The Florida Department of Corrections is making available the complete text of Senior Circuit Judge Clarence T. Johnson Jr.'s order upholding Florida's electric chair as a constitutional method of execution. The order contains expert testimony and technical information on the execution of Allen Davis, the execution process and the operation of the electric chair. It is recommended reading for those who want to learn more about this subject.
Note: To obtain a copy of this document in another format, or to obtain additional information about this case, please visit the Florida Supreme Court website. A photo of the electric chair can be found with the 6/9/99 Press Release.
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY, FLORIDA
STATE OF FLORIDA,
|vs.||CASE NO.: CR84-835|
THOMAS HARRISON PROVENZANO,
THOMAS HARRISON PROVENZANO,
|FLA. SUPREME CT. CASE NO.: 95,973|
MICHAEL W. MOORE, Secretary,
Florida Department of Corrections,
JAMES CROSBY, Superintendent,
Florida State Prison, and
STATE OF FLORIDA,
ORDER REGARDING PETITIONER'S "AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND PETITION TO INVOKE THIS COURT'S ALL WRITS JURISDICTION AND PETITION FOR EXTRAORDINARY RELIEF"
This matter came before this Court pursuant to the order of the Supreme Court of Florida dated July 8, 1999, relinquishing jurisdiction over this matter and directing this Court "to hold an evidentiary hearing . . . on all issues in respect to the functioning of the electric chair" which were alleged in Petitioner, Thomas Harrison Provenzano's, "Petition for Writ of Habeas Corpus and Petition to Invoke this Court's All Writs Jurisdiction and Petition for Extraordinary Relief and Application for Stay of Execution" filed in the Supreme Court of Florida on July 8, 1999, and in any amended petition filed after that date. On July 22, 1999, Provenzano filed his "Amended Petition for Writ of Habeas Corpus and Petition to Invoke this Court's All Writs Jurisdiction and Petition for Extraordinary Relief" ("Amended Petition"). In the Amended Petition, six other death row inmates were added as petitioners without any attempt to intervene being made either in this Court or in the Florida Supreme Court. Since this Court was directed to hear the Provenzano matter and no others, and since no valid procedural route for intervention was followed, the joinder of Milford Wade Byrd, Eduardo Lopez, McArthur Breedlove, Jerry Haliburton, Gregory Kokal, and Tommy Groover was stricken.
On July 26, 1999, Respondents, Michael W. Moore, Secretary, Florida Department of Corrections, James Crosby, Superintendent, Florida State Prison, and the State of Florida, filed "State's Response to Amended Petition for Writ of Habeas Corpus and Petition to Invoke this Court's All Writs Jurisdiction and Petition for Extraordinary Relief."
On July 27, 1999, through July 30, 1999, this Court held an evidentiary hearing on this matter. At the evidentiary hearing, the testimony of thirty-three witnesses was presented, and numerous exhibits were received in evidence, including photographs of Mr. Davis after his execution had been carried out but before he was removed from the electric chair. This Court has reviewed the testimony of the witnesses, has examined the exhibits and photographs, and has considered the argument of counsel and the law. Following that careful review and consideration, this Order is hereby entered.
In his Petition and at the hearing on this matter, Provenzano raised two main arguments. Those arguments are:
FLORIDA'S ELECTRIC CHAIR IN ITS PRESENT CONDITION CONSTITUTES CRUEL AND/OR UNUSUAL PUNISHMENT AND ITS USE FOR EXECUTION IS UNCONSTITUTIONAL BECAUSE IT DOES NOT RESULT IN INSTANT DEATH, CREATES A RISK OF PAIN, AND INFLICTS SEVERE MUTILATION ON THE BODY OF THE CONDEMNED PRISONER.
FLORIDA'S CURRENT USE OF JUDICIAL ELECTROCUTION AS ITS SOLE METHOD OF EXECUTION IS UNCONSTITUTIONAL BECAUSE IT VIOLATES THE EVOLVING STANDARDS OF DECENCY THAT MARK THE PROGRESS OF A MATURING SOCIETY.
Further, within Claim I, Provenzano raises several sub-arguments. Those arguments are as follows. To begin with, Provenzano argues that the representations which resulted in the factual finding that "Florida's electric chair - - its apparatus, equipment, and electric circuitry - - is in excellent condition," made by the trial court in Jones v. Butterworth, et al., No. 81-4593-CF (Fla. 4th Cir. Ct. July 18, 1997), and the conclusion that "electrocution in Florida's electric chair in its present condition is not cruel or unusual punishment," made by the Supreme Court of Florida in Jones v. State, 701 So. 2d 76 (Fla. 1997), were incorrect. Provenzano argues, based upon newly discovered documents, that the condition of chair itself, as well as the electric circuitry was not in excellent condition as was represented in the Jones proceedings.
Second, Provenzano argues that the Department of Corrections ("DOC") has not been following, and in fact cannot follow, the Execution Day Procedures ("execution protocol") established in April 1997, as a result of the problems that occurred during the execution of Pedro Medina. Provenzano contends that the execution protocol was written in such a way that it cannot be followed because it does not account for the variations in resistance created by the different characteristics, i.e., weight, muscle tone, fat content, skeletal configuration, size, body build, etc., of each individual inmate's body.
Third, Provenzano argues that the testing of the electric chair is not being conducted in accordance with the Testing Procedures for Electric Chair ("testing protocol") established in April 1997, as a result of the problems that occurred during the execution of Pedro Medina. He claims that the precise voltage and amperage requirements established in the testing protocol are not being used during the actual tests conducted on the electric chair.
Fourth, Provenzano argues that the resistance created by an inmate's body is different than the representations that were made during the Jones proceedings.
Fifth, Provenzano claims that death by electrocution in Florida's electric chair is not instantaneous or painless, and that he will suffer conscious pain because his brain will not immediately cease functioning once the electrical current is applied to him. Additionally, he claims he will suffer disfigurement and mutilation.
Sixth, Provenzano argues that the Florida Department of Corrections ("DOC") has exhibited indifference toward the inmates whom have been executed in the electric chair.
