TENNESSEE COURT OF APPEALS 
MIDDLE DIVISION 

ABU-ALI ABDUR’RAHMAN,		)
		)
Appellant,		)
		)
vs.		)       Case No. M2003-01767-COA-R3-CV
		)
PHIL BREDESEN (formerly Don Sundquist),	)	Capital Case
    Governor of the State of Tennessee,		)
QUENTON WHITE (formerly Donal Campbell),	)
     Commissioner, Tenn. Dep’t. of Correction,	)
RICKY BELL, Warden of Riverbend Maximum	)
     Security Institution,		)
VIRGINIA LEWIS, Warden of Special Needs	)
     Facility, and		)
TENNESSEE DEPARTMENT OF 		)
     CORRECTION,		)
		)
Appellees.		)

APPELLANT’S BRIEF
																
Bradley A. MacLean (BPR # 9562) 
STITES & HARBISON PLLC
Sun Trust Center, Suite 1800
424 Church Street
Nashville, Tennessee 37219
(615) 782-2237 

William P. Redick, Jr. (BPR # 6376)
P.O. Box 187
Whites Creek, Tennessee 37189
(615) 742-9865

Counsel for Appellant

Of Counsel:
Cynthia W. MacLean
STITES & HARBISON PLLC
424 Church Street
Nashville, Tennessee 37219

TABLE OF CONTENTS

STATEMENT OF ISSUES PRESENTED FOR REVIEW	1

STATEMENT OF THE CASE	3

STATEMENT OF THE FACTS	10

1.   General Description of the TDOC Lethal Injection Protocol	10

2.	The Ad Hoc, Non-Scientific Formulation of the Protocol Precluded the Use of 
	Experts Who Could Advise TDOC about Evolving Standards of Decency and 
Humane Treatment	14

3.   The Lethal Injection Drugs Pose Serious Risks of Unreasonable Suffering	17

(a)    The Use of Pavulon is Inhumane	18

(b)    Sodium Pentothal Creates a Risk of Inadequate Anesthesia	23

(c)	The Injection of Potassium Chloride Subjects the Inmate to Risks of  Unnecessary Pain and Suffering	28

4.	The Lethal Injection Protocol Does Not Provide Even Minimal Safeguards to 
	Ensure a Humane Death	30

5.	In Its Entirety, Tennessee’s Lethal Injection Protocol Subjects the Inmate to An Unreasonable Risk of Inhumane Pain and Suffering	35

6.   Alternative(s)	38

ARGUMENT	39
I.   	The TDOC Lethal Injection Protocol Violates The Constitutional Prohibitions 
	Against Cruel And Unusual Punishment	39

1.	The protocol does not comport with contemporary norms and standards of society	40

2.  The TDOC protocol offends the dignity of the person and society	42

3.	The TDOC protocol creates the unreasonable and unacceptable risk of unnecessary physical pain	45

4.  	The TDOC protocol creates the unreasonable and unacceptable risk of unnecessary psychological suffering	45

II.	The TDOC Lethal Injection Protocol Violates The Due Process And Related Clauses Of The Tennessee And United States Constitutions	45

III.	The TDOC Lethal Injection Protocol Violates The Condemned Inmate’s 
	Rights Under The Tennessee And United States Constitutions To Have Access 
	To The Courts And Other Remedies To Protect Against Cruel And Unusual Punishment	46

IV.	The TDOC Lethal Injection Protocol Violates State Statutory And Regulatory 
	Law In Several Respects	49

A.	The Lethal Injection Protocol Was Promulgated In Violation Of The Administrative Procedures Act	48

B.	The Lethal Injection Protocol, In Requiring The Use Of Pavulon, Violates 
	the Nonlivestock Animal Humane Death Act	53

C.	The Lethal Injection Protocol, In Providing For The Practice Of Medicine And Provision Of Healthcare Services By Unlicensed and Uncertificated Persons, Violates Tennessee Statutes And Regulations Governing The Practice Of Such Services	54

D.	The Lethal Injection Protocol, In Providing For The Unregulated Handling And Administration Of Controlled Substances, Violates The Tennessee Drug Control Act Of 1989, The Tennessee Pharmacy Practice Act of 1996, And Regulations Promulgated Thereunder	56

CONCLUSION	57

TABLE OF AUTHORITIES

CASES 

Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002)	41

Coe v. Bell, 89 F. Supp. 2d 962 (M.D.Tenn. 2000)	47, 48, 50

Coe v. Sundquist, No. M200-00897-SC-R9-CV	50

Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)	41

Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)	43

Mandela v. Campbell, 978 S.W.2d 531 (1998)	51

Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989)	41

Rupe v. Wood, 863 F. Supp. 1315 (W.D. Wash. 1994), aff'd, 93 F.3d 1434 (9th Cir. 1996), cert. denied 519 U.S. 1142 (1997)	44

Trop v. Dulles, [], 356 U.S. at 101, 78 S. Ct. at 598	40, 43

Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1920)	40, 43

STATUTES 

Tenn. Code Ann. §§ 39-17-407	2, 48 

Tenn. Code Ann. § 40-23-114	49

Tenn. Code Ann. § 44-17-301 (2001));	2, 3, 4

Tenn. Code Ann. § 44-17-302	4

Tenn. Code Ann. § 44-17-303(c)	52

Tenn. Code Ann. § 44-17-303(h)	4

Tenn. Code Ann. § 63-6-201(a)	54

Tenn. Code Ann. § 63-6-101 et seq	passim

Tenn. Code Ann. § 63-7-101 et seq.	2

Tenn. Code Ann. § 63-9-101 et seq	2
STATEMENT OF ISSUES PRESENTED FOR REVIEW

	1.	Whether the Tennessee Department of Correction’s lethal injection protocol violates the cruel and unusual punishments clauses and related provisions of Art. I, §§ 8, 13 and 16 of the Tennessee Constitution, and the Eighth and Fourteenth Amendments of the United States Constitution.
	2.	Whether the Tennessee Department of Correction’s lethal injection protocol violates the law of the land clause of Art. I, § 8 of the Tennessee Constitution, and the due process clause of the Fourteenth Amendment of the United States Constitution, because the protocol was improperly formulated outside of the public’s eye pursuant to arbitrary procedures, has never been reviewed by any legislative body or any public representative, and calls for the “arbitrary” use (in the words of the Chancery Court) of Pavulon which serves no legitimate purpose and chemically veils the process.
	3.	Whether the Tennessee Department of Correction’s lethal injection protocol violates the condemned inmate’s rights protected under Art. I, §§ 8, 13, 16, 17 and 19 of the Tennessee Constitution, and the First, Eighth and Fourteenth Amendments of the United States Constitution, to have access to the courts and other remedies to protect the inmate’s right not to be subjected to cruel and unusual punishment.
	4.	Whether the Tennessee Department of Correction’s lethal injection protocol is illegal under applicable Tennessee statutes and regulations for the following reasons:
	(a)	The lethal injection protocol was promulgated in violation of the Administrative Procedures Act (T.C.A. 40-23-114(d) and 4-5-101 et seq.);
	(b)	The lethal injection protocol, in providing for the use of the neuromuscular blocking agent Pavulon, which is strictly prohibited for use in euthanizing nonlivestock animals, violates the Nonlivestock Animal Humane Death Act (T.C.A. § 44-17-301 (2001));
	(c)	The lethal injection protocol, in providing for the practice of medicine and provision of healthcare services by unlicensed and uncertificated persons, violates Tennessee statutes and regulations governing the practice of such services in the state (T.C.A. § 63-6-101 et seq.; 63-7-101 et seq.; 63-9-101 et seq.; 63-19-101 et seq.; and Tenn. Comp. Rules and Regs. R. 0880 and 1200);
	(d)	The lethal injection protocol, in providing for the unregulated handling and administration of controlled substances, including sodium pentothal which is a Schedule II controlled substance, violates the Tennessee Drug Control Act of 1989, the Tennessee Pharmacy Practice Act of 1996, and regulations promulgated thereunder (T.C.A. §§ 39-17-407; 63-10-401 et seq.; and Rules of the Tenn. Bd. of Pharmacy, Chapter 1140-1 et seq.).
The Chancery Court below erred in answering Issues 1 and 4 in the negative.  The Chancery Court erred in upholding the Tennessee Department of Correction’s lethal injection protocol without addressing Issues 2 and 3.

STATEMENT OF THE CASE

	Appellant Abu-Ali Abdur’Rahman is a death row inmate housed by the Tennessee Department of Correction at Unit 2, Riverbend Maximum Security Institute, Davidson County, Tennessee.  Appellant’s scheduled execution on April 10, 2002, was stayed by the United States Supreme Court on April 8, 2002.  Appellant subsequently was scheduled to be executed on June 18, 2003; this execution was stayed by the United States Court of Appeals for the Sixth Circuit on June 6, 2003.  The Sixth Circuit’s stay of execution remains in effect.  In connection with that stay of execution, the Sixth Circuit granted Appellant’s petition for rehearing en banc which is currently pending.
	Appellant was convicted and sentenced to death in 1987.  Appellant has refused to make an election as to method of execution.  Accordingly, it is the state’s position that, if Appellant is executed, the execution will be performed by means of lethal injection pursuant to T.C.A. § 40-23-114.  The Tennessee Department of Correction (the TDOC) intends to perform the execution pursuant to the lethal injection protocol adopted in late 1998.
	On April 3, 2003, Appellant filed with the TDOC a request pursuant to T.C.A. § 4-5-223 for a declaratory order concerning the constitutionality and legality of the TDOC’s lethal injection protocol.  (Trial Exh. 1).  Among other things, Appellant stated that the use of the neuromuscular blocking agent Pavulon in a lethal injection violates the Nonlivestock Animal Humane Death Act, T.C.A. § 44-17-303(c)(2001).  This Act strictly prohibits the use of neuromuscular blocking agents in the euthanasia of nonlivestock animals under any set of circumstances.  Appellant raised other claims concerning the illegality and unconstitutionality of the TDOC lethal injection protocol.
	The Commissioner of Corrections issued a letter dated May 28, 2002, denying Appellant’s request for a declaratory order.  (Trial Exh. 2).  The Commissioner responded to Appellant’s claim under the Nonlivestock Animal Humane Death Act as follows:
You assert that execution by lethal injection violates the Nonlivestock Animal Humane Death Act, Tenn. Code Ann. § 44-17-301(2001), and consequently violates the state and federal constitutions.  The Nonlivestock Animal Humane Death Act applies only to “facilities operated for the collection, care and/or euthanasia of stray, neglected, abandoned or unwanted nonlivestock animals.”  Tenn. Code Ann. § 44-17-302.  “Nonlivestock animal” is defined for purposes of the Act as a “pet normally maintained in or near the household(s) of its owner(s), other domesticated animal, previously captured wildlife, an exotic animal, or any other pet, including but not limited to pet rabbits, a pet chick, duck, or pot bellied pig.”  Tenn. Code Ann. § 44-17-303(h); § 39-14-201(3).  By its terms, the Act does not apply to execution by lethal injection of death-sentenced inmates confined in the Tennessee Department of Correction.

