Joint Appendix Vol — Bucklew v. Precythe, 139 S. Ct. 306 (2018) (No. 17-8151)
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No. 17-8161
In THE
Supreme Court of the United States
RUSSELL BUCKLEW,
Petitioner,
Vv.
ANNE PRECYTHE, et al.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit
JOINT APPENDIX—-VOLUME II OF II
ROBERT N. HOCHMAN *
RAECHEL J. BIMMERLE
D. JOHN SAUER *
JOSHUA M. DIVINE
LAWRENCE P. FOGEL JULIE MARIE BLAKE
STEVEN J. HOROWITZ PETER T. REED
KELLY J. HUGGINS MICHAEL JOSEPH SPILLANE
SUZANNE NOTTON OFFICE OF THE ATTORNEY
MATTHEW J. SALDANA GENERAL
HEATHER B. SULTANIAN Supreme Court Building
SIDLEY AUSTIN LLP 207 West High St.
One South Dearborn St. P.O. Box 899
Chicago, IL, 60603 Jefferson City, MO 65102
(312) 853-7000 (573) 751-3321
rhochman@sidley.com john.sauer@ago.mo.gov
CHERYL A. PILATE
MORGAN PILATE LLC
926 Cherry St.
Kansas City MO 64106
(816) 471-6694
Counsel for Petitioners Counsel for Respondents
* Counsels of Record
ae
PETITON FOR CERTIORARI FILED MARCH 15, 2018
CERTIORARI GRANTED APRIL 30, 2018
TABLE OF CONTENTS
Page
Volume One
United States District Court Of The West-
ern District of Missouri, No. 4:14-cv-08000-
BP, Relevant Docket Entries........................ ]
United States Court Of Appeals, Eighth
Circuit, No. 17-3052, Relevant Docket En-
IT cectinnsiistiahasemestitnctesinasien intieieseitmenianitarnatagsins 18
First Amended Complaint, Bucklew ov.
Precythe, No. 14-08000 (W.D. Mo. Apr. 4,
IIIT inssusadanestttiesicineetntaniiensantibndsieeemtnees 24
Second Amended Complaint, Bucklew v.
Precythe, No. 14-08000 (W.D. Mo. May 1,
NE ncsasensiidsiningnatansnncepnenmnsamnegnimessneens 25
Order Granting Plaintiff Leave to Amend
Complaint, Bucklew v. Precythe, No. 14-
08000 (W.D. Mo. June 16, 2015)................... 27
Order Directing Plaintiff to File Fourth
Amended Complaint, Bucklew v. Precythe,
No. 14-08000 (W.D. Mo. Sept. 21, 2015)
SOTIIIIIIIt Westhinictcinitleltipcicuhiceiindabinaiseiecindetaisinctacdninmmeedmnicdes 30
Fourth Amended Complaint, Bucklew v.
Precythe, No. 14-08000 (W.D. Mo. Oct. 13,
STEIN Sccreidasidahhcsidnisatdainiiagdindadapmodhaimasiineanenineineans 42
ii
Exhibit 1, Declaration of Dr. Joel B. Zivot,
Fourth Amended Complaint, Bucklew v.
Precythe, No. 14-08000 (W.D. Mo. Oct. 13,
Ee
Exhibit 2, Declaration of Dr. Gregory A.
Jamroz, Fourth Amended Complaint,
Bucklew v. Precythe, No. 14-08000 (W.D.
Mo. Oct. 13, 2015) (excerpt) ................0000000++
Exhibit 6, Photographs of Gas Chamber,
Fourth Amended Complaint, Bucklew v.
Precythe, No. 14-08000 (W.D. Mo. Oct. 13,
SA Pe a
Order and Opinion Granting in Part De-
fendants’ Motion to Dismiss, Bucklew v.
Precythe, No. 14-08000 (W.D. Mo. Jan. 29,
CRESS ea ne SESE eee Sacer
Order Regarding Scope of Discovery, Buck-
lew v. Precythe, No. 14-08000 (W.D. Mo.
P&E
Plaintiffs Motion for Leave to File Ex Parte
and Under Seal an Exhibit in Support of
Plaintiffs Reply Brief in Support of His
Motion to Compel, Bucklew v. Precythe, No.
14-08000 (W.D. Mo. Apr. 5, 2017).................
Order Denying Motion to File Document
Under Seal, Bucklew v. Precythe, No. 14-
08000 (W.D. Mo. Apr. 6, 2017)......................
92
93
95
97
116
127
Exhibit 1, Deposition of Dr. Joel B. Zivot
with Exhibits, part 1, to Suggestions in
Support of Motion for Summary Judgment,
Bucklew v. Precythe, No. 14-08000 (W.D.
Mo. Apr. 10, 2017) (excerpts)........................ 132
Exhibit 2, Medical Article, to Suggestions
in Support of Motion for Summary Judg-
ment, Bucklew v. Precythe, No. 14-08000
(W.D. Mo. Apr. 10, 2017) (excerpts).............. 261
Exhibit 3, Deposition of Dr. Joseph F.
Antognini, to Suggestions in Support of
Motion for Summary Judgment, Bucklew v.
Precythe, No. 14-08000 (W.D. Mo. Apr. 10,
Sarat sikcisisiaidiieiiateaiiieipiettahbtadehiabailnclslniigeteitianatamipeiadibeniiiisadi 274
Volume Two
Exhibit 4, Deposition of Matthew
Briesacher, to Suggestions in Support of
Motion for Summary Judgment, Bucklew v.
Precythe, No. 14-08000 (W.D. Mo. Apr. 10,
2017) (redacted) (excerpts)............................ A474
Exhibit 5, Deposition of Dave Dormire, to
Suggestions in Support of Motion for
Summary Judgment, Bucklew v. Precythe,
No. 14-08000 (W.D. Mo. Apr. 10, 2017) (re-
ciicientsiniiinibcitssniitenniarusiatimacnicen 508
Exhibit 6, Deposition of George Lombardi,
to Suggestions in Support of Motion for
Summary Judgment, Bucklew v. Precythe,
No. 14-08000 (W.D. Mo. Apr. 10, 2017) (re-
I eiiteeicdeisnncensienviinienenticnninmeninn 534
iv
Exhibit 7, Deposition of Anne Precythe, to
Suggestions in Support of Motion for
Summary Judgment, Bucklew v. Precythe,
No. 14-08000 (W.D. Mo. Apr. 10, 2017) (re-
Exhibit 8, Deposition of Troy Steele, to
Suggestions in Support of Motion for
Summary Judgment, Bucklew v. Precythe,
No. 14-08000 (W.D. Mo. Apr. 10, 2017) (re-
I icicnrcicihcinnieninnicnsinticeetiideanmiiiattend
Exhibit 10, Deposition of Dr. William
McKinney, to Suggestions in Support of
Motion for Summary Judgment, Bucklew v.
Precythe, No. 14-08000 (W.D. Mo. Apr. 10,
IE dctetneititisetcntncncnscccnantacnionstanines
Exhibit 11, Plaintiffs Motion to Appoint
Medical Expert, to Suggestions in Support
of Motion for Summary Judgment, Bucklew
v. Precythe, No. 14-08000 (W.D. Mo. Apr.
a SET siierrcdiicensssnikeninnntesssiitbanseinitiens
Order Granting in Part and Denying in
Part Plaintiffs Motion to Compel, Bucklew
v. Precythe, No. 14-08000 (W.D. Mo. Apr.
TI A JT ar ee
Exhibit 4, Pre-Execution Summary of Med-
ical History, to Motion to Seal Document,
Bucklew v. Precythe, No. 14-08000 (W.D.
Ss RE Bas EET iciecnnttiniatanceoweniiicdatdnaianiauiettes
602
631
656
Vv
Exhibit 5, Excerpt of Prison File, Medical
Accountability Record, to Motion to Seal
Document, Bucklew v. Precythe, No. 14-
08000 (W.D. Mo. May 15, 2017)....................
Exhibit 6, Excerpt of Medical Record His-
tory, to Motion to Seal Document, Bucklew
v. Precythe, No. 14-08000 (W.D. Mo. May
RRS Se ie ee
Exhibit 11, Oklahoma House Bill HB1879,
Fiscal Analysis, to Motion to Seal Docu-
ment, Bucklew v. Precythe, No. 14-08000
* & Sf, ee
Exhibit 12, Oklahoma Multicounty Grand
Jury Report, to Motion to Seal Document,
Bucklew v. Precythe, No. 14-08000 (W.D.
Mo. May 15, 2017) (excerpt)..........................
Exhibit 13, Oklahoma Death Penalty Re-
view Commission Report, to Motion to Seal
Document, Bucklew v. Precythe, No. 14-
08000 (W.D. Mo. May 15, 2017) (excerpt) ....
Exhibit 14, Supplemental Interrogatory
Responses of George Lombardi, to Motion
to Seal Document, Bucklew v. Precythe, No.
14-08000 (W.D. Mo. May 15, 2017) (ex-
aihneiinniictndatiidanediitidiansaiiciiiiintattintainiaisdinais
Exhibit 15, Report of Louisiana Depart-
ment of Public Safety, to Motion to Seal
Document, Bucklew v. Precythe, No. 14-
08000 (W.D. Mo. May 15, 2017)....................
693
694
698
711
vi
Plaintiffs Motion for Leave to File Sup-
plement to Plaintiffs Suggestions in Oppo-
sition, Bucklew v. Precythe, No. 14-08000
(W.D. Mo. May 15, 2017).......................000.000- 811
Order Denying Plaintiff's Motion for Leave
to File Supplemental Suggestions in Oppo-
sition, Bucklew v. Precythe, No. 14-08000
(W.D. Mo. May 16, 2017).......0...cccccccccecceeeeeees 816
Order and Opinion Granting Defendants’
Motion for Summary Judgment, Bucklew v.
Precythe, No. 14-08000 (W.D. Mo. June 15,
IIIT nencestiesendidediadanntitatdiententaitiiinnbidabnbemeda: 817
Order Denying Plaintiffs Request for Ac-
cess to Depositions Taken in Other Cases,
Bucklew v. Precythe, No. 14-08000 (W.D.
Bile, Sealer 1G, GBB FD ececsececcccccccacsscevovesccseceseeres 833
Plaintiffs Notice of Filing Discovery Dis-
pute Summaries, Bucklew v. Precythe, No.
14-08000 (W.D. Mo. July 28, 2017)............... 836
Order and Opinion Denying Plaintiffs Mo-
tion to Alter or Amend Judgment, Bucklew
v. Precythe, No. 14-08000 (W.D. Mo. Aug.
Be BIE eiecsiceesideieciericisttinnaciiateniuatienensaecindaciats 842
Appellant's Opening Brief, Bucklew ov.
Precythe, No. 17-3052 (8th Cir. Dec. 1,
REESE ESE cee 848
Appellant's Reply Brief, Bucklew ov.
Precythe, No. 17-3052 (8th Cir. Jan. 18,
EL en 852
vii
Opinion, Bucklew v. Precythe, No. 17-3052
a
Exhibit, Affidavit of Alana Boyles, in Re-
sponse in Opposition to Motion for Stay,
Bucklew v. Precythe, No. 17-3052 (8th Cir.
ee
Order Denying Rehearing and Rehearing
En Banc, Bucklew v. Precythe, No. 17-3052
Sy Ey COU Bs IEEE cccccccecunacscavecessensseevess
Order Denying Motion for Stay, Bucklew v.
Precythe, No. 17-3052 (8th Cir. Mar. 15,
III oth conrdcicidiebastcteiedehdintnadademadiiiiadnaiinidehianinintneniate
Volume Three (Under Seal)
Exhibit 1, Procedure for Execution, to Mo-
tion to Seal Document, Bucklew v. Precy-
the, No. 14-08000 (W.D. Mo. May 15,
Transcript of Teleconference, Bucklew v.
Precythe, No. 14-08000 (W.D. Mo. July 24,
ee ehichanhicdeineshteicedidincetldeiatiheiah car telniesiseitiaimtetiamatmatianis
854
882
884
887
889
474
{1} U.S. DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
(KANSAS CITY)
CIVIL DOCKET FOR CASE #: 4-14-cv-08000-BP
RUSSELL BUCKLEW,
Plaintiff,
vs.
GEORGE LOMBARDI, et al.,
Defendants.
DEPOSITION OF MATTHEW BRIESACHER
Taken on behalf of the Plaintiff
January 25, 2017
(28) Q. Who did you consult in revising the open
protocol?
A. I’m not sure that | consulted with anyone.
Consult is a difficult word. Can you be more specific?
Q. When revising the open protocol did you work
with other people?
A. I created a draft and then | talked to some
people about that draft but prior to creating that draft
I didn’t have specific conversations about what to put
in it,
Q. What sources of information did you take into
consideration when revising the open protocol?
475
MS. COULTER: I’m going to object to this line of
questioning. It exceeds the scope of discovery. The court
specifically disallowed questions regarding develop-
ment adaptation of current protocol.
Q. (BY MR. FOGEL) Matt, if you could look at
paragraph A of the open protocol, it says execution
team members.
A. I see that paragraph.
Q. Did you draft that paragraph?
A. Yes.
[29] Q. And you see the first sentence, the execution
team consists of department employees and contracted
medical personnel including a physician, nurse and
pharmacist?
A. I see that sentence.
Q. Why did you include contracted medical person-
nel including a physician, nurse and pharmacist?
A. I believe that language was carried over from
the previous protocol.
Q. In your opinion why was it important to keep
that in the execution protocol?
A. To provide clarity on who could be considered a
member of the execution team.
q@. and why was it important to have medical
personnel us part of the execution team?
A. I believe we were under a court order to — I don’t
know if it was explicitly a court order but I know there
had been guidance from the courts that Missouri
executions needed to have medical personnel present.
476
Q. Do you think it’s important for medical person-
nel to be present in an execution?
A. Ido.
Q. Why is it important to have medical [30] person-
nel present at an execution?
A. To make sure that the execution runs smoothly
and properly.
Q. When you say smoothly and properly, what do
you mean?
A. That the — I don’t know how to expand upon
that really. I think it speaks for itself.
Q. Smoothly and I believe the word you used
smoothly and properly?
A. Uh-huh.
Q. That there are no unexpected occurrences.
Would that fall within your definition of smoothly and
properly?
A. Yes. And I guess I can try and explain a little
bit more.
Q. Sure.
A. Some of the events that are necessary to carry
out an execution by lethal injection such as inserting
an intravenous line, I think it would be the best prac-
tice to have somebody with training and experience in
doing something like that. Drawing syringes, medica-
tions, that would be something that somebody with
medical training and experience would he better
suited at than a lay [31] person. So just out of an
abundance of caution it’s probably best to have some-
body there with that kind of experience.
Q. Did you attend medical school?
477
No, I did not.
Do you have any formal! medical education?
No, I do nut.
Did you consult with any medical! professionals
in drafting the execution protocol?
MS. COULTER: Objection, goes to the development
of the protocol which is excluded by the court’s discov-
ery order.
Q. (BY MR. FOGEL) If you look at section B,
preparation of chemicals, and it says in number 1,
syringes one and two five grams of pentobarbital.
Do you understand what pentobarbital is?
A. Yes.
Q. What is pentobarbital?
A. It’s a medication. I think its primary purpose is
anti-seizure medication.
Q. And is that the chemical that’s used, the sole
chemical that is used during an execution?
[32] A. Yes.
Q. And that is the chemical that very succinctly
causes death?
A. Yes.
Q. When I say very succinctly in causing death,
that’s what I mean, paraphrasing that, in that experi-
ence.
A. That’s what we use it for.
Q. Why does the current protocol use five grams of
pentobarbital?
prep
478
A. That was the amount approved by the depart-
ment director.
Q. In proposing the use of five grams of pentobarbi-
tal did you consider its effect on someone who suffers
from cavernous hemangioma?
A. No. I did not.
Q. Do you know if anybody did?
A. At the time that it was drafted, I don’t. I have
no knowledge that anybody did.
Q. Do you have any knowledge of whether anyone
has conducted a study to evaluate the effects of pento-
barbital on someone with cavernous hemangioma?
A. [Im not aware of any study, or if one has been
conducted.
[33] Q. Do you know if anyone has looked at — any
other states to see if they — excuse me — strike that.
Has anyone looked at any other states that uses
pentobarbital to see if they've executed someone using
pentobarbital that suffers from cavernous hemangioma?
A. I’m not aware of anyone.
Q. Are you aware of any states that have executed
someone with cavernous hemangioma?
A. I don’t know whether any state has or has not.
Q. Uave you looked into that question at any point
in your capacity as the director of corrections, in the
Department of Corrections until present?
A. No, Ido not recall ever looking into that.
Q. If you turn to the second page of the open
protocol. Do you see the section that says monitoring
of prisoner?
479
A. Yes, I see that section.
Q@. And the number | says, the sentence at number
| says the gurney shall be positioned so that medical
personnel can observe the prisoner’s [34] face directly
or with the aid of a mirror.
Do you see that sentence?
A. Ido see that sentence.
Q. Why was it important for the medical personne!
to be able to observe the patient’s face directly?
A. That language was carried over from a previous
protocol so I’m not sure why it was originally inserted.
@. Do you have an opinion as to why, or it would
be important for medical personnel to observe that
prisoner's face?
A. My opinion, yes, it would be important
Q. Why — I’m sorry. Go ahead.
A. So that medical personnel could discern
whether or not the prisoner was suffering any unusual
distress.
Q. Have you ever attended an execution?
A. I have been on site for an execution but I have
not been visually in a place where I could visually
observe.
Q. Do you know where the medical personne!
stand in relation to the individual who is being
executed?
[35] A. Yes, I do.