In Response to Provenzano's arguments, Respondents assert that the arguments raised in Provenzano's Amended Petition were previously raised and rejected in the Jones proceedings, and that execution by electrocution in Florida's electric chair is being, and will be carried out in the future, within constitutional parameters.
The issues of the constitutionality of the death penalty and death by electrocution are not at issue herein as both have previously been declared constitutional. Gregg v. Georgia, 428 U.S. 153, S. Ct. 2909, 49 L. Ed. 2d 340 (1976) (The death penalty does not violate the United States Constitution's Eighth Amendment prohibition against cruel and unusual punishment); Proffit v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976) (Florida's death penalty statute is constitutional); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 347, 91 L. Ed. 2d 422 (1947) (Death by electrocution is not cruel and unusual punishment); Wilson v. State, 225 So. 2d 321 (Fla. 1969) (Florida's death penalty statute is not cruel or unusual in violation of Article I, Section 17 of the Florida Constitution); Booker v. State, 397 So. 2d 910 (Fla. 1985) (Death by electrocution is not cruel or unusual punishment in violation of Article I, Section 17 of the Florida Constitution); Marek v. State, 492 So. 2d 1055 (Fla. 1986) (same); Medina v. State, 466 So. 2d 1046 (Fla. 1985) (same); Buenoano v. State, 565 So. 2d 309 (Fla. 1990) (Florida's electric chair is not cruel or unusual punishment despite a previous malfunction); Squires v. State, 565 So. 2d 318 (Fla. 1990) (same); Hamblin v. State, 565 So. 2d 320 (Fla. 1990) (same); White v. State, 565 So. 2d 322 (Fla. 1990) (same). At issue here is whether the manner in which Florida currently carries out execution by electrocution is constitutional.
"In order for a punishment to constitute cruel or unusual punishment, it must involve 'torture or a lingering death' or the infliction of 'unnecessary and wanton pain.'" Jones v. State, 701 So. 2d 76, 79 (citing Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 91 L. Ed. 2d 422 (1947)). "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely." Id. (quoting Resweber, 91 L. Ed. 2d at 464, 67 S. Ct. at 376).
WHETHER FLORIDA'S ELECTRIC CHAIR IN ITS PRESENT CONDITION CONSTITUTES CRUEL AND/OR UNUSUAL PUNISHMENT AND ITS USE FOR EXECUTION IS UNCONSTITUTIONAL BECAUSE IT DOES NOT RESULT IN INSTANT DEATH, CREATES A RISK OF PAIN, AND INFLICTS SEVERE MUTILATION ON THE BODY OF THE CONDEMNED PRISONER.
Claim Regarding Condition of Chair and Electrical Circuitry
Provenzano argues, based upon newly discovered documents, that the condition of chair itself, as well as the electric circuitry used to carry out a judicial electrocution was not in excellent condition as was represented in the Jones proceedings. Provenzano bases this claim on public records that indicate the wooden chair in which a condemned inmate sits when he or she is executed was replaced with a new wooden chair earlier this year, and on public records that indicate the electrical circuitry of the electric chair has had numerous failings, and that it was not replaced in 1993 or 1994, as was claimed in the Jones proceedings.
Although Provenzano alleges that inaccurate claims regarding the replacement of the electrical circuitry were made in the Jones proceedings, he has failed to attach the transcript of the Jones hearing to support his allegations.
At the hearing in this case, Provenzano did not focus much of his presentation on the replacement of the wooden chair. His argument on this issue, therefore, is primarily contained within his Amended Petition. Therein, he merely argues that based upon the fact that the old wooden chair was replaced with a new wooden chair, the condition of the chair is different than it was in October 1997 when the Florida Supreme Court decided Jones. However, Provenzano does not assert that the new wooden chair is somehow structurally unsound.
Provenzano did focus a great deal of his presentation at the hearing in this matter on the maintenance of the electrical circuitry. Testimony presented at the hearing established that there have indeed been changes to the electrical circuitry of the electric chair. Specifically, Ira E. Whitlock, licensed electrical engineer, testified on behalf of Respondents as an expert in the field of electrical engineering and as an expert in the design and function of the electric chair. Whitlock testified that he has a contract with the Department of Corrections, and that pursuant to that contract, he developed a preventative maintenance program for the electrical circuitry of the electric chair in 1997. He stated that the equipment had not been maintained from its inception in the 1960s until he established the maintenance program, and that it was in a state of disrepair from neglect. This maintenance program involves several stages, including: a cleaning stage; an electrical test to insure the integrity of the equipment; a contact resistance test to measure the microhm resistance across the contacts; hypotensil to make sure the basic insulation level of the circuitry maintains its integrity that it will operate without failure during actual use; ground continuity tests; and ground potential tests. Whitlock testified that in total, he and the individuals working for him do forty or fifty different tests on the equipment. Whitlock testified that these testing procedures are the same procedures he uses in the industrial field. Additionally, Whitlock testified that he calibrates the equipment and the chart recorder, and that the chart recorder is calibrated for both voltage and current.
Whitlock testified that all three breakers contained within the electrical circuitry of the electric chair were recently refurbished. He refurbished two of them and another company refurbished the third one. Whitlock did the following work on the two breakers: they were disassembled and examined to determine whether they were serviceable or usable; deficiencies were noted and necessary parts were replaced; the contacts were cleaned; electrical tests were performed on them; and, they was reassembled and returned to the Florida State Prison.
Whitlock testified that he had recommended replacement of the breakers, depending on the cost of the replacement. However, it was decided to refurbish rather than replace them. Whitlock testified that although the breakers are old, they are in excellent operating condition.
Whitlock also testified that the electrical circuitry includes a saturated core reactor which limits the current applied to a predetermined set phase.
Whitlock further stated that the Florida electric chair has a chart recorder, but that the chart recorder does not affect the functioning of the electric chair; it simply records events that have taken place.
Whitlock stated that he was present during the execution of Allen Lee Davis, and that the readings produced by the chart recorder indicated that the circuitry operated as it was designed and intended to operate. He further stated that the accumulation of problems that had arisen from the years of neglect to the equipment have all been addressed.