Id.  The TCOC’s rationale appears to be that because death row inmates fail to qualify as “nonlivestock animals,” they are not entitled to the legal protections afforded to rabbits, chicks, ducks and pot-bellied pigs.  The TDOC summarily denied Appellant’s other claims regarding the illegality and unconstitutionality of the lethal injection protocol.
	Appellant commenced this action by timely filing a petition for declaratory judgment in the Davidson County Chancery Court.
	Appellees filed a motion for partial dismissal under Tenn.R.Civ.P. 12.02(6) which Appellant opposed.  The Chancery Court granted the motion by Order entered May 6, 2003, and dismissed Counts I through V of Appellant’s Complaint, which addressed claims of the illegality of the TDOC lethal injection protocol under the Tennessee Administrative Procedures Act (Count I), the Tennessee Open Meetings Act (Count II), the Tennessee Nonlivestock Animal Humane Death Act (Count III), Tennessee law relating to the practice of medicine and the handling of controlled substances (Count IV), and Tennessee public policy (Count V).  
	The Chancery Court did not dismiss Appellant’s claims regarding the unconstitutionality of the lethal injection protocol under the Tennessee and United States Constitutions (Count VI). On May 29 and May 30, 2003, the Chancery Court conducted a non-jury trial on Appellant’s constitutional claims.  The following witnesses testified:
	Dr. Dennis Geiser, a doctor of veterinary medicine and the Chairman of the Department of Large Animal Clinical Sciences at the College of Veterinary Medicine at the University of Tennessee (Trial Transcript, Vol. I, pp. 47-92).  Dr. Geiser testified that the use of Pavulon in animal euthanasia, either by itself or in combination with any other drugs, is strictly prohibited by Tennessee state statute and by the ethical standards of the American Veterinary Medical Association which apply throughout the state of Tennessee and the rest of the country.  
	Dr. Geiser described how the use of Pavulon creates an unacceptable risk of inhumane death in veterinary medicine.  (Trial Transcript, pp. 64-71).  Dr. Geiser also testified about the potential problems concerning the other drugs to be used in a lethal injection under the TDOC protocol.  (Trial Transcript, pp. 59-60, 64-65, 72-3, 84-9).  
	Dr. Geiser’s testimony was not rebutted.
	Dr. Mark J. S. Heath, an anesthesiologist and an assistant professor of clinical anesthesiology at Columbia University in New York.  (Trial Transcript, Vol. II, pp. 96-191).  Dr. Heath testified to the global risks present in Tennessee’s lethal injection protocol. Specifically, Dr. Heath identified problems with each of the drugs utilized in the lethal injection protocol.  (Trial Transcript, pp. 107-20).  Dr. Heath gave his professional opinion that Pavulon serves no useful or legitimate purpose in the lethal injection process.  (Trial Transcript, pp. 119-20, 190).  He described the way in which Pavulon creates a chemical veil, masking the level of consciousness and any pain and suffering the condemned inmate might experience during the process. According to Dr. Heath, witnesses to an execution under the TDOC’s protocol would be given the false impression of a peaceful death when in fact the inmate could be experiencing excruciating and inhumane pain and agony.  (Trial Transcript, pp. 152-54).
	In addition to his analysis of the drug protocol, Dr. Heath testified to problems relating to the lack of qualifications and certifications of the personnel to perform a lethal injection and the “sloppy” procedures for carrying out a lethal injection.  (Trial Transcript, pp. 106, 124-188).
	Dr. Heath expressed his professional opinion that the TDOC lethal injection protocol creates an unreasonable and unacceptable risk of an inhumane execution.  (Trial Transcript, pp. 104-5, 158).
	Dr. Heath’s testimony was not rebutted.
	Carol Weihrer, a person who has experienced the effects of being paralyzed by a neuromuscular blocking agent like Pavulon while not being fully anesthetized.  (Trial Transcript, Vol. II, pp. 193-199). 
	Ms. Weihrer’s testimony was not rebutted.
	Warden Ricky Bell, the Warden at Riverbend Maximum Security Institute who drafted the TDOC lethal injection protocol and who is responsible for carrying out executions in Tennessee.  (Trial Transcript, Vol. II, pp. 199-239; Vol. III, pp. 247-323).  Warden Bell testified to the “ad hoc” process by which he compiled the TDOC lethal injection protocol (Transcript, p. 204) and various matters concerning the drugs and procedures involved in a lethal injection.  Warden Bell explained that he alone compiled the lethal injection protocol within a relatively short period of time (from June to October, 1998) simply by cobbling together information he received from “prison officials” from certain other states, primarily Indiana and Texas.  (Trial Transcript, pp. 210 – 212, 247 - 54).    
	In compiling the protocol, Warden Bell admitted he never consulted with anyone with any kind of scientific or medical background.  (Trial Transcript, pp. 263-4, 268).  Warden Bell acknowledged that he never made an inquiry into prevailing community standards of what would constitute a humane lethal injection procedure.  (Trial Transcript, p. 204).  Warden Bell testified that he has no knowledge of how other states devised their lethal injection procedures, or what efforts, if any, were made in other states to see if their lethal injection procedures conformed to any community standards of decency in those states.  (Trial Transcript, pp. 211).  
	When Warden Bell compiled the protocol, and until Appellant commenced this action, Warden Bell was unaware that the use of Pavulon in euthanasia of nonlivestock animals is strictly prohibited by the veterinary profession and by Tennessee statute.  (Trial Transcript, p. 271-2).  
	Warden Bell also testified that the lethal injection protocol contains no provisions regarding the proper handling of the lethal injection drugs, which include the Schedule II controlled substance Sodium Pentothal.  (Trial Transcript, pp. 269-70).  In response to the question of who prepares the sodium pentothal for administration, the Warden said, “It could be me…. It could be the executioner that is involved, or it could be a couple other people …”  (Trial Transcript, p. 294).
	Dr. Bruce P. Levy, the Medical Examiner for Davidson County and for the State of Tennessee, and Appellee’s proffered expert witness (Trial Transcript, Vol. IV, pp. 327-412).  Dr. Levy testified that the Tennessee lethal injection protocol can in fact be used to kill a condemned inmate. He testified that he performed the autopsy on Robert Glenn Coe, the only person executed by means of lethal injection in Tennessee.  
	Under cross-examination, Dr. Levy testified that, if a patient is not properly anesthetized when injected with Pavulon, the Pavulon can create in the patient a “horrifying and physically excruciating experience.”  (Trial Transcript, p. 397).  Dr. Levy admitted that Pavulon could chemically mask problems that might arise in a lethal injection, and that the Pavulon could also chemically mask any pain and suffering the condemned inmate might experience during the process.  (Trial Transcript, pp. 396-7).  Dr. Levy also admitted that he had no knowledge of whether the use of Pavulon might have any legitimate purpose in the lethal injection process.  (Trial Transcript, pp. 395-6).  Dr. Levy testified that, based on his review of the TDOC lethal injection protocol, he is unable to draw any conclusions or opinions about the adequacy of the procedures or any safeguards under the protocol to protect against an inhumane execution.  (Trial Transcript, pp. 390-1, 393-4).
	Appellant also introduced into evidence the depositions of William Henry Lloyd (Trial Exh. 9) and Debra K. Inglis (Trial Exh. 10) whose deposition testimony confirmed the trial testimony of Warden Bell regarding the “ad hoc” process by which the lethal injection protocol was developed.
	On June 2, 2003, the Chancery Court entered a Memorandum and Order, which is the final judgment in this case.  The Chancery Court made certain significant findings that support Appellant’s position in this appeal, including the following:
		“The proof established that Tennessee’s method [of lethal injection] is not state of the art.  It was developed simply by copying the same method currently in use by some thirty other states.  The method could be updated with second or third generation drugs to, for example, streamline the number of injections administered.”  (Memorandum and Order, p. 2).

		“Moreover, the method’s use of Pavulon, a drug outlawed in Tennessee for euthanasia of pets, is arbitrary.  The State failed to demonstrate any need whatsoever for the injection of Pavulon.”  (Id.).

		“Significantly, there was no proof from the State that the Pavulon is necessary to the lethal injection process.  No proof was provided by the State for the use of Pavulon in its lethal injection process.  The state’s expert, Dr. Levy, on cross-examination, testified that he did not know of any legitimate purpose for the use of Pavulon in the Tennessee lethal injection process.  He agreed that the injection of Pavulon without anesthesia would be a horrifying experience.”  (Id. at 6).

		“But the use of Pavulon is problematic because it is unnecessary.  As stated above, the State failed to demonstrate any reason for its use.  The record is devoid of proof that the Pavulon is needed.  Thus, the Court concludes that, while not offensive in constitutional terms, the State’s use of Pavulon is “gilding of the lily” or, stated in legal terms, arbitrary.”  (Id. at 13).

	Despite these findings, the Court concluded that the TDOC lethal injection protocol does not offend the Tennessee or United States Constitution.  The Chancery Court based this conclusion principally on the contention that most death penalty states use a similar kind of lethal injection procedure.  The Chancery Court failed to find that the procedures in other states were developed in non-arbitrary ways with reference to evolving community standards.
	The Chancery Court acknowledged some merit in Appellant’s claim that Pavulon creates a “chemical veil” which can create a false or deceptive sense of serenity during the execution process and which can actually disguise problems that could arise during a lethal injection.
	Importantly, the Chancery Court failed to address Appellant’s “access to the court” constitutional claims, arising out of the “chemical veil” effect of the Pavulon, which Appellant argued  in pre-trial briefing and in Appellant’s opening and closing statements at trial.
	The Chancery Court also failed to address Appellant’s constitutional due process claims.
	Appellant timely filed a notice of appeal from the Chancery Court’s final judgment.

STATEMENT OF THE FACTS

1.	General Description of the TDOC Lethal Injection Protocol.
	The entire TDOC lethal injection protocol is set forth in the “Execution Manual.”  (Trial Exh. 16, Tab 8;  see, also, Trial Exhs. 12 and 13 which consist of the relevant portions of the Execution Manual pertaining to the protocol).  Although the idea of the Execution Manual is to provide for all of the procedures and protocols surrounding lethal injection and electrocution (Trial Transcript, pp. 214-5), the lethal injection protocol is cursory, at best.
	Under the protocol, an execution by lethal injection will require the participation of the Commissioner, the Warden, the Deputy Warden, the Administrative Assistant, the Death Watch Supervisor and assigned officers, a Chaplain, a Medical Doctor and associate, an “Execution Team,” an “IV Team,” and an “Extraction Team.”  (Trial Exh. 13, p. 24).    The Officer in Charge and/or the Assistant Officer in Charge will be responsible for “the care and maintenance of the Death Chamber and all appliances and equipment, the training of the Execution Team, and carrying out the execution of the condemned prisoner.”  (Id., at 27).  The Officer in Charge and assistant shall assemble the Execution Team in the Death Chamber four (4) days prior to a scheduled execution “to prepare and test all appliances and equipment for the scheduled execution.”  (Id.).  The state, claiming a privilege under T.C.A. § 10-7-504(h), refuses to reveal the identities of the various individuals involved in an execution other than the Warden.
	There is no discussion in the protocol of the qualifications or training of the Officer in Charge or his assistant.  It appears that the actual lethal injection procedure is carried out entirely by the three Teams mentioned above.  The Execution Team “shall consist of one (1) Officer in Charge, one (1) Assistant Officer in Charge, and seven (7) members.”  (Id., at 27).  There is no description of the “IV Team” or the “Extraction Team.”  The protocol is silent on how these teams are to be selected, or whether members of these teams shall have any specialized training or qualifications.
	The protocol prescribes the sequence of events surrounding an execution as follows:  At the appointed hour, the Warden or Assistant Warden and the Extraction Team will remove the inmate from his death-watch cell, secure him on the gurney, and take him to a “designated area” in the death chamber.  Then the “IV Technicians will insert a catheter into each arm, attach the tubing, and start an IV consisting of saline solution.  The IV team will then leave the execution chamber and return to the holding cell area.  The physician will be available in the designated waiting area and will perform a cutdown procedure if the IV Technicians are unable to find a vein that is adequate enough to insert the catheter.”  (Id., at 25).  The physician, in other words, is not present during the catheterization process, but is available to perform a “cutdown,” a surgical procedure, if the IV Team, with its indeterminate background and unspecified training, is unable to successfully place the IV’s into the veins in both of the Plaintiff’s arms.  The protocol is equally silent as to the physician’s qualifications to perform this function.
	After the catheterization process is completed, the witnesses will be secured, the closed circuit television camera and audio system will be activated, and the Commissioner will be contacted.  The Warden then will give a signal “to proceed and the injection procedure will continue until all the chemicals have been injected into the condemned and the person is presumed dead.”  (Id., at. 26).
	The Execution Manual does not describe the physical configuration of the death chamber or the lethal injection device.  In his testimony, Warden Bell gave a general description of the death chamber at the time of the actual execution.  The condemned inmate is strapped to a gurney in the death chamber.  The only other persons in the death chamber with the inmate at the time of the execution are the Warden, perhaps the assistant warden, and maybe the chaplain.  (Trial Transcript, p. 221).  The executioner himself is in a separate room which is adjacent to the death chamber.  (Id.).  The two rooms are separated by a wall, and there is a window through that wall.  The IV catheter in the inmate’s arm is attached to tubing which runs through a portal in the wall, just below the window, into the room where the executioner is located.  (Trial Transcript, p. 222).  In the executioner’s room, there are two sets of seven syringes (fourteen in all) – an initial set and then a back-up set to be used if the first set of injections must be interrupted because of a “blowout” of the inmate’s vein.  (Trial Transcript, pp. 234-5).
	When the Warden gives the signal, the executioner attaches the first syringe to the tubing or device inside his room, “pushes” the syringe to inject the solution through the tubing and into the IV catheter in the inmate’s arm in the adjoining room, detaches that syringe and attaches the next syringe, and repeats that procedure for each of the seven syringes in sequence.  (Id.).  Assuming the inmate’s vein does not “blow out,” the executioner is to proceed immediately from one syringe to the next, and the entire process of injecting the seven syringes should last generally two to two and a half minutes, though the time may vary depending on the executioner.  (Trial Transcript, pp. 270, 291).
	The drugs to be used in the lethal injection are identified elsewhere in the Execution Manual (see Trial Exh. 13, which consists of all documents produced by the state which refer to or identify the drugs to be used in a lethal injection):

