Wednesday, July 25, 2007

Ruling clouds death penalty cases

Similar decisions on procedures in other states have put executions on hold.
By ALEX LEARY, Times Staff Writer

Published July 25, 2007

An Ocala judge's unexpected objection to Florida's recently updated execution procedures may send the state down a path that has left other states with executions on hold.

Six other states have issued moratoriums on executions based on criticism similar to those expressed by Circuit Judge Carven Angel.

"It's certainly heightened the likelihood that it will be a long while before someone is executed in Florida," said Deborah Denno, a professor at Fordham University Law School in New York who tracks death penalty issues.

"It's important," Denno added, "because the more these states try to scrutinize their procedures and improve them, the more we realize how really problematic they are."

The Death Penalty Information Center in Washington says six other states, including California, Maryland and Missouri, have had debates over the protocol involved in lethal injection.

During a lengthy critique from the bench on Sunday, Judge Angel outlined numerous problems with the new lethal injection protocols Florida officials put in place to resolve issues revealed by the Dec. 13 execution of Angel Diaz, which took twice as long as it should have.

The executioner's needle tore through Diaz's vein and sprayed deadly chemicals into his flesh, a mistake some witnesses said caused Diaz to grimace.

In the aftermath, executions were suspended in Florida and then-Gov. Jeb Bush gathered experts to make recommendations to improve the process. Changes were adopted by the Department of Corrections in May, and Gov. Charlie Crist promptly announced he would restart executions.

Last week, Crist ended the seven-month moratorium by signing a death warrant for convicted pedophile and murderer Mark Dean Schwab, 38, of Brevard County.

Then came Sunday's ruling in Ocala.

Angel said the new lethal injection procedures are not clear enough or are inadequate, particularly that the only qualification of the executioner is that he or she be at least 18 years old.

"Our objective is to carry out a process that is consistent with evolving notions of the decency of man," Angel said, according to a transcript. "It is not going to involve infliction of pain or lingering death."

The case before Angel was brought by another death row inmate, Ian Deco Lightbourne, who broke into a house in Ocala in 1981, then raped and shot a woman.

Lightbourne, 47, was one of dozens of inmates who petitioned the Florida Supreme Court the day after Diaz's execution arguing that lethal injection is a violation of the Eighth Amendment against cruel and unusual punishment.

The state's high court effectively chose Lightbourne -- the first name on the petition -- as the test case and sent it to the 5th Judicial Circuit, where Angel is a judge, for an initial ruling.

Later this year, the Florida Supreme Court is expected to make its decision about the death penalty process. Angel's view could carry weight on the court.

Angel gave the state Department of Corrections until Aug. 17 to respond to his concerns. After that, he will decide if he's satisfied with the response. Either way the case will move on to the state Supreme Court.

Though Angel's ruling surprised some because he has sentenced inmates to death in the past, experts say his concern is not unusual, given objections raised in other states.

While circumstances vary from state to state, "the overriding concern is, is this being done in a way that meets the standards of decency, or is it in a way that may be cruel or unusual?" said Richard Dieter, executive director of the Death Penalty Information Center.

In each state, the death penalty remains on hold.

"Whenever judges really thoughtfully look at these claims and sit through hearings, they invariably come to the conclusion there are major problems," said death row defense lawyer D. Todd Doss, who represented Diaz's family.

Gov. Crist has reacted coolly to the development, saying he does not think the decision by Angel will affect future cases. "Whether it will affect the warrant that I signed last week, I think, is yet to be determined," he said. "I'm hoping it doesn't."

This morning, Schwab's attorneys are due in Brevard County for a status hearing. They are expected to echo the doubts raised by Angel.

The Attorney General's Office said only Schwab's case is in limbo because his is the only active death warrant among the 381 people on death row.

But death row attorneys who have filed objections across the state since the botched Diaz execution say state attorneys have been arguing that the Lightbourne case should be the guidepost.

"They've put all their eggs in one basket," said Martin McClain, a death row lawyer who has won several exonerations.

So any problems could have consequences. The Department of Corrections said it will work to allay Judge Angel's concern.

"I'm happy to keep improving our system," Corrections Secretary James McDonough said Tuesday. "The whole objective has been to ensure humane and dignified death, and we have kept updating that."

He said the agency would comply with Angel's request to be "a bit more explicit" as to the executioner's qualifications. McDonough also described legal maneuvers by death row inmates' lawyers as "tactics" designed to obstruct the application of capital punishment in Florida.

Tactics or not, a lot rests on how Angel responds to the revisions. If he likes what he sees, Florida's death chamber may be in action once again. But if there are problems, a lengthy court battle could ensue, putting Florida back in limbo.

"It's too early to tell," McClain said. "But states that have had this problem arise have found it much more difficult to fix things than was initially anticipated."

Times Tallahassee bureau chief Steve Bousquet contributed to this report.

FAST FACTS: What's next?

By Aug. 17, the state Department of Corrections must respond to concerns raised by Circuit Judge Carven Angel about the rules for executing prisoners. The judge will then decide if the response is sufficient.

On Oct. 11 the Florida Supreme Court will hear oral arguments in the case Angel considered and ultimately will rule on the state's death penalty procedure.

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