This reply brief addresses Argument One of Petitioners’ initial brief. Due to page and time limitations, Petitioners rely upon the initial brief as to the remaining arguments.

References to the initial brief will be designated as "IB [page number]." References to the answer brief will be designated as "AB [page number]."

CERTIFICATION OF TYPE SIZE AND STYLE

This is to certify that the Reply Brief of Petitioners/Appellants has been reproduced in a 12 point Courier type, a font that is not proportionately spaced.

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT i

ARGUMENT I 1

Rule 9.210(c), Fla. R. App. Pro., provides:

The Answer Brief completely disregards this rule. The Statement of the Case and Facts contained in the Answer Brief does not specify areas of disagreement; it is simply a second long and largely redundant summary of the evidentiary hearing.

ARGUMENT I

A. INTRODUCTION

Despite arguing the lower court’s order should be upheld if supported by competent substantial evidence (AB 54), see Jones v. State, 701 So.2d 76, 80 (Fla. 1997), Respondent provides no definition of "competent substantial evidence" and makes no effort to show that Respondent’s evidence satisfies this definition. "Competent substantial evidence" is "such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred ... [or] such relevant evidence as a reasonable mind would accept as adequate to support a conclusion." Duval Utility Co. v. Florida Public Service Commission, 380 So.2d 1028, 1031 (Fla.1980). This phrase means "an order which bases an essential finding or conclusion solely on unreliable evidence should be held insufficient." Brinkley v. Brinkley, 453 So.2d 941, 943 (Fla. 4^th DCA 1984). Expert opinion does not satisfy this standard when the expert did not rely on test results or studies, but based his opinion on suppositions. Young-Chin v. City of Homestead, 597 So.2d 879 (Fla. 3^rd DCA 1992). Petitioners’ briefs establish that the lower court’s conclusions are not supported by competent substantial evidence, and that the evidence upon which Respondent relies does not satisfy this standard.

Moreover, many of the lower court’s conclusions to which Respondent wishes this Court to defer are not factfindings but conclusions of law to which this Court owes no deference. For example, several times Respondent points to the lower court’s conclusion that the mouth strap caused discomfort, but not unnecessary and wanton pain. The only fact-finding in this conclusion is that the mouth strap caused discomfort. The question of whether this discomfort is unnecessary and wanton pain is a question of law. "Unnecessary and wanton" pain is the legal definition of unconstitutional pain. Jones. In Jones, this Court stated that the trial court’s conclusion that the electric chair "did not wantonly inflict unnecessary pain" was a conclusion of law. 701 So. 2d at 77-78. Whether or not what the court characterized as "discomfort" was "unnecessary and wanton" pain is a question of law. See also Porter v. State, 723 So. 2d 191, 196 (Fla. 1998) (question whether facts establish trial judge's impartiality is a question of law).

Further, many of Petitioners’ contentions are based upon undisputed facts or unrebutted evidence about which the lower court made no factfindings. These matters are discussed below.

Respondent argues that Petitioners are not entitled to rely upon the former "cruel or unusual" clause. Respondent ignores this Court’s decision in Brennan v. State, No. 90,279 (Fla. July 8, 1999), in which the Court applied the "cruel or unusual" clause to a claim brought by a criminal defendant charged and convicted before the new "cruel and unusual" clause was enacted. Petitioners are likewise entitled to rely upon the "cruel or unusual" clause, which implicates a substantive right.

At several points, Respondent argues that any per se challenge to electrocution is barred (AB 59, 67-68). However, the lower court addressed the per se use of electrocution (Order at 14-28, 31). In its order staying Provenzano’s execution, this Court allowed amendment of the all writs petition without limitation, directing the lower court to conduct an evidentiary hearing "on all issues in respect to the functioning of the electric chair which are alleged in petitioner’s Petition ... or any amended writ." Provenzano v. State, slip op. at 2 (Fla. July 8, 1999) (emphasis added). Additionally, Justice Pariente’s concurring opinion in Provenzano v. State, ___ So. 2d ___, 1999 WL 462600 (Fla. July 1, 1999), stated, "I find nothing in our prior opinion in Jones that would preclude this Court from revisiting that decision, should the factual predicate upon which the opinion was based change as a result of subsequently developed evidence." Provenzano, 1999 WL 462600 at 5. As Petitioners’ briefs set forth in detail, the factual predicates of Jones have been undermined. The issue regarding per se use of electrocution is properly before this Court.