Bob Hallman testified on behalf of Respondents as an expert in the field of engineering. Hallman testified that the maintenance program that Whitlock testified that he has developed is more comprehensive than most maintenance programs of industrial facilities in that the maintenance is carried out on a more regular and frequent basis, and because it is administered by a professional engineer. Hallman examined the chart recordings for the executions of Daniel Remeta, Leo Jones, Gerlad Stano, and Judy Buenoano. He calculated the level of ohms applied to each of the four inmates. Based upon his calculations, he opined that the equipment appeared to be functioning properly in that the currents that were applied to each individual inmate were regulated to the limits established by the equipment. He further opined that the chart recordings and the calculations derived therefrom indicate the equipment was functioning properly and as it was intended to function. Hallman further testified that the resistance exhibited by the inmates during their executions and the calculations derived therefrom indicate the equipment's testing and application results are all very repeatable. That signifies to Hallman that "we can very well count on or rely upon or predict the results we are going to get before we actually perform it, put the equipment into use."
Hallman also examined the chart recordings from the Davis execution, and determined that the results were consistent and appeared to be very repeatable and consistent with the previous numbers established with regard to the four prior executions. Hallman testified that he sees no reason to question the overall reliability of Florida's electric chair.
John H. "Jack" McNeill testified that in 1993 or 1994, a "knife switch" or safety switch was installed, and that it is current technology. The knife switch is a spring-loaded switch that closes the receivers and completes the circuit so there is a circuit from the person in the chair to the load side of the executional breaker.
Additionally, McNeill testified that the breakers were thoroughly serviced in February and March of this year. Further, McNeill testified that the old chart recorder was replaced with a chart recorder that is of the latest technology, after the March 1998 executions. McNeill testified the chart recorder records the volts and amps administered during an execution, but that it does not have any effect whatsoever on the actual execution; it merely records data.
Jay Wiechert, a professional engineer licensed by the State of Arkansas, testified as an expert in the fields of electrical engineering and the design of judicial electrocution equipment. He testified that the electrical equipment used in Florida to conduct judicial electrocutions has a regulatory circuit built into it to prevent the current delivered to an inmate from going too high. Wiechert testified that the way the equipment limits the current is by reducing the voltage level. He testified that is precisely what occurred during the execution of Allen Lee Davis. Wiechert stated the variations in the chart recordings from the levels set forth in the execution protocol was a result of the regulatory part of the electrical system insuring that the levels of voltage and current applied to Davis did not go too high. Wiechert testified the equipment operated the way it was designed to operate during the execution of Davis and during the test conducted on the equipment on July 7, 1999, that it did not malfunction, and that there is no indication that there will be a malfunction in the future.
Execution Day Protocol Claim
Provenzano argues that the Department of Corrections ("DOC") has not been following, and in fact cannot follow, the Execution Day Procedures ("execution protocol") established in April 1997, as a result of the problems that occurred during the execution of Pedro Medina. Provenzano contends that the execution protocol was written in such a way that it cannot be followed because it does not account for the variations in resistance created by the different characteristics, i.e., weight, muscle tone, fat content, skeletal configuration, size, body build, etc., of each individual inmate's body.
The relevant portions of the execution day protocol provide:
The automatic cycle begins with the programmed 2,300 volts, 9.5 amps, for 8 seconds; 1,000 volts, 4 amps for 22 seconds; and 2,300 volts, 9.5 amps for 8 seconds. When the cycle is complete, the equipment is manually disconnected by _______________. The safety switch is then opened by _______________.
As stated above, Jay Wiechert testified for Respondents as an expert in the fields of electrical engineering and the design of judicial electrocution equipment. With regard to the execution protocol, Wiechert testified that the numbers specified in the protocol are average numbers. He stated you cannot specify both volts and amps because the resistive load, or size, of each individual inmate, will determine the relationship between the volts and amps. Wiechert testified that the protocol is not well-written and that he recommended changing the language of the protocol as it presently exists. He would prefer to see a less technical description.
Ira Whitlock testified that he would agree that the language of the protocol should be amended because it is misleading and "probably misrepresents the intended function of the equipment based on its design." Whitlock would change the language so that it is more general.
As Provenzano argues, it is apparent that the execution protocol cannot be exactly followed because it fails to take into consideration the variations in resistance of the inmate's bodies. Resistance (ohms) is measured by dividing the volts by the amps, e.g. 2300 volts divided by 9.5 amps equals 242.1 ohms. Thus, the resistance load dictates the relationship between the volts and the amps.
The system is designed to achieve current (amps), not voltage. The last five executions provided the following:
As stated above, Bob Hallman testified that these results were consistent and appeared to be very repeatable, and that he sees no reason to question the overall reliability of Florida's electric chair.
There is nothing magic in the Florida execution protocol. Walter Zant, retired Warden of Warden for the Georgia Diagnostics Center, which is where the sentence of death by electrocution is carried out in Georgia, testified that he witnessed eighteen executions in Georgia, and observed the voltage and amperage meters. He stated that the highest amps used in these executions was four (4) amps and the lowest was one and one-half (1½) amps. The Georgia program calls for the following levels of voltage and amperage: two thousand (2,000) volts for four seconds, one thousand (1,000) volts for two seconds, and then two hundred and eight (208) volts for one minute and fifty-four seconds.
Testing Protocol Claim
Provenzano argues that the testing of the electric chair is not being conducted in accordance with the Testing Procedures for Electric Chair ("testing protocol") established in April 1997, as a result of the problems that occurred during the execution of Pedro Medina. He claims that the precise voltage and amperage requirements established in the testing protocol are not being used during the actual tests conducted on the electric chair.
The relevant provisions of the testing protocol provide:
C. The Test:
After the equipment is examined, remove the natural sea sponges from the saturated saline solution and position in the head piece and leg piece to cover the electrodes. Connect the head piece and leg piece to a repeatable resistive load to measure voltage and amperage. Energize power to the execution control panel. Close safety switch. Energize the execution switch. Begin automatic cycle with the programmed 2,300 volts, 9.5 amps, for 8 seconds; 1,000 volts, 4 amps for 22 seconds; and 2,300 volts, 9.5 amps for 8 seconds. After cycling is completed, manually disconnect the equipment at both the execution panel and the safety switch. Shut down all other related operational equipment.