480
Q. Do they have line of sight, unobstructed line of
sight to the offender?
A. I believe so, yes.
Q. I just want to make sure I understood what you
said a few moments ago. You have never personally
been in the room or in an area where you can actually
witness the execution itself, is that correct?
A. That is correct
@. But you are otherwise | think as you said on
site?
\ Correct
i41| execution team takes responsibility for the
offender don’t change from their normal duties as the
medical unit, so whatever responsibilities they would
have to any other offender they would have to that
offender
@. The non-execution team medical members
, Uh-huh
q are you aware ol ary policies or protocols that
pertain to whether they can or cannot be involved in
the execution of an inmate?
481
A. I don’t recall if it is in the contract with that
organization or if it’s a policy or procedure. But they
are — they are excluded from participating in the
execution process.
Q. Right. So I’m just trying to reconcile that with
what you were just describing in which they might, |
believe you said provide some sort of medical attention.
A. Uh-huh.
Q. If they’re excluded from the execution process
by policy, and we can look at the policy if you want, but
if they are excluded from the execution process by
policy, then how or why can they provide medical
attention to the inmate?
|42| A. Well, for instan
entire .
ou asked me throw h the
Let’s say at 7 o'clock in the morning the
offender slipped and fell and hit his head. our regular
medical unit would be responsible for providing what-
ever medical care that offender would need from that
slip and fall. They’re not providing any kind of medical
care to prepare for the execution, to further the execu-
tion, anything related to it but they have a responsibility,
you know.
Q. Sure. But they’re not evaluating the inmate to
determine whether he suffers from any specific condi-
tions that might lead to complications during the
execution process.
A. Correct.
Q. That is outside of their responsibilities, is that
correct?
A. That’s correct.
482
Q. So then focusing exclusively on the medical
component of the execution team. Prior to the execu-
tion do they check the inmate’s airways to see if they’re
having difficult breathing?
A. I don’t know.
[43] Q. Aside from administering any additional
prescriptions that the inmate might require as part of
his daily dose, is there any cther evaluation that the
inedical component of the execution team undertakes
that you’re aware of?
A. There is a review of the offenders medical
history that I’m aware of and then there’s, like I men-
tioned, the physical observation, and it is my
understanding under the current practice those are
the only two things that occur.
Q. Okay. Looking at the open protocol that you
have in front of you.
A. Uh-huh.
Q. Is there anything in the open protocol, and take
your time to review it, that speaks to any observation
or medical review — strike that.
Is there anything in the open protocol in front of you
that speaks to any evaluation that the medical compo-
nent of the execution team is supposed to undertake
prior to the execution?
A. No. There is nothing in the open protocol dis-
cussing whether there will or will not be an evaluation
of the offender prior to the [44] execution.
Q. Are the execution team members required or
expected to follow the execution protocol?
A. They are expected to follow the execution
protocol.
483
Q. Why is it important for them to follow the
execution protocol?
A. This is the protocol that the department has
adopted to execute an offender and it’s important that
they follow the department’s directions.
Q. And not stray from the protocol?
A. Not without permission.
Q. Are you aware of any studies that were under-
taken to evaluate the effect of pentobarbital on the
whole body?
A. Not that I recall.
Q. Are you aware of any side effects of pento-
barbital on the whole body?
A. Not specifically, no.
Q. And of course I mean with the exception of
causing death?
A. Correct.
Q. I just want to make sure we're clear. [45] Yeah.
Do you know of any other states in the United States
use pentobarbital?
A. Yes, I do.
Q. How do you know that information?
A. I researched. I guess let me clarify. I have not
since leaving the position of general counsel. I don’t
track this issue nearly as much as I used to, but I know
that other states have in the past used pentobarbital
and I know that from researching the methods of other
states in that role.
Q. Why did you review the methods of other states?
484
A. One was to prepare the protocol for the Missouri
Department of Corrections and then I continued to
monitor what other states were doing in that role in
case I was asked by the director or anybody else, you
know, status of how we compared to other states.
Q. Ofall the states that you looked into did they al!
use some means of lethal injection for execution?
A. The states that I looked into, yes.
Q. Are you aware of any states that do [46] not use
lethal injection?
A. I know there are states that have options for
lethal injection or some other method as an option. I’m
not aware of any state that lethal injection is not at
least an option.
Q. What other options are available at the states
that you've looked into?
A. I want to say one of the states still has a firing
squad, I think one state still technically on the books
has the electric chair as an option. I think one state
may technically still have hanging as an option but
may have come out and said they won’t use it. But now
I’m really stretching my memory.
Q. Sure. I believe you mentioned lethal gas as one
of the options?
A. I’m not aware —
Q. Sorry. maybe you didn’t mention lethal gas.
Are you aware of any other states that use lethal gas
as a means of execution?
A. I’m not aware of any state that has adopted
lethal gas as a current method of execution.
485
Q. Are you aware of states that have it [47] where
it’s legally allowed as a means of execution?
A. I think there are states that have statutes that
would allow it but I’m not aware of any state that has
a protocol to use it. Missouri being an example of that.
Q. So is Missouri legally allowed to use lethal gas?
A. The statute in Missouri says that the director
can pick a protocol that’s either lethal injection or
lethal gas.
Q. Does Missouri have a lethal gas protocol?
A. No. Not that I’m aware of.
Q. When you were asked to draft or revise the
lethal injection protocol, were you asked to either draft
or revise a lethal gas protocol?
A. I was specifically told letha! injection.
Q. Just want to make sure that you’re answering
the question I’m asking. Were you also asked to look
into either drafting or revising a lethal gas protocol?
A. No one asked me to do that.
Q. Have you ever drafted a lethal gas [48] protocol?
A. No, I have not.
Q. Are you aware of anyone else who was asked to
draft a lethal gas protocol?
A. Not at Missouri.
Q. You’re aware of someone outside the state of
Missouri who was asked to draft a lethal gas protocol?
A. Iknow there were two states who were asked to
research that subject. I don’t know if they drafted
protocols or not.
486
Q. Do you know what states those were?
A. Louisiana and Oklahoma.
Q. Do you know why those states drafted a lethal
gas protocol?
A. As|Isaid I don’t know that they drafted protocol.
Q. I’m sorry. I apologize. Thank you for clarifying.
Do you know why they looked into drafting a lethal
gas protocol?
A. I don’t recall specifically. I think it was either
the direction of a governor or legislature.
Q. Are you aware of anybody in the [49] Depart-
ment of Corrections or otherwise works for the state of
Missouri currently or formerly who has undertaken
any efforts to draft a lethal gas protocol?
A. To my knowledge nobody in the Department of
Corrections has taken efforts to draft a lethal gas
protocol.
Q. What about outside the Department of
Corrections?
A. Not that I’m aware of. And I guess to be clear,
I’m not aware of the department asking anybody to do
that.
Q. Have you ever spoken to legislators about
adopting lethal gas’
A. IThave not.
Q. Do you know if any individuals in the
Department of Corrections have spoken to legislators
about adopting lethal gas?
A. Not that I recall.
Q. Does Missouri have a gas chamber?
487
A. Nota functioning one.
Q. Can you be a little bit —- so when you say not a
functioning one, what do you mean by that?
A. The old Missouri state penitentiary (50) had a
gas chamber and Missouri used to use lethal gas. |
believe the state still technically owns the property
and I’m not sure if that property's been leased to the
city of Jefferson or not but I know the old chamber
which is no longer functioning is part of a tour of the
old Missouri state penitentiary.
Q. Is the old Missouri state penitentiary a museum
now?
A. Yes.
Q. So the old gas chamber is part of the tour of the
museum?
A. I believe so.
Q. Do you know how much it would cost to conduct
an execution by gas?
A. No.
Q. Do you know how much it costs to conduct an
execution by lethal injection?
A. No.
Q. Do you know if anyone’s undertaken any studies
to determine the costs to conduct an execution by
either gas or lethal injection?
A. I don’t know that anybody’s done a study but |
know the department could calculate what they pay
for an execution by lethal injection.
151] Q. Could the department also calculate how
much it costs to do an execution by gas?
488
A. No.
Q. Why couldn’t the department do that?
A. There are too many unknown variables about
what an execution by gas would entail so it would be
impossible to figure that cost out.
Q. Has the department ever tried to figure that
out?
A. Not to my knowledge.
Q. And what variables are you referring to when
you say there would be too many variables?
A. Well, witho protocol we wouldn’t know even
basic things, like the cost of the gas, the cost of
equipment to administer the gas, the cost of whatever
facility would be necessary to construct or modify to
conduct the execution there. We wouldn’t know the
number of staff members needed to conduct the execu-
tion and then based on where that execution occurred
the number of staff members necessary for safety of
the — and security of the location. And those are just
off the top of my head. There may be others.
Q. Sure. But to your knowledge has the Depart-
ment of Corrections, let’s take Missouri in [52!
general, ever looked into answering those questions?
A. Not to my knowledge.
Q. Do you know if it’s possible that you would not
need an actual gas chamber or facility but execution
by gas could be conducted using a gas mask?
A. I’m not sure. I don’t have the expertise to tell
you whether or not an actual chamber is needed or if
it would be sufficient to do it by mask.
489
Q. Do you have the expertise to determine how to
execute someone by lethal injection?
A. Personally, no.
Q. How did you develop the expertise or at least
the appropriate level of skills to draft the protocol, or
to revise the protocol for the lethal injection?
MS. COULTER: I’m going to object to any questions
regarding the development of the current protocol. It
is prohibited by the discovery order.
MR. FOGEL: I think it’s relevant because at this
moment were probing the [53] feasibility of using
lethal gas and the witness has testified that he does
not have the expertise or did not have the expertise
when he was in the position at the Department of
Corrections to be able to answer those types of ques-
tions. Yet if the witness can still develop a protocol on
lethal injection, I think it’s fair to probe why he has
the certain set of skills to do it for one means of
execution but not the other.
MS. COULTER: I think you can ask about what
skills he may have — I understand where you're going
but I think you can go head and limit it to asking him
what skills he has that allowed him to participate in
the drafting but I don’t think you can get into how —
who he may have consulted with in forming the policy.
If that makes any sense.
MR. FOGEL: So let me ask a question this way and
then you let me know if it’s permissible or not.
MS. COULTER: Okay.
Q. (BY MR. FOGEL) Did you have at the time that
you were asked to revise the lethal injection execution
protocol, did you already have sufficient knowledge to
revise the protocol at that [54] point in time?
490
A. At the time I was asked, no, | did not.
Q. Did you develop knowledge or we'll even say
sufficient expertise in order to be qualified to revise
the lethal injection open protocol?
A. After I was asked to revise the protocol I devel-
oped the knowledge I believed was necessary to present
the draft that I presented.
Q. Have you ever attempted to acquire similar
knowledge in order to develop a lethal gas protocol?
A. I have thought about it but I have not
undertaken the kind of efforts that I did for the lethal
injection protocol.
Q. What did you think about when, as you just
said, what were you thinking about?
A. As I mentioned before Missouri statute allows
lethal injection and lethal gas, so I did a little bit of
research so that I could become familiar with what
that could mean or could entail. I read a few articles
that were available theorizing how an execution by
lethal gas would be both feasible and legal. And then
at that point I [55] kind of hit a wall. Those articles
were more theoretical and I didn’t know where to go
from there on how to draft a protocol and since it was
more just having a working knowledge of what that
would be, I didn’t really dig deeper.
Q. Was this approximately in 2013?
A. It would have been over the course of time,
between 2013 and 2000 — while I was general counsel.
Q. And was this, the review of these articles, or
would it be fair to say, is it okay if | call it research,
would that accurately describe?
A Yes, I’m okay with that,
491
Q. So did you undertake this research relating to
lethal gas in connection with your responsibilities of
A. I’m not sure I can agree with that. I felt as the
general counsel it was my responsibility to be at least
familiar with the legal methods of execution. You
know, I mentioned I did that for lethal gas because it
was in the Missouri statute but I also researched other
methods in other states, that’s how I know that firing
squad is legal in one state. So I wanted a [56] working
knowledge so as general counsel if I was asked what
are other states doing I could somewhat answer that
question or very quickly know the resources that I
could go to to answer those questions.
Q. You mentioned that you quote, hit a wall when
you were researching lethal gas. Can you expand on
what you mean by that?
A. There are a number of factors to write a protocol
that I — the research available was not sufficient to
answer to me and given the difference between lethal
gas, you know, the articles I read were transitioning
from, for lack of a better word, poison gases that were
used historically to more inert gases. You know, I read
articles that proposed various gases but I didn’t even
know what kind of expert I would need to go to to tell
me which inert gas would work more effectively or less
effectively.
Delivery methods, there wasn’t really any discus-
sion on the research that I found about as we talked
about before. Would you need an actual chamber or
would some kind of face mask or gas mask be suffi-
cient. If it was, what were the requirements of that.
[57] I knew that because we were doing this on — in
a workplace, there would be OSHA guidelines. So I
492
tried to look, if you’re using some kind of toxic or
hazardous gas material, what the requirements for
venting the rooms and those kind of things. And
execution by lethal gas falls outside the — I’m sorry,
I shouldn’t be sarcastic, but execution, this kind of
situation didn’t seem to comply with the regulations,
or be contemplated by the regulations of OSHA, so |
didn’t know who would I go to about that.
I wouldn’t know the quantity or the concentration
of the gas. Again, the articles were theoretical and |
wouldn’t know what kind of expert to go to or what
kind of person to go to to answer those questions. You
know, which gas is better. If 1 use a gas, what quantity
or quality I would need to use. How long it would take
and then the safety of the environment around it. How
to best administrate and then also to protect for the
individuals who are witnessing the execution.
Q. So you did not know the answers to those
questions?
A. I didn’t know the answer to those questions and
I didn’t know how to go to find [58] answers to those
questions.
Q. So it’s fair to say you did not consult anyone else
in trying to determine the answers to those questions?
A. I talked generally. We have a health and safety
unit and I mentioned the OSHA regulations. I gener-
ally talked to them, you know, where would be the
guidance on, if you were introducing a lethal gas into
the workplace about ventilation and things, so they
directed me there. But like I said, | wouldn’t know who
to talk to. It didn’t seem to fall in any specific expertise.
493
Q. And because you couldn’t find somebody with
that specific expertise to answer those questions those
questions generally remained unanswered?
A. I had not been directed to do anything more
than that. Like I said, it was just me thinking person-
ally so that I could be prepared, so, I mean to be
candid, no, I didn’t go out and try to find answers to
those questions.
Q. Did you report — I don’t want to say findings,
because it sounds like you didn’t necessarily make any
findings, but did you report that you had undertaken
this research and had these [59] questions to the
director of the Department of Corrections?
A. No, I didn’t. I didn’t provide any specific detailed
report on my information to the director.
Q. Did you provide any update on your research to
any of your other supervisors?
A. No. Nobody had asked me to do that research. I
had taken it upon myself.
Q. And aside from that research that you just
discussed, have you undertaken any — did you under-
take any other efforts to evaluate the feasibility of
using lethal gas in the state of Missouri?
A. I don’t recall anything other than what I have
just discussed.
Q. Am I correct that you were undertaking this
work when you were general counsel of the Department
of Corrections?
A. That’s correct.
Q. And in 2014 you were no longer the general
counsel, is that right?
494
A. 2000 — yes, that’s correct.
Q. Did you share any of this information with the
individual who succeeded you?
{60} A. Yes. I think we discussed generally lethal
gas. I’m not sure the level of detail but it would have
been some detail.
Q. Why did you discuss lethal gas with your
successor?
A. He was taking my role and I felt that the
general counsel for the Department of Corrections
should have some knowledge especially of a method
that was listed in the statute, so I kind of explained to
him what I had done and the walls that I had hit.
Q. What else did you and — who is the individual
that followed you as the general counsel?
A. Richard Williams.
Q. What else did you and Mr. Williams discuss
regarding lethal gas?
A. That would have been it. It would not have been
a — well, I take — I don’t recall when this lawsuit was
filed so there may have been a discussion that Mr.
Bucklew was alleging or requesting lethal gas. That
would have been the only other conversation.
Q. So you discussed it in connection with your
conversations with Mr. Williams relating [61] to Mr.
Bucklew’s lawsuit?
A. To the litigation.
Q. And it was — because it was your understanding
that Mr. Bucklew was alleging that lethal injection
would pose a significant harm to his health in violation
of his 8th Amendment rights, is that correct?
495
A. That is my understanding of his allegations.
Q. Okay. And did you have that conversation with
Mr. Williams because you were considering whether
lethal gas was a viable alternative?
A. No.
Q. Is that because you just did not know whether
lethal gas could be a viable alternative?
A. No. That conversation was about the litigation,
that it had been filed, you know, a review of che
litigation.
Q. After you became deputy general counsel did
you do any other investigation or research relating to
lethal gas?
A. I may have read some articles about, I men-
tioned those two states, and again timelines are
difficult, but those two states doing reports [62] or
studies. So I may have read news articles about them
but I didn’t do — and in this sense I wouldn’t agree with
the word research.
Q. I’m sorry?
A. When I became —
Q. You would not agree with the word research.
Fair enough. Okay.
Do you know if Mr. Williams or anybody else within
the general counsel’s office of the Department of
Corrections did any research or general looking into
the possibility of lethal gas?
A. I don’t have any specific knowledge and Mr.
Williams would have been the only one in my opinion
who would have had a role in that in that as the
general counsel, so I don’t know if he did or didn’t. I
496
don’t think anybody else in the legal unit. They would
not have done it in connection with their job. I cannot
speculate about their personal life.
Q. The materials that you uncovered through the
course of your research on lethal gas, what did do you
with them? Strike that.
Do you still have the materials that you uncovered
from your research on lethal gas?