B. THE UNDISPUTED FACTS AND THE COMPETENT SUBSTANTIAL EVIDENCE ESTABLISH THAT ALLEN DAVIS SUFFERED UNNECESSARY AND WANTON PAIN DURING HIS EXECUTION.

1. The Nose Bleed and Mouth Strap

Respondent contends that the lower court’s conclusions that Davis’s nose bleed was not caused by application of the current, that Davis was not asphyxiated by the mouth strap, and that the strap caused discomfort are supported by competent substantial evidence (AB 59). First, Respondent both misstates Petitioners’ allegations and the lower court’s order.

Petitioners did not contend that the nose bleed was caused by application of the current, but presented evidence that the nose bleed began before the electric current was applied and resulted from the tightness of the mouth strap. The lower court found that the nosebleed began before the electric current was applied (Order at 31-32). Petitioners also did not contend that the mouth strap asphyxiated Davis, but that the placement and tightness of the mouth strap caused a partial asphyxiation before the electric current was applied. The lower court found that "[t]he death of Allen Lee Davis did not result from asphyxiation caused by the mouth strap" (Order at 31), but made no finding regarding Petitioners’ actual allegation, i.e., that the mouth strap caused partial asphyxiation before the electric current was applied. Petitioners did contend that the mouth strap caused what the lower court characterized as "discomfort" (Order at 32). In closing argument below, Petitioners argued pain occurred during Davis’s execution based on the undisputed facts that Thomas saw blood before the current was applied, that Seryutin (DOC’s attending physician at the execution) opined the manner in which the mouth strap was affixed could have caused the bleeding and could have caused Davis difficulty in breathing, that all the medical opinion presented at the hearing recognized the congestion in Davis’s face at the end of the execution was consistent with some blockage of his breathing, that the photographs of Davis accurately depict how the mouth strap was affixed, that Davis emitted moans, groans, screams or squeals after all the straps were affixed, that the straps should not be affixed in a manner that causes pain, that no DOC employee responded to the bleeding or sounds made by Davis, and that the specific kind of mouth strap used was unnecessary (T. 1384-90). The lower court made no findings contrary to these contentions (see Order at 31-32), perhaps because they were undisputed.

However, during the hearing, the court made numerous comments regarding what the evidence showed. During closing, when Respondent contended there was no evidence showing the mouth strap was pushing Davis’s nose up before the current was applied (T. 1405-06), the court looked at the photos and stated:

(T. 1406-08). During Thomas’s testimony the court examined Petitioner’s Exhibit 1-I, a photograph of Davis, and noted, "If you look at that picture, you’ll see that the mask covering his mouth is so tight against, it’s pushing the nose up to the side, and the blood is then coming directly down on the strap" (T. 328). The court asked Thomas, "Was it tightened like that?" and Thomas responded, "Yes, sir" (T. 328). The court also questioned Sperry, noting the illogic of Sperry’s opinion that the mouth strap had nothing to do with the nosebleed:

(T. 1004-06).

Although the court’s order makes no specific findings regarding the placement of the mouth strap and its impinging upon Davis’s nose, the court’s comments about the evidence, as well as the photographs and the strap itself, establish the strap was very tight, was stiff and thick, was pushing up against Davis’s nose, and was linked to the nosebleed.

Despite these facts, Respondent argues the nosebleed was meaningless (AB 59-60). Although Kirschner specifically testified the nose bleed resulted from the positioning of the mouth strap, and although the photographs and the court’s comments clearly bear this out, Respondent argues there was no evidence the nose bleed was connected to the mouth strap (AB 60). Respondent points to Hamilton and Sperry as establishing there was no connection between the mouth strap and the nose bleed (Id.). While Respondent argues these witnesses established that pressure from the mouth strap would not have caused the nosebleed and that the nosebleed was likely caused by hypertension (id.), the court made no such findings. As the court’s questions of Sperry establish, Sperry’s testimony was totally illogical and not accepted by the court. Sperry’s testimony is not "competent substantial" evidence, but is wholly unreliable, as recognized by the court.

Kirschner’s opinion, on the other hand, which is supported by reason and the facts, is competent substantial evidence that the mouth strap caused the nose bleed. Kirschner testified Davis’s nose bleed was "caused by the mechanical effects of this face mask pressing upward on his nose" (T. 752). Kirschner explained the evidence supporting his opinion:

(T. 753-54). Kirschner’s analysis took into account the location of the bleeding, the photographs showing the mouth strap pressing on Davis’s nose, and the context in which the bleeding occurred. For some reason, Respondent separates the nose bleed from the problems with the mouth strap, thus arguing that Petitioners’ witnesses did not testify that the nose bleed established the occurrence of unnecessary or wanton pain (AB 60). However, Kirschner clearly testified that the mouth strap caused pain by restricting Davis’s ability to breathe (T. 758). Further, Price provided unrebutted testimony that Davis experienced conscious pain which could have resulted from the straps (T. 466). The nosebleed and the mouth strap are both evidence that Davis experienced conscious pain.