	(1)	Sodium Pentothal [a/k/a Sodium Thiopental]– Yellow (50 cc)
	(2)	Saline – Black (50 cc)
	(3)	Pancuronium [a/k/a Pavulon] – Blue (50 cc)
	(4)	Pancuronium – Blue (50 cc)
	(5)	Saline – Black (50 cc)
	(6)	Potassium Chloride – Red (50 cc)
	(7)	Potassium Chloride – Red (50 cc)
(Trial Transcript, p. 41).  Sodium Pentothal is “an ultra short-acting barbiturate.”  Pavulon is a “curariform mixture and neuromuscular blocking agent.”  Potassium Chloride is a “cardiac arrest agent.”  Significantly, the Execution Manual only identifies the volume of each drug solution (in “cc’s” or cubic centimeters) but fails to identify the solution’s concentration or the dosage (which must be measured by weight or, typically, grams).  The state has produced no documents that establish the actual dosages of these drugs.
	The protocol provides: “Following the completion of the injection process, and a five-minute waiting period, the blinds to the official witness room closed, closed-circuit TV camera disengaged, and privacy curtain closed, the Warden will ask the physician to enter the room to conduct an examination.  If the inmate is not dead, the physician will return to the designated waiting area.  The curtain will be opened, blinds raised, camera activated, and the Warden shall give the command to repeat the injection procedure.  After this procedure is completed, the blinds will once again be closed, closed-circuit TV camera disengaged, and the privacy curtain closed.  The Warden will once again ask the physician to enter the room and check for signs of life.  The physician shall then report his findings to the Warden or designee.”  (Trial Exh. 12, p. 26).
2.	The Ad Hoc, Non-Scientific Formulation of the Protocol Precluded the Use of Experts Who Could Advise TDOC about Evolving Standards of Decency and Humane Treatment.
	In June, 1998, shortly after the Tennessee legislature enacted the lethal injection statute, the Commissioner for the Tennessee Department of Correction directed the formation of a “lethal injection committee” to put together a lethal injection protocol.  (Bell Testimony, Trail Transcript, p. 202).  This “lethal injection committee” consisted of six persons, all employees of the TDOC: Jim Dickman (the “facilitator” in setting up the committee), William Lloyd (assistant to the Commissioner), Ricky Bell (Warden at Riverbend), Robert Waller (deputy warden), Mike Tyler (a correction officer at Riverbend), and Debbie Inglis (staff counsel for TDOC).  (Trial Transcript, pp. 203-09).  None of these persons had any scientific or medical background or experience; and none of them had any prior experience with an execution.  None of them had any expertise, knowledge, or experience with lethal injection protocols.  (Id.).  As Warden Bell testified, this was basically an “ad hoc committee” which developed its own method of proceeding.  Its meetings and deliberations were not open to the public, nor were they publicized in any manner.  (Trial Transcript, p. 204).
	The committee spent very little time, if any, discussing the lethal injection protocol itself, and it appears that no resources were expended to ensure that the process was humane.  As best as Warden Bell can recall, this committee met on only four or possibly five occasions: on July 15, August 13, October 6, and October 21, 1998, and one other time in November, 1998, although there is no written record of any November meeting.  (Trial Transcript, pp. 247-51; see also Trial Exh. 11).  In these meetings the committee discussed a number of issues other than lethal injection, including: the scheduling of executions; the personnel who would be included in the execution process (besides those directly performing the lethal injection itself); security during an execution, which is always a significant concern; media involvement in an execution; matters concerning witnesses to the execution, including members of the victim’s family and of the inmate’s family, as well as other representatives of the public; disposal of the body following the execution; and questions concerning the condemned inmate’s election of method of execution.  (Trial Transcript, pp. 251-4).
	Accordingly, the job of preparing the lethal injection protocol was delegated entirely to Warden Bell.  (Trial Transcript, pp. 209-10).  Warden Bell does not have a college degree, and along with the other members of the committee, he has no scientific or medical background.  (Trial Transcript, pp. 200).  Warden Bell lacked any prior experience with or knowledge of lethal injection; and, he had never previously participated in or observed an execution of any kind.  (Trial Transcript, pp. 203-09).  When he prepared the lethal injection protocol (and thereafter, until this lawsuit was filed), Warden Bell was never aware that the use of Pavulon in animal euthanasia is prohibited by Tennessee law and by the standards of the veterinary medical profession.  (Trial Transcript, pp. 271-2).
	Warden Bell explained that in the summer of 1998, there was a desire to expedite the process of completing the protocol – “We wanted to get it moving.”  (Trial Transcript, p. 217).  By October or November, 1998, Warden Bell completed the project.  (Trial Transcript, pp. 248-50; see also Trial Exh. 11).  Warden Bell drafted or compiled the protocol by himself and presented it to the Commissioner for final approval; and the Commissioner approved it without any changes respecting matters concerning the lethal injection process itself.  (Trial Transcript, p. 210).
	To compile the lethal injection protocol, Warden Bell merely gathered information from  “prison officials” from other states.  (Trial Transcript, p. 210).  Additionally, in September, 1998, Warden Bell and two other members of the committee made an overnight trip to visit with Indiana’s warden and other prison officials to discuss their execution procedures.  (Trial Transcript, p. 218).  During the entire process of putting together the protocol, Warden Bell never consulted with anyone with any scientific or medical background.  (Trial Transcript, p. 268).  Neither Warden Bell nor the committee ever made any inquiry into prevailing community standards of what would constitute a humane lethal injection procedure.  (Trial Transcript, p. 204; see also Lloyd Deposition, Trial Exh. 9, pp. 65-6).  Warden Bell does not know when or how the basic procedure of using the three drugs of Sodium Pentothal, Pavulon, and Potassium Chloride was originally devised.  (Trial Transcript, pp. 211-2).  He also does not know what efforts, if any, were made in other states to see if the use of these drugs conformed to community standards of decency in those states.  (Id.).  He does not know whether the officials from other states from whom he gathered information themselves ever consulted with people with medical or scientific backgrounds to develop their lethal injection procedures.  (Trial Transcript, pp. 211-2).  Despite a memo from William Lloyd to the Commissioner stating that a “final report will be submitted” (Trial Exh. 11, bates stamped p. 0048), no final report concerning the lethal injection protocol was ever prepared.  (Trial Transcript, pp. 250-1).  Warden Bell retained no notes or other materials (if any were prepared or obtained) in connection with his compilation of the protocol.  (Trial Transcript, p. 210).
	On February 4, 1999, Virginia Lewis (in TDOC’s central office) wrote a memo to Linda Dodson, Deputy Commissioner, regarding lethal injection.  (Trial Exh. 14).  Warden Bell was aware of this memo.  (Trial Transcript, p. 262).  This memo reflects research performed by Virginia Lewis on lethal injections in other states.  This memo included the following findings:
Those states [Texas and Arkansas] indicated previous experience with problems in locating veins suitable to carry the IV drugs without collapsing.  Both states have experienced collapsed veins after the administration of the first drugs.

…

A publication from the National Legal Aid & Defender Association on “Botched Lethal Injection Executions” states “Lethal injections are also the most frequently botched means of execution – defined to include unanticipated problems or delays that caused, or could have caused, unnecessary agony for the prisoner and/or witnesses.”  Fifteen ‘botched’ cases were cited in this publication ranging from 1985 through 1997.

	Although Warden Bell knew of this memo, he never had any discussions with Linda Dodson, Virginia Lewis, or anyone else about the contents of this memo or about the occurrences of botched lethal injections in other states.  (Trial Transcript, pp. 262-3).  Warden Bell never talked to anybody about possible problems or complications that could arise in a lethal injection, including such problems as possible leakage of drugs in the lethal injection device, possible kinks in the tubing or catheter, possible mistakes in the sequence of administering the drugs, possible misdirected flow of the fluids through the device, or any of the other kinds of problems that can occur.  (Trial Transcript, pp. 263-4).
3.	The Lethal Injection Drugs Pose Serious Risks of Unreasonable Suffering.
	As mentioned above, the TDOC lethal injection protocol provides for the injection of three drugs in the following sequence: Sodium Pentothal, Pavulon, and Potassium Chloride.  The use of each of these drugs under the protocol creates serious risk of an inhumane execution.  We begin by discussing the second drug, Pavulon, because it is the most problematic.

	(a)	The Use of Pavulon is Inhumane.
	Pavulon is a “neuromuscular blocking agent.”  (Trial Transcript, p. 54).  It causes paralysis of the skeletal muscles.  (Trial Transcript, pp. 62-3, 111-2).  Pavulon operates by attaching to the receptor sites in skeletal muscle tissue to prevent or “block” nerve signals from interacting with the muscle tissue.  (Trial Transcript, pp. 54-5, 111-2).  Pavulon only acts peripherally: it does not act upon and therefore does not affect the brain or the nerve fibers.  (Id.).  Pavulon does not block the actual creation of the nerve impulse in the brain, and it does not block the passage of the nerve impulse through the nerve to the endpoint of the nerve fiber.  (Trial Transcript, pp. 56-7, 111-2).
	Thus, Pavulon does not affect consciousness or the sensation of pain or suffering.  It does not affect or diminish the patient’s ability to think, to be oriented to where he is, to experience fear or terror, to feel pain, or to hear.  All of those cognitive functions are left completely intact in the presence of Pavulon.  The only thing that is gone is the ability to move.  (Trial Transcript, pp. 112).
	While Pavulon does not affect the heart muscle, it does paralyze the diaphragm and the skeletal muscles in the chest.  Accordingly, Pavulon causes asphyxiation or suffocation.  (Trial Transcript, pp. 62-3, 113).
	If a person is not properly anesthetized when injected with Pavulon, he will remain conscious while being completely paralyzed.  In this state, the person will undergo the terrorizing and excruciating experience of suffocation without the ability to move or to express his pain and suffering.  This experience is “worse than death.”  (Trial Transcript, pp. 112-3, 120, 193-9 [where Carol Weihrer described her own experience of being paralyzed without adequate anesthesia.  Ms Weihrer was being ventilated and therefore did not experience agony of suffocation]).  
	Pavulon paralyzes all skeletal muscles including facial muscles and the muscles used to speak and make noises.  Thus Pavulon prevents observers from detecting any signs that the person is experiencing pain and suffering.  (Trial Transcript, pp. 65-6, 112-6, 193-9).
	Additionally, the conscious paralyzed person will continue to have the desire to move without being able to do so.  As Dr. Heath explained, Pavulon does not diminish but rather enhances the desire to move.  “If somebody who is paralyzed under Pavulon, they desperately want to move, they would desperately want to breathe because they would be suffocating, but it makes it impossible to move.”  (Trial Transcript, p. 113).  Carol Weihrer described the sensation of wanting to move without the ability to do so.  “It was the most terrifying, torturous experience you can imagine because you cannot move.  I was as alert at that time as I am right now, …, yet I could not alert the surgical team in any way that I was feeling everything.  I was completely paralyzed…. I just remember using every ounce of my strength to try to move everything and realizing that they could not hear me or see me move anything.”  (Trial Transcript, pp. 195-6).
	Neuromuscular blocking agents are used in certain types of surgery, such as eye surgery where it is necessary to block any muscular movement.  In such cases the neuromuscular blocking agent must be used cautiously and only by medical personnel who have specialized training in its use.  (Trial Transcript, pp. 65-6, 116, 161).  As Dr. Geiser explained, the use of Pavulon can interfere with an anesthesiologist’s ability to monitor the patient’s condition and degree of unconsciousness.  The use of a neuromuscular blocking agent requires “more expertise than in the normal anesthetic regimen.”  (Trial Transcript, pp. 65-6).  Because of the skeletal muscle relaxation, the patient loses “some of the reflexes that you monitor in order to determine anesthetic depth.”  It “masks some of the physical parameters that we use to determine anesthetic depth.”  (Id.).  Making the same point, Dr. Heath testified that anesthesiologists would never apply Pavulon or any neuromuscular blocking agent before confirming that the patient is properly anesthetized.  “I would never give Pavulon without having a high degree of certainty that the patient were anesthetized with whatever drug I’m going to use to maintain the anesthesia.”  (Trial Transcript, p. 116).
	It is for these reasons that the use of a neuromuscular blocking agent in euthanasia of animals is strictly forbidden by the ethical standards for veterinary medicine.  (Trial Transcript, p. 60-62).  Trial Exhibit 4 is the 1993 Report of the AVMA Panel on Euthanasia.  On page 8 of this Report, it states:
For death to be painless and distress-free, unconsciousness should precede loss of motor activity (muscle movement).  This means that agents that induce muscle paralysis without unconsciousness are absolutely condemned as sole agents for euthanasia.