A. No, Ido not.
[63] Q. What did you do with them?
A. I don’t recall to be honest.
Q. Did you give them to Mr. Williams?
A. I don’t think I did.
Q. Did you hold on to them at the time that you
became deputy general counsel?
A. Maybe for a period of time. But like I said, I
don’t recall what happened to them.
Q. Did you keep a hard copy file of the information
you gathered on lethal gas?
A. I may have saved or I may have printed one
article or two and it may have been saved, maybe as
more intentional sounding, I may have retained that
for a period of time.
Q. Right. Did you keep any electronic files?
A. No.
Q. You mentioned that there are variables relating
to lethal gas that remain unknown to you, is that
right?
A. That’s correct.
497
Q. And to your knowledge nobody within the
Department of Corrections or under the state of
Missouri has ever tried to answer those variables or
unknowns?
[64] A. That’s correct.
Q. Did you ever reach the conclusion that lethal
gas was not a feasible option within the state of
Mi 9
A. With the resources I had available to me I would
say that it wasn’t a feasible option.
Q. And what was the basis for that opinion or
conclusion?
A. As I said, I think there were just a number of
variables that I’m not sure that we had the resources
to answer. And as | said, I kind of thinking it through
didn’t even know where to go to get those answers.
Q. So you didn’t know the answers to those ques-
tions, yet you concluded that it would not be a feasible
option because you didn’t know the answer to those
questions?
A. Because we didn’t have the resources to answer
those questions, that’s kind of where I was at.
Q. Matt, I'm showing you a document that’s
marked as Plaintiffs Exhibit 9. If you can just take a
moment to review that.
A. (Reviewing document.) Okay. I've reviewed
this.
*> *
[73] means of execution?
A. Yes.
498
Q. Do you know if the Department of Corrections
has a set of factors or considerations in
whether a means of execution is a viable or feasible
alternative?
A. I’m not sure I understand that question.
Q. Probably because its a poorly worded question.
What factors does the department — strike that.
What factors does the Department of Corrections
take into consideration in determining whether a
different means of execution is feasible?
A. I don’t know.
Q. Are you aware of any set factors or procedures
that the Department of Corrections has in evaluating
whether an alternative means of execution is feasible?
A. No, no formal ones.
Q. No formal commission or committee of individ-
uals that are dedicated to evaluating them?
A. No, the ultimate say is the director of the
department so I don’t know if he had any set [74]
factors. I'm not aware of anything in writing, not
aware of any policy or procedure.
Q. The director of the Department of Corrections
has final say on what is —- what means of execution are
used, is that correct?
A. That’s correct.
Q. Okay. And so he would have the final say in
determining whether lethal gas is a feasible means of
execution, correct?
A. Correct.
499
Q. Did you discuss any of your quote research or
looking into lethal gas with the director of the Depart-
ment of Corrections?
A. Not in any specifics.
Q. Did you discuss it at all?
A. Once or twice we mentioned lethal — or I men-
tioned lethal gas was an option and we probably
briefed him on the litigation by Mr. Bucklew and he
emphatically expressed to us that lethal gas was not
something he wanted to do.
Q. I’m just looking back and reading the tran-
script, the rough transcript. It says once or twice you
mentioned lethal gas was an option.
A. Uh-huh.
Q. Could you explain to me what you said [75] to
the director when describing lethal gas as a potential
option?
A. I think I would have said — I shouldn’t say what
it says. I think what I recall saying, the conversation |
remember mosi vividly is that Mr. Bucklew had or we
anticipated he was going to propose a method of lethal
gas. So we reminded the director that lethal gas was
authorized by the statute and he made it clear that he
didn’t want us to pursue that.
Q. Is that why you stopped looking in to why lethal
gas was a feasible alternative?
A. No.
Q. Would you have had authority to continue
looking into the possibility of lethal gas as an alterna-
tive had the director not told you not to look into it?
500
MR SPILLANE: I’m going to object to the question.
I think it assumes facts not in evidence. I don’t think
he said the director told him not to look into it. I think
he said the director told him they were oot going to do
it.
MR. FOGEL: Can we go back and look at the answer
the witness gave?
(WHEREUPON, A DISCUSSION WAS HELD OFF
THE RECORD)
[76] Q. (BY MR. FOGEL) He made it clear to us that
he didn’t want us to pursue that. What do you mean
then by what the director told you he didn’t want you
to pursue that?
MS. COULTER: I’m going to object at this point. It’s
going into attorney-client privilege if he was acting as
legal counsel to the director.
MR. FOGEL: Are you instructing the witness not to
answer the question?
MS. COULTER: Yes.
Q. (BY MR. FOGEL) Okay. Aside from that con-
versation did you have any other conversations with
the director regarding the use of lethal gas?
A. I may have had one or two others or one or two
total. I don’t recall the specific number.
Q. Did you tell the director that lethal gas was not
a feasible option?
MS. COULTER: Objection, attorney-client privilege.
Q. (BY MR. FOGEL) Just so it’s clear for the
record, you’re instructing the witness not to answer
the question?
501
{77] MS. COULTER: Unless he wants to answer but
my advice to you would be not to answer.
THE WITNESS: I’m going to follow the advice of my
legal counsel.
Q. (BY MR. FOGEL) Was this a privileged commu-
nication — who else was present for this communication
with the director?
A. I believe the general — I think one of the conver-
sations happened when I was the deputy general
counsel and the general counsel would have been pre-
sent in the room but that would have been it.
Q. And the other conversation?
A. Would have been as general counsel so it would
have been just me.
Just you and the director?
And the director.
Nobody else was present for the conversation?
Correct.
I think as we've established both lethal gas and
lethal injection are allowed by law under Missouri
statute, correct?
A. Correct.
Q. Do you believe that the Department of [78]
Corrections has an obligation to explore the viability
of lethal gas as a means of execution?
A. No.
Q. Do you know when the last time the state of
Missouri tested the gas chamber before it went into
retirement for use as part of the tour?
A. No, I don’t.
Oro Ppe
502
Q. Do you know the results of the last time it was
tested?
A. No, I don’t.
Q. If it was determined that lethal injection was
not a viable option for means of execution, what would
the state of Missouri do?
MS. COULTER: Objection, calls for speculation.
Q. (BY MR. FOGEL) Do you know what the state
of Missouri would do if lethal injection was determined
not a viable option for a specific inmate?
A. No, I don’t know.
Q. Did you make — at the time of Mr. Bucklew’s
litigation in 2014, or at any other point in your
capacity as working in the general counsel’s office at
the Department of Corrections, did you make the
recommendation that the Department [79] of Correc-
tions explore the possibility of lethal gas?
MR. SPILLANE: Excuse me. I’m going to object on
privilege. You said in his capacity as general counsel
what recommendation did he make? I’m objecting
based on attorney-client privilege.
Sue?
MS. BONOIST: Yeah, well, I agree. | was starting to
talk and Mike jumped in.
A. I’m going to follow the advice of counsel.
Q. (BY MR. FOGEL) Sure.
Outside of your capacity as other deputy general
counsel, general counsel or legal counsel, did you ever
make the recommendation that the Department of
Corrections should consider exploring the viability of
lethal gas as a viable alterative?
503
A. No.
Q. Are you aware of anybody else ever making that
recommendation?
A. I'm not aware of anybody making that recom-
mendation.
Q. Based on your experience do you think the
Department of Corrections is capable of [80] undertak-
ing an investigation into whether lethal gas is a viable
alternative?
MS. COULTER: Objection, speculation.
A. Your question is whether the department is —
Q. (BY MR. FOGEL) Capable of undertaking
investigation to determine whether viable gas is a
viable alternative — excuse me, whether lethal gas is a
viable alternative.
A. I guess I would say yes, the department is
capable of initiating, undergoing an investigation if it
so chose to do so.
Q. But as far as you’re aware to date the depart-
ment has chosen not to do so?
A. It has not done so.
Q. Do you know if it has chosen not to do so?
MS. COULTER: Objection. I think the basis for his
answer would be based on privileged conversations.
Q. (BY MR. FOGEL) Is that correct, that your
basis for knowing that would be based on privileged
conversations?
A. The only conversations | would have had
regarding that were in my role as either deputy (81)
general counsel or general counsel.
504
Q. So the answer is yes, it would be based on
privileged conversations?
A. Yes.
Q. Okay. And I’m not interested in probing your
privileged communications.
To your knowledge, though, you are not aware of
anyone undertaking any further research or otherwise
looking into the prior information you gathered on
lethal gas, is that correct?
A. That’s correct.
MR FOGEL: Why don’t we take a short break?
(WHEREUPON. A RECESS WAS TAKEN BY THE
PARTIES)
Q (BY MR FOGEL) Matt, before we took a break
we were talking a little bit about, you know, I’m using
the term research here as we previously discussed, to
describe the looking into you did regarding lethal gas
as a possible means of execution. And one of the things
you mentioned or I guess kind of the walls, part of the
wall that you ran into is that you did not know how
much gas should be used.
Was one of the questions also what [82] type of gas
to be used?
A. Correct.
Q. And fair to say you did not figure out an answer
to arrive at an answer to either question, is that right?
A. That’s correct.
Q. At the time that you were drafting, or when
you were about to start revising, I should say for the
first time the lethal injection protocol, did you how
much pentobarbital should be used, just pentobarbital
505
generally? Did you know that pentobarbital should be
used?
A. The first time I redrafted was under propofol.
Q. Okay.
A. And the answer to your question on that one
was yes.
Q. Yes, you knew pentobarbital should be used?
A. Yes, given the nature of the changes I knew
what drug and how much. I wasn’t tasked to change
that portion of the protecol.
Q. Got it. So did someone tell you that were going
to use pentobarbital?
A. No.
183] Q. How did you find out or how did you make a
determination to revise protocol to use pentobarbital?
A. I was tasked with revising the protocol. I made
the recommendation of pentobarbital.
MS. COULTER: And I'm going to object to any
questions on this line of inquiry because it does talk
about the development of protocol which is excluded
from the discovery order.
MR. FOGEL: Yes, but this — well, let me ask another
question and maybe we can maybe revisit that
Q. (BY MR. FOGEL) How did you know how much
pentobarbital to put in to the revised protocol?
A. That number came from protocols that had been
used in other states.
506
Q. So you undertook some research or investiga-
tion to determine what would be the appropriate
amount of pentobarbital to include?
A. Yes.
Q. Did you ever undertake any research or
investigation to determine how much gas should
possibly be used in a lethal gas execution?
[84] A. No. there was no research available to
answer that question.
Q. You also mentioned that you did not know
whether OSHA would apply to lethal gas, is that
correct?
A. That’s correct.
Q. Does OSHA apply to lethal injection?
A. Not that I'm aware.
Q. You do not know if it does not and you also do
not know if it does, one way or the other?
A. And I guess I should say too that one of the —
one of the areas, you know. I don’t know either — first,
sorry.
Q. Sure.
A. To answer your question, no, I don’t know either
way. But one of the articles that I read that proposed
lethal injection, or lethal gas as a feasible method was
from deaths that occurred on the workplace and
accidental deaths that occurred on the workplace and
that’s where I got the idea of OSHA regulations
providing a guideline or a framework for those who
would be witness to the execution by lethal gas.
Q. Did you undertake any other research [85]
beyond that relating to the OSHA guidelines?
507
A. No.
Q. Is either the open or closed protocol designed
such that it can be customized to an inmate’s specific
condition?
A. Yes.
Q. How is the open protocol designed so it can be
customized to an inmate’s specific condition?
A. You said or.
Q. Sure.
A. The open protocol is not designed to be
customized.
Q. How was the closed protocol designed to be
customized to an individual’s specific condition?
A. Each time that there’s a scheduled execution for
an inmate that is reviewed and customized as needed.
As long as it doesn’t conflict with the open protocol.
Q. Do you know how the closed protocol would be
modified for someone who suffers from cavernous
hemangioma?
A. No, I don’t know.
Q. Are there any protocols in place if
** *
508
(1) U.S. DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
(KANSAS CITY)
Civil Docket for Case #: 4-14-cv-08000-BP
RUSELL BUCKLEW,
vs.
GEORGE LOMBARDI, et al.,
Defendants.
DEPOSITION OF DAVE DORMIRE
Taken on behalf of the Plaintiff
January 24, 2017
[14] Center?
A. Yes.
Q. Commonly known I think as the ERDCC, is that
right?
A. Yes.
Q. And who is that?
A. Troy Steele.
Q. And what’s your understanding of Mr. Steele’s
position?
A. He has similar responsibilities that I have as
warden. He’s in charge of that prison, he’s in charge of
509
the safety and security and responsible to the staff and
the offenders.
Q. How often would you say you interact with Mr.
Steele?
A. Not on a regular basis, maybe only two, three,
four times a month in addition to a site visit now and
then.
Q. Who do you report to?
A. Il report to the director of the department.
Q. And that was formerly Mr. Lombardi. correct?
A. Yes.
Q. And then it is now Anne Precythe?
[15] A. That’s correct.
Q. And what’s your understanding of the director
of the department’s role?
A. The director is over all the departments, over all
the divisions, has ultimate responsibilities over the
department.
Q. And have you interacted with Ms. Precythe
since she took on her new role?
A. Some, yes.
Q. And what have those interactions been related
to?
A. Meeting with her, she visited, we went to Bonne
Terre yesterday to show her that institution.
Q. Do you have any medical training?
A. No.
Q. Did you ever attend medical school?
510
No.
Are you a chemist?
No.
A biologist?
No.
Q. Does the state of Missouri have an execution
protocol?
A. Yes.
116] Q. And what is your understanding of an
execution protocol?
A. My description of it is that it’s a plan for how an
execution is to be carried out.
Q. And why does the state of Missouri have an
execution protocol?
A. We, I believe we need a formalized plan to make
sure we’re following the procedures the way, consist-
ently each time.
So that’s Plaintiffs Exhibit 5.
(Reviewing document).
Do you recognize that document?
Yes.
Can you describe what that document is?
It is Missouri Department of Corrections prepa-
ration and administration of chemicals for lethal
injection.
Q. Is that commonly referred to as the open
protocol?
A. I believe so, yeah.
re a
POP OPS
511
Q. What’s your involvement in execution by lethal
injection?
A. My rule during the execution is to brief the state
witnesses and stay with the state [17] witnesses
during the execution.
Q. Is that it?
A. That’s, I meet, I have some responsibilities to
make sure that the institutional operation, the non-
medical, medical members are there. I meet with them,
I head up the execution. I make payment on behalf of
the department to the medical members at the time.
Q. You mentioned that you meet with the execu
tion team members in advance.
A. Yes.
Q. What’s the purpose of that meeting?
A. lam, I’m there just overseeing the operation to
make sure everything is in place and everything’s in
order.
Q. Can I elaborate that, on that a little bit more?
So what are you looking at that’s in order? Is it the
chemicals, or?
A. It is everything in, that we have to do in
preparation for an execution to make sure everyone’s
in place, that the institutional operations are proceed-
ing as they should.
Q. By everything do you mean the execution team
members or is it broader than that?
A. A little bit broader than that. I’m
* *
[22]
512
Q. You mentioned that the warden also is involved
in the execution although not part of the execution
team, correct?
A. Correct
Q. And are you referring to the warden of the
ERDCC?
A. Yes.
Q. And what is your understanding of the warden’s
responsibilities during an execution?
A. When directed to proceed he reads the warrant
and directs the execution to proceed. Once given
direction from the director of the [23] department.
Q. You also mentioned the deputy warden. Also of
the ERDCC?
A. Yes.
Q. And what is the deputy warden’s role?
A. Operational. In charge of ensuring that the
victims and states and offender witnesses are moved
and kept separate and all of those sort of things.
(MARKED PLAINTIFF'S EXHIBIT NO. 12)
Q. (BY MS. NOTTON) Are you familiar with this
document?
A. Yes.
Q. Can you describe what it is?
A. This is a document to the non-medical members
of the team indicating they’re to use this notation
NM1, 2, 3, 4 to protect their identity.
Q. So these are the letters that tell the execution
team members what their pseudonyms are.
513
A. That’s correct.
Q. Okay. Can you turn to the second page? That
letter is a letter to team member NM2, is that correct?
A. Yes.
[24] Q. In your response to Interrogatory number 9
you don’t identify an NM2.
A. Correct.
Q. Is NM2 no longer part of the execution team?
A. That’s correct.
Q. Do you know what role NM2 played?
A. NM2 would have been a non-medical team
member at one point.
Q. Turning back to your affidavit, which I believe
is Plaintiffs Exhibit 7. In that affidavit you indicate
that the Department no longer uses Methylene blue,
is that correct?
A. That’s correct.
Q. In paragraph 4 you say the DOC hos not used
Methylene blue in any execution since January of
2014. Correct?
A. Correct.
Q. You go on to say that the DOC has the intention
of doing so in the future. Is that accurate?
A. Yes.
Q. They do intend to use Methylene blue in the
future?
A. No. I should have said no intention.
[25] Q. So to be clear the DOC has no intention of
using Methylene blue in the future.
514
A. Yeah. We have no intention of using it in the
future.
Q. Thank you. You can put that document aside.
A. Okay.
Q. Turning back to the open protocol which is
Plaintiffs Exhibit 5. This indicates that pentobarbital
is the drug used in the lethal injection process, is that
correct?
A. Yes.
Q. Is that the only drug used?
A. Yes.
Q. Do you know the effects of pentobarbital on the
human body?
A. Ihave no medical training but I've observed the
five grams of pentobarbital cause death.
Q. Do you know why it calls for five grams of
pentobarbital?
A. Five grams, no. I don’t know how that was
determined to be the amount.