As to the mouth strap, Respondent argues that although a mouth strap has been used in all Florida electrocutions, this is the first time any issue has arisen about the mouth strap (AB 61). Of course, this is also the first time there have been admissions by execution team members that the straps are applied "[a]s tight as I can get them" (T. 316), that the straps have always been applied this way (T. 340), that the mouth straps used in other executions were the "same as in design, purpose and function" as that used on Davis (T. 74, 86-87), and that groans, screams or moans from the condemned during strapping and before application of current are not out of the ordinary (T. 358-59, 398-99). This is also the first time blood has been observed during an execution, as the court pointed out.

Respondent next argues regarding the mouth strap that the lower court found against Petitioners’ contentions that the strap caused pain (AB 61). Respondent is wrong about the meaning of the lower court’s conclusions.

The lower court stated that Davis’s death "did not result from asphyxiation caused by the mouth strap" (Order at 31). Petitioners never contended Davis did asphyxiate from the mouth strap. Rather, Petitioners contended that Davis was experiencing a partial asphyxiation before the electric current was begun. The court’s findings are not contrary to this testimony, and, in fact, the court’s comments during the hearing establish the reasonableness, substantiality and competence of Kirschner’s opinions.

The court did find that the mouth strap caused discomfort, but not unnecessary and wanton pain (Order at 32). The only fact-finding in this conclusion is that the mouth strap caused discomfort. The question of law then is whether this "discomfort" was "unnecessary and wanton" pain. The evidence establishes it was. The evidence showed the straps were applied as tightly as they could be, although even Crosby admitted this was unnecessary and could cause pain or injury. The evidence showed the mouth strap was applied so tightly it dug into Davis’s face and nose. The evidence showed the execution team members were indifferent to this "discomfort," ignoring Davis’s bleeding nose and his groans, moans and screams. The evidence showed Davis had difficulty breathing, whether the difficulty was in exhaling or inhaling, as all medical opinion was that the congestion in Davis’s face resulted from some interference with his breathing. The evidence showed that the specific design of the Florida mouth strap was unnecessary, in that Georgia uses a strap which does not cover the mouth or push on the nose. None of these facts were or can be disputed. None of these facts are contradicted by the lower court’s order.

These facts establish "unnecessary and wanton" pain. The tightness of the mouth strap was unnecessary, and Respondent has not offered any argument to the contrary. The design of the mouth strap was unnecessary, and Respondent has not offered any argument to the contrary. The execution team’s ignoring Davis’s bleeding, moans, groans and screams establishes wanton disregard, and Respondent has not offered any argument to the contrary.

The lower court also found that the mouth strap was not part of the electrical operation of the electric chair (Order at 32). Respondent says this finding is "correct" (AB 61). However, strapping a person to the electric chair is part of the electrocution process. The question of pain in this process is not limited to the pain of electricity. Respondent’s position appears to be that the process can cause pain without being unconstitutional if the pain does not result from electricity.

Respondent argues that the lower court’s conclusions regarding the effects of the mouth strap are supported by competent substantial evidence (AB 61). Respondent first argues that Kirschner’s opinions regarding the effects of the mouth strap are contradicted by Sperry (AB 61-62). As noted above, however, Kirschner’s opinions regarding Davis’s partial asphyxiation are based upon reason and logic and upon the context in which it occurred, while Sperry’s opinion that the mouth strap was not a problem were illogical, unreliable and contrary to the facts, as the court’s questioning Sperry indicates.

Respondent contends Kirschner’s opinion was "largely based" on the presence of petechiae (AB 61). Kirschner did not base his opinion solely on the presence of petechiae, but also upon the context in which they appeared--i.e., on a person whose mouth and nose were occluded by a stiff leather strap. As with Sperry's illogical and unsupported opinion that the mouth strap was not impinging on Davis’s nose, his opinion that the petechiae did not mean anything is contrary to logic and common sense. As such, Sperry’s opinion is not competent substantial evidence.

Respondent also contends Kirschner’s reliance on the photographs of Davis to support his opinions is a "problem" because Sperry testified the photographs did not show the mouth strap was impinging on Davis’s nose and because other witnesses testified the mouth strap was not in the position in the photographs when it was first applied (AB 62-63). Again, Sperry’s opinion of the photographs is totally illogical, as the court’s questioning of Sperry and the photographs themselves revealed. Such illogic is not competent substantial evidence.