Later, on page 15 of this Report, it states:

A combination of pentobarbital [a commonly used anesthetic and euthanasia agent] with a neuromuscular blocking agent is not an acceptable euthanasia agent.

Trial Exhibit 5 is the 2000 Report of the AVMA Panel on Euthanasia which similarly condemns the use of neuromuscular blocking agents in euthanasia either as sole agents or in combination with an anesthetic.  See p. 680:  “A combination of pentobarbital with a neuromuscular blocking agent is not an acceptable euthanasia agent.”  As Dr. Geiser explained, there is no allowance under the AVMA standards for the use of Pavulon in euthanasia under any set of circumstances.  (Trial Transcript, p. 61-2).
	Tennessee statutory law strictly prohibits the use of Pavulon in euthanasia of nonlivestock animals.  T.C.A. § 44-17-303(c), which is part of the “Nonlivestock Animal Humane Death Act,” provides:
	(c)	… [A]ny substance which acts as a neuromuscular blocking agent … may not be used on any nonlivestock animal for the purpose of euthanasia.

There are no exceptions to this statutory prohibition against the use of Pavulon or other neuromuscular blocking agents in the euthanasia of any nonlivestock animal.  (See Trial Transcript, p. 66).
	Perhaps the most insidious problem with Pavulon, and the problem that goes to the heart of several of Appellant’s constitutional claims, is that it creates a chemical veil over the execution process in the following respects:
	First, by completely paralyzing the inmate, Pavulon masks the normal physical parameters that an anesthesiologist or surgeon would rely upon to determine if a patient is completely unconscious and within a proper “surgical plane of anesthesia.”
	Second, by completely paralyzing the inmate, Pavulon prevents observers (including the inmate’s attorney, the press, the victim’s family members, the inmate’s family members, and representatives of the public) from seeing if the condemned inmate is experiencing any pain or suffering from the lethal injection.
	Third, because Pavulon is an invisible chemical veil and not a physical veil like a blanket or hood that is easily identifiable, the use of Pavulon in lethal injection creates a double veil.  It disguises the fact that there is a disguise over the process.
	Dr. Heath explained it this way in his trial testimony:
Q.	Now, you have used with me the phrase chemical veil in connection with Pavulon.  Could you tell the Court what you have meant by the use of that term and how that relates to the lethal injection process?

A.	I started using that term in thinking and talking about the lethal injection protocol, and part from reading about electrocution and gas chamber executions where initially people thought these would be a humane way of killing people, but after a few executions they were having problems with witnesses fainting or being nauseated or worse.

		And so in both gas chambers and in execution [sic – electrocution], many states would place a veil that they can draw a curtain over the prisoner’s face so that their suffering could not be witnessed.

Q.	Okay.  Now, how does that apply to Pavulon?

A.	Pavulon does in some respects the same thing except that it does it to the entire body.  So not only would one not be able to witness any facial expression to suffering, but if somebody were in extreme discomfort, we would expect their whole body to object and rise to the discomfort.  And Pavulon makes it impossible for somebody to move and therefore impossible for a witness to know if discomfort or pain is occurring.

		It’s different from the veil because from the physical veil that is used with electrocution or gas chamber in that that physical veil is visible to the witnesses.  They can see that they can’t see the prisoner’s face.  The Pavulon causes what I call the chemical veil and it’s a more insidious thing because witnesses think they are seeing the execution in a sense.  They think that they would know if the prisoner was suffering.

		You read comments by victim’s families who witness executions.  They very often say or sometimes even complain that it appeared too peaceful and certainly pancuronium [i.e., Pavulon] does cause a very peaceful look on a person’s face and body.  When we’re at peace, our facial muscles relax.  That’s what pancuronium does.

		So, again, it causes a veil by stopping the witnesses from seeing if suffering has occurred.  It’s also sort of a double veil because the witnesses are diluted [sic – deluded] into thinking they are actually witnessing whether suffering is occurring when, in fact, they’re unable to make any such determination.

(Trial Transcript, pp. 152-154).
	The Chancery Court properly found (and repeatedly stated in its Memorandum and Order) that Pavulon serves no legitimate purpose in the lethal injection process.  This finding is supported by the record, including the testimony by Dr. Levy, the state’s own expert witness.  (See Trial Transcript, p. 395-7).  Under the TDOC protocol, if the process is performed without error or complication and if the proper dosages are administered, death is caused by the Potassium Chloride, not by the Pavulon.  (Trial Transcript, p. 118).  Pavulon does not affect consciousness, so it does not serve to make the process more humane.  In fact, the use of Pavulon creates the real and unreasonable risk of causing an excruciatingly inhumane execution when, for any number of reasons (explained below), the Sodium Pentothal fails to have its intended effect.  (See Trial Transcript, pp. 119-20).
	Because Pavulon serves no legitimate purpose, the Chancery Court characterized its use as “arbitrary” and further pointed out:
	The plaintiff’s chemical veil argument raises the age-old concern of a society conceived as colonists and schooled during maturing in the abuses of power by government.  The chemical veil taps into every citizen’s fear that the government manipulates the setting and gilds the lily, whether it be with reporting on the economy or election results, to orchestrate and manipulate public reaction.

(Memorandum and Order, p. 13).  In fact, the use of Pavulon is worse than “arbitrary.”  It is deceiving.
	(b)	Sodium Pentothal Creates a Risk of Inadequate Anesthesia.
	The first in the TDOC protocol’s sequence of drugs is Sodium Pentothal.  It is an “ultra short-acting” barbiturate.  (Trial Transcript, pp. 57, 107).  Its purpose in the protocol is to render the condemned inmate unconscious.  (Trial Transcript, p. 291).  Warden Bell testified that he administers five grams of Sodium Pentothal, which the experts agree is a lethal dose if properly administered.  If the protocol is performed as intended, without any complications or errors, death would be caused by the third drug, the Potassium Chloride, which would stop the functioning of the heart before the Sodium Pentothal would have its lethal effect.  (Trial Transcript, p. 118).  Notwithstanding Warden Bell’s testimony, the TDOC’s lethal injection protocol does not specify the dosage of the Sodium Pentothal to be used, or the dosages of any of the other drugs.  (Trial Transcript, p. 266; Trial Exh. 13).
	In medical practice, Sodium Pentothal is used only as an “induction” anesthetic.  (Trial Transcript, pp. 59-60).  It renders the patient unconscious very quickly, and its effect wears off in a matter of minutes.  (Trial Transcript, p. 47).  There are very few drugs that have a shorter duration of action.  (Trial Transcript, p. 107).  In surgery, the injection of Sodium Pentothal will be followed almost immediately, subject to the monitoring of the patient, with administration of another, longer-lasting anesthetic.  (Trial Transcript, p. 64-5).
	Dr. Heath explained that anesthesiologists use an ultra short-acting barbiturate like Sodium Pentothal to induce anesthesia because  it enables the anesthesiologist to quickly awaken the patient if complications should arise:
	The reason is that sometimes when we induce general anesthesia, we encounter problems such as being unable to ventilate for the patient, having the patient have reflexes that are threatening their life.  Sometimes the airway, the patient’s airway will close off and you won’t be able to move oxygen in and out of their lungs.

		And in those cases sometimes the only way we can really save the patient’s life is to allow them to wake up and resume breathing on their own.  So, obviously, the shorter acting the drug is, the more likely it is that they’ll be able to wake up and resume breathing on their own.

(Trial Transcript, pp. 114-5).  Dr. Heath and Dr. Geiser both made clear that Sodium Pentothal would not be used to maintain the patient in a surgical plane of anesthesia for purposes of performing any kind of surgical procedure.  (Trial Transcript, pp. 59-60, 64-5, 114-5).
	Adding to the risk of inadequate anesthesia is the fact that Sodium Pentothal is very unstable.  (Trial Transcript, pp. 58, 109).  It is an unusual drug in that it comes from the manufacturer in powder form and must be mixed by the anesthesiologist into a solution (a fluid form) before use.  (Id.).  Sodium Pentothal in solution has an extremely short shelf life and will begin to lose its potency within the initial 24 hour period after it is mixed.  (Id.).  Moreover, if the solution of Sodium Pentothal comes into contact with another chemical, such as Pavulon, the mixture of the two will cause the Sodium Pentothal immediately to precipitate or crystallize.  (Trial Transcript, pp. 129-30).  Consequently, it is important to maintain the purity of the drug during administration.  This explains the need for an injection of saline solution between the Sodium Pentothal and the Pavulon.  (Id.).
	In a lethal injection, Sodium Pentothal might not have its intended effect for a number of reasons, none of which are remote in untrained hands.  Sometimes batches of drugs from the manufacturer are bad – they either do not have any potency, or the manufacturer mistakenly mislabels the drug.  (Trial Transcript, p. 158).  The Sodium Pentothal may have been stored in powder form beyond its shelf life, which Warden Bell believes is six months.  (Trial Transcript, p. 273-4).  The Sodium Pentothal might not be properly mixed into solution form.  (Trial Transcript, pp. 175-80).  Once mixed, the Sodium Pentothal may begin to precipitate and lose its potency.  (See supra).  Further, it might come into contact with another substance that would cause the Sodium Pentothal immediately to precipitate and lose its potency.  (See supra).
	The ultimate risk with Sodium Pentothal is that an adequate dose of the drug will not enter the inmate’s bloodstream, thereby leaving the inmate conscious to experience suffocation from Pavulon and cardiac arrest from Potassium.  Under Tennessee’s protocol, this risk is present  at several stages, as discussed below.  (See, generally, Trial Transcript, pp. 131-43.)
	For example, Warden Bell acknowledged his belief that Sodium Pentothal in powder form (before mixing) has a shelf life of six months.  Nevertheless, he gave testimony that the Sodium Pentothal that he intended to use for Appellant’s June 18, 2003 execution was ordered eighteen months earlier in December, 2001.  (Trial Transcript, pp. 273-4, 321).
	Warden Bell acknowledges that risk is involved in the handling and administration of Sodium Pentothal (and the other drugs), including the potential for the mixing of the drugs that would cause the drugs to congeal or crystallize; but he has never discussed these risks with anyone with a medical or scientific background.  (Trial Transcript, p. 234).
	Sodium Pentothal is a Schedule II controlled substance, and its handling is therefore subject to strict regulatory control.  Contrary to regulatory requirements, however, the TDOC lethal injection protocol contains no description of how Sodium Pentothal or any of the drugs are to be handled, mixed, administered, stored, or accounted for.  (Trial Transcript, p. 269-70).  There is no provision for monitoring or recording the chain of custody of any of the drugs.  (Id.).  When the drugs come into Warden Bell’s possession and custody at Riverbend, there is no certified person, such as a pharmacist or physician, responsible for the supervision or oversight of the handling or mixing of the drugs.  (Trial Transcript, pp. 272, 275).  All of those matters are entirely within the discretion of the Warden who lacks training or certification in such matters.  (See Trial Transcript, pp. 273-4).  
	Because of the absence of legally required controls, there exists the real potential for the mishandling of the drugs, particularly the Sodium Pentothal, as evidenced by Warden Bell’s testimony in this case.  In testimony that was confusing and perhaps inconsistent, the Warden could not say for sure how many vials of Sodium Pentothal need to be mixed in preparation for a lethal injection, but, “It’s whatever would be in order to get the total of 50 cc.  I think there’s ten.”  (Trial Transcript, p. 319).  When asked who prepares the Sodium Pentothal for administration, the Warden testified, “It could be me.  I could do it.  I know how to do it.  It could be the executioner that is involved, or it could be a couple of other people that also know how to do it.”  (Trial Transcript, p. 294).  None of these “other people” have been identified by the state.
	Significantly, in an internal TDOC memo dated 03/09/99 from John G. Organ, Jr. to Bob Bradford regarding “Lethal Injections Status Report,” Mr. Organ wrote:  “My only recommendation at this point is that Gina Tinnell prepare written procedures for the storage and preparation of the compounds to be used in the event she is not available for consultation or assistance when the event actually takes place.”  (Trial Exh. 13, bates stamped p. 0022).  No such written procedures have ever been drawn up.  (Trial Transcript, p. 275-6).
	In addition to problems concerning the pre-execution handling of the drugs, serious risks are inherent in the procedures during the execution itself.  For obvious reasons discussed above, both Dr. Geiser and Dr. Heath testified that they would never administer Pavulon without first being certain that the patient (or inmate) is under a surgical plane of anesthesia.  (Trial Transcript, pp. 64-6, 116).  This requires some kind of monitoring after the administration of the anesthetic and before the injection of the Pavulon.  Under the protocol, however, the executioner injects the chemicals in sequence using seven separate syringes -- one syringe immediately after the other -- without checking or monitoring the condemned inmate at any point during the process.  Consequently, nothing is done to ensure that the Sodium Pentothal has rendered the inmate unconscious before injection of the Pavulon.  Warden Bell testified on this as follows:
Q.	Now, when performing a lethal injection nothing is done between the injection of the sodium pentothal and the injection of the Pavulon to determine whether the inmate is actually asleep and properly anesthetized.  Correct?

