Thursday, August 16, 2007

Schwab lawyers cite brain disorder

Mark Dean Schwab at jail. Mark Dean Schwab, at his arraignment in Sharpes in early 1990s. He is the murderer of Junny Rios Martinez. Copy of newspaper clipping. Photo by Mike Brown.


Newly discovered evidence reveals Mark Dean Schwab suffers from a neurological brain impairment which makes his death sentence unconstitutional, lawyers for the convicted child rapist and murderer said in a motion to stay or vacate his execution. The motion, filed in 18th Judicial Circuit Court on Wednesday afternoon, also asks Judge Charles Holcomb to spare Schwab’s life on the basis that lethal injection violates the Eighth and Fourteenth Amendments. Holcomb has until Aug. 31 to rule on the motion — 2½ months before Schwab’s scheduled Nov. 15 date with death.

Schwab, 38, has spent 15 years on on death row following the 1991 kidnapping, rape and murder of 11-year-old Junny Rios-Martinez of Cocoa. He is scheduled to die by lethal injection at Florida State Prison in Starke. In a last bid to stall his execution, Schwab’s lawyers Wednesday referenced a recent battle in Ocala in which a judge, in questioning the Department of Corrections’ lethal injection procedures, ruled a death row inmate in a separate case could not be executed pending changes to the agency’s protocol.

The motion, signed by Schwab attorney Mark Gruber, called for an audit of the agency’s execution procedure. The 26-page motion also said recent testing by a neuropsychologist reveals Schwab suffers from mild to severe brain impairment that has been linked to uncontrolled sexual impulses, and makes his thinking “chaotic and preservative,” unable to make appropriate decisions or regulate his actions when stressed.

The testing, which has never before been presented in court, also shows Schwab’s brain function was a “primary contributing factor” to the sex crimes against Rios-Martinez and previous victim Than Meyer, the motion said. Gruber has requested an evidentiary hearing to allow doctors to further investigate Schwab’s mental health. Holcomb will hear arguments from lawyers Friday in Titusville on whether to grant such a hearing.

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