see where this website was 12 A. Yeah, inference to the Oklahoma City bombing. 13 Q. Okay. And can you tell me where that is in 14 15 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. 17 18 Q. --in Texas, outside of Texas? 18 19 A. l just looked at the documents that were A Do you want me to give you which-- exactly 16 17 19 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 22 23 (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 39 1 review it, please. 2 A 3 Q. This is Okay. about a ten-page document. And my 41 1 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. 14 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 16 this does is -- individuals weren't happy with --I 17 didn't see any specific threats in there. 6 7 8 9 10 11 12 13 18 Q. Did you do any research into these 6 7 8 9 10 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? 11 A. That's threatening enough. 12 Q. And apart from that, is there any other 13 14 15 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. 18 Q. Okay. Did you call this number that appears 19 individuals -- 19 20 21 22 23 24 A. No. 20 Q. -- who they were -- 21 A. Absolutely not 22 l did so based on the information. l did not do any Q. 23 investigations. We didn't look at any people. We 25 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 assessment 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 42 1 2 3 4 5 6 7 8 9 10 11 12 l3 14 15 16 17 18 19 20 21 22 23 24 25 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 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 ~- 45 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. ........-~-~~-----~-,_....---~ 12 (Pages 42 to 45) Advanced Depositions www .advanceddepositions.com I 855-81!-33 76 Appellate Case: 16-3072 EXHIBIT 15 Page: 94 Date Filed: 09/23/2016 Entry ID: 4451561 691 Colonel Steven McCraw, 7/21/2014 Maurie Levin v. Texas Department of Criminal Justice 50 1 2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. 51 l 2 3 4 5 6 'I 8 9 10 11 12 13 14 15 16 17 18 19 20 21 I \ 22 23 ~4 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~-~--_::~---- 53 1 Q. And is that something that DPS investigated? 2 A. Yes. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ·---'--2~5 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 14 (Pages 50 to 53) Advanced Depositions www.advanceddepositions.com 1855-811-3376 Appellate Case: 16-3072 EXHIBIT 15 Page: 95 Date Filed: 09/23/2016 Entry ID: 4451561 692 Colonel Steven McCraw, 7/21/2014 Maurie Levin v. Texas Department of Criminal Justice 54 56 1 something is a terroristic threat. And l would !ike to 1 2 go back and ask you if you could explain to me in geoeral what goes into making that determination ±or 2 3 4 5 6 7 8 9 10 11 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 A. I'll say it-- where I have personally handled it, three. 3 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 1 A. Travel to Mexico WllS one for a particular 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 7 5 6 8 9 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." 10 A. Okay. Q. Okay. And so let's go over some of those factors that you would take into account. What would 14 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 11 12 13 15 16 17 18 19 20 21 22 23 24 25 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 55 1 57 1 attacks before on like issues? 2 3 Q. Okay. A. Such as-- for example, we mentioned gay 4 rights, we mentioned abortion. Those are factors. 4 2 3 5 Q. Any other factors? 5 6 A 6 All I mentioned before in terms of-- and each 7 one -- we'll go back to -- I'll start from the 7 8 beginning. 8 9 10 11 12 13 14 15 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 9 10 1l 12 13 14 15 16 already discussed in dealing with other threats and 16 17 threat scenarios. Q. Okay. You made reference to having received 17 requests to make threat assessments in the past, 19 correct? A. Correct. Q. Okay. And you've done a number of them? 20 18 19 20 21 22 23 A. Yes, in varying different forms. 24 Q. Can you approximate how many you've done over years in your capacity as director ofDPS? 18 21 22 23 24 25 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 15 (Pages 54 to 57) Advanced Depositions www.advanceddepositions.corn I 855-811-3376 Appellate Case: 16-3072 EXHIBIT 15 Page: 96 Date Filed: 09/23/2016 Entry ID: 4451561 693 Colonel Steven McCraw, 7/21/2014 Maurie Levin v. Texas Department of Criminal Justice r--------------·-----------~~----~---o-r2·--~-------- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 ! 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. 63 1 2 3 4 5 6 7 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 64 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 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 17 (Pages 62 to 65) Advanced Depositions www.advanceddepositions.com i 855-811-3376 Appellate Case: 16-3072 EXHIBIT 15 Page: 97 Date Filed: 09/23/2016 Entry ID: 4451561 694 Colonel Steven McCraw, 7/21/2014 Maurie Levin v. Texas Department of Criminal Justice 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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." 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. 69 67 1 A. Yeah. 2 Q. And then it says, "Owner in fear of life." 2 3 A. Yep. Q. Who does that refer to? A. The owner of the compounding pharmacy is what 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 I would presume. 4 5 6 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-- 7 8 9 10 11 12 13 14 15 16 17 18 19 2o 21 22 23 24 25 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 18 (Pages 66 to 69) Advanced Depositions www.advanceddepositions.com ! 855-811-33 76 Appellate Case: 16-3072 EXHIBIT 15 Page: 98 Date Filed: 09/23/2016 Entry ID: 4451561 695 Colonel Steven McCraw, 7/21/2014 Maurie Levin v. Texas Department of Criminal Justice 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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' -- 72 1 2 3 4 5 6 7 s 9 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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) Advanced Depositions www.advanceddepositions.com 1855-811-3376 Appellate Case: 16-3072 EXHIBIT 15 Page: 99 Date Filed: 09/23/2016 Entry ID: 4451561 696 Colonel Steven McCraw, 7/21/2014 Maurie Levin v. Texas Department of Criminal Justice 76 l 2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 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) Advanced Depositions wv,rw.advanceddepositions.com i 855-811-3376 Appellate Case: 16-3072 EXHIBIT 15 Page: 100 Date Filed: 09/23/2016 Entry ID: 4451561 697 Brad Livingston, 7/24/2014 Levin v. Texas Department of Criminal Justice 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 Advanced Depositions www.advanceddepositions.com 1855-811-3376 Appellate Case: 16-3072 EXHIBIT 16 Page: 101 Date Filed: 09/23/2016 Entry ID: 4451561 699 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 Advanced Depositions www.advanceddepositions.com 1855-81 l-3376 Appellate Case: 16-3072 EXHIBIT 16 Page: 102 Date Filed: 09/23/2016 Entry ID: 4451561 700 Brad Livingston, 7/24/2014 Levin v. Texas Department of Criminal Justice 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 Advanced Depositions www.advanceddepositions.com 1855~811-3376 Appellate Case: 16-3072 EXHIBIT 16 Page: 103 Date Filed: 09/23/2016 Entry ID: 4451561 701 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 Advanced Depositions www.advanceddepositions.com I 855-811-3376 Appellate Case: 16-3072 EXHIBIT 16 Page: 104 Date Filed: 09/23/2016 Entry ID: 4451561 702 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. Advanced Depositions www.advanceddepositions.com j855-81l-3376 Appellate Case: 16-3072 EXHIBIT 16 Page: 105 Date Filed: 09/23/2016 Entry ID: 4451561 703 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 Advanced Depositions www.advanceddepositions.com 1855-811-3376 Appellate Case: 16-3072 EXHIBIT 16 Page: 106 Date Filed: 09/23/2016 Entry ID: 4451561 704 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 Advanced Depositions www.advanceddepositions.com 1855-81 J -3376 Appellate Case: 16-3072 EXHIBIT 16 Page: 107 Date Filed: 09/23/2016 Entry ID: 4451561 705 Brad Livingston, 7/24/2014 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 Advanced Depositions www.advanceddepositions.com I 855-8 J l-3376 Appellate Case: 16-3072 EXHIBIT 16 Page: 108 Date Filed: 09/23/2016 Entry ID: 4451561 706 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 Advanced Depositions www.advanceddepositions.com 1855-811-3376 Appellate Case: 16-3072 EXHIBIT 16 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 171 17 Appellate Case: 16-3072 Page: 110 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 171 17 Appellate Case: 16-3072 Page: 111 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 -4Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 4 ofEXHIBIT 171 17 Appellate Case: 16-3072 Page: 113 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 -5Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 5 ofEXHIBIT 171 17 Appellate Case: 16-3072 Page: 114 Date Filed: 09/23/2016 Entry ID: 4451561 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 -6Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 6 ofEXHIBIT 171 17 Appellate Case: 16-3072 Page: 115 Date Filed: 09/23/2016 Entry ID: 4451561 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). -7- Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 7 ofEXHIBIT 171 17 Appellate Case: 16-3072 Page: 116 Date Filed: 09/23/2016 Entry ID: 4451561 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 -8Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 8 ofEXHIBIT 171 17 Appellate Case: 16-3072 Page: 117 Date Filed: 09/23/2016 Entry ID: 4451561 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). -9Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 9 ofEXHIBIT 171 17 Appellate Case: 16-3072 Page: 118 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 10 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 10 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 119 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 11 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 11 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 120 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 12 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 12 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 121 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 13 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 13 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 122 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 14 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 14 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 123 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 15 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 15 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 124 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 16 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 16 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 125 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 17 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 17 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 126 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 18 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 18 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 127 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 19 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 19 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 128 Date Filed: 09/23/2016 Entry ID: 4451561 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.” - 20 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 20 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 129 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 21 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 21 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 130 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 22 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 22 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 131 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 23 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 23 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 132 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 24 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 24 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 133 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 25 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 25 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 134 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 26 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 26 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 