Jay Wiechert testified that he has conducted tests on the electrical equipment used for Florida's electric chair. He stated that he uses a bank of resistors with known ohmic value. Wiechert testified that conducting tests using a bank of resistors, or electrical devices that change electrical energy into heat, with a known resistive load provides repeatable results.
The testing of the electrical system on July 7, 1999, (the day before Davis' execution) was necessarily performed without a human resistance load. However, the system performed within the parameters of the protocol current. It worked as it was designed and intended to work.
Claim Regarding Resistance Created By Inmate's Body
Provenzano argues that the resistance created by an inmate's body is different than the representations that were made during the Jones proceedings. This Court was not provided with a copy of the transcript of the Jones hearing.
However, as stated above, Jay Wiechert testified for Respondents as an expert in the fields of electrical engineering and the design of judicial electrocution equipment. Wiechert testified that the resistance created by each individual inmate will vary because of the varying physical characteristics of each inmate.
Claim Regarding Pain Associated with Death By Judicial Electrocution
Provenzano claims that death by electrocution in Florida's electric chair is not instantaneous or painless, and that he will suffer conscious pain because his brain will not immediately cease functioning once the electrical current is applied to him. Additionally, he claims he will suffer disfigurement and mutilation.
In support of his claim, Provenzano presented the testimony of individuals who witnessed the executions of Jesse Tafero, Jerry White, Pedro Medina, Judy Buenoano, Leo Jones, and Allen Lee Davis. These witnesses testified that they heard noises from the individuals being executed, that they observed the bodies of the individuals being executed tighten upon the application of electrical current, and that they observed body movements in the individuals after the electrical current had been applied and turned off. Specifically, these witnesses testified as follows.
Ellen McGarrahan testified that she witnessed the execution of Jesse Tafero as a reporter for the Miami Herald. She stated that when the electrical current was applied to Tafero, his body tensed, and flames and smoke rose from both sides of the head piece. McGarrahan testified the electrical current was then turned off. At that time, she observed Tafero's chest move, and his head nod back and forth. According to McGarrahan, the electrical current was then applied for a second time. McGarrahan stated that once again, flames and smoke rose from both sides of Tafero's head. She stated that the electrical current was once again turned off. McGarrahan testified that she then saw Tafero's chest and head moving again. McGarrahan testified that the electrical current was then applied to Tafero for a third time. Once again, flames and smoke arose from both sides of Tafero's head. She stated the electrical current was again turned off. McGarrahan testified that after the third application of electrical current, there was no movement from Tafero's body.
Michael Minerva testified that in 1995 while he was the Capital Collateral Regional Counsel for the State of Florida, he witnessed the execution of Jerry White. He stated that once the electrical current was applied to White, White's body stiffened and was thrust upward and backward to the back of the electric chair. Minerva testified that he heard noise that sounded like "air moving through the lips, the throat, that kind of a sound" from White's body. Minerva could not tell whether the air "was coming in or going out."
Glen Dickson testified that he was Pedro Medina's pastor, and that in that capacity, he witnessed Medina's execution. Dickson testified that once electrical current was applied to Medina, smoke and flames rose from Medina's head, and that there was an acrid odor about the witness room. Dickson testified that after the cessation of electrical current and after the strap which had been fastened across Medina's chest had been loosened, Medina's chest moved and he appeared to take three deep, gasping breaths. Dickson stated that there was a period of time in between each breath. Dickson also stated that after Medina took the third gasping breath, Medina's body slumped.
Gregory C. Smith, Capital Collateral Regional Counsel for the Northern Region, testified that he witnessed the execution of Judy Buenoano. Smith testified that when Buenoano was being secured in the electric chair, it appeared that the strap across her chest was initially secured too tightly. Smith stated that Buenoano grimaced and looked "sharply" at the correctional officer who was tightening the chest strap. Smith testified that after Buenoano indicated she was in pain from the tight strap, the strap was slightly loosened. Smith testified that once the electrical current was applied to Buenoano, her body tensed, and white smoke or steam arose from the electrode that had been placed on her leg. Smith stated that after the electrical current was turned off, Buenoano's body slumped.
Rabbani Muhammad testified that he observed the execution of Leo Jones in his capacity as Jones' spiritual advisor. Muhammad stated that when the straps were placed under his chin, he could see Jones' "flesh bulge from the tightness of the strap." Muhammad testified that once the electrical current was applied to Jones, Jones' body tensed and moved up and back against the chair. Muhammad testified that after the electrical current was turned off, he observed Jones' body move three times in a heaving or spasm-type manner.
Additionally, Muhammad testified that following the execution and after Jones' body had been transported to Tallahassee by a Gainesville funeral home whom he hired to transport Jones' body, he prepared Jones' body for burial. He stated that while he was preparing the body, he observed wounds on Jones' body which included wounds on the top right and left sides of Jones' head, a burn on Jones' right leg, and a "puncture" in Jones' chest which measured one-eighth of an inch in diameter. Muhammad photographed these wounds, and those photographs were entered into evidence.
John W. Moser, Capital Collateral Regional Counsel for the Middle Region, testified that in his capacity as Capital Collateral Regional Counsel, he witnessed the execution of Allen Lee Davis. Moser testified that between the time Davis was secured in the electric chair and the time the electrical current was applied to Davis, he heard what sounded like two screams from Davis. Moser testified that when the electricity was applied, Davis' body tensed and arched backward. Moser stated that blood appeared on Davis' chest within seconds of the tensing of his body. Moser did not know exactly when the current was applied to Davis' body, but that approximately three minutes after the time when Davis' body tensed, he observed Davis' chest move in and out several times. Moser stated that at the time he observed Davis' chest move, Davis' body was no longer tensed.
Mark Lazarus, Victim Assistance Administrator for the Florida Department of Corrections, testified that he observed the execution of Allen Lee Davis. Lazarus testified that after the head piece was placed on Davis' head, he heard two one-syllable sounds coming from Davis and that the sounds sounded like Davis was trying to "make some noise" or "yell out." Lazarus also testified that when the electricity was administered to Davis' body, Davis's body clenched. Additionally, Lazarus testified that while Davis' body was tensed up, blood began to drip from behind the mask. Lazarus further testified that after the electricity was turned off, there was a shuddering in Davis' chest area, like a muscle spasm.