A.	That’s correct.

Q.	In fact, the executioner just goes from one to the other without making any kind of assessment of whether the anesthetic has worked.  Correct?

A.	Correct.

(Trial Transcript, p. 270).
	For all of the above reasons, Sodium Pentothal is not a proper anesthetic for use in lethal injection.  Indeed, the AVMA standards for euthanasia make absolutely no provision for the use of Sodium Pentothal for any purpose in the euthanasia of animals.  (See Trial Transcript, pp. 59-60, 71-3; Trial Exhs. 4 and 5).  Dr. Geiser testified that he would not use Sodium Pentothal in euthanasia either by itself or in combination with any other drugs.  (Trial Transcript, pp. 59-60).	(c)	The Injection of Potassium Chloride Subjects the Inmate to Risks of Unnecessary Pain and Suffering.
	The third drug in the TDOC lethal injection protocol is Potassium Chloride.  If the lethal injection is performed without complications or errors, this is the actual drug that would cause death in the execution.  (Trial Transcript, p. 118).
	In veterinary medicine, Potassium Chloride is used occasionally as an agent for euthanasia, but only under special and highly controlled situations.  (Trial Transcript, p. 60).  Veterinarians would use Potassium Chloride to euthanize a fully anesthetized animal in the operating room after determining there was no hope for the animal'’ survival.  (Id.). Dr. Geiser testified that he would not use Potassium Chloride as an euthanasia agent under normal circumstances. (Id.).
	The 2000 Report of the AVMA Panel on Euthanasia (Trial Exh. 5), in its discussion of the use of Potassium Chloride in euthanasia, emphasizes the importance of ensuring that the animal is in a proper surgical plane of anesthesia before the drug is administered.  The Report also points out the aesthetically displeasing “muscle rippling” effects of this drug from the point of view of the observer:
	Although unacceptable and condemned when used in unanaesthetized animals, the use of a supersaturated solution of potassium chloride injected intravenously or intracardially in an animal under general anesthesia is an acceptable method to produce cardiac arrest and death.

…

	Disadvantage – Rippling of muscle tissue and clonic spasms may occur on or shortly after injection.

	Recommendations – It is of utmost importance that personnel performing this technique are trained and knowledgeable in anesthetic techniques, and are competent in assessing anesthetic depth appropriate for administration of potassium chloride intravenously.  Administration of potassium chloride intravenously requires animals to be in a surgical plane of anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of response to the noxious stimuli. …

(Trial Exhibit 5, pp. 680-1).  
	Dr. Geiser pointed out that Potassium Chloride can be extremely painful and stressful to the animal, if administered without proper anesthesia.  (Trial Transcript, pp. 84-5).  Dr. Geiser also testified that Potassium Chloride would not be used with just a short-acting anesthetic like Sodium Pentothal.  (Trial Transcript, p. 86).  Dr. Geiser agreed with the AVMA Report that only properly trained personnel should ever administer Potassium Chloride as an euthanasia agent.  (Trial Transcript, p.87-8).
	Dr. Heath explained why Potassium Chloride would cause extreme pain if administered to a patient who is not properly anesthetized, :  “[I]t would be agonizing.  Potassium activates all the nerve fibers inside the vein and the veins have many nerve fibers inside them.  So it would basically deliver the maximum amount of pain the veins can deliver which is a lot.”  (Trial Transcript, p. 117).
	For reasons explained above, the record in this case demonstrates that the TDOC protocol is faulty in its provision for the use of Potassium Chloride.  It calls for the use of only an ultra short-acting anesthetic, which is unacceptable practice under veterinary standards.  The drugs are administered by untrained, inexperienced correction officers, which directly conflicts with the AVMA standards.  In the administration of the drugs, there is no provision for assessing anesthetic depth; in fact, there is no assessment whatsoever, as the executioner proceeds immediately from one syringe to another in the injection process without ever checking the condition of the inmate.  (Trial Transcript, p. 270, cited above).  Pavulon further masks the true condition of the inmate when the Potassium Chloride is administered.  Pavulon also would mask the “muscle rippling” that the Potassium Chloride would cause.
4.	The Lethal Injection Protocol Does Not Provide Even Minimal Safeguards to Ensure a Humane Death.
	Aside from the drugs that are used under the TDOC protocol, there are serious problems in the procedure for injecting the drugs into the condemned inmate.  Dr. Heath correctly described the entire procedure as “sloppy.”  (Trial Transcript, p. 188).
	Warden Bell testified that prior to an execution, nothing is done to examine or prepare an inmate for the lethal injection.  (Trial Transcript, p. 212).  Thus, there is no physical examination of the inmate, no checking of vital signs, no assessment about the inmate’s circulatory system, no assessment about the condition of the inmate’s veins, no determination of whether the inmate is suffering from any kind of cardiovascular disease or heart condition, or whether he might be dehydrated.  (Trial Transcript, pp. 212-3).  In other words, there is no kind of evaluation of whether the inmate’s physical condition might interfere with the insertion of an IV or the actual flow of the drugs through the inmate’s blood system.
	Dr. Heath explained many of the other problems with the procedure.  Those problems can be briefly summarized here:
	  The protocol fails to require proper training and credentialing of the persons who carry out a lethal injection, (Trial Transcript, p. 105), and the proof is clear that neither the Warden nor the other members of the Execution Team have the necessary training or expertise.  By contrast, in the field of veterinary medicine, the practice of euthanasia is carefully regulated and can only be performed by persons who have received specialized training and credentialing in the practice.  See T.C.A. § 44-17-303(d) and Trial Exh. 12 (Rules of the Board of Veterinary Medical Examiners Governing Certified Animal Euthanasia Technicians)).
	  The protocol fails to describe how the drugs are to be labeled, and the labeling system that is used in fact does not meet minimum standards.  (Trial Transcript, pp. 124-5, 155-6, 180-1).  The improper labeling of the drugs creates the “opportunity for confusion and error,” which can happen in the operating room even when drugs are properly labeled.  (Id.).
	  The protocol provides for the “push” of seven large syringes in sequence.  In performing anesthesia, rarely if ever would an anesthesiologist administer drugs by performing seven “pushes” in sequence like this.  “That would be an extraordinarily overcomplex induction sequence.”  (Trial Transcript, p.127).
	  The protocol provides for a saline injection between the Pavulon and the Potassium Chloride.  Although a saline flush is necessary between the first two drugs – the Sodium Pentothal and the Pavulon – to avoid precipitation or crystallization of the Pentothal, there is no need for a saline flush between the second and third drugs.  This creates unnecessary complexity which increases the chance for error.  (Trial Transcript, p. 129).
	  There is always the risk of improper insertion of the IV catheter into the vein, or for extravascular injection and/or infiltration, which would divert some or all of the drugs from the inmate’s circulatory system.  This creates the risk that insufficient dosages of the drugs will be delivered by the bloodstream to the target organ (i.e., the brain in the case of Sodium Pentothal, and the heart in the case of Potassium Chloride).  (Trial Transcript, pp. 133-4).  
	Under the TDOC protocol, there is virtually no monitoring of the flow of the fluids into the inmate’s vein.  (Trial Transcript, p. 135).  Proper monitoring requires a clear view of the IV site and often will require “palpation” or touch of the site to check for skin temperature and firmness of the surrounding tissue.  (Trial Transcript, pp. 135-6).  Infiltration or some kind of diversion of the fluid away from the vein could occur without being detectable by the trained naked eye just through observation.  (Trial Transcript, p. 136).  Neither the executioner nor the Warden, the persons present during the actual injection of the drugs, are trained in these areas; nor do they perform any kind of monitoring other than crude visual observation.
	  The injection delivery device includes several feet of tubing along with several junctions (where different pieces of tubing come together) and various valves and other devices.  (Trial Transcript, 136-7).  See, also, Dr. Levy’s testimony describing what he saw on Coe:  “There was [sic] several valves on the intravenous tubing, and then several things which I would call stoppers that you could slide over the tubing to stop or start flow through that point.”  (Trial Transcript, p. 377).  As Dr. Heath pointed out, “All of these connections create possibilities for misdirected flow or leakages.”  (Trial Transcript, p. 136-7, 140; see also, p. 139-40, where Dr. Heath talks about the real risks relating to misdirected flow of fluid through the tubing which might not be detected by the executioner).
	  The executioner, the person who injects the drugs, is in a separate room from the condemned inmate and must observe the inmate, the IV site, as well as the entire apparatus, through a window or a camera.  (Trial Transcript, p. 138).  As Dr. Heath explained, it is rare in surgery for the anesthesiologist to be separated from the patient, and this occurs only under special circumstances.  (Trial Transcript, pp. 138-9).  This creates a “particularly risky situation,” because the person injecting the drugs will be less likely to detect problems that could arise during the process.  (Id.).
	  There is the risk that the angiocatheter can get crimped, or that the tubing might develop a kink, which would impede the flow of the fluid.  (Trial Transcript, p. 141).  The longer the tubing (and for Tennessee’s lethal injection the tubing is quite long and complex), the greater the chance for this sort of problem to arise.  (Id.).
	  If there is a problem with the insertion of the IV, the protocol calls for a “cutdown procedure” to be performed by a physician who is waiting outside the death chamber.  (Trial Exh. 12, bates stamped p. 0196).  A cutdown is a surgical procedure by which, with the use of a scalpel or surgical knife, a series of incisions are made into the body to reach one of the large internal central veins.  (Trial Transcript, p. 144).  As Dr. Heath explained, cutdowns are rarely performed in modern day medicine, and most physicians now have no or very limited training and experience in performing cutdowns.  (Trial Transcript, pp. 146-7).   Cutdown procedures are normally emergency situations, involving trained surgeons, where the patient has suffered extreme bleeding causing collapsed veins.  (Trial Transcript, pp. 146-7).  Cutdown procedures carry the risk of complications that can lead to catastrophic bleeding or pneumothorax (collapsed lung).  (Trial Transcript, p. 149-52).  
	In contrast, today’s standard procedure when an IV cannot be inserted is the  relatively non-invasive “percutaneous technique.” This involves the insertion of a needle through the skin and into the vein followed by a very thin wire which is passed through the middle of the needle.  (Trial Transcript, pp. 145-6).  The percutaneous technique is inexpensive – a kit costs only $10 to $30 – and it is easier to perform and carries a significantly lower risk of complication than the cutdown procedure.  (Trial Transcript, pp. 145-6).
	The Execution Manual provides only for a cutdown procedure.  The equipment lists in the Execution Manual do not include any kind of percutaneous kit.  (Trial Transcript, pp. 144-52).  Warden Bell, when he compiled the lethal injection protocol, never inquired into the potential problems with a cutdown procedure, and he never investigated possible alternative procedures such as the percutaneous technique.  (Trial Transcript, pp. 231-3).  Moreover, when Warden Bell hired the physician who is to perform such a procedure (and who is to pronounce death upon the completion of the execution), he never inquired into whether the physician has ever performed a cutdown or has ever been trained in performing cutdowns.  (Trial Transcript, p. 233).  Warden Bell also testified that, to this day, he does not know anything about the physician’s qualifications to perform a cutdown.  (Trial Transcript, p. 310).
	  Notwithstanding the admitted possibility of the need for a cutdown procedure under the terms of the protocol, and notwithstanding the catastrophic bleeding or other complications that could result from a cutdown, in the TDOC lethal injection protocol there is no provision for the presence or existence of emergency equipment in case a complication should arise during the process.  (Trial Transcript, p. 160).
5.	In Its Entirety, Tennessee’s Lethal Injection Protocol Subjects the Inmate to An Unreasonable Risk of Inhumane Pain and Suffering.
	The Chancery Court rested its decision in this case on its view that there is “less than a remote chance” that the condemned inmate will be subjected to unnecessary physical pain or psychological suffering under the TDOC’s lethal injection method.  (See Memorandum and Order, p. 17).  This conclusion by the Chancery Court, however, is clearly erroneous and flies in the face of unrebutted evidence in this case:
	First, the drugs used in the Tennessee lethal injection process, if they are improperly administered, will create a “horrifying and physically excruciating experience” for the inmate, according to the state’s own expert witness.  (Trial Transcript, p. 397).
	Second, the protocol is indisputably “sloppy.”  It is devoid of any requirements or standards for meaningful training or credentialing of the persons who are to perform the lethal injection; and it lacks any guidelines or safeguards with respect to the procedures for carrying out the lethal injection – from the pre-execution handling and mixing of drugs to the actual injection process itself.  Under this protocol, there is plenty of opportunity for a botched execution.
	Even in the controlled setting of the Warden’s practice runs, the TDOC personnel have encountered problems detectable even by them.  They have had a “blowout” or “knot” in their practice runs, indicating that the solution was not properly getting into the subject’s circulatory system.  (Trial Transcript, p. 234).  They have also encountered problems with kinked tubing which impedes the flow of the solutions into the subject’s arm.  (Trial Transcript, 236-7, 307-8).
	Third, the risks of errors and complications are magnified in an actual execution setting.  As acknowledged by Dr. Levy, the state’s own expert, stress can lead to error, and an execution is an extremely stressful situation for the Warden and others involved in the process:
Q.	Now, isn’t it true that medical personnel are trained specifically to deal with stressful situations through their years of training and experience from medical school through residency through internship into actual practice.  Correct?

