Monday, July 23, 2007
OCALA, Fla. -- A judge hearing arguments on the constitutionality of Florida's lethal injection procedures has ruled that a death row inmate cannot be executed unless the Department of Corrections makes changes to its protocol and procedures.
The ruling came in an unusual hearing Sunday before Circuit Judge Carvin D. Angel in Ocala in the case involving Ian Deco Lightbourne, condemned for the 1981 slaying of Nancy O'Farrell. The ruling could potentially impact other executions.
Angel made his ruling after 11 days of evidentiary hearings concerning the botched Dec. 13 execution of Angel Diaz, who took more than 30 minutes to die, after IV needles inserted into his arm punctured his veins.
"Our objective is to carry out a process that is consistent with evolving notions of the decency of man. It is not going to involve infliction of pain or lingering death," the judge said.
Neal Dupree, the Capital Collateral Regional Counsel, an agency representing death row inmates in their final appeals, said he believes Angel's ruling could impact the Nov. 15 scheduled execution of Mark Dean Schwab, 38, condemned for the 1992 kidnapping, rape and murder of 11-year-old Junny Rios-Martinez, of Cocoa.
"The judge doesn't think the protocol will produce a painless execution," Dupree said. "He has ordered the Department of Corrections to revise its protocols."
Kenneth Nunnelley, a deputy attorney general, said the ruling could impact the Schwab execution.
It could "potentially impact the death warrant case which is set on the same briefing track as this case," Nunnelley said in court. "So I guess what I'm hearing is that we need the DOC to get their thing done as quickly as they can, so we can come back, argue the matter, whatever, to allow the court to review the protocols."
Sandi Copes, a spokeswoman for the Attorney General's Office, said it was too early to determine whether the ruling would affect the Schwab execution. She said a status conference on that case is scheduled Wednesday in Titusville.
"It is too early to know. It would be premature and just speculation," Copes said.
Maximillian J. Changus, a DOC spokesman, indicated in court that the DOC was willing to revise its protocols.
Gretl Plessinger, a DOC spokeswoman, said, "Our main emphasis is on a humane and dignified death. It is a dynamic document and we are continually working to improve the document."
The judge expressed concern that the executioner did not have the power to stop an execution when something was going wrong.
"I don't think that any 18-year-old executioner with the pressure of the governor's warrant behind him to carry out an execution, and with the pressure of the whole world ... in front of him and looking at him, is going to have enough experience and competence to stop an execution when it needs to be stopped," the judge said.
"And it seems pretty clear that what happened in the Diaz case is that is exactly what happened, that we experienced a circumstance that is one of those 101 circumstances that couldn't have been anticipated."
Plessinger said the judge was referring to the protocol that requires the executioner to be at least 18 years old and have the equivalent of a high school education.
Gov. Charlie Crist has not set an execution date for Lightbourne, but the Florida Supreme Court scheduled hearings in his case to coincide with the Schwab case.
Dupree said prosecutors across the state have been telling defense attorneys wanting to challenge the state's lethal injection procedures to wait until the Lightbourne ruling.
Now that the judge has ruled, Dupree said, it could put all those cases in limbo. Dupree said his office represents 75 inmates of the 381 inmates on death row.
Mark Elliott, a spokesman for Floridians for Alternatives to the Death Penalty, said Floridians should be alarmed at "this new judicial vote of of 'no confidence."'
"Secrecy, denial and deception have been business as usual for Florida executions," he said.