Sheila McAllister, Correctional Probation Officer at Wakulla Correctional Institution, testified that she witnessed the execution of Allen Lee Davis. McAllister testified that when Davis was brought into the execution chamber, his face appeared to be red, but not as red as it appeared to be in the photographs taken of Davis after the execution had been carried out. She stated that when the electrical current was applied to Davis' body, he stiffened and his hands clenched. McAllister also stated that before the electrical current was applied to Davis, he made a couple of moaning sounds. McAllister also testified that while the current was on, she observed blood on Davis' chest, and she observed something dripping from behind Davis' mask. McAllister further testified that after the electrical current had been turned off, and while the first medical person was examining Davis, she observed Davis' chest move three or four times, like muscle spasms; the movements were spaced out with a few seconds in between each of them.
The testimony given by Patricia McCusker, Assistant Superintendent of the Work Camp at Florida State Prison, at the hearing held in Jacksonville in the Leo Jones case was admitted into evidence and read into the record. McCusker testified that she witnessed the execution of Pedro Medina. McCusker testified that when the electrical current was applied to Medina, she observed Medina's left hand tighten, and she observed smoke and flames coming from Medina's head. She testified that the witness room smelled as if something were burning. McCusker also testified that after the electrical current had been turned off, and while the medical personnel were examining Medina, she observed two or three movements in Medina's chest which were like contractions of the chest muscle.
William R. Dotson, Inspector Supervisor for the Gainesville Field Office with the Department of Corrections' Inspector General's Office, witnessed the execution of Allen Lee Davis as a witness for the Inspector General. Dotson took some of the post-execution photographs of Davis still seated in the electric chair that were admitted into evidence at the hearing. The remainder of the photographs taken of Davis while he was still in the electric chair were taken at Dotson's direction by "Mr. Geibig." Dotson felt photographs of Davis' body were necessary in order to document the event.
Michael R. Collins, employed with Florida State Prison as a nurse, testified that he attended the execution of Allen Lee Davis. Collins testified that after the mouth strap and head piece were put in place and before the electrical current was applied, Davis made one "loud maybe two, three-second high-pitched murmur." Collins also testified that when the electrical current was applied to Davis, Davis' body became rigid and his fingernails turned bright red. Collins further testified that after the electrical current was stopped and after Mr. Matthews, the Florida State Prison physician's assistant, was examining Davis, he observed blood on Davis' shirt in his chest area and on his upper right side, by his collar. Collins stated that the blood was dripping from under the mask, and that it ceased dripping before Mr. Matthews finished examining Davis.
Steve Wellhausen, employee of Florida State Prison assigned to escort the official witnesses to the execution of Allen Lee Davis, testified that he witnessed Davis' execution. Wellhausen testified that about a minute after the mouth strap was placed across Davis' mouth and after the head piece was placed on Davis' head, he heard Davis make a very low muffled sounding moan. Wellhausen testified that when the electricity was applied to Davis, he observed Davis's hands tighten and his body moved backwards. At some point after the execution began, Wellhausen observed blood coming from beneath the mask. Wellhausen also testified that after the electrical current was discontinued, he observed Davis' body slump, and he observed more than one chest movement which looked like "muscles contracting in the chest." Wellhausen stated these chest movements did not appear to be chest movements associated with breathing. Wellhausen further testified that he had observed similar chest movements in the more than ten prior executions that he has witnessed.
Victor Seryutin, M.D., one of the attending physicians at Florida State Prison, testified that he observed the execution of Allen Lee Davis as the physician assigned to certify when Davis was dead. Seryutin testified that after the electrocution, he observed Davis' chest move a little bit.
Robert K. Thomas, Assistant Maintenance Superintendent at Florida State Prison testified that he is a member of the team who actually fastened the straps that secured Davis to the electric chair. Thomas testified that he held the mouth strap in place while Mr. Hackle was tightening it. Thomas testified that when Hackle was tightening the mouth strap across Davis' mouth, he heard Davis moan one time. Thoms testified that he did not do anything when he heard Davis moan. Thomas also testified that after he, Mr. Hackle, and Mr. McNeill had secured Davis in the electric chair, during the time that the Warden was on the telephone with the Governor's office, and approximately ten seconds before the current was applied to Davis, he observed two bubbles of blood coming out of Davis' left nostril. Thomas testified that he was able to observe the bubbles of blood because he was standing to the left of Davis and he could see behind Davis' face mask. Thomas stated that he did not notify anyone or do anything else when he observed the blood, and initially did not give a reason as to why he did not notify anyone. However, on cross-examination, Thomas acknowledged that he did not notify anyone or do anything because he knew the executioner was getting ready to pull the switch. Thomas also testified that after the current was turned off and while Mr. Matthews was examining Davis, he observed Davis' body heave one time.
John H. "Jack" McNeill, Utility Supervisor for Florida State Prison, testified that he is part of the team that helped secure Allen Lee Davis into the electric chair. He testified that he heard Davis grunt when he put the waist strap on Davis, and heard Davis grunt again when Mr. Thomas tightened the chin strap for the head piece.
William Muse, Lieutenant with the Florida Department of Corrections, assigned to Florida State Prison, testified that he witnessed the execution of Allen Lee Davis. He testified that he heard Davis moan after the mouth piece was put in place and while he was being strapped into the electric chair. Muse testified that after the cycle of current had been terminated, he observed blood on Davis' shirt, blood on the strap, and blood coming from Davis' nostril. Muse also testified that while Mr. Matthews was examining Davis, he observed Davis' chest move up and down two times, like Davis was exhaling.
Thomas Varnes, Warden at Wakulla Correctional Institution testified that he witnessed the execution of Allen Lee Davis. Varnes testified that after the mouth strap and chin strap of the head piece were tightened and the face mask was lowered, he heard Davis moan like he was trying to say something. Varnes stated the moans occurred before the electrical current was applied to Davis. Varnes also testified that after the electrical current had been turned off, he observed blood by the "top strap," and that the blood began to appear on Davis' shirt. Varnes stated that he thought the nose bleed may have something to do with the high blood pressure that Davis was reported to have. Varnes testified that he has high blood pressure and that it is not unusual for him to have a nose bleed. He testified that when he has such a nose bleed, he does not suffer from any pain.