A.	We are.

Q.	And that’s one of the main – that’s an important aspect of medical training.  Correct?

A.	I would consider it so, yes.

Q.	And through that, that improves the ability of physicians, for example, to deal with stressful situations.  Correct?

A.	One would hope so.

Q.	If people who perform lethal injection have not received medical training and have no medical experience, you would expect that increased stress could increase the possibility of error.  Correct?

A.	It could, yes.

Q.	And then depending on the persons involved, you would agree that there are potentially stressful circumstances in the lethal injection.  Correct?

A.	I would consider it a stressful process, yes.

Q.	It’s stressful partly because it involves the killing of a human being.  Correct?

A.	Yes, it does.

Q.	Possibly because the persons involve[d] would know the inmate who[’s] being killed.  Correct?

A.	They might, yes.

Q.	Another stressor could possibly be that the process could get stayed by the courts at any point during the proceeding.  Correct?

A.	Yes, I believe it could.

Q.	And that would be a stressor.  Correct?

A.	It could be, yes.

Q.	And that there’s a considerable amount of public attention focused on the execution.  That would be a possible stressor.  Correct?

A.	Yes, it could.

Q.	And witnesses are observing the process, including the inmate’s family members and the victim’s family members.  Correct.

A.	Yes, they are.

Q.	And that would be a potentially stressful situation.  Correct?

A.	It could be.

Q.	And the time of day, 1:00 o’clock in the morning, could be a stressful circumstance.  Correct?

A.	It could be, yes.

Q.	You have no knowledge of whether the persons who are involved in the lethal injection protocol in Tennessee, specifically the process of performing the injection, are trained in any fashion to have any special experience in dealing with these kinds of potential stressors?

A.	I have no knowledge of that one way or the other.

(Trial Transcript, pp. 382-5).  See also Warden Bell’s testimony acknowledging the stressful nature of an execution.  (Trial Transcript, pp. 276-84).
	Fourth, the Chancery Court’s conclusion of a “less than remote chance” of a botched execution is belied by TDOC’s own internal research of botched executions in other states.  See the Virginia Lewis Memo dated February 4, 1999, which cited a study and other sources of information which referred to numerous botched lethal injection executions and characterized lethal injections as “the most frequently botched means of execution.”  (Trial Exh. 14).
	Fifth, all of the expert testimony consistently showed that the TDOC lethal injection protocol creates an unreasonable risk of inhumane treatment of the inmate.  In fact, nothing in the record supports the Chancery Court’s conclusions to the contrary.  Dr. Geiser’s testimony establishes that the TDOC lethal injection protocol would not satisfy the legal or ethical standards of veterinary medicine in the euthanasia of animals.  Dr. Heath gave his unrebutted expert opinion that the TDOC protocol is “sloppy” and creates an unreasonable and unacceptable risk of an inhumane execution.  (Trial Transcript, pp. 104-5, 158).  Dr. Levy, the state’s own expert, could not dispute Dr. Heath’s opinion:
Q.	Based on your knowledge of the Tennessee lethal injection protocol do you have an opinion on whether the protocol includes adequate procedures and safeguards to ensure that the lethal injection will proceed without an unreasonable risk of problems or complications?

Answer: I don’t know.

(Trial Testimony, pp. 390-1).

	The Chancery Court’s conclusion that the risk of an inhumane execution is “less than remote” must fall under the weight of the unrebutted evidence presented in this case.  Further, any argument that the risk is remote is disingenuous.  No one has survived an execution to testify to their experience.  All evidence of suffering has first been masked by Pavulon and then ultimately buried by the state.
6.	Alternative(s).

	It should not be left to the Appellant to suggest a more humane alternative to the TDOC lethal injection protocol.  However, the proof in this case offers at least one such alternative.  Dr. Geiser testified that the most common method of euthanasia for domesticated animals is a single intravenous injection of Sodium Pentobarbital (not to be confused with Sodium Pentothal).  (Trial Transcript, p. 71-4).  Pentobarbital is similar to Sodium Pentothal in one respect: it quickly creates its anesthetic effect.  But Pentobarbital is quite different from Sodium Pentothal in other important respects:  it is more stable, its anesthetic effect lasts much longer, and it will bring about death within a two or three minute period, which is less time than is required to complete the seven-syringe injection process under the TDOC protocol.  (Id.).  Pentobarbital is inexpensive, and it is used every day in numerous occasions in every county in Tennessee in the euthanasia of pets and other animals.  (Id.).  A simple method of making a single injection of Pentobarbital would carry virtually none of the risks of causing inhumane suffering that are inherent in the TDOC lethal injection protocol.  (Id.).
	In light of this alternative, the state can offer no justification or excuse for its antiquated and barbaric protocol.
ARGUMENT

I.	THE TDOC LETHAL INJECTION PROTOCOL VIOLATES THE CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT.

	The TDOC lethal injection protocol violates the cruel and unusual punishments clauses and related provisions of Art. I, §§ 8, 13 and 16 of the Tennessee Constitution, and the Eighth and Fourteenth Amendments of the United States Constitution.
	As a general rule, historically the Tennessee cruel and unusual punishments clause has been given the same construction as the Eighth Amendment of the United States Constitution.  However, Tennessee’s Constitution contains an additional clause under Art. I, § 13:  “That no person arrested and confined in jail shall be treated with unnecessary rigor.”  This provision is not superfluous, and it therefore must establish a higher standard than the cruel and unusual punishments clause.  It is clear that the TDOC lethal injection protocol, which contravenes the legal and veterinary ethical standards for humane treatment of animals, violates this provision of the Tennessee Constitution.
	With respect to the cruel and unusual punishments clauses of the United States and Tennessee Constitutions, the Chancery Court correctly stated the standard but misapplied the standard to the facts of this case.  As stated by the Chancery Court, to determine whether a method of execution violates the Eighth Amendment prohibition against cruel and unusual punishment, a court shall examine (1) whether the method of execution comports with contemporary norms and standards of society; (2) whether it offends the dignity of the person and society; (3) whether it inflicts unnecessary physical pain; and (4) whether it inflicts unnecessary psychological suffering.  Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1920).  (Memorandum and Order at 7).  See, also, Trop v. Dulles, 356 U.S. 86, 100-1, 78 S.Ct. 590, 597-8, 2 L.Ed.2d 630 (1958) (“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man”; and the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”). The TDOC lethal injection protocol fails under each of these tests.
	1.	The protocol does not comport with contemporary norms  of society.
	The TDOC lethal injection protocol, if applied to the euthanasia of animals, would violate the AVMA standards for euthanasia in veterinary medicine, which are applicable throughout the state of Tennessee as well as the rest of the country, and the Tennessee Nonlivestock Humane Death Act.  The rules contained in the AVMA standards and the Tennessee statute evidence contemporary norms and standards for the treatment of animals.  It would be obscene to apply a lower set of standards to any human being.
	The question of what might constitute minimal contemporary standards of decency also must be considered in light of the availability of alternatives.  Appellant submits that normal citizens of our state would rebel against the idea of using the TDOC protocol if they understood that the TDOC could easily develop a safe, simple, and properly regulated protocol that would involve a single injection of Pentobarbital, the most commonly used method in the euthanasia of domesticated animals.
	The Chancery Court erred in resting its decision on the fact that most other states with lethal injection use the same drugs required under the TDOC protocol.  The fact that other states may use a similar protocol, however, is not evidence that the protocol comports with evolving standards of decency.
	First, there is no evidence in the record as to when or how protocols were developed in other states.  As the Chancery Court correctly pointed out, the determination of whether a punishment violates the Eighth Amendment must consider the “evolving standards of decency that mark the progress of a maturing society.”  Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976).  The Chancery Court also correctly stated that “[e]vidence of legislative trends is particularly relevant when measuring evolving standards of decency.  Penry v. Lynaugh, 492 U.S. 302, 331, 109 S.Ct. 2934, 2953-54, 106 L.Ed.2d 256 (1989).”  See, also, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002).  The inquiry here, however, concerns “legislative” trends.  The TDOC lethal injection protocol was not developed by means of any legislative process.  Instead, it was developed individually by the Warden, under the auspices of an ad hoc committee consisting only of TDOC employees, without any kind of public notice or public oversight.  Further, there is no evidence concerning when the protocols from other states were formulated, or the process by which any of those protocols were developed.  There is no evidence, therefore, of any legislative trends that would support any notion that the TDOC protocol comports with evolving standards of decency.
	Moreover, Tennessee legislation demonstrates that the TDOC lethal injection protocol violates Tennessee’s evolving standards of decency.  The Tennessee legislature has spoken about humane methods for performing euthanasia on nonlivestock animals, and it has declared that the use of Pavulon would constitute an inhumane method.  Moreover, Tennessee legislation imposes training and certification requirements on persons who perform animal euthanasia – requirements that are notably absent from the TDOC lethal injection protocol.  In light of these acts by the Tennessee legislature, it cannot be said that there is any kind of legislative trend, applicable to Tennessee citizens, that would treat the TDOC protocol as an acceptable method of executing a human being.
	Appellant submits that the average Tennessee citizen would find it objectionable to execute a person by means that would be strictly prohibited in the euthanasia of a stray dog.  The TDOC protocol does not comport with evolving standards of decency.
	2.	The TDOC protocol offends the dignity of the person and society.
	The TDOC protocol offends the dignity of the condemned inmate in at least two respects.
	First, as evidenced by the unrebutted expert testimony in this case, the TDOC protocol exposes the inmate to an unreasonable and unacceptable risk of a horrifying and excruciatingly painful execution.
	Secondly, it offends the dignity of the inmate to execute him in a manner that would be strictly prohibited for use in the euthanasia of animals.  If it is not fit for a dog, then it should not be fit for any person.
	The United States Supreme Court has made clear that the principle of human dignity is central to the Eighth Amendment cruel and unusual punishments clause, and that this principle of dignity goes beyond the mere infliction of physical pain or suffering.  Human dignity can be offended in unconstitutional ways through unacceptable stigmatization of an inmate or through other means that may not involve excessive pain or suffering.  In the seminal case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Justice Brennan explained this principle as follows:
The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings.  A punishment is “cruel and unusual,” therefore, if it does not comport with human dignity.