As to witnesses who testified the mouth strap was not originally positioned as in the photographs, these witnesses could not see the mouth strap after the headpiece was applied. The hood of the headpiece covered Davis’s face as soon as the headpiece was placed on his head, after which the chin strap of the headpiece was strapped tightly over the mouth strap. The only person with a view under the hood was Thomas, who testified that the mouthpiece looked as it does in the photographs. The lower court’s comments during testimony, as quoted above, establish that the mouth strap was indeed impinging on Davis’s nose, and the court made no contrary findings in its order.

Respondent contends the "most likely explanation" for the position of the mouth strap in the photographs is that at the end of the execution, the chest strap was loosened and Davis’s body slumped (AB 63). Respondent relies on the testimony of Mathews that the mouth strap was the only thing holding Davis upright (Id.). Petitioner’s Exhibit 1-I, in which the mouth strap is still fastened, shows Davis’s shoulders are against the back of the chair, not leaning forward and being restrained only by the mouth strap. More importantly, Petitioner’s Exhibit 1-E shows the mouth strap has been unfastened, Davis’s head is still erect, and Davis’s body is still sitting upright with his shoulders up against the back of the chair, even though the mouth strap is providing no support. As the court pointed out, if the mouth strap had not been pushing up against Davis’s nose when the blood was coming out of his nose, the blood would not have flowed down the outside of the mouth strap (T. 1406-08). Mathews’ testimony is not competent substantial evidence, and the lower court’s order does not indicate the court relied on it.

Respondent argues Kirschner’s reliance on Davis’s facial congestion was "countered by other witnesses" (AB 63). The lower court made no findings as to the cause of the congestion. Respondent relies on Sperry to argue congestion is part of the dying process. However, Sperry testified that the congestion was present as described by Kirschner and, most importantly, that congestion is an active process, requiring a functioning body, and does not occur after death (T. 866-67). Sperry also testified congestion could occur if a person held his breath (T. 927-28, 989). Thus, Sperry agreed that the congestion was a result of Davis not being able to breathe properly.

Respondent also relies on Bullard’s testimony the mouth strap would have caused difficulty with exhaling, rather than inhaling (AB 63). Whether the mouth strap impeded exhaling or inhaling, the effect is the same. If one cannot exhale carbon dioxide, one cannot inhale oxygen, and carbon dioxide builds up in the body, causing a feeling of suffocation.

Respondent next argues there was evidence indicating Davis was able to breathe after the mouth strap was affixed (AB 63-64). This misses the point: Petitioners’ contention is that Davis was partially asphyxiating before the current. "Partial asphyxiation" means what it says, i.e., "partial," not total. It is correct that Davis made sounds after the straps were affixed and that Thomas observed two bloody bubbles coming from Davis’s nose. As Kirschner and Price testified, these matters support, rather than contradict, the conclusion that Davis was partially asphyxiating and suffering pain (T. 747, 748, 758, 451-52). All of the medical opinion, including Respondents’ witnesses Sperry and Bullard, was that the congestion in Davis’s face resulted from an impairment of his ability to breathe, regardless of the cause. However, contrary to his own experts, Respondent relies upon Mathews’ testimony that Davis was breathing after the straps were affixed (AB 63-64). Mathews admitted he was unable to see Davis’s face after the headpiece was put on (T. 1033-34). The competent substantial evidence in the record establishes that the mouth strap caused partial asphyxiation.

Respondent next argues that the lower court’s finding that the mouth strap did not cause unnecessary pain is supported by competent substantial evidence (AB 64-66). The question of whether the discomfort caused by the mouth strap was "unnecessary" is a question of law, not fact, and thus this Court owes no deference to the lower court’s conclusion in this regard. Respondent argues that the only evidence supporting Petitioners’ argument that the mouth strap caused pain is Price’s testimony (AB 65). However, Kirschner specifically testified that the partial asphyxiation created by the mouth strap caused pain (T. 758). Further, Price’s testimony was unrebutted, and Respondent’s brief points to nothing to rebut it. Price is a well-recognized expert in the measurement and assessment of pain (IB 37 n.11). Respondent argues Price testified the Ekman scale of facial expressions has never been applied to dead bodies, but Price actually testified, "Ekman never used it on dead bodies, but the expression to me looks very similar to those of live bodies" (T. 501). Earlier, Price testified that the Ekman scale is effective in analyzing dead people as well as living people (T. 468). Respondent presented no rebuttal to this testimony.