Aubrey D. Thornton, Assistant Warden at Florida State Prison, testified that he was one of the individuals responsible for strapping Allen Lee Davis into the electric chair. Thornton testified that he was one of three people responsible for securing the mouth strap on Davis. Thornton testified that he stood in front of Davis and positioned the mouth strap on Davis, and that the Maintenance Superintendent buckled the mouth strap to the back of the chair. Thornton stated that he was one of the individuals involved in the drafting of the execution protocol, and that the mouth strap was placed on Davis in accordance with the execution protocol. Thornton testified that the mouth strap, as it appears in Petitioner's Exhibit 1-A was not in the same position that it was in when Thornton positioned it on his prior to the execution. Thornton testified that the mouth strap was higher and closer to Davis' nose. Thornton also testified that Davis' face began to turn red after the mouth strap was applied to him, but that Davis did not appear to have any difficulty breathing. Thornton also testified that he heard Davis moan. Furthermore, Thornton testified that if any of the Department of Corrections personnel in the execution chamber notice anything unusual while they are securing an inmate to the electric chair for execution, they are authorized to bring it to his attention or to the attention of Warden Crosby. However, he would not expect the person to bring it to his attention prior to the application of electrical current.
James Crosby, Warden of Florida State Prison testified that after the mouth piece was placed on Davis, and just before the execution, he heard two muffled sounds from Davis, which sounded like Davis was trying to say something.
William F. Mathews, P.A., physician's assistant for Florida State Prison, was assigned the duty to determine whether Allen Lee Davis was dead after the conclusion of the application of electrical current to him during his judicial electrocution. Matthews testified that he had a clear view of Davis when the mouth strap was applied to him and that the mouth strap was not impinging on his nose in any way, and that Davis did not appear to have any difficulty breathing. Matthews testified that after the electrical current was turned off, he approached Davis and for approximately two minutes, tried to see if Davis had a palpable radial pulse. Matthews testified that he did not detect a pulse. Matthews testified that he then loosened the chest strap and listened to Davis' chest for any heart sounds. Matthews stated that when he loosened the chest strap, Davis' body relaxed and slumped forward, and that he did not detect any heart sounds. Matthews also testified that he listened to Davis' chest for lung sounds, but that he did not detect any. Matthews further testified that while he was examining Davis, he observed Davis' chest or upper torso move two times with about a minute or minute and a half between each movement. Matthews described this movement as muscular movement in the chest and shoulder areas. During that period of time, Davis did not exhibit any signs of life. Matthews also testified that after the head piece was secured to Davis' head and before the electric current was applied, he heard Davis make noises like Davis was trying to say a few words.
Donald Price, Ph.D., neurophysiologist and psychologist at the University of Florida, who carries out research on pain mechanisms and on pain behavior and pain perception, testified as an expert for Provenzano in neurophysiology. Price has conducted research involving primarily low voltage electricity, and he has not done any studies with regard to the levels of voltage and currents applied in judicial electrocutions. Price is of the opinion that "judicial electrocution results in considerable enormous pain and suffering as well as other negative emotional experiences." Price testified that pain could be elicited through the tightening of the straps; through the penetration of the brain with electrical currents, and through peripheral stimulation of body tissues. Price also testified that he is of the opinion that "it is highly, highly unlikely that the initial current surge would instantly and permanently depolarize or incapacitate the human brain." Price testified that the kinds of behavior indicative of pain include moaning, screaming, gasping for air, moving the head from side to side, writhing movements in the chair. Price further testified that people's facial expressions can be indicative of pain. Price testified that the facial expressions captured in the photographs of Davis after his execution while he was still seated in the electric chair, which were admitted into evidence as Petitioner's Exhibit 1, are indicative of pain.
J. Patrick Reilly, M.S., testified for Provenzano as an expert in the effects of electricity on biological systems. He testified that it is his opinion that the temperature rise during the entire thirty-eight second cycle of a judicial electrocution is insufficient to thermally damage the tissues of the brain, and that the current is too strong to result in a high probability of fibrillating the heart after completion of the execution.
John Wickswo, Ph.D., testified for Provenzano as an expert in the areas of physics, electromagnetics, biological physics, biomedical engineering, and nondestructive testing. Dr. Wickswo opined that the Florida electric chair does not cause instantaneous and painless death and that there is no scientific threshold current or voltage level that would effectuate instantaneous and painless death.
Robert Kirschner, M.D., forensic pathologist from Illinois, testified as an expert in the area of forensic pathology. Kirschner testified that he performed an autopsy on the body of Allen Lee Davis. He testified that during Davis' autopsy, he was unable to identify the precise source of the nose bleed that Davis suffered, but that it was coming from the septal area of the left nostril. Kirschner testified that the placement of the mouth strap across Davis' mouth inhibited Davis' breathing and caused him to become at least partially asphyxiated before the application of electrical current to him. Kirschner testified that he is of the opinion that Davis' death was caused by electrocution and association of partial asphyxiation which occurred before the electrocution. Kirschner further testified that he is of the opinion that Davis was suffering from conscious pain during the period of asphyxiation.
Kris Sperry, M.D., Chief Medical Examiner for the Georgia Bureau of Investigation, testified for Respondents in the area of forensic pathology. Sperry was present as a witness during Kirschner's autopsy of Allen Lee Davis. Sperry opined that he application of ten amps of current to brain tissue causes instant depolarization and instant loss of consciousness. Sperry testified that an unconscious person cannot feel pain, and that death from irreversible brain damage occurs within seconds of the application of the current because the brain is heated well above a temperature from which it can recover. Sperry testified that seventy-five milliamps (75/1000 of an amp), externally applied to the body causes fibrillation of the heart. Sperry also testified that one amp of current applied externally to the body is sufficient to cause asystole, or complete stoppage of the heart. Sperry opined that after the heart is stopped, spontaneous heart movement may begin again, but the heart is irreversibly damaged and cannot recover. However, after the heart has stopped, agonal sounds and movement may still occur, as they are part of the last vestiges of life. Sperry also testified that an individual does not need to still be alive in order to bleed. Sperry testified that blood can drain from an individual for hours after the individual is dead.