…

	The primary principle [behind the Eighth Amendment] is that a punishment must not be so severe as to be degrading to the dignity of human beings.  Pain, certainly, may be a factor in the judgment…. Yet the Framers also knew “that there could be exercises of cruelty by laws other than those which inflicted bodily pain o mutilation.”  [citing Weems v. United States].  Even though “[t]here may be involved no physical mistreatment, no primitive torture,” Trop v. Dulles, [], 356 U.S. at 101, 78 S.Ct. at 598, severe mental pain may be inherent in the infliction of a particular punishment.  See Weems v. United States, supra, 217 U.S., at 366.

…

The true significance of [a variety of cruel and unusual punishments] is that they treat members of the human race as nonhumans, as objects to be toyed with and discarded.

408 U.S. at 271-3, 92 S.Ct. at 2742-3.
	This principle was implicitly applied in Rupe v. Wood, 863 F. Supp. 1315 (W.D. Wash. 1994), aff’d, 93 F.3d 1434 (9th Cir. 1996) (issue moot because of change in Washington capital statute), cert. denied, 519 U.S. 1142 (1997).  There the federal district court declared that although death by hanging at that time was not generally considered to be unconstitutional, if there is significant risk of decapitation in the hanging of an obese death row inmate the hanging would violate the Eighth Amendment.  Such a hanging would not increase the inmate’s pain or physical suffering; but, it would offend the principle of dignity to treat an inmate in such a manner.
	If the TDOC were permitted to execute Appellant, or any other human being, pursuant to a protocol that would be deemed inhumane if used in the euthanasia of animals, then it would certainly violate the Eighth Amendment principle of dignity.  This is true regardless of whether it would create the kind of horrifying and excruciating experience that is possible under the TDOC protocol.
	The TDOC protocol also offends the dignity of our society in at least two respects.
	First, if it offends the dignity of the inmate, then it necessarily offends society’s sense of dignity.  When the state executes one of its citizens, it does so in the name of all of its citizens, and all citizens therefore have a constitutionally protected interest in ensuring that executions are carried out in a humane way.
	Secondly, as pointed out in the unrebutted testimony in this case, the chemical veil created by Pavulon in the lethal injection process offends society by precluding a proper witnessing of the execution to ensure that it is carried out in a humane way.  This chemical veil deludes witnesses, some of whom represent the public at large (see T.C.A. § 40-23-116(a)), into the false belief that they are observing what is actually occurring during an execution.
	3.	The TDOC protocol creates the unreasonable and unacceptable risk of unnecessary physical pain.
	For the reasons discussed in the Statement of Facts above, the TDOC protocol creates a constitutionally unacceptable risk of causing unnecessary excruciating pain and suffering.  For the reasons explained in the Statement of Facts above, the Chancery Court’s finding to the contrary was clearly erroneous.
	4.	The TDOC protocol creates the unreasonable and unacceptable risk of unnecessary psychological suffering.
	For the reasons discussed in the Statement of Facts above, the TDOC protocol creates a constitutionally unacceptable risk of subjecting the condemned inmate to the psychologically torturous experience of suffering the paralytic effects of Pavulon while conscious.  For the reasons explained in the Statement of Facts above, the Chancery Court’s finding to the contrary was clearly erroneous.

II.	THE TDOC LETHAL INJECTION PROTOCOL VIOLATES THE DUE PROCESS AND RELATED CLAUSES OF THE TENNESSEE AND UNITED STATES CONSTITUTIONS.

	The TDOC lethal injection protocol is infused with arbitrariness that offends the law of the land clause of Art. I, § 8 of the Tennessee Constitution, and the due process clause of the Fourteenth Amendment of the United States Constitution.
	The formulation of the protocol violates constitutional procedural due process principles.  The protocol was cobbled together by the Warden, without consulting with anyone who had any kind of medical or scientific expertise, pursuant to an arbitrary, ad hoc internal TDOC procedure that was conducted entirely outside of the public’s eye and that was never reviewed by any legislative body or public representative.
	The TDOC lethal injection protocol also violates the condemned inmate’s constitutionally protected substantive due process rights.  Among other things, the protocol’s use of Pavulon serves no legitimate purpose, stigmatizes the inmate, and exposes the inmate to a substantially increased risk of an inhumane execution.  The Chancery Court correctly characterized the use of Pavulon as “arbitrary.”  Similarly, the entire lethal injection process required by the protocol, with all of its inherent risks, is arbitrary.  There are safer, simpler, quicker and less expensive alternatives that society would deem to be more humane, and there is no rationale that could possibly justify the TDOC protocol.
	The Chancery Court failed to address Appellant’s due process claims.

III.	THE TDOC LETHAL INJECTION PROTOCOL VIOLATES THE CONDEMNED INMATE’S RIGHTS UNDER THE TENNESSEE AND UNITED STATES CONSTITUTIONS TO HAVE ACCESS TO THE COURTS AND OTHER REMEDIES TO PROTECT AGAINST CRUEL AND UNUSUAL PUNISHMENT.

	The TDOC lethal injection protocol requires the use of Pavulon which, as discussed in the Statement of Facts above, creates a chemical veil over the execution.  This violates the condemned inmate’s rights protected under Art. I, §§ 8, 13, 16, 17 and 19 of the Tennessee Constitution, and the First, Eighth and Fourteenth Amendments of the United States Constitution, to have access to the courts and other remedies to protect the inmate’s right not to be subjected to cruel and unusual punishment.
	Among other things, this masking by Pavulon of the potential effects of the other drugs, and of the potential effects of the Pavulon itself, violates Plaintiff’s constitutionally protected rights because it effectively prevents the inmate’s attorney and other witnesses to the execution from adequately observing the process.  This, in turn, unconstitutionally interferes with the inmate’s access to the courts.
	This is analogous to the situation addressed by Judge Trauger in Coe v. Bell, 89 F.Supp.2d 962 (M.D.Tenn. 2000) (dismissed as moot, 2000 U.S. App. LEXIS 24059 (6th Cir., September 25, 2000)).  Before the Coe decision, the Tennessee lethal injection protocol prohibited the inmate’s attorney from witnessing the execution.  Judge Trauger held that such a prohibition violated the inmate’s constitutional rights under the First, Eighth and Fourteenth Amendments to the U.S. Constitution and enjoined the state to allow the inmate’s attorney to witness the execution while having telephone access to the courts in the event the inmate might have a cruel and unusual punishment claim to present as a result of the manner in which the execution was being carried out.
	In Coe, Judge Trauger declared that “Plaintiff has an Eighth Amendment right not to be subjected to cruel and unusual punishment, and substantial caselaw supports the contention that this right attaches until his successful execution.”  Id. at 966 (citations omitted).  Earlier in the opinion, Judge Trauger stated that when potential constitutional claims might arise during the course of an execution, the inmate must have meaningful access to the courts pursuant to the First and Fourteenth Amendments.  Id. at 964 (citing Lewis v. Casey, 518 U.S. 343 (1996); Bounds v. Smith, 430 U.S. 817 (1977); and Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999)).  Judge Trauger then concluded that “Plaintiff’s right to meaningful access to the courts to assert that right [not to be subjected to cruel and unusual punishment] requires that counsel have some access to the prisoner during the last hour before the execution and be permitted to witness his execution and have access to a telephone until the execution has been successfully carried out.”  Id. 966.
	Judge Trauger acknowledged that the court was “skeptical about a prisoner’s realistic ability to assert and get redress for a violation of his right to be free from cruel and unusual punishment during the execution itself.”  However, the court pointed out, “given society’s (and 
the state’s) interest in assuring that capital punishment is carried out in a humane manner and the minimal inconvenience to the state, this court finds the plaintiff’s position well taken.”  Id.  In a footnote, Judge Trauger further pointed out that even though the right may be difficult to assert, “the fact that the prisoner’s counsel is witnessing the execution with access to a telephone will serve as a deterrence to the remote possibility of a state actor’s implementing an execution in a cruel and unusual manner.”  Id. at fn. 7.
	In Coe, the inmate did not raise any issues about the use of Pavulon in the lethal injection protocol, and therefore the court had no occasion to address the fact that Pavulon creates a “chemical veil” over the lethal injection process, hiding from everyone’s view many of the problems that could arise during a lethal injection and the pain and suffering the inmate could be suffering as a result thereof.  Because Pavulon serves no other useful purpose in the lethal injection process, its use by the state violates the inmate’s constitutional rights by effectively preventing the inmate’s access to an attorney to protect the inmate’s right to be free from cruel and unusual punishment and to have access to the courts.
	The Chancery Court failed to address Appellant’s chemical veil “access to the courts” claim, even though it was briefed and argued to the Chancery Court.

IV.	THE TDOC LETHAL INJECTION PROTOCOL VIOLATES STATE STATUTORY AND REGULATORY LAW IN SEVERAL RESPECTS.

A.	The Lethal Injection Protocol Was Promulgated In Violation Of The Administrative Procedures Act.

	The TDOC lethal injection protocol is a “rule” under the Administrative Procedures Act.  It is not a valid rule, however, because it was not promulgated according to the APA’s rule-making procedures which require, among other things, notice and a public hearing.  See T.C.A. §§ 4-5-202-206, 217, 222 (setting forth the rule-making procedures) and 216 (invalidating rules promulgated in violation of the APA’s required procedures).
	T.C.A. § 4-5-102(10) defines “rule” to mean:
	[E]ach agency statement of general applicability that implements or prescribes law or policy or describes the procedures or practice requirements of any agency.  “Rule” includes the amendment or repeal of a prior rule, but does not include:

(A)	Statements concerning only the internal management of state government and not affecting private rights, privileges or procedures available to the public;

	…   …   …

	(G)	Statements concerning inmates of a correctional or detention facility.

	There can be no dispute that the lethal injection protocol falls within the general APA definition of “rule.”  The issue here is whether it also falls within exceptions (A) and (G) to the definition.
	The lethal injection protocol cannot fall within either of these exceptions because the lethal injection statute provides otherwise.  In 1998, the Tennessee Legislature adopted lethal injection as the means by which death sentences are to be carried out, and in 2000 the Legislature further provided that in cases such as Plaintiff’s where the death sentence was imposed prior to 1999, lethal injection would be the default means of execution.  T.C.A. § 40-23-114.  Significantly, when it adopted lethal injection as the means of execution, the Legislature explicitly contemplated that TDOC would promulgate “rules” concerning the implementation of this method of execution.  T.C.A. § 40-23-114(d) provides: “The department of correction is authorized to promulgate necessary rules and regulations to facilitate the implementation of this section.”  (Emphasis added).  The reference in this provision to promulgation of “rules and regulations” calls into play the rule-making procedures of the APA.  Indeed, TDOC invoked T.C.A. § 40-23-114 when it formulated the protocol.  (See TDOC Execution Manual, Trial Exh. 11, Tab 8, bates stamped p. 0181 (citing the lethal injection statute, which authorizes TDOC to promulgate rules on lethal injection, as authority for the provisions in the Manual relating to “Staff Responsibilities and Special Procedures for Inmates on Death Row,” which includes the lethal injection protocol)).
	In the Chancery Court the Appellees relied upon the unreported decision of the Tennessee Supreme Court in Coe v. Sundquist, No. M200-00897-SC-R9-CV, which rejected a challenge to the validity of the TDOC lethal injection protocol under the APA.  This decision, however, is not controlling.  Coe is an unpublished opinion with no precedential value.  Moreover, the statement made by the majority in that decision regarding the APA is pure dictum.  The holding of Coe was that the Circuit Court exceeded its jurisdiction when it enjoined an execution the day before it was scheduled to take place pursuant to a prior order of the Tennessee Supreme Court.  The actual holding of the decision had nothing to do with the APA.  It is also clear from the circumstances surrounding the Coe decision that the parties and the Court lacked sufficient time to brief or carefully consider any issues that the inmate may have attempted to raise under the APA.
	In the Chancery Court, Appellees cited Mandela v. Campbell, 978 S.W.2d 531 (1998), but this case also is not controlling.  The Court ruled in Mandela that the TDOC’s “Uniform Disciplinary Procedures” constitute “internal operating procedures detailing how disciplinary charges shall be levied and processed against inmates committing disciplinary infractions.”  Id. at 534.  The Court was concerned in large part that “[t]he promulgation requirements of public notice, public hearing, attorney general approval, and filing with the state are simply not realistic requirements for implementing procedures that concern the intricacies and complexities of a prison environment.”  Id.  The Court pointed out that the Legislature has provided TDOC considerable deference and broad discretionary powers to manage its internal affairs and to maintain discipline and security at its prison facilities.  “This broad grant of discretion also envisions that those persons intimately involved with the intricacies of the prison system and not the voting public are best equipped to establish policies and procedures for inmate discipline.”  Id.
	Unlike the lethal injection protocol, the disciplinary rules in Mandela were not governed by a statute which expressly contemplated the promulgation of “rules and regulations.”
	Furthermore, the promulgation of rules by which one of the state’s citizens is to be put to death is quite different from the concerns of the day-to-day management of prisons.  Unlike the Uniform Disciplinary Procedures at issue in Mandela, the TDOC lethal injection protocol does not involve internal operating procedures to maintain inmate discipline.  The public has a special interest in the manner in which the state carries out the ultimate penalty of death.  Also, whereas TDOC personnel may be “best equipped” to establish inmate disciplinary policies and procedures, TDOC personnel are particularly unequipped to develop a lethal injection protocol.  TDOC’s position would eliminate any public oversight in the formulation of the method of lethal injection, an unacceptable position in light of the public’s special interest in humane executions, the sophisticated nature of the procedure, and the other legal and ethical issues involved (including issues concerning the role of licensed medical personnel, the required training of others involved in the process, the selection of the drugs to be used, and the interplay of other statutes and issues of public policy, as reflected by the issues raised in this case).
	Even if TDOC is granted some degree of discretion in formulating procedures to carry out an execution by lethal injection without going through the rule-making procedures required by the APA, with respect to those exercises of discretion, TDOC is required by the APA to promulgate rules setting forth the procedures to be followed in making those decisions.  T.C.A. § 4-5-217 provides:
		Rules of practice required. – In addition to other rulemaking requirements imposed by law, each agency shall adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available, including, where practical, a description of all forms and instructions used by the agency.