Q. Do you know why it calls for two syringes?
[26] A. I believe it’s based on the quantity and the
size of the syringes.
Q. If pentobarbital is not available does the Depart-
ment have any backup plans or protocols in place?
A. No.
Q. The protocol indicates that medical personnel
put IV lines into the prisoner, is that correct?
A. That’s correct.
515
Q. Before inserting any of the IV lines do you know
if the medical personnel check an inmate’s airways?
A. lam not present during that, no. I don’t know.
Q. Okay. So you don’t know if they check blood
pressure?
A. I don’t.
Q. Or anything else.
A. Ido not.
Q. If an execution team member is not able to find
a strong enough vein to insert the line into is there a
protocol in place for that?
A. Under, in these lines it talks about the, some
options in there. They may insert a [27] primary and
it says or central venous line and it indicates other
options to that.
Q. Have you ever observed an execution where
they had trouble inserting the IV?
A. No.
Q. So to your knowledge none of the prior execu-
tions in Missouri have encountered any difficulty with
that.
A. I’m not present during | at process.
Q. Are you aware of any side effects to pentobar-
bital?
A. No.
Q. The protocol talks to the monitoring of a pris-
oner during an execution. What is your understanding
of the purpose of that monitoring?
A. They have an EKG machine and direct observa-
tion, I believe the purpose is to, for medical personnel
516
to access to make sure it is going according to the
protocol.
Q. Do you know what the medical personnel are
looking for as they monitor?
A. Not in detail, no.
Q. Is anyone else responsible for monitoring the
prisoner?
A. Non-medical staff are watching as [28] well,
but. The primary responsibilities for monitoring would
be the medical staff.
Q. The protocol suggests that the staff, the inmate
is positioned so the medical personnel can observe the
prisoner's face directly. Why do you think it focuses on
the face?
A. I don’t know.
Q. The protocol indicates that the first five grams
of pentobarbital is injected and then following a suffi-
cient amount of time for death to occur medical personnel
examine the prisoner. And that’s in section E. What
would you say is a sufficient amount of time for death
to occur?
A. From my observation with state witnesses it
occurs at about seven minutes where they go and check.
Q. In section F of the open protocol it discusses the
sequence of chemicals and chemical log. Are you
familiar with those documents?
A. Yes.
Q. Are you involved with those documents in any
way?
vA ‘ i} +4 COiTi« ICA
director of the department signing those w!
they come back after an [29] execution
A That's correct
518
Q. And the inmate has the option of taking a
sedative, is that correct?
A. Yes.
Q. And when is that sedative offered to the inmate,
do you know?
A. About. I'm going to say something like four
hours before the execution and then with the state-
ment the offender can ask for a sedative any time
following that.
Q. Are they able to ask for it up until execution?
A. They are.
Q. Would there be any reason why an inmate
would be given a sedative without them wanting it?
A. I can see a scenario. I'm not aware of any
situation. If an offender were potentially out of control
I could see that scenario but that [31] hasn’t occurred.
Q. And then finally lists Lidocaine. What is
A. That is. I believe that is a, something that they
use when they’re setting the IV. I don’t believe, it’s not
considered a controlled chemical or anything but it’s
something they use when they set the IV.
Q. And is it topical or do they inject it, do you
know?
A. Ido not know.
Q. And to your knowledge are any other chemicals
or drugs involved in the execution process at all?
A. Not in the process, no.
519
Q. So the open protocol suggests that any irregu-
larities should be noted on the sequence of chemicals
or the chemical log. What does that mean?
A. That would, to my mind that would mean that
something other than five grams were utilized for
pentobarbital or something like that.
Q. Have you ever seen one of these documents have
A. No.
[32] Q. Is there a protocol in place for an instance
where there is an irregularity?
A. Other protocol says that it’s notated if there is
one.
Q. And nothing further is done after that.
A. Idon’t know that I understand your question.
Q. Sure. Let me rephrase.
So if an irregularity was noted are there subsequent
steps than taken after that or is it just a notation that’s
made?
A. We have not had that situation so it would be
hard for me to tell you when nothing would occur or
whether we would react and do something. It would
depend on what occurred.
Q. Okay. So to your knowledge there's nothing,
there’s no steps or a specific protocol in place for that.
A. For what is your question?
Q. For dealing with any irregularities.
A. I believe we would react. The reason for us to
review is to see if there were and to report those.
Q. Okay. So once you receive the sequence of
emicals and chemical log what do you do with the:
, | Ok at then yen them and send th
.
34]
Q. And the gurney is set up so that the inmat«
ng flat that rrect
rt "
ai itil Ley ; econa tive PrAtin
) What about if the prisoner
pr ive wel ’ | cs ’ r tr
,
¥ vA : | DY ’
’ ’
’
’ a
; vw
{ aea
’ ’
Q. And when does that occur?
(37| Q. Is that for a particular execution the
t occurred
i
AS nNAaAVe Various Tul
AL |
ow often does that occu!
it occurs BR was th first time we've had
| one for quite a while because weve had, afte!
xecutions we don’t do a full run-through if we've h
xecution recently
Q) And that run-through a
a planned a that or
v,
« NC yT i ¥
urt
MS NO'TTON: Pertfec
(WHEREUPON A RECESS WAS TAKEN BY TH!
PARTLES)
[38] A. Okay
.) Hlave vou seen this document before
524
A. It is used to inform the medical staff of the
execution of any conditions the offender might have.
Q. And who fills this out?
A. Our medical director at central office. Delouis
Williams.
Q. And you said it was Delouis?
A. Delouis Williams, yes.
Q. And where does Delouis Williams get that infor-
mation from?
A. She gets it from his case file.
Q. Okay. And when is this usually filled out in
advance of an execution?
A. Generally two to three to four weeks ahead of
an execution.
Q. Are there any other medical evaluations that
are done prior to an execution?
A. This is the only one I’m aware of.
[39] Q. Do you know if inmates are evaluated in any
other way prior to an execution?
A. I know that mental health does a report.
Q. Is that it?
A. As far as evaluation, yes, I believe so.
Q. Are you involved in approving an execution in
any way?
A. In which?
Q. Are you involved in approving an execution in
any way?
A. No.
525
Q. Are any steps taken to prepare a prisoner for
execution?
A. We offer obviously mental health counseling, we
offer chaplaincy services, thing like that. I don’t know,
we have a case worker that’s assigned to assist. I don’t
know exactly what your question is.
Q. Is there a process in place to determine if an
individual is competent to be executed, medically or
otherwise?
A. I believe that’s the purpose of the mental health
evaluation that’s submitted.
[40] Q. Does the physician on the execution team
ever evaluate the inmate prior to an execution?
A. I don’t know what the term evaluate would
mean. Obviously [J is the one placing the IV so |
don’t know what procedure and what [J does just prior
to that.
Q. Okay. Does (J interact with the inmate
before the actual execution day?
A. Before the day? No.
Q. Okay.
You've observed executions before, correct?
A. Yes.
Q. Now many times would you say?
A. All the ones that have occurred since I’ve been
director so that’s, I don’t know how many that number
is. 17. 18. I don’t know the number. Something like
that.
Q. Where are you normally observing these execu-
tions from?
526
A. From the state witness room.
Q. And can you describe where that is in relation
to the execution room?
A. It is one of three rooms that [41] surrounds that
room where the offender is on the gurney. One is state
witnesses, one is victim’s witnesses and one is his
witnesses.
Q. And are you behind glass or a door?
A. We’re behind glass, yes.
Q. Is anyone generally in the execution room with
the inmate during an execution?
A. No.
Q. Turning to your answer to Interrogatory
number 3. I believe you answered that all executions
using pentobarbital have been rapid and painless, is
that correct?
A. That is correct. I don’t see it in that — oh, yes.
That is correct. Yeah.
Q. What would you consider to be rapid?
A. As I stated earlier the offender is seemingly
unconscious within a few seconds and each time the
medical staff have gone in he has been deceased at
about seven minutes, seven or eight minutes.
Q. And is your basis for that strictly your own
personal observation?
A. Yes.
Q. You also indicate it’s painless. What's your
basis for that?
[42] A. I see no movement, no reaction from the
offender.
527
Q. And outside of your personal observations do
you base that on anything else?
A. No.
Q. Do you know what cavernous hemangioma is?
A. No.
Q. Are you aware that Mr. Bucklew has tumors in
his airway?
A. Only if it’s on that medical sheet.
Q. To your knowledge have you ever had an inmate
with cavernous hemangioma?
A. To my knowledge, no.
Q. Have you ever had any inmates on death row
who were prone to hemorrhaging or choking?
A. I don’t know. I’m not aware of any.
Q. Do you know if the department’s ever researched
whether a person with cavernous hemangioma can be
safely euthanized or executed?
A. I don’t know that.
Q. Do you know how Mr. Bucklew’s condition has
been monitored?
A. I know that we have medical staff in [43] every
facility that monitor all medical conditions.
Q. Will any special steps be taken in the days or
weeks leading up to an execution to monitor his condi-
tion?
A. I don’t know the answer to that. I know medical
staff will tell us if they believe there’s any issues they
have with his condition but I’m not aware of anything
that will occur right now.
528
Q. Have you ever had an execution stopped or
delayed because, for medical reasons?
A. I know Offender Bucklew was scheduled for an
execution and I know under appeal it was stayed. But
I don’t know whether it was due to legal processes or
his medical, I don’t know the rationale that was used
to stay it.
Q. Outside of Mr. Bucklew’s case though are you
aware of any?
A. No.
Q. Are the execution team members aware of each
inmate’s medical conditions, assuming they have any?
A. Yes.
Q. And how are they made aware?
A. I bring them that document that shows [44] the
medical issues that have been identified.
Q. The one page pre-execution medical summary?
A. Yes.
Q. Anything else?
A. No.
Q. Do you know if the protocol will be customized
in any way for a condition like Mr. Bucklew’s?
A. Ihave no reason to believe it would be.
Q. How does signoff for an execution work, do you
know?
A. Say that term again.
Q. Signoff for an execution, so who signs off on the
execution?
A. Idon’t know what that term means.
529
Q. Sure. Let me rephrase.
What is the process for approving an execution to go
forward?
A. I know that the director of the department is
charged with making sure there are no stays in place
and they stay in communication with the governor's
office, with the attorney general’s office to make sure
there are no stays or other [45] reason that would hold
up the execution. If there are none then the director
gives the directive to proceed.
Q. Is lethal injection the only manner allowed
under Missouri Jaw to inflict the punishment of death?
A. No.
Q. What else is allowed?
A. The statute refers to lethal gas.
Q. Does the state of Missouri have a lethal gas
protocol?
A. No.
Q. Why not?
A. We don’t have a method or a gas chamber right
now.
Q. Do you know why not?
A. We have an execution protocol that has been
rapid and painless so that’s what we've utilized.
Q. Are you aware of the DOC or the state conduct-
ing any evaluations into the use of lethal gas?
A. No.
Q. If lethal, the lethal injection protocol was not a
viable option for an execution
530
* * *
[50] grievance is a segment and the appeal is a
segment. Each one has a timeline.
Q. And you indicated earlier that on the appeal
process you’re just looking to make sure those, the
timing was followed and whatever protocols or policies
are in place were followed, is that correct?
A. I indicated on medical grievances, as a warden
that’s what I’m looking for is to make sure those are
followed because I’m not making a medical response
as a warden. I’m signing off that the health services
administrator is signing those responses, I am signing
those grievances but not as a person that is making a
medical opinion or anything.
Q. Okay. So if an inmate were to bring the same
grievance again, and let’s say there was a different
policy in place, would that change the evaluation
process?
A. The timelines?
Q. The timeline or how it’s evaluated on appeal.
A. Our policy is, says how many days each segment
which I’m describing is to occur. That doesn’t change
unless it’s considered an [51] emergency grievance
then it is sped up because it’s considered an emergency
grievance.
Q. And what do you generally consider an emer-
gency grievance?
A. In my opinion that’s something that would
immediately affect someone’s life.
Q. Okay.
MS. NOTTON: That’s all of our questions.
531
MS. COULTER: I've got a couple of questions for
you.
EXAMINATION
QUESTIONS BY MS. COULTER:
Q. You had talked about the gurney that the
offender is strapped to prior to the execution.
A. Yes.
Q. Do you know if the angle of the gurney is
adjustable?
A. I believe it is. | know it’s not a fixed gurney as
far as attached to the building or anything, it’s
movable, but I believe it is, it cam be moved, changed.
Q. So the head of the gurney could be raised?
A. That’s my belief. If it can’t be I [52] know we can
get one that does.
Q. If the anesthesiologist were to decide that it
would be in the best medical interest of the offender to
adjust the gurney would the anesthesiologist have the
freedom to do that?
A. Yes.
Q. We had talked a little bit about the Methylene
blue dye that had been used previously.
A. Yes.
Q. Why isn’t that used anymore?
A. The pharmacy we were using would no longer
sell it us.
Q. Why is that?
A. They feared exposure and media attention that
would hurt their business.
532
Q. Do you currently use any dye?
A. No.
Q. In the execution of Mr. Bucklew would you
anticipate any dye at all would be used?
A. No.
Q. You also indicated that valium is not used
anymore. Why is that?
A. Again, our pharmacy no longer is willing to
provide that.
Q. And why is that?
[53] A. Again, fear of exposure and fear of media
attention.
Q. Do you use any kind of pharmaceutical as a
sedative in place of the valium?
No.
What about the versed, is versed still used?
No, we don’t have versed either. Same reason.
Do you use anything in place of the versed?
Pardon?
Q. Is anything used in place of versed as a
sedative?
A. We have some benadry| that is used for anxiety,
that is what we use if they’re showing anxiety.
The only other issue we would have is if he was, if
he, mental health and him decided he needed some-
thing more then we would have to potentially go to our
contract provider to get something.
Q. And have someone from the Corizon to pre-
scribe a sedative?
POP P
533
A. Yes.
[54] Q. And the use of a sedative is optional to the
inmate, is that correct?
A. Yes.
Q. We had talked about the medical history that’s
provided to M3 prior to the execution. Can M3 receive
additional medical! information if he or she believes it’s
required?
A. Yes.
Q. You had also talked about the process for
informal resolution requests and grievances. Is there
any change in that policy if it is a condemned inmate,
a death sentenced inmate?
A. Not to my knowledge.
MS. COULTER: I don’t have any more questions.
MS. NOTTON: No more questions.
MS. COULTER: You have the right to review a
transcript of your deposition and check it for error, not
error in content but error, transcription errors and
then sign it or you can trust that everything’s been
transcribed accurately and waive your signature.
A. Ill rely on my attorney.
MS. COULTER: So are you choosing to waive your
signature?
(55) A. Okay.
(Whereupon, the deposition concluded at 3:15 p.m.)
534
[1] U.S. DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
(KANSAS CITY)
Civil Docket for Case #: 4-14-cv-08000-BP
RUSELL BUCKLEW
Plaintiff,
vs.
GEORGE LOMBARDI, ET AL.,
Defendants.
VIDEO DEPOSITION OF GEORGE LOMBARDI
Taken on behalf of the Plaintiff
January 24, 2017
[18] Adult Institutions and in 1986 I became director
of the Division of Adult Institutions and remained in
that capacity until I retired in 2005. After I retired
in 2005 I did consultant work with the facility for
committed youth in Washington D.C. for about three
years and then in 2009 I was appointed director of the
Department of Corrections by Governor Nixon until |
retired on January the 10th of this year.
Q. Are you currently employed?
A. lam not.
Q. So thank you very much for that comprehensive
summary and I just have some followup questions
regarding some of the positions that you described.
rere,
Can you generally describe your responsibilities
when you were the program coordinator, I believe yo
said it was the Renz Prison Farm?
A. Yes. Actually there were groups of inmates at
that time who were denied parole hut were flattening
out the time as we used to call it which meant that
they were denied parole but they still, you know
they’re finishing their time, at that time it was sever
twelfths, in other words
[32]
Q@. Are you always present for th actu
execution?
\ Yes
iY Are you required DY law to be present
4. I’m not sure what the law says about that but
im anyway so it doesn’t make any difference. Or was
Q. You mentioned that you served in this role as
director of Department of Corrections until January
LOth, 2017 when you retired?
\ Correct
Q@. Why did you retire from that rok
MS. COULTER: Objectio: t exceeds the scop
crv d scovery order
536
MR. FOGEL: What part exceeds it —
Why don’t we just go of the record for a moment?
(66] your understanding that this protocol would be
used for upcoming executions?
A. I don’t know that, as I said I am no longer the
director so I can’t predict what the future is regard to
that.
Q. Understood. Just asking for your under-
standing as of January 10th, 2017, that this would be
protocol that would be used for executions.
A. That was the protocol that was in place on
January the 10th.
Q. Thank you.
A. Predicting the future is not something I can do.
Q. Thank you.
To your knowledge from October 18th, 2013, which
is the revision date, to present, were there any
executions performed using this protocol?
A. Yes.
Q. Do you recall approximately how many?
A. I believe there was like 19.
Q. And to your knowledge this was the protocol
that was used for the most recent execution in the
state of Missouri.
A. Yes. For all the executions from the [67] 13th
through the last one. From October ‘13 to the last
execution.
Q. So Id like to ask some questions — strike that.
537
I want to focus on the first section here, Execution
Team Members, and I just want to state at the outset
to be clear, I’m not asking for the names of the team
members, I’m just asking for their position titles and
their functions and I believe that’s consistent with
Judge Phillips’ discovery orde ’.
MS. COULTER: I agree.
MR. FOGEL: Thank you.
Q. (BY MR. FOGEL) And the first sentence under
Section A, execution team members, it says the
execution team consists of department employees and
contracted medical personnel including a physician,
nurse and pharmacist.