135 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 27 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 27 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 136 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 28 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 28 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 137 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 29 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 29 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 138 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 30 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 30 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 139 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 31 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 31 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 140 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 32 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 32 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 141 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 33 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 33 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 142 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 34 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 34 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 143 Date Filed: 09/23/2016 Entry ID: 4451561 “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. - 35 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 35 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 144 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 36 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 36 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 145 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 37 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 37 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 146 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 38 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 38 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 147 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 39 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 39 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 148 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 40 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 40 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 149 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 41 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 41 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 150 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 42 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 42 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 151 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 43 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 43 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 152 Date Filed: 09/23/2016 Entry ID: 4451561 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, - 44 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 44 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 153 Date Filed: 09/23/2016 Entry ID: 4451561 ¶¶ 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.] - 45 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 45 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 154 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 46 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 46 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 155 Date Filed: 09/23/2016 Entry ID: 4451561 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? - 47 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 47 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 156 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 48 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 48 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 157 Date Filed: 09/23/2016 Entry ID: 4451561 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’ - 49 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 49 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 158 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 50 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 50 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 159 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 51 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 51 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 160 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 52 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 52 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 161 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 53 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 53 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 162 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 54 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 54 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 163 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 55 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 55 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 164 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 56 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 56 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 165 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 57 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 57 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 166 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 58 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 58 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 167 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 59 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 59 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 168 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 60 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 60 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 169 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 61 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 61 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 170 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 62 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 62 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 171 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 63 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 63 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 172 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 64 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 64 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 173 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 65 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 65 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 174 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 66 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 66 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 175 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 67 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 67 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 176 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 68 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 68 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 177 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 69 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 69 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 178 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 70 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 70 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 179 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 71 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 71 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 180 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 72 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 72 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 181 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 73 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 73 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 182 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 74 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 74 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 183 Date Filed: 09/23/2016 Entry ID: 4451561 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, - 75 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 75 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 184 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 76 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 76 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 185 Date Filed: 09/23/2016 Entry ID: 4451561 “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”). - 77 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 77 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 186 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 78 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 78 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 187 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 79 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 79 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 188 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 80 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 80 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 189 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 81 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 81 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 190 Date Filed: 09/23/2016 Entry ID: 4451561 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, - 82 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 82 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 191 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 83 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 83 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 192 Date Filed: 09/23/2016 Entry ID: 4451561 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’ - 84 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 84 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 193 Date Filed: 09/23/2016 Entry ID: 4451561 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, - 85 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 85 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 194 Date Filed: 09/23/2016 Entry ID: 4451561 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, - 86 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 86 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 195 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 87 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 87 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 196 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 88 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 88 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 197 Date Filed: 09/23/2016 Entry ID: 4451561 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, - 89 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 89 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 198 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 90 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 90 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 199 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 91 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 91 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 200 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 92 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 92 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 201 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 93 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 93 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 202 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 94 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 94 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 203 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 95 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 95 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 204 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 96 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 96 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 205 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 97 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 97 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 206 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 98 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 98 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 207 