Sperry further opined that the nose bleed suffered by Davis did not result from the placement of the strap across Davis' mouth, but that it occurred from some sort of increased pressure in Davis' upper torso or head region.
The deposition of William Hamilton, M.D., Medical Examiner for the Eighth Judicial Circuit, was read into the record due to Hamilton's unavailability. Hamilton was accepted as an expert testifying on behalf of Respondents in the field of pathology. Hamilton testified that he performed an autopsy on Allen Lee Davis. Hamilton testified that Davis had burns on his scalp and forehead, on his superpubic and right upper medial thigh region, and behind the right knee. Hamilton testified that he has performed autopsies on approximately thirty death row inmates who have been executed in Florida's electric chair. He stated that the burns on the heads and legs of the inmates executed within the last five or six years have been smaller than those that were observed on inmates who were executed years ago. Hamilton testified that these burns are post-mortem burns.
Hamilton testified that upon his examination of Davis, he observed that there was blood in Davis' naval cavity, but that he did not dissect the paranasal sinuses to find the cause. Hamilton testified that it appeared to be an ordinary nosebleed, and that if the electrical current had not been applied to Davis at that time, he would not have had the nose bleed.
Hamilton further testified that in his opinion, the delivery of ten amps to the human body with the path of the current being from the head to the leg results in immediate death, immediate loss of consciousness, immediate massive depolarization of the nervous system, and a rapid rise in the temperature of the internal tissues in the path of the current. He opined that the path of current would be from the top of the head through the brain and brain stem, through the center of the body, and then exiting through the electrode on the leg. Dr. Hamilton opined that immediate death would also result if the current were only four amps.
B.J. Wilder, M.D., Professor Emeritus at the University of Florida in neurology and neuroscience, testified on behalf of Respondents in the areas of neurology and neurophysiology. Wilder testified that during electroconvulsive therapy, in which the brain is stimulated with electricity to produce a controlled convulsion, two hundred and fifty to three hundred milliamps, or 250/1000 to 300/1000 of one amp, is used. Wilder testified that electrical currents of this level cause the patient to lose consciousness, and that upon regaining consciousness, the patient does not report pain. Wilder opined that the introduction of ten amps of electrical current by the means of a head-to-leg electrode, with one thousand five hundred volts would cause the individual to lose consciousness within a matter of milliseconds. Further, Wilder opined that the administration of one thousand five hundred (1,500) volts at ten (10) amps for eight seconds, followed by seven hundred (700) volts at four and one half (4½) amps for twenty-two seconds, followed by one thousand five hundred (1,500) volts at ten (10) amps for four seconds would cause a massive depolarization of every cell in the cerebral cortex, and would in probability cause a depolarization of cells in deep brain structures, such as the brain stem and the thalamus. Wilder further opined that the damage caused by such a massive current would be of such a magnitude that the brain cells would not recover. Wilder stated that an inmate would not perceive pain, fear, or anger once such a current is turned on. Wilder further testified that the brain dies before the body does, and spontaneous movements seen after electrocution in the electric chair are agonal.
Tim Bullard, M.D., who is Board Certified in emergency medicine and internal medicine, testified on behalf of Respondents as an expert in the field of emergency medicine. Dr. Bullard testified that he has treated patients with electrical injuries. He testified that fifty (50) to one hundred (100) milliamps of electrical current would cause the heart to fibrillate. Bullard further testified that any movements made by an individual after he received ten (10) amps of current and one thousand five hundred (1,500) volts administered by means of a head-to-leg current path for eight seconds, followed by 4 amps and six hundred fifty (650) volts) for twenty-two seconds, followed by ten (10) amps and one thousand five hundred (1,500) volts for four seconds, would be agonal movements.
Walter Zant, former Warden for the Georgia Diagnostics Center, which is where the sentence of death by electrocution is carried out in Georgia, testified on behalf of Respondents. Zant testified that the execution by electrocution process in Georgia involves the following levels of voltage and amperage: two thousand (2,000) volts for four seconds, one thousand (1,000) volts for two seconds, and then two hundred and eight (208) volts for one minute and fifty-four seconds. He stated that during the eighteen executions that he was involved in, he never observed the amperage level during a judicial electrocution go higher than four amps. Zant testified that in Georgia, the inmate is placed in the electric chair and secured in the chair by a strap across his chest, a strap around his waist, a strap on each thigh, a strap on each ankle, a strap on each upper arm, and a strap on each wrist. Zant testified that the inmate's head is secured by a chin strap which is placed around the chin and strapped to a head post on the chair itself. The purpose of the chin strap is to prevent movement of the head and to prevent movement in the electric chair. Zant stated it is "necessary in order to carry out the execution in a humane manner." Zant testified the chin strap is leather and that it looks like the chin strap on a football helmet. Zant further testified there is a strap that goes under the inmate's chin to keep the electrodes in the headgear on the inmate's head during the execution process. Zant stated the straps are affixed "very tight." Zant further testified that although both straps force the inmate's mouth closed, they do not touch the inmate's lips or inhibit the inmate from opening his lips and breathing through his mouth.
Claim Regarding Alleged Indifference Toward Inmates Who Have Been Executed
Provenzano argues that the Florida Department of Corrections ("DOC") has exhibited indifference toward the inmates whom have been executed in the electric chair. In support of his argument, Provenzano presented the testimony of Gregory Smith. As set forth above, Smith testified that when Buenoano was secured into the electric chair, the strap across her chest was too tight. It is important to note, however, that Smith also testified that when Buenoano grimaced and looked at the officer securing the strap, the strap was loosened slightly.
Provenzano also presented the testimony of Mark Lazarus to support this argument. Lazarus testified that although water dripped onto the front and back of Davis' shirt, the water was not wiped off of him. This was despite Lazarus' statement that the water that dripped onto the floor had been mopped up.
Dr. Victor Seryutin's statement that he is not under any obligation to provide any treatment to an inmate who is about to be executed also supports Provenzano's claim. Seryutin testified that his sole purpose there is to certify when the inmate is dead.