Respondent agrees that Georgia does not use a mouth strap like Florida’s, but argues the mouth strap is nonetheless necessary (AB 65). Respondent does not explain why the Florida mouth strap is necessary when Georgia accomplishes an electrocution without using such a device.

Respondent argues that the fact that Georgia’s straps do not cover the mouth is "a distinction without a difference" (AB 65). However, as Zant’s testimony establishes, this distinction creates a huge difference. Zant testified none of the straps used in Georgia obstruct breathing (T. 1299). When asked whether either chin strap used in Georgia "inhibit[s] the lips opening to be able to breathe through the mouth," Zant responded, "Neither strap touches the lips" (T. 1303). Thus, even if the Georgia chin straps keep the person’s mouth closed, the person can still open his lips to breathe.

Respondent argues that Thomas’s testimony about tightening the straps "as tight as I can get them" is not "dispositive" (AB 65-66). Thomas has been a member of the execution team since 1992, performing the same duties at each execution. If Thomas does not know how things are done in an execution, who does? Respondent tries to make something out of Petitioners not calling Hackle as a witness, but if Hackle had something to say different from Thomas’s testimony, why did Respondent not call him?

Respondent falsely argues that McNeil testified he "checked the straps to ensure that they were not too tight" (AB 66, citing T. 351-52). McNeil actually testified he "snugged down" the waist strap (T. 351) and that after tightening the chest strap, "I had to then retighten the waist strap" (T. 352) (emphasis added). While Crosby testified he would not expect the straps to be pulled as tightly as they could be because that could cause pain or injury (T. 1365-66), he did not testify that the straps were not pulled as tightly as they could be and did not contradict Thomas’s testimony to that effect. While there was testimony that the chest strap on Ms. Buenoano was loosened after she grimaced, the execution team simply ignored Davis’s groans, moans and screams as being nothing out of the ordinary.

Respondent characterizes the pain caused by the straps as "necessary suffering" and argues the mouth strap "served a valid purpose" (AB 66). According to Respondent’s reasoning, the non-electric part of the execution process does not have to be constitutional as long as Respondent avers that it serves a valid purpose. However, Respondent never once explains the necessity or validity of the Florida mouth strap in light of the fact that Georgia finds such a strap unnecessary.

Respondent finally argues that any discomfort caused by the mouth strap is "minimal or transitory," occurring only "in the seconds before the circuit was engaged" (AB 66). The evidence established that the period from when the mouth strap was affixed and the current was engaged was one to five minutes, hardly a "transitory" period of time. It was certainly enough time for Davis to start bleeding and to scream, moan or groan at least twice. Respondent’s argument that this "transitory" time period does not establish a constitutional violation amounts to an argument that bleeding and screams can be ignored, as they were in Davis’s execution, because the electrocution is about to commence. This reasoning is unconstitutional.

No competent and substantial evidence supports any conclusion that the mouth strap did not cause unnecessary and wanton pain. The lower court in fact determined that the mouth strap caused "discomfort." The evidence and the lower court’s comments on the evidence during the hearing establish that this "discomfort" occurred. Respondent relies upon Sperry’s far-fetched and illogical opinions, which are unreliable, based on supposition and contrary to the undisputed facts.

It is up to this Court to determine whether these facts establish unnecessary and wanton pain. Under Jones, they clearly do. In Jones, the Court upheld use of the electric chair in part because "executions in Florida are conducted without any pain whatsoever" and because there was no evidence "suggesting deliberate indifference to a prisoner’s well-being on the part of state officials." Jones, 701 So. 2d at 79. See Farmer v. Brennan, 511 U.S. 825 (1994). Here, the competent substantial evidence establishes that Davis experienced extreme pain and that the execution team was indifferent to his suffering, ignoring his bleeding and screams.

2. Pain During Electrocution

Respondent argues that Petitioners’ experts’ opinions that extreme pain occurs during judicial electrocution are "unconvincing" (AB 67-70). Respondent wishes the Court to rely on suppositions by Respondent’s experts when those suppositions ignore critical studies and data.

Respondent first contends Petitioners’ experts are not medical doctors and relied on animal studies and accounts regarding survivors of high voltage electrical accidents in forming their opinions (AB 67). Respondent does not explain why only a medical doctor should be allowed to express an opinion in this area or why a medical doctor should be presumed to have some special knowledge relevant to the issue. This argument is particularly perplexing in light of the enormous lack of knowledge regarding electrocution demonstrated by Respondent’s medical doctor witnesses. Petitioners’ initial brief sets forth these gaps in knowledge in detail (IB 57-59 [Sperry]; 60-62 [Wilder]; 62 n.16 [Hamilton and Bullard]).