Date Filed: 09/23/2016 Entry ID: 4451561 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: - 99 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 99 of 171 EXHIBIT 17 Appellate Case: 16-3072 Page: 208 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 100 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 100 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 209 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 101 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 101 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 210 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 102 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 102 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 211 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 103 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 103 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 212 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 104 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 104 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 213 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 105 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 105 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 214 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 106 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 106 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 215 Date Filed: 09/23/2016 Entry ID: 4451561 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, - 107 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 107 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 216 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 108 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 108 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 217 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 109 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 109 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 218 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 110 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 110 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 219 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 111 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 111 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 220 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 112 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 112 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 221 Date Filed: 09/23/2016 Entry ID: 4451561 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[.]” - 113 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 113 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 222 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 114 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 114 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 223 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 115 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 115 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 224 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 116 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 116 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 225 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 117 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 117 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 226 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 118 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 118 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 227 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 119 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 119 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 228 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 120 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 120 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 229 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 121 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 121 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 230 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 122 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 122 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 231 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 123 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 123 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 232 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 124 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 124 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 233 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 125 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 125 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 234 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 126 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 126 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 235 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 127 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 127 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 236 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 128 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 128 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 237 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 129 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 129 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 238 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 130 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 130 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 239 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 131 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 131 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 240 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 132 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 132 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 241 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 133 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 133 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 242 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 134 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 134 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 243 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 135 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 135 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 244 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 136 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 136 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 245 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 137 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 137 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 246 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 138 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 138 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 247 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 139 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 139 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 248 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 140 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 140 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 249 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 141 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 141 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 250 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 142 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 142 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 251 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 143 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 143 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 252 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 144 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 144 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 253 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 145 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 145 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 254 Date Filed: 09/23/2016 Entry ID: 4451561 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.). - 146 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 146 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 255 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 147 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 147 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 256 Date Filed: 09/23/2016 Entry ID: 4451561 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). - 148 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 148 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 257 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 149 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 149 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 258 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 150 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 150 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 259 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 151 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 151 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 260 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 152 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 152 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 261 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 153 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 153 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 262 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 154 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 154 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 263 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 155 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 155 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 264 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 156 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 156 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 265 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 157 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 157 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 266 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 158 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 158 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 267 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 159 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 159 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 268 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 160 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 160 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 269 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 161 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 161 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 270 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 162 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 162 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 271 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 163 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 163 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 272 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 164 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 164 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 273 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 165 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 165 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 274 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 166 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 166 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 275 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 167 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 167 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 276 Date Filed: 09/23/2016 Entry ID: 4451561 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. - 168 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 168 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 277 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 169 - Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 169 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 278 Date Filed: 09/23/2016 Entry ID: 4451561 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 - 170 Case 2:12-cv-04209-BP Document 312-1 Filed 01/27/14 Page 170 EXHIBIT of 171 17 Appellate Case: 16-3072 Page: 279 Date Filed: 09/23/2016 Entry ID: 4451561 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