Further, the testimony of Robert Thomas that he tightens the straps as tight as he can, and that he did nothing when he heard Davis moan may provide some support for Provenzano's claim. However, Thomas' testimony was countered by Jack McNeill's testimony that his main concern it to tighten the straps so the inmate will not hurt himself or hurt anybody standing around him.
The testimony of Warden James Crosby was especially important on this issue. Crosby has taken great effort to ensure that execution in Florida is carried out in a constitutional manner. He has spent a great amount of time studying and gaining an understanding of the process and the protocols developed to implement it. He testified that he had not been informed that Thomas had seen bubbles of blood before the current had been applied to Davis, he stated that he would have expected Thomas or any of the other officers involved in the execution process to immediately report any problem to him. Crosby further stated that he was going to fix that problem.
Additionally, Crosby stated that he would expect the straps to be tightened so they are snug, but that he would not expect the straps to be tightened as tight as they could be pulled.
With regard to the water, Crosby testified that although he would not want water to be dripping an inmate's face, it is important for the head sponge to be sufficiently wet.
Execution in the electric chair invokes emotional responses such as fear and dread. It involves some necessary pain and discomfort when the straps are applied and tightened. However, strapping is necessary to minimize movement and insure the firm placement of the electrodes. While the mouth strap is used to secure the head to the chair, its design leaves something to be desired.
WHETHER FLORIDA'S CURRENT USE OF JUDICIAL ELECTROCUTION AS ITS SOLE METHOD OF EXECUTION IS UNCONSTITUTIONAL BECAUSE IT VIOLATES THE EVOLVING STANDARDS OF DECENCY THAT MARK THE PROGRESS OF A MATURING SOCIETY.
Provenzano asserts that Florida is one of only four states that still employs electrocution as the manner by which the sentence of death is carried out. This issue is beyond the scope of the issue which this Court was ordered to decide. However, having said that, this Court concludes that said issue has already been decided adversely to Provenzano. See Jones v. State, 701 So. 2d at 79 (citing Campbell v. Wood, 18 F. 3d 662, 682 (9th Cir. 1994) ("We cannot conclude that judicial hanging is incompatible with evolving standards of decency simply because few states continue the practice."); Hunt v. Nuth, 57 F. 3d 1327, 1338 (4th Cir. 1995) ("[T]he existence and adoption of more humane methods [of execution] does not automatically render a contested method cruel and unusual.")
FINDINGS OF FACT
Based upon the foregoing, and by the greater weight of the evidence, the Court hereby makes the following findings of fact.
1) During the execution of Allen Lee Davis, the electric chair functioned as it was intended to function. Although the breakers and other components of the electrical circuitry are old, the electric circuitry is adequate to assure the proper functioning of the electric chair.
2) The cycles of voltage and amperage applied in the execution of Allen Lee Davis did not deviate from the execution protocol which was previously approved by the Florida Supreme Court. The execution protocol merely states: "The automatic cycle begins with the programmed 2,300 volts, 9.5 amps, for 8 seconds . . . ." (emphasis added). The protocol does not state the voltage and amperage levels set forth therein are the precise voltage and amperage levels that must be administered to the inmate who is being executed.
The execution protocol does not take into account the varying levels of resistance created by each and every inmate. The resistance created by each executed inmate's body, or ohms, can be determined by dividing the number of volts administered by the number of amps administered. Since the level of resistance varies from inmate to inmate, these figures must necessarily vary. The variations in these figures do not violate the execution protocol.
3) The death of Allen Lee Davis did not result from asphyxiation caused by the mouth strap.
4) Allen Lee Davis did not suffer any conscious pain while being electrocuted in Florida's electric chair. Rather, he suffered instantaneous and painless death once the current was applied to him.
5) The nose bleed incurred by Allen Lee Davis began before the electrical current was applied to him, and was not caused whatsoever by the application of electrical current to Davis. This Court is unable to make a finding regarding the exact cause or situs of initial onset of the nose bleed because that information was not determined during either of the autopsies performed on Davis' body.
6) The post-execution photographs of Allen Lee Davis indicate that the straps used to restrain Davis' body, specifically, the mouth strap and chin strap, may have caused Davis to suffer some discomfort. However, the straps did not cause him to suffer unnecessary and wanton pain, and the mouth strap was not a part of the electrical operation of the electric chair.
7) The use of a mouth strap to secure an inmate's head to the electric chair may be desirable, however a smaller and/or redesigned mouth strap could accomplish the same purpose without raising the same issue involved here.
8) Execution inherently involves fear, and it may involve some degree of pain. That pain may include pain associated with affixing straps around the head and body to secure the head and body the electric chair. However, any pain associated therewith is necessary to ensure that the integrity of the execution process is maintained.
Execution by electrocution in Florida's electric chair as it exists in its present condition as applied does not constitute cruel or unusual punishment, and therefore, is not unconstitutional.
DONE and ORDERED on this 2nd day of August, 1999.
CLARENCE T. JOHNSON, JR.
FSC Order 2000R-269
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of August, 1999, a true and correct copy of the foregoing was furnished by U.S. mail and facsimile transmission to:
1) Katherine V. Blanco, Assistant Attorney General, Carol M. Dittmar, Assistant Attorney General, Kenneth Nunnelly, Assistant Attorney General, and Carolyn Snurkowski, Assistant Attorney General, Westwood Center, Suite 700, 2002 North Lois Avenue, Tampa, Florida 33607-2366, fax (813) 871-7834;
2) John Moser, Capital Collateral Regional Counsel - Middle, Harry P. Brody, Assistant CCRC, 3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619, fax (813) 740-3554;
3) Jay Taylor, Assistant State Attorney, Fourth Circuit of Florida, 330 East Bay Street, 600 Duval County Courthouse, Jacksonville, Florida 32202; fax (904) 630-1848; and
4) Susan Maher, Deputy General Counsel, Department of Corrections, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500, fax (850) 922-4355;
5) Tanya Carroll, Deputy Clerk Capital Cases, Supreme Court of Florida, Supreme Court Building, 500 South Duval Street, Tallahassee, Florida 32399-1925, fax (850) 488-2100.
Senior Trial Court Staff Attorney