As to Petitioners’ experts’ reliance upon animal studies and reports of survivors of high voltage accidents, Price explained the scientific approach requires looking at all available data, not relying upon assumptions (T. 423). The relevant data includes animal studies and reports of survivors of high voltage accidents, because there have been no scientific experiments conducted on judicial electrocution. Respondent criticizes Price for not having studied high voltage electricity (AB 14). However, Respondent’s medical doctor witnesses have conducted no such study, and even considered other data such as animal studies and high voltage accidents to be "insignificant." Respondent has pointed to no scientific arena in which these doctors’ suppositions about electrocution have been accepted. Indeed, the court recognized that the people who have been judicially electrocuted are dead and thus "[t]he ability to measure that pain objectively is apparently not available to anybody" (T. 420).

Respondent’s own medical doctor witnesses testified they would have to defer to experts in other fields regarding the effects of electricity on the human body. Sperry testified that the polarization process of brain neurons is "an element of neurophysiology that is beyond my own particular study" (T. 891). Price is a neurophysiologist. Wilder testified he could not assess the significance of people surviving high voltage electrical accidents, including those in which the electrical current entered through the person’s head, because "I’m no physicist. I’m not sure" (T. 1161-63). Wikswo is a physicist.

Respondent seems to believe considering animal studies and other data is irrelevant because such data have "absolutely no relationship to a controlled judicial electrocution in Florida" (AB 67). However, Respondent’s own witness Wilder testified that even in the highly controlled setting of electroconvulsive therapy, doctors are unable to "guarantee a certain [current] pathway" (T. 1189). If a specific current pathway cannot be guaranteed in this highly controlled setting, there can be no such guarantee in a judicial electrocution, which is not conducted by specially trained technicians and which involves many more variables than electroconvulsive therapy. Respondent presented no evidence establishing the current pathway during a judicial electrocution besides the suppositions of experts who had not considered relevant studies and data.

Respondent next argues that Petitioners’ witness Reilly offered "no relevant opinion" (AB 68). However, Reilly offered critically important testimony explaining the concept of current density (IB 46-49), an understanding of which is essential to any analysis of what happens to a person who is being judicially electrocuted. None of Respondent’s medical doctor witnesses understood current density, and thus their opinions lacked any scientific foundation. Without knowing how much current would reach the heart or brain--which neither Sperry nor Wilder knew--there is no basis for opining about the effects of the current on those organs. Sperry, for example, expressed the opinion that electrocution results in instantaneous unconsciousness despite his recognition that the skull has 50,000 ohms of resistance and despite not knowing how much current would reach the brain. The competent substantial opinions--those of Price and Wikswo--are those based upon a valid scientific foundation.

Respondent argues Wikswo’s opinion should be disregarded because he testified the current threshhold causing instantaneous or painless death was "unknown" (AB 68-69). Actually, Wikswo testified that no such threshhold is "known to anyone" (T. 623). This threshhold is also unknown to Respondent’s witnesses. Indeed, regarding individuals who have reported retaining consciousness during high voltage accidents, Wilder testified this discussion "is very difficult to pursue because you are talking about massive voltages and currents and you are trying to apply that to a normal physiological situation, and I can’t do that" (T. 1173). This admission by Wilder is extremely significant: while opining that electrocution produces instant unconsciousness, Wilder admitted he was unable to assess the impact of high voltage on the human brain. Wilder’s testimony is not competent substantial evidence.

Respondent criticizes Wikswo for relying on data regarding breathing motions exhibited by judicially electrocuted persons after the electrocution (AB 69). Respondent misapprehends the significance of this data. Any breathing motion, even one which does not effectively move air and even agonal respiration, requires brain stem activity. Respondent’s own experts agreed with this basic scientific fact.

The significance of breathing motions exhibited at the conclusion of an electrocution is that this indicates there is still some activity in the brain stem. Thus the entire brain was not instantly incapacitated. This, therefore, is one piece of data indicating that electrocution does not instantly incapacitate the brain. Respondent’s witnesses opined that the entire brain, including the brain stem, is instantly incapacitated in an electrocution, but entirely ignored this data in forming their opinions, rendering their opinions incompetent insubstantial evidence.