Do you see where I’m reading Mr. Lombardi?
A. Yes.
Q. First beginning with department employees.
Which department employees are involved, are on the
execution team? Again just talking about the titles,
not their names.
[68] MS. COULTER: I’m going to object in that |
don’t know that he can answer and talk about the
department without asking, without disclosing their
names. I mean I don’t know the answer to the question
that you’re asking but in the event that it would
disclose or lead to the discovery of their identity I
object.
MR. SPILLANE: May be I can be of assistance. Are
you asking what the designations of the employees are
such as NM1, NM2, so forth?
MR. FOGEL: That’s a fair point.
538
Q. (BY MR. FOGEL) So you're referring to
Mr. Lombardi’s interrogatory response identified
individuals —
MR. SPILLANE: Are you asking what their code
names are basically?
MR. FOGEL: Well, why don’t we look at the
interrogatory.
MS. COULTER: If you know which number that is.
MR. FOGEL: I think it’s Exhibit 4.
MS. COULTER: There’s a very brief list.
A. Okay.
Q. (BY MR. FOGEL) And I’m looking at [69] this
response to Interrogatory 9.
A. Yes.
Q. And at the top of that page it says pursuant to
this court’s order defendant provides the following
general information regarding DOC’s, Department of
Corrections, current execution team members, and it
lists a number of positions. Do you see where I’m
looking?
A. Ido.
Q. And to your knowledge does this listing of
individuals correspond with that first sentence that I
read on the open protocol?
A. Yes.
Q. Department employees, contracted medical per-
sonnel including a physician, nurse and pharmacist?
A. Yes.
Q. Then it goes on to say that an execution team
also consists of anyone selected by the department
539
director who provides support for the administration
of lethal chemicals, including individuals who pre-
scribe, compound, prepare or otherwise supply the
chemicals for use in a lethal injection procedure.
Are there any other individuals.
174] Q. And of course you have familiarity with
where the individual is being executed is physically
located.
A. Correct.
Q. Thank you.
And going back to Section A under Execution Team
Members of the open protocol it identifies contracted
medical personnel including a physician, nurse and
pharmacist. Are there any other medical personnel
besides from a physician, nurse and pharmacist who
would be present?
A. Medical personnel?
Q. Correct.
A. No.
Q. And let’s just speak very generally about why to
your understanding would a physician be present?
A. Say again.
Q. Why would a physician be present?
A. Because he’s the person that examines the
individual, prepares the chemicals, it stands on its
face exactly what that person does in the protocol.
Q. And could you direct me where in the protocol
you're pointing to?
[75] A. Yes. Part B. part C, part D.
540
Q. So those sections all refer to medical personnel
in general.
A. Yes.
Q. My question was specifically regarding the phy-
sician. To the extent you understand the differences
in the roles between the physician, the nurse and
the pharmacist, I’m just asking you to explain what
specifically each role does.
A. The physician does B, C and D.
Q. And what about the nurse?
A. The nurse stands by for assistance.
And can perform B, C and D as well.
Q. And the pharmacist?
A. What about them?
Q. What role does the pharmacist handle during
the course of executions?
A. Pharmacist supplies the pentobarbital.
Q. So skipping down to section B, preparation of
chemicals. Do you see that section Mr. Lombardi?
A. Ido.
Q. And do you see B(1) talks about [76] syringes I
and 2?
A. Uh-huh. Yes.
Q. Do you know why there are five grams of
pentobarbital?
A. Because that’s the amount that will make, that
will be powerful enough to ensure that the person is
deceased according to the physician.
541
Q. And if you look down at Number 3 it also asks
for, it mentions five additional grams of pentobarbital.
What is your understanding of why there are five
additional grams of pentobarbital?
A. Ifin fact, to ensure that the person is deceased.
If in fact they have not passed then there’s a second
possibility of adding additional, and that’s what that’s
for.
Q. Do you know what the effects of pentobarbital
are on the human body?
A. I know this amount of pentobarbital kills a
person.
Q. Do have you any understanding beyond that as
to the effects of pentobarbital?
A. No.
Q. Are you aware of any side effects from
pentobarbital?
A. Im sorry?
{77] Q. Are you aware of any side effects from
pentobarbital?
A. No.
Q. If pentobarbital is not available, are there any
backup chemicals —
A. Say again.
Q. If pentobarbital is not available are there any
chemicals that are used in its place?
A. We have not had that issue.
Q. So pentobarbital is the only chemical that is
used for lethal injections in the State of Missouri, is
that correct?
542
A. As of when I left on January the 10th.
Q. Okay. Looking down at Section C, the intrave-
nous lines. Do you see that on the open protocol?
A. Yep.
Q. And it says medical personnel shall determine
the most appropriate locations for intravenous or IV
lines.
Is this the same medical personnel that’s referred to
above under execution team members?
A. Correct.
[78] Q. What is the point — and it goes on to discuss
a primary IV line and secondary IV line. Do you know
the point of having both a primary and a secondary
line?
A. To ensure that there’s an adequate amount of
chemical inserted.
Q. So the chemical goes through both IV lines?
A. Right.
Q. Does the chemical go through both lines
simultaneously?
A. I don’t even know that.
Q. Okay. Have you ever encountered a scenario
where the medical persornel could not insert an IV
line into the individual?
A. No.
Q. Lower on in that paragraph it says medical
personnel may insert the primary IV line as a periph-
eral line or as a central venous line, it goes on to say
providing they have appropriate training, education
and experience for that procedure.
543
What do you understand that to mean when it says
appropriate training, education and experience?
{79| A. I think it stands on its face. Just simply that
they know how to do that procedure.
Q. Have you an experience where medical
personnel were not experienced, did not have the
training, education and experience for that procedure?
A. Never.
Q. Why is it important for medical personnel to
have appropriate training, education and experience?
A. To ensure that the process is carried out
successfully.
Q. And when you say successfully you mean that
the individual dies.
A. Correct.
Q. Before inserting the IV lines does any medical
personnel check the individual’s airways?
A. I don’t know that.
Q. Do they check blood pressure?
A. I don’t know that.
Q. Before inserting the IV lines do they to your
knowledge do any other check of the heart rate or any
other —
A. The heart rate is monitored.
[80] Q. It’s an EKG?
A. Right.
Q. Are there any other evaluations the medical
personnel does immediately before they introduce the
IV lines into the individual?
544
A. I’m not aware.
Q. So we were talking a little bit earlier about the
monitoring of the prisoner and I believe that’s
addressed at Section B of the open protocol, that’s the
page ending in 920, or excuse me, 020. Do you see that
at the top of the page?
A. Yes.
Q. And number 1 says the gurney shall be
positioned so that medical personnel can observe the
prisoner’s face directly or with the aid of a mirror.
What is a gurney?
A. It’s the hospital bed.
Q. And is the individual situated on the gurney
during the execution?
A. Yes.
Q. And how are they situated on that gurney? Are
they sitting —
A. They’re laying down on the gurney.
Q. So they’re laying flat on the gurney.
[81] A. Yes.
Q. Is the gurney horizontal?
A. What do you mean horizontal?
Q. Is it, and I'll represent for the record that I’m
using my hand to indicate a horizontal straight line.
A. Yes. It’s not vertical, yes, it’s horizontal.
Q. Is the gurney at all adjustable, in terms of could
they adjust the angle?
A. I don’t know.
545
Q. In your experience have all executions taken
place where the gurney is lying flat?
A. Yes.
Q. If an individual had a specific condition that
made it uncomfortable or painful for them to lay in a
flat position do you know if a gurney can be adjusted
such that they wouldn't be lying flat?
A. I don't.
Q. Do you know at what point in the execution
process the individual is strapped — are they strapped
to a gurney?
A. Yes.
[90] A. Yes.
Q. But when you said the director you're referring
to yourself, correct?
A. Yes.
Q. So in your judgment what would be an
appropriate amount of time of waiting —
A. I would listen to what the physician had to say
about the need.
Q. Do you have an independent opinion of what
would be a sufficient amount of time?
A. No.
Q. Going down to E(5) where it says at the
conclusion of the process and after a sufficient time for
death to have occurred medical personne! shall
evaluate the prisoner to confirm death.
Similar question, what is your understanding of a
sufficient time for death to have occurred”
546
A. The heart monitor being flatlined is the way in
which the physician makes that determination.
Q. In your judgment what do you think constitutes
a sufficient time for death to have occurred?
(91) A. Say that again.
Q. Is 10 minutes a sufficient amount of time for
death to have occurred?
A. I leave that up to the physician to share that,
what {J thinks.
Q. Do you have an opinion as to what a sufficient
time for death to occur is?
A. No. As I said, it has never occurred that we had
to use a second group of drugs.
Q. I understand.
A. Ever.
Q. Just asking generally about what you deter-
mine to be a sufficient amount of time.
A. Right.
Q. Skip down to section F and particularly F(4). It’s
the last sentence that begins if any irregularities are
noted.
A. Yes.
Q. And it goes on to say that DAI, I believe that’s
the director of adult institutions.
A. Correct.
Q. Division director shall promptly determine
whether there were any deviations from this protocol
and shall report his findings to the department
director.
547
[92] A. Correct.
Q. What irregularities would be noted during an
execution?
A. There have never been.
Q. That wasn’t my question. My question is what
irregularities is this referring to?
A. It would be hypothetical for me to guess what
that would be and I’m not going to do that.
Q. If somebody had, if the [TV was not properly
inserted, excuse me. If the administration of the
intravenous lines into the individual’s [V — excuse me,
strike that.
If the [Vs were not properly inserted would you
consider that an irregularity?
A. Ultimately it would have to be or otherwise it
wouldn’t be a successful execution, so that seems
irrelevant.
Q. That was my question. My question is what do
you understand irregularities to mean?
A. Idon’t know because it never has occurred, but
that’s the answer I have. Period.
Q. Under the protocol what happens if
irregularities are reported to you?
A. The DAI director should report to me [93} as the
department director.
Q. And then what do you do with that information?
A. I would keep it, we would have it in that
recorded data that the chemical log and so forth. Never
happens, so I've never had to do it.
548
Q. Am I correct then in your testimony, your
testimony is in your experience you've not experienced
or seen any irregularities?
A. Never.
Q. Do you, to your knowledge are there any
protocols in the event that an irregularity does arise?
A. Say again.
Q. Are there any protocols in the event an
irregularity arises during the execution?
A. This is the protocol.
Q. So what is your understanding if an irregularity
arises, what protocol does the execution team follow?
A. They know whatever the irregularity was, DAI
director reports it to the director.
Q. But I'm talking about at that very moment in
time.
Let me be more specific. If the [94] inmate responds
negatively to the drugs, the pentobarbital or one of the
sedatives, what protocols are in place to address that?
A. It’s never happened, I don’t anticipate it hap-
pening so I don’t have it. I don’t have an answer to that
because it’s never happened and I don’t anticipate it
happening.
Q. That’s a little bit different than the question I’m
asking, but just to be clear is your answer then that
you’re not aware of what protocols would be in place in
that situation?
A. Well, I think it goes back to if in fact the first
set of, if the first injection of the drug in some way did
not in fact render the individual deceased then an
549
irregularity would be yes, we ought to do the second
and that would be the irregularity.
Q. Sure. And the irregularity in that circumstance
is the individual did not die right away at some point
after five grams were administered and then you
administered the second five grams of pentobarbital.
A. Correct.
Q. So my question is in a circumstance where the
individual reacts negatively to the drugs [95] that are
administered, negatively not being they don’t die, just
there’s some adverse health reaction, what protocols
are in place to deal with that situation?
A. It has never happened, we don’t have a protocol
for it. I don’t anticipate it ever happening.
Q. What if a prisoner begins convulsing during the
execution process?
A. It’s never happened and it won’t happen, I don’t
believe. This is a powerful drug that is injected, if not
the first time the second time and there’s just no way
a person could live through that. According to my —
Q. My question is not necessarily whether they live
or die, I’m just talking about their reaction to the drug.
A. I have nothing for you in that answer. Nothing.
Q. You’re not aware of any protocols.
A. Nothing.
Q. If the individual starts choking during the
administration of the chemicals, are you aware of any
protocols in place to deal with —
A. That’s never happened and no, we [96] don’t
have anything. I would rely on the physician to deal
with that issue.
550
Q. You’re not aware of any protocol to deal with it?
A. No.
Q. If a vein blows during the course of the
administration you’re not aware of any protocols in
place to deal with that?
A. No.
Q. Who makes the determination to stop an
execution?
A. The only thing that stops an execution is if
there’s a stay that occurs.
Q. Aside from the stay are there any protocols in
place to stop an execution?
A. Absolutely not.
Q. So we talked about some medical personnel who
are present for the executions, correct?
A. Yes.
Q. Are you aware of a protocol for the non-
anticipation by health services staff members?
A. Say again.
Q. The protocol titled — rather than test your
memory why don’t I show you the document.
197] (MARKED PLAINTIFF'S EXHIBIT NO. 8)
Q. (BY MR. FOGEL) Mr. Lombardi, if you could
take a moment just to review that document.
A. (Reviewing document). Okay.
Q. Are you familiar with this document?
A. No, not — vaguely. Not my policy, it’s the DAI’s
policy.
551
Q. Okay. And that’s the director of adult
institutions?
A. Right.
Q. And I'll represent to you this is a document that
was produced to us by defendants in connection with
this litigation and just focusing on the line where it
says purpose, it says this procedure has been
developed to ensure health services staff members do
not participate in offender executions.
Are you familiar with that policy?
A. Generally, yes.
Q. Could you explain what that policy is?
A. Yeah. That means people that work for us in
health services will not be involved in it.
Q. And when you say us are you saying
* *
[118] Q. Prior to Mr. Bucklew’s scheduled execution
in 2014 are you aware of any special steps that were
taken in the days or weeks leading up to the execution
to monitor his condition?
A. I don’t know that.
Q. You don’t recall whether that happened one way
or the other?
I don’t. Exactly.
Do you know what a DNR is?
Say again.
A DNR. Do you know what that is?
Yes. Do not resuscitate.
And what does that mean, or what is a DNR?
O©rpDpPpop
552
A. An individual or a family member for somebody
that’s incapacitated indicates that no extraordinary
measures to keep a person alive when they are in fact,
have an illness of such grievous content that they’re
going to pass away.
Q. Is part of the protocol prior to an execution to
give an inmate an option to sign a DNR?
A. Not to my knowledge.
Q. Do inmates sign DNRs?
A. Yes.
[119] Q. They do?
A. Yes. Who is in charge of — strike that.
To your knowledge did Mr. Bucklew sign a DNR?
A. Ihave no idea.
Q. Does the Department of Corrections force
inmates to sign DNRs?
A. No.
Q. Is lethal injection the only manner allowed
under Missouri law to inflict the punishment of death?
A. No, the statute also indicates gas could be used.
Q. Any other manners besides gas and lethal
injection?
A. No.
Q. Does the state of Missouri have a lethal gas
protocol?
A. Does not.
Q. Do you know why it does not?
A. Because we have pentobarbital as the use.
553
Q. Can you explain why the use of pentobarbital
means that the state should not have [120] a lethal gas
protocol?
A. The lethal gas protocol, the lethal gas situation
is very controversial, no other state has used it to my
knowledge. I do have some knowledge of the old gas
chamber, when the first individual was to be executed
we put smoke in the gas chamber and it all came out
and would have killed everybody present. It is a very
volatile and difficult situation and we would never
consider it, especially when we have pentobarbital
which works rapidly and easily.
Q. Does the state of Missouri have a gas chamber?
A. No. Not anymore.
Q. When was the last time somebody was executed
by gas?
A. Idon’t know, the 30s.
Q. Has the state of Missouri to your knowledge
decreed a lethal gas protocol at any time?
A. Absolutely not.
Q. Has the State of Missouri investigated whether
it should adopt a lethal gas protocol?
A. Whether what?
[121] Q. They evaluated whether it should adopt a
lethal gas protocol?
A. No.
Q. Why is the state taking the position that lethal
gas is not feasible?
A. I think I shared that with you just a moment
ago. Because it’s dangerous, nobody’s ever used it and
554
our own experience in the first execution in terms of
testing the chamber indicated that everybody present
would have been killed. So it was not used for the first
execution either.
Q. When you say the first execution what are you
referring to?
A. Imean in modern times, I’m talking about since
the death penalty became constitutional again and
that was Tiny Mercer was the inmate and he was in
fact executed by lethal injection.
Q. Do you recall what year that was, or
approximately?
A. No. It’s available though.
Q. Okay. And is it your testimony that the state of
Missouri tested using lethal gas as an option at that
point in time?
A. We tested the chamber.
Q. The chamber.
[122] A. Yes.
Q. And the outcome of that test was that lethal
gases would leak out through the chamber.
A. Correct.
Q. Did the state of Missouri evaluate — let me back
up.
Is that the only reason why the State of Missouri
does not use the gas chamber?
A. No. Because there’s another alternative with
lethal injection which works safer, quicker, so that was
the option.
555
Q. Has the state of Missouri to your knowledge
looked into properly sealing the gas chamber such that
any gas would not leak out outside the gas chamber?
A. No.
Q. Does that gas chamber still exist today?
A. Yeah, I think parts of it are in the old
penitentiary.
Q. Is the old penitentiary, I’m sorry if I’m asking an
obvious question —
A. Missouri State Penitentiary which is no longer
part of the Department of Corrections.
Q. What is used in that building today?
[123] A. I'm sorry?
Q. What is that building used for today?
A. Tours.
Q. Are there any other gas chambers in the state
of Missouri?
A. Ihave no idea but I don’t think so.
Q. Maybe I should be a little bit more clear. Any
gas chambers in any state facilities throughout the
state of Missouri to your knowledge?