	“Rules of practice” under this section are rules which themselves must be promulgated pursuant to the rule-making procedures of the APA.  Rules of practice are necessary in matters of such importance as a lethal injection protocol.  Without rules of practice, the public has no knowledge of the manner in which TDOC will exercise its discretion.  For example, in our case the public has no knowledge of the procedures TDOC followed in acquiring expertise or knowledge about lethal injection, or of the procedures it followed in selecting and/or training the Execution Team, the IV Team, and the Extraction Team.

B.	The Lethal Injection Protocol, In Requiring The Use Of Pavulon, Violates the Nonlivestock Animal Humane Death Act.

	The Nonlivestock Animal Humane Death Act, T.C.A. § 44-17-303(c), provides that “any substance which acts as a neuromuscular blocking agent … may not be used on any nonlivestock animal for the purpose of euthanasia.”  There are no exceptions to this prohibition.  Pavulon, which the TDOC lethal injection protocol requires to be used in lethal injection, is a neuromuscular blocking agent prohibited by this Act.
	TDOC takes the  position that Appellant fails to qualify as a “nonlivestock animal” within the meaning of this Act and therefore is not entitled to the same protections that our Legislature extends to “pet rabbits, a pet chick, duck, or pot bellied pig.”  T.C.A. § 39-14-201(3).  (See Trial Exh. 2).
	Contrary to Appellees’ position, human beings do fall within the definition of “nonlivestock animals.”  T.C.A. § 39-14-201(1) defines “animal” as “a domesticated living creature or a wild creature previously captured.”  A human being is a “domesticated living creature.”  The statute then divides “animals” into two general categories: “livestock” and “non-livestock animals.”  Humans do not qualify as “livestock.”  The definition of “non-livestock animal” is set forth as follows:
		(3)  “Non-livestock animal” means a pet normally maintained in or near the household(s) of its owner(s), other domesticated animal, previously captured wildlife, an exotic animal, or any other pet, including but not limited to, pet rabbits, a pet chick, duck, or pot bellied pig that is not classified as “livestock” pursuant to this part.

A human, being an “animal” and not being a “livestock” animal, qualifies as “other domesticated animal.”
	Appellant, therefore, qualifies for the protections of the Nonlivestock Animal Humane Act.

C.	The Lethal Injection Protocol, In Providing For The Practice Of Medicine And Provision Of Healthcare Services By Unlicensed and Uncertificated Persons, Violates Tennessee Statutes And Regulations Governing The Practice Of Such Services.

The lethal injection protocol impermissibly allows non-licensed persons to perform medical procedures.
No person may practice medicine in Tennessee without first obtaining a license from the Board of Medical Examiners.  T.C.A. § 63-6-201(a).  “Any person shall be regarded as practicing medicine, within the meaning of this chapter, who treats, or professes to diagnose, treat, operates on or prescribes for any physical ailment or any physical injury to or deformity of another.”  T.C.A. § 63-6-204(a)(1).
Nurses and other health professionals are also required to obtain licenses before engaging in their healthcare professions in Tennessee.  The purpose of requiring nursing licensure is “to safeguard life and health by requiring each person who is practicing, or is offering to practice, nursing for compensation to submit evidence that the person is qualified to practice and to be licensed as provided in this chapter.”  T.C.A. § 63-7-101.  This provision acknowledges that skill is required when performing nursing procedures in order to avoid harming the patient.  The “’[p]ractice of professional nursing’ means the performance for compensation of any act requiring substantial specialized judgment and skill based on knowledge of the natural, behavioral and nursing sciences, and the humanities, as the basis for application of the nursing process in wellness and illness care” and includes …. “administration of medications and treatments as prescribed by a licensed physician, dentist, podiatrist or nurse authorized to prescribe pursuant to § 63-7-123” or … “application of such nursing procedures as involve understanding of cause and effect.”  T.C.A. § 63-7-103(1), (2)(D) and (E).  At least one of the purposes of the statutes is to protect patients from individuals who have not demonstrated the skills necessary to perform tasks associated with the professions.
Clearly, many such procedures are involved in the course of carrying out the protocol for lethal injection.  To the extent such procedures are performed by “technicians” or corrections officials without a license to practice medicine or nursing, Tennessee’s lethal injection protocol violates the state’s medical licensure requirements.
It would not be valid to respond to Appellant’s claim by arguing that an execution is not a medical procedure because its intent is to take life.  An execution by lethal injection, using controlled substances along with syringes and other medical devices, clearly falls within the realm of practices subject to Tennessee medical licensing and regulatory oversight.  Moreover, the TDOC protocol calls for separate injections of different drugs that are intended to serve different purposes.  TDOC’s rationale for beginning the process by injecting the inmate with Sodium Pentothal is to render the inmate unconscious so that, allegedly, the inmate will not experience pain and suffering from the administration of the Pavulon and Potassium Chloride while the inmate is still alive.  At the very least, the injection of Sodium Pentothal, because it is a medicine designed to relieve pain while the inmate is still alive, constitutes one aspect of the lethal injection process which qualifies as the practice of medicine.  As the proof in this case demonstrates, both the selection of Sodium Pentothal as an anesthetic, and its administration to the inmate for the purpose of inducing anesthesia, are problematic.  These tasks should not be performed by unlicensed personnel.
Allowing unlicensed, inexperienced ‘technicians’ and correction officers to perform medical procedures creates unreasonable and unacceptable risk of error and the possibility of an inhumane execution.  These are the very things Tennessee’s licensing statutes exist to avoid and which, at a minimum, must apply to lethal injection.

D.	The Lethal Injection Protocol, In Providing For The Unregulated Handling And Administration Of Controlled Substances, Violates The Tennessee Drug Control Act Of 1989, The Tennessee Pharmacy Practice Act of 1996, And Regulations Promulgated Thereunder.

	Sodium Pentothal is a Schedule II substance.  The Tennessee Drug Control Act of 1989 defines Schedule II substances as those substances that have “high potential for abuse” and have “currently accepted medical use,” and “the abuse of the substance may lead to severe psychic or physical dependence.”  T.C.A. § 39-17-407.  The Tennessee Pharmacy Practice Act of 1996 provides for the regulation of the handling of controlled substances, including Schedule II substances.  T.C.A. § 63-10-401 et seq..  Among other things, this Act requires that the dispensing of any controlled substance be approved by the Board of Pharmacy, and such approval “shall be in the form of duly promulgated rules pursuant to the Uniform Administrative Procedures Act.”  T.C.A. § 63-10-405.  The Board of Pharmacy has promulgated detailed rules governing all aspects of the handling controlled substances.  See, e.g., Rules of the Tennessee Board of Pharmacy, Chapter 1140-1 et seq..  Among other things, these rules require a licensed pharmacist to be involved in all aspects of the handling, storage, and dispensing of controlled substances.  These rules also set forth detailed requirements regarding such matters as: labeling (Rule 1140-3-.06); repackaging (Rule 1140-3-.08); and storage, sale and delivery (1140-3-.12).
	The purpose of regulatory oversight of the handling of controlled substances is two-fold.  First, regulatory oversight protects citizens who might be administered the drugs from an unreasonable risk that the substances will not be properly administered.  Second, regulatory oversight helps to reduce the risk that the substances might be mishandled or misused (or diverted) by the persons handling the substances.
	The concerns to be addressed by regulatory oversight are particularly important in this case.  Appellees’ position that the lethal injection protocol is humane rests on the premise that the Sodium Pentothal will effectively render the inmate unconscious during the entire process.  Sodium Pentothal, however, is an unstable drug with a limited shelf life which can deteriorate quickly.  The persons handling this drug, including the Warden, do not have the qualifications or the credentials required to provide adequate assurance that the Sodium Pentothal administered at the time immediately preceding the administration of the other drugs will have been properly handled, mixed, labeled, stored, and prepared for administration.
	The use and handling of Sodium Pentothal and the other substances under the provisions of the Tennessee lethal injection protocol therefore violate Tennessee law, which renders the lethal injection protocol illegal.  Furthermore, the violation of Tennessee law in the use and handling of the drugs to be used in lethal injection falls below legally established community standards of care and for that reason violates the provisions of the United States and Tennessee Constitutions previously cited by Plaintiff in this matter.

CONCLUSION
	In her decision, the trial judge emphasized that, while “the death penalty is a constitutionally permissible punishment, it is the law of the land that resources, time and concern shall be expended to insure that punishment by death is not inflicted cruelly and inhumanely.”  (Memorandum and Order, p. 1).  The evidence that emerged at trial provided startling proof that Tennessee Corrections officials utilized no time or resources toward that end. 
	The Appellant here does not ask for extraordinary measures to ensure safety or to reduce the risk of suffering.  Rather, he maintains that Tennessee’s lethal injection protocol provides no assurances, none, based on today’s standards, that the risks of an inhumane death have ever been addressed.  Under Tennessee’s protocol, the Appellant will be subjected to the certainty that unknown, unlicensed, and arguably untrained persons will be administering chemicals into his body, hopefully into his bloodstream, but they will have no way of knowing whether those chemicals are having their intended effect.  Further compounding the degradation of execution is the knowledge that one of those drugs has been deemed unfit even for a dog. 
	In the years that various states were simply copying and pasting, passing the lethal injection protocol of one state virtually unchanged on to the pages of another, the disciplines in modern society that are traditionally concerned with safety, preservation of dignity and mitigation of suffering significantly changed their threshold of decency.  Veterinary medicine outlawed the use of Pavulon in euthanizing animals.  The medicines and procedures used in health care took quantum leaps to ensure safety and efficacy.  Generations of drugs beyond those used in Tennessee’s lethal injection protocol were spawned and became widely available, making drugs like Sodium Pentothal all but obsolete.  In short, time stood still for the lethal injection protocols of most death penalty states, while society marched on toward a more humane standard of decency. 
	The Appellant respectfully submits that it is time for the Tennessee Department of Correction to catch up.

							Respectfully submitted,

Bradley A. MacLean (BPR # 9562) 
STITES & HARBISON PLLC
Sun Trust Center, Suite 1800
424 Church Street
Nashville, Tennessee 37219
(615) 782-2237 

William P. Redick, Jr. (BPR # 6376)
P.O. Box 187
Whites Creek, Tennessee 37189
(615) 742-9865

Counsel for Appellant

Of Counsel:
Cynthia W. MacLean
STITES & HARBISON PLLC
424 Church Street
Nashville, Tennessee 37219

CERTIFICATE OF SERVICE

	The undersigned hereby certifies that the foregoing was served on the following by hand-delivery on this the ____ day of September, 2003:

		Stephanie R. Reevers
		Associate Deputy Attorney General
		Office of the Attorney General
		425 Fifth Avenue North
		Nashville, TN 37243

								Bradley A. MacLean