Respondent argues Price’s and Reilly’s opinions regarding current pathway are "bizarre" (T. 69-70). To the contrary, these opinions are based upon scientific data, such as animal studies and reports of electrical accidents, and upon scientific principles regarding how electricity works and the resistance of various body tissues. Even Drs. Sperry and Wilder agreed--insomuch as their minimal knowledge allowed--that the current pathway was important to any opinion regarding electrocution and that even in a judicial electrocution current does not travel in a direct line but is diffused according to the resistance of body tissues (IB 58-59 [Sperry]; 61 [Wilder]).

There is no way of knowing what expert testimony the lower court accepted or rejected. The court’s order does not say and simply concludes Davis "suffered instantaneous and painless death once the current was applied" (Order at 31). During the hearing, the court indicated its understanding of "instantaneous" was that unconsciousness or death occurred within the 34 to 38 seconds the electric cycle runs (T. 633, 649).

Respondent spends one paragraph on Respondent’s experts’ testimony (AB 70-71). Respondent contends "four" experts testified electrocution results in instant brain incapacitation. If Bullard is one of these four, he expressly stated he had no opinion as to what effect electric current would have on the brain (T. 1312). Respondent does not address the enormous lack of knowledge exhibited by Sperry and Wilder and makes no argument that their opinions have any reliable scientific foundation. As explained above and in the initial brief, these experts’ opinions are not competent substantial evidence.

The competent substantial evidence establishes Petitioners’ claim that Florida’s electric chair inflicts unnecessary and wanton pain. Petitioners’ experts and other evidence provided a substantial basis of fact which is more than adequate to a reasonable mind, Duval Utility Co., supra, while Respondent’s experts provided unreliable evidence based on suppositions rather than studies and data. Brinkley, supra; Young-Chin, supra.

C. UNCONTESTED FACTS ESTABLISH THAT THE ELECTRICAL APPARATUS WAS NOT IN "EXCELLENT CONDITION" IN 1997

Petitioners’ initial brief contends the evidence established the electrical apparatus was not in "excellent condition" in 1997, as this Court was led to believe. Respondent does not contest these facts, agreeing that Whitlock testified that in 1997 the electrical apparatus "had been neglected and was in a state of disrepair" (AB 72). Respondent then argues, "This claim is much ado about nothing" (Id.). However, the condition of the electrical apparatus was one factual predicate underlying Jones, and that factual predicate was false.

Regarding DOC’s compliance with the "Execution Day Protocol," Respondent’s position basically is that the protocols do not have to mean what they say (AB 73-79). Thus, Respondent begins by discussing what the protocol was and was not intended to do (AB 74-75). Respondent cites to no testimony or other source for the facts alleged in this discussion, but simply attempts to write into the protocol something that is not there and write out of the protocol what is there. While doing this rewriting, Respondent claims the protocols are "concrete proof" supporting a presumption the execution branch will perform its duties correctly (AB 75). If the protocols are so malleable as to allow Respondent’s counsel to revise them with no supporting evidence, they are hardly "concrete proof."

1. Language prescribing voltage and amperage

Respondent does not dispute that the amperage and voltage levels recorded during executions are not the same as those set forth in the protocol (AB 75). Respondent argues, "The reason for this is simple, the protocols address what the cycle voltage will begin with, not what the voltage will be during the 34 seconds the current flows through a condemned inmate" (AB 75 n.6). Respondent provides no citation to testimony to support this assertion, but, again, attempts to rewrite the protocol.

Respondent’s position appears to be that there is no violation of the protocol because DOC did not previously disclose what the protocol meant. According to the private meaning DOC gave the protocol--but did not previously disclose to this Court or Petitioners--there was no violation.

Thus, Respondent’s reliance upon the lower court’s finding that any variation from the amperage and voltage specified in the protocols did not violate the protocols (AB 76) is misplaced. This "finding" just means DOC does not have to have an accurate protocol, despite this Court's reliance on the protocol, because DOC can impute whatever meaning is convenient into the protocol.

Respondent argues since the electric chair circuitry functions "as it was intended," there was no protocol violation (AB 76-79). This argument boils down to saying as long as the machinery functions as it was intended to function, everything is fine, even though DOC did not disclose how it was intended to function. Respondent relies upon Crosby’s testimony that the protocol is "semantics" to argue that DOC should be allowed to follow its own "view" of the protocol (AB 78). According to Respondent’s circular reasoning, there was no protocol violation because DOC cannot conform to the protocol.