A. Oh, no. Absolutely not.
Q. Does the state of Missouri have a protocol in
place in the event that it is determined that lethal
injection is not a viable form of execution?
A. No.
Q. To your knowledge what would happen in that
circumstance?
A. Say again?
556
Q. Ifit was determined for some reason that lethal
injection was not a proper, or viable means to execute
somebody what would happen in that circumstance?
A. That’s a hypothetical and I have no idea, I’m not
going to answer that.
Q. Has the Department of Corrections [124]
explored the possibility of alternative forms of
execution?
A. No.
Q. Does the state of Missouri look to other states
for guidance in its execution protocol?
A. On the contrary, states have looked to us for
protocol possibilities.
Q. But bas the state of Missouri to your knowledge
looked to other states for guidance on its execution
protocol?
A. No.
(MARKED PLAINTIFF'S EXHIBIT NO. 9)
Q. (BY MR. FOGEL) Mr. Lombardi, I’m showing
you a document, I’m sorry, you’ve just been handed a
document that’s been marked Plaintiffs Exhibit 9.
Just take a moment to review the document and
familiarize yourself with it.
A. Okay.
Q. Are you familiar with this document?
A. lam not.
Q. Do you know what a Fiscal Estimate Worksheet
?
A.
is
Nope.
557
Q. You see in the top right there’s a [125] bill
number and it says HB, as in boy, 2082?
A. Yes.
Q. Do what you know that means, or refers to?
A. I would assume it means House Bill 2082,
whatever that is.
Q. Do you know what House Bill 2082 is?
A. No.
Q. Does the Department of Corrections at the
time that you left your role as director, does the
Department of Corrections have authority to consider
alternative means of execution?
A. Say that again.
Q. Does the Department of Corrections have the
authority to consider alternative means of execution
beyond lethal injection?
A. No.
Have a what again?
Q. Does it have authority to consider alternative
means of execution?
MS. COULTER: [Ill object to the form of the
question. I think it’s vague in terms of you don’t know
from whom the authority would come, if that makes
any sense.
*_ * *
[130] Q. You don’t know what the state would do?
A. Idon’t know.
Q. Do you know how much it costs to execute
somebody by lethal injection?
558
A. I don’t have that figure off the top of my head
but it is available.
Q. When you say it’s available —
A. I mean there are figures —
Q. There are figures out there.
A. That question has been asked by members of
the general assembly and the Department has had to
provide that information.
Q. It’s publicly known, okay. Do you know the cost
of lethal injection as it relates to cost for lethal gas
execution?
A. Ofcourse not. I have no idea.
Q. I have no further questions at the moment for
you.
A. Thank you.
MS. COULTER: I don’t have any questions. I think
he’ll waive signature.
MR. FOGEL: That’s fine. And pursuant to our
discussions this transcript will remain confidential —
highly confidential for [131] certainly the next 10 days
and then we will confer within that process.
MR. SPILLANE: The way I define it it’s not 10 days
from now but 10 days after receipt.
MR. FOGEL: Thank you for clarifying and then
after receipt —
MS. COULTER: We were kind of talking about, if
you all are requesting a draft we would determine the
rest as in the receipt of the final deposition. I mean
that’s how we would interpret it. Just want to make
sure there’s no ambiguity there.
559
MR. FOGEL: We're in agreement.
With that I think we’re done. Mr. Lombardi thank
you very much for your time.
VIDEOGRAPHER: It’s 12:41. We're off the record at
the end of our tenth media and the conclusion of our
|1) IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
No. 4:14-CV-8000-BP
HIGHLY CONFIDENTIAL
RUSSELL BUCKLEW,
Plaintiff
vs.
GEORGE LOMBARDI, et.ai.,
Defendants.
DEPOSITION OF ANNE PRECYTHE
TAKEN ON BEHALF OF THE PLAINTIFF
February 22, 2017
ANNE PRECYTHE,
of lawful age, produced, sworn and examined on behalf
of the PLAINTIFF, deposes and says:
(The deposition began at 9 a.m.)
EXAMINATION
QUESTIONS BY MS. NOTTON:
Q Good morning. Thank you for being here this
morning.
561
I am Susan Notton with Sidley Austin. This is my
colleague, Reachel Bimmerle, and we represent the
Plaintiff in this matter, Mr. Russell Bucklew.
If Defense counsel wouldn’t mind introducing?
MS. COULTER: Caroline Coulter on behalf of the
Defendants.
MR. HANSON: David Hanson on behalf of the
Defendants.
MR. SPILLANE: Mike Spillane on behalf of the
Defendants.
[7] BY MS. NOTTON:
Q. And if you wouldn't mind introducing yourself
on the record also, please?
A Anne Precythe, Director of Corrections, State of
Mi ;
Q Thank you.
I'm going to hand you a document this has been
marked as Plaintiffs Exhibit 31. Are you familiar with
this document?
A No.
Q Well, I will represent to you that this is a
deposition notice and that you are here today pursuant
to that notice, is my understanding.
MS. COULTER: Our office would have accepted
service on her behalf, so she may not have seen it
before.
BY MS. NOTTON:
Q_ Have you been deposed before?
A No.
562
Q Okay. Well, I guess I will give you some ground
rules then. So, throughout today’s deposition I’m going
to assume that you understand what I’m asking you,
unless you tell me otherwise.
A Okay.
Q_ So, if you need me to clarify anything, please,
just let me know.
I will wait to ask another question till you’re done
[8] answering. If you don’t mind not answering till I’m
done asking the questions, so we can have a clean
record.
And then, please, also try to always give a verbal
response so that the court reporter can get it on the
record.
And we can always take a break if you need to so,
please, just let us know.
What did you do to prepare for today’s deposition?
A Met with Caroline and Mike on Thursday
morning.
Q Okay. How long did you meet with them for?
A Twenty minutes.
Q Okay. Have you met with anyone else in
preparation for the deposition?
A No.
Q_ Have you spoken to anyone else besides counsel,
such as Mr. Bucklew?
A No.
Q How about any of Mr. Bucklew’s treating
physicians?
A No.
563
Q. Any of the other Defendants?
A No.
Q Okay. Did you review any documents?
A No.
Have you reviewed any transcripts from other
depositions?
A No.
19] Q Any other preparation?
A No.
Q Have you reviewed the complaint in this case?
A No.
Q You indicated that you've never done a
deposition before. Have you ever testified at a hearing?
A Yes.
Q_ Can you describe that?
A_ I was a probation/parole officer in the State
of North Carolina, so I testified in many probation
violation hearings, parole violation hearings. And then
I also testified as Director For Community Corrections
in North Carolina at the administrative office of the
hearings O-A-H office, the administration hearings, in
personnel matters.
Q Have you ever been a defendant in a lawsuit
before?
A No.
Q Have you ever been subject to any formal/
informal complaints related to your work with inmates?
A No.
©
564
Q_ Any complaints whatsoever during your time
with the North Carolina Prison System?
A No.
Q_ And how about so far as director here?
A No.
Q Can you walk me through your education after
high [10] school?
A_ I completed four years at the University of
North Carolina in Wilmington and received a bachelor
of arts degree in psychology.
Q And you were appointed Director of the
Missouri DOC in January; is that correct?
A Correct.
Q_ And what did you do prior to your appointment?
A I was Director For Community Corrections,
which is probation and parole, in the State of North
Carolina.
Q And can you describe, generally, what your
responsibilities were in that role?
A So, my responsibilities were overseeing the
2600 staff that handled supervision of 100,000 offend-
ers in the communities of North Carolina that were
under jurisdiction from the courts and the parole
board. So, I did not have direct responsibilities in
prisons.
Q Have you ever had direct responsibilities in the
prisons before your current role?
A No.
Q Were you also appointed to the National
Institute of Corrections and Advisory Board?
565
A Yes.
Q Can you describe what is that?
A I served as the community corrections person on
that [11] particular board. And we would meet once,
maybe twice a year, to discuss national issues as they
related to juvenile jails, adult prisons, community
corrections and just the national trends, the national
movements about what went on in those different
entities.
Q_ Are you still involved in that?
A lam.
Q_ And how long do you expect that to last for?
A I have no idea.
Q Okay. You are currently director of the Missouri
DOC, correct?
A Correct.
Q Can you describe your responsibilities as
director?
A My responsibilities as director are to oversee
the Director for Adult Institutions, as well as the
operations that happen within our prison system, the
personnel aspects that go along with running a depart-
ment, as well as the legal aspects. It’s overseeing all of
the operations and having an impact on the probation
and parole processes that happen in working in
conjunction with the parole board.
Q_ Have you changed the reporting structure at all
since arriving?
AI have named a deputy director, Matt Sterm,
and that’s the only change I’ve made at this point.
Q
566
Do you anticipate making any other changes to
the [12] reporting structure?
> OP LProOor>lPr>O>L >>
g
;
Q
A
Q
Yes.
Do you have a sense of what those will be?
No.
Do you have any medical training?
No.
Have you ever attended medical school?
No.
Are you a chemist?
I am not.
A biologist?
I am not. That’s why I as psychology major.
Does North Carolina have the death penalty?
We do.
Is it still in use?
There’s been a moratorium in place since, |
, 2006.
Do you know if they use lethal injection?
They do.
Do you know if they use any other methods of
execution?
A
Q
I do not.
Were you ever involved in the execution process
in North Carolina?
A
I was not.
567
Q Are you aware of any complications with
executions in [13] North Carolina?
A lam not.
Q. Are you aware of any executions ever needing to
be halted in North Carolina?
A lam not.
Q Does the State of Missouri have an execution
protocol?
A Yes.
Q What is your understanding of an execution
protocol?
A What, specifically, are you asking? What the
process is?
Q Or just what you think its purpose is?
A Are you asking what is the purpose of the — an
execution?
Q Ofan execution protocol.
A It’s to make sure that there’s a uniform, con-
sistent process. So, that it’s administered properly and
safely and humanely each and every time.
Q Okay. Do you know what an open portion
protocol is?
A No.
Q_ How about a closed portion protocol?
A No, I think I have heard those words, but
without looking back at notes or something, I don’t
recall exactly what those were.
Q Are you familiar with Missouri Execution
Protocol?
568
A Yes.
114] Q [ll hand you a document. I’ve handed you
what’s been previously marked as Plaintiffs Exhibit 5.
A Uh-huh.
Q Have you seen this document before?
A Yes.
Q Can you, generally, describe what it is?
A It describes who’s a part of the execution team,
how the chemicals are prepared, the medical proce-
dure that is established for doing the IV, and then how
the process is — the actual execution procedure itself
from the time that the chemicals are administered.
Q If you look at the bottom on the second page
there’s a date; what is that date?
A October 18, 2013.
Q_ And to your knowledge is this the most current
protocol?
A Yes.
Q. Are you familiar —
A Wait just a minute.
Yes.
Q Are you familiar with what drugs are used
during an execution in Missouri?
A Yes.
Q What are those drugs?
A Phenobarbital.
[15] Q Is that it?
A And saline.
569
Q Is that it?
A To my knowledge, yes.
Q_ Do you know what effect phenobarbital has on
the human body?
A Stops the heart and the — no.
Q It’s okay if you don’t know. That’s fine.
A _Let’s just say no.
Q_ Okay. Are you aware of any studies considering
how phenobarbital might affect people differently?
A No.
Q_ Are you aware of any side effects of phenobar-
bital?
A No.
Q If phenobarbital is not available, do you know
whether the DOC has any other protocols in place for
that?
A No.
Q Do you know what the DOC would do in that
instance?
A No.
Q To your knowledge is this the protocol that
Missouri intends to use for upcoming executions?
A Yes.
Q Do you know whether executions have been
performed using this protocol?
A Yes.
[16] Q And about how many?
A_ I don’t know.
570
More than five, would you think?
Yes.
More than ten?
I don’t know. I haven’t been here in Missouri, so
I can’t speak to prior executions.
Q Understood.
Was it used in the most recent execution?
A Yes.
Q_ And when was that?
A January 31, 2017.
Q_ And were you director at that time?
A
Q
> © > ©
I was.
Is that the first execution you experienced here
in Missouri?
A Yes.
Q Is that the only one that you’ve experienced so
far?
A Yes.
Q Are you aware of any executions since this
protocol was put in place that did not follow it?
A No.
Q Without providing any names or identifying
information, can you, generally, describe the composi-
tion of the execution team?
117] A Its made up of about 50 members of
employees within the Department of Corrections.
Q And can you, generally, describe the functions
of the different members of the execution team?
of]
A They — it’s an extremely detailed process. They
range from patrolling the facility to responding to pro
testers, to parking, to parking for the state’s witnesses,
the victim’s witnesses, or excuse me, state’s witnesses,
the — yeah, the victim’s family, and then the offender's
family and separating people, staying with those three
groups the entire time to facilitate the movement of
the officials during the process.
It consists of members that are with the offender
during the entire process. It’s a very it’s a very
detailed process that — I mean, it takes a large number
of people to make sure that everything runs as
planned
Q Understood
Do you know whether there are any medical team
members on the execution team?
A There are
Q@ Do you know about how many?
A Two
@ And are they in the execution room during an
execution?
A What do you consider the execution room?
[18]
- 76)
Pia
Q And do you know what the function of the
medical team members are?
A Yes
@ Can you describe that’
A One of them is to monitor the machine that th.
inmate is hooked up to and then one is to administer
the IV
@ And what is the purpose of monitoring?
A ‘To check the vitals of the inmate during the
procedure and to ensure that the IV is established
safely
Q On the first page of the open portion protocol it
talks about how the department director can decide
who's on the [19] execution team. In the very first
paragraph
A Okay
@ Do you anticipate making any changes to the
execution team for upcoming executions?
A Not at this time
Q@ On the second page it discusses the process of
njecting the phenobarbital and the saline solution
under Section E. And in the fourth paragraph there
573
it says that the inmate will be checked following a
sufficient amount of time for death to occur. What do
you interpret that to mean?
A Five minutes.
Q_ Exactly five minutes?
A From the time that the — | know what the
protocol is and its five minutes from the time that the
initial solution is administered.
Q Okay. On the very bottom of that same page,
under Section F, paragraph four, it talks about a
sequence of chemicals and chemicals log. Do you see
that?
A Uh-huh.
Q_siIt also notes that there — the possibility of an
irregularity being on one of those forms. Do you see
that?
A Yes.
Q What do you understand an irregularity to be?
A_ I don’t know.
Q.siI’ve handed what’s been previously marked
20 A co
with this document?
A No.
Q Have you ever —
A Oh, not this document.
MS. COULTER: If she could have a minute. Look
through the pages.
THE WITNESS: Okay. So, this is the document that
lays out the execution process, the team and what
pody 8 responsi
n familiar with this
BY MS. NOTTON:
Q Do you know who would make that decision
A No, that’s the court process. No
Q Are there any circumstances under which you
might be prepared to halt an execution?
A No, unless there were issues in the facility
something came to light that was, | mean, needed to
stop the process. | mean, then you have to make that
decision, but if there are no [22] legitimate reasons to
stop, we wouldn’t stop the process.
Q Do you know what might cause a delay in ths
preparation process?
A It could be that there was trouble establishing
the IV line in the — in the inmate.
My understanding is if inmates are known to be
drug users their [V might not be stable. | mean, their
veins may not be stable. So, | mean, it, again, dealing
with people, you don’t know exactly what could
possibly come up. So, you have to be prepared to
respond accordingly
Q@ Have you seen or heard of that occurring under
this protocol before?
576
A The only protocol that I'm aware of is that
in incidences in the past if it’s a regular drug user
the veins — the typical veins have been difficult, but
there’s — they have always been able to establish the
[V, it might have just taken longer than normal, that’s
the only thing that I’ve heard.
Q Do you know whether it’s possible to alter the
protocol in any way?
A For who to alter the protocol?
Q How about for you to alter the protocol!”
Q Do you foresee making any changes to the
protocol that would impact upcoming executions?
A No.
Q_sIf you could turn to page 62, please.
Earlier you indicated that phenobarbital and a
saline solution were used during the execution; is that
correct?
A Uh-huh.
Q Are you familiar with the dvucument you're
looking at on page 62?
A sI’ve not seen it before.
Q Okay. Its titled chemical log. And it notes
phenobarbital at the top. Do you see that?
A Oh-huh, I do.
577
Q And then it also notes Valium underneath that
Do you see that?
A Ido
Q@ Do you know if Valium is used during an
execution?
A No, I don’t
Q You don’t know?
A The only use that I’m — I think Valium is used
if the [24] person previously had requested or wanted
a sedative prior to the time leading up to the actual
execution.
Q Okay. What about Versed, the next chemical!
listed?
A Im not familiar with that
Q Okay. And how about lidocaine?
A That’s one that I had heard in the past may be
had used, but I’m not familiar with that.
Q@ Okay. So, to your knowledge it’s only pheno
barbital and a saline solution that are used during the
execution and then the possibility of a sedative; is that
correct?
A That is correct.
a es
Q Do you know whether they would give an
inmate a sedative without the sedative being requested?
A What?
Q Let me try again
Do you know whether an inmate might be given
sedative even if the inmate doesn’t ask for it?
\ No
Q@ You indicated earlier that an inmate is
monitored by the execution team medical members; is
that correct, during
|25| A Correct.
Eee
Q Okay. Are there nonmedical members of the
execution team?
A Yes
@ Do you know what their role is?
A Yes. So, remember the execution team consists
1f about 60 people
Q Right. So, let’s narrow that a little bit
A Okay.
579
a oe
Q Okay. Anything else that you know of?
A (Indicated no.)
Q Do you know whether inmates are evaluated in
any way [26] prior to an execution?
