# Joint Appendix Vol — Bucklew v. Precythe, 139 S. Ct. 306 (2018) (No. 17-8151) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0842%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix Vol - **Published:** January 1, 2018 ## Text 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0842%3A07. Public record. Not legal advice.