Respondent also makes an end run around the certification requirement. The Court required DOC to certify "that the electric chair is able to perform consistent with ‘Execution Day Procedures’ and ‘Testing Procedures for Electric Chair.’" Provenzano, 24 Fla.L.Weekly at S315). Respondent asserts DOC has complied with this because "all of the test results upon which such certifications have been based reflect that the electric chair and its circuitry was functioning as intended" (AB 79 n.7). Respondent addresses only "test results," not execution results, simply avoiding the question of whether the certifications were accurate as to the "Execution Day Procedures."

2. Tightness of straps, placement of head electrode, ignorance of protocol

As to the straps, head electrode and ignorance of the protocol, Respondent characterizes these matters as "involv[ing] nothing of substance" (AB 79). Respondent’s position is the strapping procedure "simply represents a matter within the discretion of the Department of Corrections" (AB 79-80). Regarding placement of the head electrode, Respondent basically argues that too is a matter of discretion, contending the placement will depend on the shape of a person’s head (AB 80). According to Respondent, then, the strapping procedure and placement of the head electrode can be done so as to cause unnecessary and wanton pain, at DOC’s discretion.

Respondent finds it only "unfortunate" that Dotson was ignorant of the protocol because Dotson is not a member of the execution team (AB 80). However much Respondent wants to minimize Dotson’s function, his presence is required by the protocol and his duties are described by the protocol. According to Respondent’s position, this part of the protocol is not important enough to worry about.

Respondent argues Petitioners "claim no prejudice" resulting from Dotson’s ignorance (AB 80). However, the intitial brief did claim prejudice because Dotson did not know his duties under the protocol and therefore did not photograph the leg contact point, although this was required by the protocol (T. 265) (IB 85-86). Respondent does not address this failure by Dotson.

Respondent similarly downplays Crosby’s ignorance of the protocol’s requirement that dripping saline solution should be mopped up. Numerous witnesses testified that saline solution from the head sponge ran down Davis’s front and back but was not mopped up, except from the floor. Respondent says nothing about Crosby’s ignorance of this protocol requirement. The evidence showed that the excess saline solution resulted in burns and in current passing outside Davis’s body.

E. COURSE OF CONDUCT

Respondent does not address anything specific about this argument except to say "the statute of limitations has more than run upon the execution of Jesse Tafero (or of Pedro Medina, for that matter)" (AB 83). It is natural that Respondent would want to ignore the anomolies in those executions, but the entire pattern of anomolies and DOC’s response to them is part of the evidence establishing that Florida judicial electrocutions are not carried out free of unnecessary and wanton pain.

Respondent concludes by arguing that an execution need not be "pleasant" and "certainly the post-execution photographs of Allen Davis bear that out" (AB 82). The Court can examine the photographs and the evidence, apply the law and determine whether Davis’s execution was merely unpleasant or unconstitutional.

F. CONCLUSION

As demonstrated in the initial brief and herein, the lower court’s conclusions regarding this issue are not supported by competent substantial evidence and are contrary to the law. Florida’s electric chair in its present condition constitutes cruel and/or unusual punishment.

I HEREBY CERTIFY that a true copy of the foregoing Reply Brief has been furnished either by United States Mail, first class postage prepaid/ Federal Express/ facsimile transmission/ and/or hand delivery to all counsel of record on August 20, 1999.

_________________________ _________________________

MARTIN J. MCCLAIN HARRY P. BRODY

Florida Bar No. 0754773 Florida Bar No. 0977860

Special Assistant CCRC Assistant CCRC-Middle

_________________________ _________________________

TODD G. SCHER JEFFREY M. HAZEN

Florida Bar No. 0899641 Florida Bar No. 053060

Litigation Director CCRC-Middle Attorney

CAPITAL COLLATERAL REGIONAL

COUNSEL-SOUTH

1444 Biscayne Boulevard _________________________

Suite 202 JOHN P. ABATECOLA

Miami, FL 33132-1422 Florida Bar No. 0112887

(305) 377-7580 CCRC-Middle Attorney

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

_________________________ 3801 Corporex Park Drive

ANDREW THOMAS Suite 210

Florida Bar No. 0317942 Tampa, FL 33619

Chief Assistant CCRC (813) 740-3544

_________________________

GAIL E. ANDERSON

Florida Bar No. 0841544

Special Assistant CCRC

CAPITAL COLLATERAL REGIONAL COUNSEL FOR PETITIONERS/

COUNSEL-NORTH APPELLANTS

1533-B South Monroe Street

Tallahassee, FL 32301

(850) 488-7200

Copies furnished to:

Richard Martell

Carolyn Snurkowski

Department of Legal Affairs

The Capitol - PL01

Tallahassee, FL 32399-1050