A I know there’s a mental evaluation prior to, and
that’s the one that I’m iamiliar with.
@ Can you describe that for me?
A No.
Q Do you know whether you're involved in that
process at all?
A I send the letter to the governor’s staff to let him
know that the inmate is competent and able, that there
are no mental health deficiencies that would prohibit.
Q And what would you look at to inform that
decision?
A The reports that were given to us by the facility
staff, who evaluate the inmate.
Q_ And can you describe a little bit the facility staff
that you’re referring to?
A No.
Q Do you know at all whether it would be medical
staff or nonmedical staff?
A Yes. I didn’t know we could be that broad. It
would be medical staff and psychological staff, mental
health evaluators.
Q And do you know whether that would be the
medical execution team members that would do that
or would it be the general treating physicians?
580
A | would assume it would be the general treating
|27) physicians in the facilities, because the offender is
not at the actual location where the execution takes
place until a matter of days beforehand. So, it would
be at whatever facility they were currently housed.
Q_ So, then would it be fair to say that that evalua-
tion is done more than just a couple days in advance?
A Yes.
Q Do you know whether there’s a process in place
to prepare a prisoner for execution?
A Ido not know for a fact that there is. I cannot
describe what that would be.
Q Do you know whether an inmate is evaluated
medically before an execution to determine whether
they’re fit?
A Ido not know.
Q_ If you could turn to page 58. It doesn’t actually
have a 58 on it, but it’s between 57 and 59.
A Oh, okay.
Q Have you seen this document before?
A Ihave not.
Q. At the top it says a pre-execution summary of
medical history; is that correct?
A Yes.
Q_ Do you know what something like this might be
used for?
A Yes.
Q Can you describe that?
581
[28] A It appears to me it would be used to deter-
mine someone’s medical history prior to an execution,
since its included in an execution packet.
Q Do you know whether this is given to the
execution team?
A I would think that it is.
Q Okay. Do you know who might fill it out?
A Ido not. I would think that it would be filled out
prior to him getting to — I guess, my thought process
here is that it’s two different processes. There’s a
process leading up to when he goes to the facility for
the execution, but I do not necessarily consider what
is happening there part of the execution team, because
the execution team to me is isolated to the specific
incident. So maybe I’m not following some of this.
So, this would all be part of the packet. So, yes, it
would seem to me that this would be completed by
physicians at the facility where the inmate is currently
located prior to being moved to the facility where the
execution will take place.
Q Okay. Do you know whether the general,
treating physicians are able to participate in an execu-
tion?
A They do not.
Q Okay. But they can still fill out this form, to
your knowledge?
A I would say that they’re the ones who fill this
out. I’m not familiar with anybody at the prison where
the execution [29] occurs filling out this form. I have
no knowledge of that.
Q Okay. So, is it fair to say then that you don’t
know who would fill out this form?
582
A I would agree with that.
Q Okay. And is it also fair to say that you are not
sure who would get this form?
A_ | am good with that too.
Q_ Do you know if any additional evaluations are
performed prior to an execution?
A Idonot.
Q Prior to an execution, so before the protocol
would be initiated, do you know who’s involved in an
inmate’s medical care?
A_ I do not have the specifics on that.
Q Would that be Corizon staff members, to your
knowledge?
A Yes.
Q Do you know whether the Corizon staff
members are facility specific?
A Ido not.
Q_ So, for example, would the same doctors provide
care at Potosi as at the ERDCC?
A Ido not know.
Q Okay. Do you know at what point the execution
protocol is considered to be started such that the medi-
cal or treating physicians would no longer be involved
in an inmate’s care?
[30] A No.
Q_ Do you know whether the regular treating phy-
sicians would still provide care on the day of execution
at all?
A I don’t know.
583
Q Do you know whether there’s any restrictions
on sharing information between the regular Corizon
treating physicians and the execution team members?
A I don’t know.
Q Do you know when the last time an inmate sees
a doctor before an execution?
A No.
Q_ If you doubt an individual's competency to be
executed medically or otherwise, what would you do?
A I don’t know.
Q Is it fair to say that you don’t know whether the
execution — the medical members of the execution
team evaluate the inmate at all?
A Correct, that’s fair.
Q_ And you don’t know what information is given
to the medical members of the execution team?
A Ido not.
Q Do you know if they are allowed to ask for
additional information, if they want it?
A Ido not.
Q Do you know whether you would delay an
execution if a [31] medical team member asked for
additional information?
A Ido not.
Q What about if a medical team member thought
that a prisoner was not fit to be executed?
A I don’t — the med — I don’t know exactly how to
respond to that. The medical team members that are
there do not have enough information to make a
determination if somebody’s fit.
584
Q _ So, that determination is made in advance of
when the medical execution team members would see
the inmate; is that correct?
A I would assume so.
Q Do you know what cavernous hemangioma is?
A No.
QI will represent to you that it’s a condition
where blood vessels form benign tumors.
Mr. Bucklew suffers from this condition. Do you
know who Mr. Bucklew is?
A Ido not.
QI will represent to you that he is the Plaintiff in
this matter.
So, I will assume then that you have never seen Mr.
Bucklew?
A [have not.
Q Or spoken to him?
[32] A I have not.
Q Did you learn about Mr. Bucklew at some point?
A When I found out I was being deposed.
Q Are you aware that he has tumors in his
airway?
A_ Ido not.
Q_ Are you aware that he experiences bleeding?
A No.
Q_ Are you aware that he’s given medical supplies,
such as gauze, to deal with that bleeding?
A Nope.
585
Q Are you aware that the Defense’s expert has
concluded that he has a Mallampati four airway?
A No.
Q_ Do you know what that means?
A Ido not.
Q Do you know whether an inmate has ever had
this condition before?
A Ido not.
Q How about a death — an inmate on death row?
A Ido not.
Q Do you know if the department has ever
researched whether anyone with this condition has
been safely executed?
A Idonot.
Q Does the execution team know of Mr. Bucklew’s
condition?
133] A I do not know.
Q Do you intend ts make them aware of his
condition?
A Ido not.
Q_ Do you know whether the execution team will
be able to see Mr. Bucklew in advance of the execu-
tion?
A They would not. I do not.
Q You do not know or they would not see him in
advance?
A Who, specifically, are you talking about on the
execution team? Because it’s — I mean, there are a lot
586
of people involved. So who, specifically, are you talking
about?
Q_ So, my focus would be on the members that are
actually administering and involved in the room
during the execution and helping to carry it out.
A And none of those people will see any inmate
until the time of the execution.
Q So, they would not see an inmate until the
inmate was brought into the execution room and put
on the gurney; is that correct?
A Correct, yes.
Q And prior t that, they’re not provided any
information medically or otherwise?
A No.
Q Doyou know whether they’re provided anything
on the day of execution though?
A No.
134] Q And you don’t intend to provide them with
anything?
A Ido not.
Q So, you couldn’t tell them about his bleeding, for
example?
A It’s not — okay. I don’t know how that will be
handled.
Q Okay. Do you know whether the protocol can be
customized for a particular inmate?
A I’m — would — okay. So, I’ve been through one
execution and it was — it had no complications tied to
it in any way, shape or form. So, I do not know what
information would be provided to the team, based on
587
what medical implications may exist within an
inmate.
If that were to come, we would have to figure out
what are the — what is able to be done or not done. I
don’t know how we would respond to that until you
have a situation in front of you that an execution was
ordered to be carried out and then we'd have to figure
out what can be done.
So, I mean, you’re asking me questions that I don’t
know, because I don’t have a situation that I have had
to research and be a part of.
Q So, is it fair to say that you've never had to make
that judgment call before?
A Thank you. That is correct.
Q Prior to an execution, do you take any efforts
[35] personally to prepare yourself?
MS. COULTER: I’m going to object at this point
don’t know how that’s relevant and to me that’s very
vague. Prepare herself in what way?
BY MS. NOTTON:
Q_ Well, answer if you understand.
A I have a — I have a personal view of how I look
at that.
Q Can you describe that for me? Are you saying
like a personal belief or I’m trying to understand if —
what steps you might take to prepare for an execution?
A_ So, to me an execution from a Department of
Corrections standpoint is business. It is our job to
carry out the laws of the State of Missouri. If an
execution is ordered by the Supreme Court of Missouri
my job is to ensure that we do it in the most humane
588
way possible. And I have complete confidence in every
one of my staff members that are involved, as well as
medical staff in making determinations if it’s appro-
priate. And that is what we do. And to me it’s business
and that’s my job as Director of Corrections.
Q_ Understood.
If you are aware that you have an inmate scheduled
for execution that might have a unique medical condi-
tion, would you prepare in any other way?
A I think doing due diligence and working with
medical [36] staff and understanding everything around
the case that there is to understand, that would be the
additional preparation.
Q So, would that encompass something like
researching that unique medical condition?
A That’s not my job. I’m not a medical person. My
job is to carry out the laws of the State of Missouri.
Q Do you anticipate familiarizing yourself with
something like that though, if you were aware that an
inmate had a condition?
A I can’t speak to that.
Q Okay. Do you know if the protocol calls for any
specific steps to be taken if an inmate that is a unique
medical condition?
A | am not aware of that.
Q If an inmate were to hemorrhage during an
execution, is there a protocol in place for that?
A I don’t know.
Q Do you know what you would do?
A_ I don’t.
a leh,
Q How about if an inmate were to choke during
xecution, is there a protocol in place for that
A | don't know
Q Do you know what you would d
\ | don't
Q@ How about if an inmate were to start to bleed
luring an |37| execution, is there a protocol in plac:
for that?
A | don't know
Q Do you know what you would d
\ | don’t
Q@ How about .if in inmate’s vein were to becom:
omprised or to blow, is there a protocol in place for
that?
, Idon't know
Q@ Do you know what you would d
A | don’t
Q@ The closed protocol discusses the us
urtains. Are you familiar with that?
590
Q If an inmate were to start visibly bleed
,
ring in execution. would vou close the curta
would assumes ; :
se guest
: -
7
: ~N
,
:
4
: et y : sted ‘ a 13 ° tea eY hy
pie fT ina a nat ne w iid : \
horiza } L
591
[39] Q Do you know what type of tools would be used
for that?
A No.
Q Would you anticipate authorizing something
like that it you got a call?
A I would.
Q Okay.
A Yes.
Q_ Do you know whether execution team members
are allowed to opt out for any reason?
A They are.
Q Okay. And would you — and what would you do
if an execution team member wanted to opt out?
A I would allow it.
Q_ Do you require any run-throughs of the execu-
tion process in advance of an execution?
A Its not required, but it has been done in the
past. And we did one with this past — with Mr.
Christi
Q_ Do you expect to do that before each execution?
A Probably, until I’m comfortable with them.
Q_ And does that go through the current protocol,
start to finish?
A Yes.
Q And does it assume that the protocol will go
according to plan?
A_ It would be based on the — the situation that
was [40] presented to us.
592
Q Can you describe what that means?
A _ So, similar to your request, it would go — yes, it
would go as planned based on, yes, the issue and
anything that surrounding that particular execution,
it would go — the run-through would go as planned.
Q Just to make sure I’m understanding, so it
would go as planned, meaning it would assume that
the protocol would be able to run start to finish
without any issues?
A Correct.
Q Is lethal injection the only manner allowed
under Missouri law to inflict the punishment of death?
A To my knowledge, yes.
Q Do you know whether lethal gas is authorized
in Missouri?
A Idonot.
QI will represent to you that a Missouri statute
does authorize —
A Okay.
Q_ -— both lethal injection and lethal gas.
Does the State of Missouri have a lethal gas
protocol?
A Not to my knowledge.
Q_ Do you know if it ever had a lethal gas protocol?
A Ido not.
Q Are you aware of any other states having a
lethal gas [41] protocol?
A lam not.
593
Q Do you know whether the State of Missouri has
a gas chamber?
A Ido not.
Q_ Do you know approximately how much it costs
to execute an inmate?
A Ido not.
Q Can you ballpark it?
A I cannot.
Q When you became director, were you informed
about Missouri execution procedures?
A_ Not about their — when I became director, yes.
Q Okay. And was that focused only on lethal
injection?
A That was the process that was planned for that
one, yes.
Q_ For that one, meaning for the execution at the
end of January; is that correct?
A Lethal injection is the process used by the State
of Missouri and so, that’s what we’re doing.
Q_ Have you discussed whether lethal gas might be
an available option for an execution?
A Ihave not.
Q Do you know whether the state has rejected it
as an option?
[42] A I do not.
Q_ Are you aware of any studies conducted by the
state in to the viability of lethal gas as an option?
A lam not.
594
Q Is there a formal process in place for evaluating
whether an alternative means of execution might be
used?
A_ I don’t know.
Q Do you know how you would go about looking
into something like that?
A_ Not yet. I'd have to rely on my team to help me.
Q Have you ever looked into the possibility of
execution by lethal gas?
A Ihave not.
Q Do you know what factors the state might
consider in determining the viability of an alternative
means of execution?
A_ Idon'’t.
Q What is your impression of the feasibility of
lethal gas?
A I don’t have an impression.
Q Do you know what the State of Missouri would
do if lethal injection was considered not a viable option
for an execution?
A Idon’t.
Q Do you know whether the state has ever consid-
ered use of something other than a gas chamber?
[43] A I don’t.
Q How about something like a gas mask?
A_ I don’t — I don’t have any — I don’t.
MS. NOTION: Can we take one more quick short
break?
MS. COULTER: Sure.
595
(Recess. )
BY MS. NOTTON:
Q Okay. Just a couple more questions.
A Okay.
Q_ So that we’re clear, do you have the authority to
alter or customize the execution protocol in any way?
A_ Ido.
Q_ And can you explain that?
A As Director of Corrections I would rely on the
team that participates in the preparation for execution
to help determine if there were any alterations that
needed to be made.
Q_ And can you describe what type of altervtions
can be made?
A No, because I don’t know what alterations
would need to be made.
Q So-
A You asked if I could and I said I could. But I
can’t tell you how it would or why it would, because |
don’t have any reason to change it.
[44] Q I see.
So, to be clear, you would have the authority to
change anything in the execution protocol if you felt it
was needed to be changed?
A If I had been advised by my team that changes
needed to be made, I would have the authority to make
changes.
Q_ To any of che protocol itself?
596
A If I were advised by my team that changes
needed to be made, not knowing what any of that
might be, I have the authority to make changes to the
protocol.
Q_ So, let’s say phenobarbital wasn’t available,
would you have the authority, for example, to use a
different drug?
A I don’t know that.
Q How about if an inmate suffered from some
medical condition that made them prone to bleeding,
would you change the protocol in some way?
A _ I would have to be given information from
medical. I mean, that goes into understanding all that
goes behind the particular inmate that is preparing to
be executed. I mean, that’s all part of understanding
the case and what goes on behind it and if any altera-
tions needed to be made, but I would rely on my team
to provide me with the information.
Q So, in your mind what would you consider
alterations?
A I don’t know. I have no idea.
Q Do you know when you would make a decision
like that to [45] alter the execution protocol?
A No.
Q Do you know whether the inmate would be
informed if the execution protocol was altered?
A_ I don’t know.
MS. NOTTON: I have nothing else.
597
CROSS-EXAMINATION BY MS. COULTER:
Q Director, can you tell us, when did you start
with the Missouri Department of Corrections? Do you
know which date?
A I was confirmed January 10th.
Q Okay. And which year?
A 2017.
Q Thank you, Director.
And in your capacity as director you've participated
in only one execution?
A Correct.
Q. And that was the execution on January 31st of
2017?
A Correct.
Q_ And earlier we heard testimony regarding the
execution team. When you answered you described
what you had said was a large group of individuals,
was that your personal — that’s how you interpreted
execution team —
Q -—to mean?
Okay. Are you aware of the department’s protocol,
[46] which specifically defines execution team members?
A Yes.
Q Okay.
A lam now.
Q_ In your definition were you not intending to
expand execution team members as defined by the
policy?
598
A Expand, no.
Q Okay. And obviously, the executions take place
at a prison?
A Yes.
Q_ And prisons require staff?
A Yes.
Q_ And so, there are going to be other individuals
at the prison, beyond execution team members defined
by policy, that are still going to be participating in
some fashion; is that correct?
A Yes.
Q Okay. You were also discussing or we had also
asked questions regarding medical information relayed
to medical team members. Do you — do you now know
whether or not medical information is relayed to the
execution medical team members?
A Ido.
Q And is the offenders medical information
relayed to those medical team members?
A itis.
147] Q Okay. But you do not provide that infor-
mation; is that correct?
A Ido not.
Q Okay.
A No.
MS. COULTER: I don’t have anything further.
MS. NOTTON: I have a few additional questions.
599
REDIRECT-EXAMINATION BY MS. NOTTON:
Q Can you describe what your understanding of
execution team is now?
A Yes. The execution team is the core team, would
be the members in the room adjacent to the execution
chamber itself.
Q_ And does that — what does that team consist of?
So, no identifying information, but —
A Would consist of medical and nonmedical
employees.
Q Okay. And do you know about how many?
A Four people, to my knowledge.
Q You indicated that you now know that medical
information is relayed to the execution team; is that
correct?
A itis.
Q What medical information is relayed; do you
know?
A_ Ido not know, specifically. The medical history
form would be given to the one of the medical staff in
the room, but I’m not aware of the specific medical
information.
Q_ And are you referring to the form that we looked
at in [48] the closed protocol?
A On page 53.
Do you know who fills out that form?
I do not.
Do you know if anything else is given?
I do not.
> © > &
600
Q_ And earlier you indicated that if you were to
alter the protocol in any way you would rely on
information from your team. Were you referring to the
execution team?
A Yes.
MS. NOTTON: No further questions.
RECROSS-EXAMINATION BY MS. COULTER:
Q Director, if you could look at Plaintiff's Exhibit
5 in front of you. And if you could read that first
paragraph there?
A The execution team consists of department
employees and contracted medical personnel, includ-
ing a physician, nurse and pharmacist. The execution
team also consists of anyone selected by the depart-
ment director, who provides direct support for the
administration of lethal chemicals, including individu-
als who prescribed, compound, prepare or otherwise
supply the chemicals for use in the lethal injection
procedure.
Q Okay. And I know we have had a lot of, I guess,
questions today on the definition or your interpreta-
tion of the definition. Is this — let me ask: When you
had previously explained execution team members,
your belief is that it is [49] still consistent with the
protocol as defined by the execution protocol?
A Yes.
Q Okay. And that would include anyone who
would provide direct support for the administration of
the lethal chemicals —
A Yes.
Q -correct?
601
MS. COULTER: Ali right. I have no further
questions.
MS. NOTTON: Nothing else.
Deposition concluded at 10:40 a.m.
{1] IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
No. 4:14-CV-8000-BP
HIGHLY CONFIDENTIAL
RUSSELL BUCKLEW,
DEPOSITION OF TROY STEELE
TAKEN ON BEHALF OF THE PLAINTIFF
February 21, 2017
[14] for about four years.
Q Can you walk me through the different posi-
tions you have had since becoming part of the Missouri
DOC?
A 1 was a correctional services trainee, which did
classification. And then that automatically transi-
tioned into a caseworker position. Then I went to a
functional unit manager and then promoted to deputy
warden and then to warden.
603
Q When you were promoted to deputy warden,
what facility was that at?
A It was at the Southeast Correctional Center in
Charleston, Missouri.
Q_ And how long 2go were you in that role?
A (No response.)
Q Awhile it seems?
A Yeah, I'm trying to think. Approximately 16
years ago maybe, 16, 17 years ago.
Q_ So, then it was sbout 16 years ago that you
became warden?
A Probably closer to 18 when | started in that
position.
Q_ And where were you warden at?
A I’ve been the warden at three facilities. Later |
was warden at the Southeast Correctional Center,
Potosi Correctional Center and current warden at
Eastern Regional Diagnostic Correctional Center.
[15] Q Were your responsibilities similar across the
three facilities?
A Yes.
Q Can you describe your role and responsibilities
as warden?
A It’s to, basically, be the overseer of all prison
receipes Prva enatins Frotpad =
and then to kind of be an ambassador to the commu-
nity.
Q_ And how long have you been warden at — can I
call it the ERDCC?
A Yeah.
604
How long have you been warden there?
Little over two years.
And how long were you warden at Potosi?
Approximately between four and five years.
So, then about ten years or so at the Southeast
Correctional Center, right?
A_ No. As, actually, as a warden | was there for
about another four to five years.
Q Okay. As warden at the ERDCC who do you
report to?
A The deputy director.
Q Of the entire DOC?
A No. The deputy director of the department of
adult institutions. Currently Alan Earls.
116] Q@ And what is your understanding of Mr. Earls’
role?
A To supervise a zone of the institutions. So, |
report the general operations of our institution to Mr.
Earls. And then he does a third of the state. He’s over
a series of institutions.
Q Can you talk me through some of the day-to-day
responsibilities that you do just to get a better sense of
what your job entails on a regular basis? Perhaps, it’s
not the same every day.
A In general, I would define it as a problem solver.
Q Okay.
A You have a lot of review that is necessary
through, you know, for grievances, transfers, outside
work release, you know, staff complaints, general infor-
mation. Then you have a guidance role where you're
©? Of ? ©
605
kind of the ambassador between central office or
Jefferson City and the institution. So everyday, you
know, I'll meet with particular staff on new policies,
new expectations or things that we need to do and then
general operations. I meet with my deputy wardens
and my executive staff every morning and we do an
exchange of information. So, any guidance or anything
that they need we discuss. And then answer a lot of
phone calls and a lot of letters, either from staff or
offenders or outside entities, etc. Pretty average day.
Q _ Do you interact at all with the director of the
DOC?
[17] A Very little.
Q What would the little interaction relate to?
A I see her or him, now it’s a her, during the
executive staff meetings they generally attend to give
us any instructions or announcements or anything.
And then specifically at ERDCC, due to the execution
protocol, they’re present for that. So, I see them there.
And then occasionally, they will make a tour of the
institution.
Q Uh-huh.
A But other than that, in just general announce-
ments, I don’t have a lot of one-on-one.
Q_ And Anne Precythe is the current director of the
DOC; is that correct?
A Yes, ma’am.
Q_ And what is your understanding of her role?
A Oh, her role is to supervise the entire
department, both, Department of Adult Institutions,
Department of Rehabilitative Services, the Human
Relations Department and then the probation and
606
parole services. So, she encompasses everything or the
supervision of everything.
Q_ Have there been any changes in your role since
Ms. Precythe took over?
A No.
Q Does the State of Missouri have an execution
protocol?
* * *
|22] about the composition, which is allowed under the
Court’s scope of discovery order, but getting into more
intricate details that have already been provided in
the documents, I’m going to object on any additional
questioning regarding the more intricate details of the
execution team and their rules and responsibility.
MS. NOTTON: My understanding is that we are
able to learn about the different roles of execution
team members and what they, generally, do. So, I
think it’s fair for us to ask about what the medical
team members might do during an execution.
MS. COULTER: So, I guess, maybe if we rephrase
the question just based on Mr. Steele’s personal
knowledge about what those team members may or
may not do, generally, | would be comfortable with
asking, but we'll just kind of take it on a question-by-
question basis.
MS. NOTTON: Okay.
BY MS. NOTTON:
Q_ So, to your knowledge what do the two medical
team members of the execution team do during the
execution?
607
, Generally, and I’m, again, | have no medical
training, okay; but through observation, there’s three
basic things that they do: They draw the chemical!
they set the IV line and pronounce the death
(23] Q@ And to your knowledge what do the two nor
medical team members do?
MS. COULTER: Again, just kind of limiting our
scope to just your general knowledge about what the
ee
THE WITNESS: They follow the rest of the protoco!
BY MS. NOTTON
Q) Are all of the execution team members present
for the execution?
MS. COULTER: I’m going to object on relevanc«
BY MS. NOTTON:
608
Q Okay. So, the medical team members are able
to observe the execution?
A Yes.
Q Are they responsible for monitoring the pris
oner during an execution to your knowledge?
MS. COULTER: Can you or I guess, I object to just
use or — on monitoring. Can you
MS. NOTTON: Let me rephrase
MS. COULTER: Thank you.
BY MS. NOTTON:
Q Are the medical team members, is part of their
responsibility, to your knowledge, to observe and
watch the prisoner during an execution?
A I don’t know the answer to that.
Q In your interrogatory responses when describ
ing the execution team you noted that the medical
team members oversee the administration of lethal
chemicals. What do you mean by oversee?
A My understanding, again, I’m uncomfortable
answering [25] that.
MS. COULTER: Okay. Maybe can we just take a
well, would you be comfortable if we just took a brief
minute so that I can ask him regarding his level of
comfort.
MS. NOTTON: Sure,
MS. COULTER: And we can discuss it a little bit
609
(Recess. )
(THE PREVIOUS QUESTION WAS READ BACK BY
THE COURT REPORTER.)
THE WITNESS: Okay. My understanding is that —
let me back up a little. Each person has their protocol
role and for the most part don’t get involved in the
other person’s role. Okay.
My understanding of the medical team, they draw
the chemicals and then they set the IV lines, and as |
discussed before, they pronounce the death. I’m not
aware of anything else, specifically, that I’m aware of
that they do other than those three things.
And it came to me just this second, they do, if we
offer a sedative earlier in the day, they do give us the
sedative to give to the offender or give the offender the
sedative, depending on what time it is.
BY MS. NOTTON:
Q Is it the offender that would request the
sedative?
A We-weask them, you know, they don’t have to
ask, we [26] ask them.
Q Would they have ever given a sedative to an
offender who didn’t ask for it?
A No.
Q Do you know what drug is used for the sedative?
MS. COULTER: You can answer, if you know.
THE WITNESS: Currently, it’s an oral Benadry].
BY MS. NOTTON:
Q And when do you, typically, ask the offender
whether they would want the sedative?
610
A There’s —I don’t have the protocol in front of me,
so I would want to, specifically, look at it. Well, I do.
Can I look at it?
Q Ofcourse.
A Yeah. Because there’s two points where — wait
a minute. Okay. We do it at 1:30 p.m. and that’s when
they offer — the operations officer advises the offender
that he can request a sedative at that time.
And then we also notify him that any time after that
point he can request a sedative. And then we, specifi-
cally, offer again at 5:20.
Q = This is all on the day of execution, correct?
A Yes. That’s with the execution scheduled for six
o'clock.
[27] Q The open portion protocol discusses how
medical personnel determine the most appropriate
locations for IV lines; is that correct?
A Yes.
Q Are you, generally, present when they’re
inserting the IV lines?
A Yes.
Q And how do they make that decision, do you
know, for where to place the IV?
A I don’t know.
Q Do you know whether they do a medical
evaluation of the inmate before inserting the IV line?
A’ No, I don’t know.
Q Have you ever observed a member of the
execution team have trouble inserting an IV line?
A Yes.
611
Q Can you describe that?
MS. COULTER: I’m going to ask for, I guess, a little
clarification, whether you mean trouble inserting the
IV line?
MS. NOTTON: I can try to rephrase.
BY MS. NOTTON:
Q You indicated that you've seen them have
trouble; what do you understand trouble to mean?
[28] A I’ve seen where they've had to try more than
once, because the initial site the IV did not, again, I’m
not a physician, but it didn’t work.
Q_ The protocol allows the medical team members
to insert multiple IV lines, if necessary; have you
observed that?
Yes.
Is that the norm to do multiple IV lines?
Yes, to do two, one in each side or each arm.
And they’re, generally, in the arm?
Generally.
Have you seen the IV inserted some place else?
I've seen attempts. I can’t remember if at the
end they were there or not, but I've seen attempts. And
then I’ve definitely seen on one occasion where we
couldn’t use the arms at all.
Q_ And where was the IV inserted then?
MS. COULTER: If you know you can answer the
question.
THE WITNESS: I don’t know, specifically, but we
did the technique which is called, and again, I’m not a
> O > Of > & >
Vi NOTTON
1} A I’ve seen it attempted, but | ca ré
I nded in the hand or if it ended in the
be yes, Dut | don't know for sures
" : ilf Lx | “ene ’
. i ’ +
¥ | 1¥ ii}
Q@ Have you seen an inmat
r way for an execution
, K ad Ww
p?* { | I LAIKS il i i |
i prisoners and states that the gurney shall
tioned so that medical personne! can observe tl!
‘ 4 rectly ir wit? a. ’ ry
Prisoners tact 1}
Troe ft hig ¥
tive
ul *
17| cell to the gurney. And then, you know
m in and you know, put him on the gurney
© And where is the gurney located?
, It’s — I don’t know what we call the room, bu
where the execution takes place. The w
ictually
i lot of rooms circling a room
that its set up its
Uh-huh
‘ Okay. Let's be hard to describe for her t
,'
write. But you have a room in the middle and on on:
side will be a window where his visitors will be. Then
there's another room where the victim visitors are
"hen there’s a room where the state visitors are. And
then the other part of the square is where, what I cal!
the operations room is. All right. Well adjacent to that
another room where the offender is held. And so
when they bring him in, you know, then we — I com:
n and watch them, you know, place him on the gurney
Q So, the gurney’s in the actual execution room
hamber?
A Yes, yes. So, he walks in and then lays on the
it’s more of a bed, and lays down on the bed and the:
they place the restraints.
() Can vou describe why that occurred f
;
Know.
A | don’t know the specific legal terms, but |!
know that there's been some holds or some somé
legal procedures or something that, and again, I’m not
legally trained, so I don’t know the appropriate terms
30, but I know that there’s been reasons that they hav«
said: Do not move the offender. We're waiting for som:
idjudication of some sort
@ So, it’s primarily for legal purpos
ill clear. essentially
Correct
»4| things that are not hers
@ Can you describe those, generally?
O1D
tio! i that vou not
Q And when you ment ed
rector about the sedativ: in
ike him aware or her aware that the sedat
¥ here » differs : rpose for na
Viv ] ; rstandings iT ri
. know, | notify them as part of the proto
N ffered. And then. you know nat W I
at ler that v ’
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Ana the f ’
Lake it tnen ! ui tnem a 1 ul m that: Y
} ry 4 Ww nitialiv i te Lnen : re I
dow : , P : arf
, _ A A,
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vould give us, you Know, any permissio! i
niy exception 1s i ve haited, Decause a iy wa
speak to the chapla So, | ve I
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] 1OW [
616
use one arm. We couldn't set a second arm, so we went
with one.
(Recess.)
BY MS. NOTTON:
Q So, you had talked about that you had seen a
cutdown used during an execution for finding a vein;
is that correct?
A Yes.
Q And do you know approximately how long it
took to do that cutdown?
[56] A No. I know that it took several minutes, you
know. We had to, you know, go in and there’s an actual
cutdown packet of materials —
Q Okay.
A - that’s available. And so, they had to go in and
they, you know, they got that, they brought it in and
you know, they were able to do it, you know. But you
know, how many minutes it took, I, honestly, I don’t
remember.
Q Okay. But you wouldn’t say it took like 15
minutes or something like that, would you, or do you
just not remember?
A I, honestly, don’t remember, you know. It was
more than a couple of minutes and it could have been
15, maybe more than that, I don’t think so, because it
went fairly quickly. But you know, that’s a whole,
again, I’m not a doctor, but that’s a whole procedure
that, I learned that night, is much more complicated
than what I thought. Again, I’m not a physician, but
it — it — it, you know, it took a little bit.
617
Q Those tools that you refer to, those were
available to the execution team; is that correct?
A Correct.
Q_ And so, these would be in the execution room or
near by [sic]?
A Yeah, it’s actually in that — not in the — I always
say operations room, but there’s, actually, a sealed
sanitary [57] packet with all of the materials needed
for that, that they just rip open and you know, can
place over the area and you know, the gloves, every-
thing is there for the — for the procedure.
Q_ Do you know what type of tools were used for
that, generally, not medical terms —
No.
— not needed?
No, not — not really.
Did you see like a scalpel or some sort of knife?
Yeah, it appeared. But I don’t, again, |, at the
time was talking with the offender so, you know, |
wasn’t concentrating on that part, you know.
Q Uh-huh.
A That’s — I kind of let the medical people do their
thing.
Q Uh-huh.
A And you know, I was, you know, talking to the
offender.
Q Do you know at what point the decision was
made to do the cutdown?
A Yes. The medical personnel told me that they
could not get a good IV in either arm. And so, I went
> © > © >
618
to the director and asked permission to go to the
cutdown format. And then was given permission, at
that time was Director Lombardi. So, I was given
permission and then went back in and told them that
we had [58] received permission and then they, you
know, did the procedure.
(Q So, the permission was from the director to do
that?
A Correct. Yes, ma’am.
Q_ And did the medical members of the execution
team perform that cutdown?
A Yes.
Q_ And do you know whether it was the doctor or
the nurse or both, perhaps?
MS. COULTER: I guess I’m going to object just on
relevancy at this point with the line of questioning.
It’s my understanding that the witness has already
testified that he wasn’t really sure what was neces-
it. | guess, to the extent that you know the — an answer
to that question, you can answer.
THE WITNESS: I know that they were both
working together. I think the primary person was the
BY MS. NOTION:
Qs And this was done on the inmate while he or she
was strapped to the gurney; is that correct?
A Yeah, to the bed.
Q@ Do you know whether any pain reliever was
offered to the inmate before the cutdown occurred?
619
A I know that they did the shot, because I heard
it, you [59] know. I heard him — normally in — well,
every execution, they give a little shot before they
place the IV so that they'll be less pain. And so, I’ve
heard on several — well, every occasion, I've heard the
medical personnel say: Hey, you’re going to get a little
stick here. We’re going to give you a little bit to numb,
but — and I heard that that night: Hey, there’s going to
be a little stick here and...
Q Would that be the lidocaine, do you think?
A 1-1 would be guessing. So, I would prefer not
to answer. I don’t know.
Q Okay. But outside of that shot, that it sounds
like is typically given —
A Yes.
Q -— you're not aware of them giving the inmate
anything else?
A They — I’m sure that they wouldn’t give him
anything else —
Q Okay.
A -— that would be — anything else would have to
go through the director —
Q Okay.
A -— for permission.
Q Could you describe, generally, how big the
execution room is?
{60] MS. COULTER: I’m going to object on rele-
vance. I don’t know how the size of the execution
chamber is relevant to the claims in the petition. And
I don’t know that — I know that obviously was not
explicitly listed in the Court’s order regarding the
HZU
cope of discovery. but to me this may fall int
ntricacies regarding the execution protoco!
MS. NOTTON: The size of room
MS. COULTER: Well
MS. NOTTON im tryu
byection
MS. COULTER: Well. I don’t know how it’s relevant
| don’t understand how the size of room is relevant to
uny of the claims, the surviving claim, that’s in the
petition. And like I said, I know that it wasn’t specifi
cally raised or addressed in the Court's order, that’s
the umbrella, | guess, that | would to me that it
would fall under
MS. NOTTON: I would like you to still
your primary objection is relevancy grounds
y Ye
answer
MS. COULTER: If you can — well, I’m trying to think
f there’s any — can | ask the witness: Is there any
safety or security reason that you would have regard
ing the size of the room? I know we've talked, generally
ibout the
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