Court weighs fairness, secrecy of executions

BY MARC CAPUTO

In the windowless death chamber of stone-faced wardens, a hidden executioner and a moon-suited medical official, no sun shines in when gurney-strapped convicted killers are lethally injected.

It will likely remain that way, judging by the questions asked Thursday by the Florida Supreme Court justices. They indicated they'll likely uphold Florida's death penalty and rules that shield the identities and records of lethal-injectors.

However, the justices suggested that the state would not be executing any inmates as the U.S. Supreme Court considers a Kentucky case over whether the three-drug lethal-injection cocktail used there and in Florida and 35 other states violates the Eighth Amendment's safeguards against cruel and unusual punishment.

That means killer-pedophile Mark Dean Schwab, scheduled for a Nov. 15 execution, and Ian Deco Lightbourne will wait longer on Death Row, regardless of the Florida justices' decisions in the cases, which were both argued Thursday before them.

Florida's leading death penalty case, Lightbourne, didn't focus on the lethal cocktail he'll likely be shot up with but the records and abilities of the lethal-injectors themselves -- an issue that came to the fore with the Department of Corrections' botched execution of Miami killer Angel Diaz, who took 34 minutes to die on Dec. 13.

Lightbourne's attorney, Susan Myers Keffer, said there's less secrecy in other states and that Florida should be more open about who's sticking needles in inmates.

''We don't know these people's personnel records and their employment. We don't know if they are making mistakes in their employment, if they've been cited for problems in their work file,'' she said. ''We don't know what any of their background is, if they've ever had any complaints filed against them.'' But Justice Harry Lee Anstead repeatedly said he had trouble understanding the thrust of her arguments. He said he was ''having a lot of difficulty'' with the idea that the court could ''impose that kind of supervision'' and order that Keffer could take depositions and inspect the files of the injectors because it could intrude on the powers of the executive branch of government.

The justices seemed largely content that the state Department of Corrections changed its procedures for lethal injections after the needles were improperly inserted in Diaz's arms. And though Florida shoots enough anesthetic to knock someone out -- and perhaps kill him -- it still took the grimacing Diaz twice as long to die as any other inmate.

In the wake of that execution, DOC announced changes.

The first part of the procedure is the same: The injector, called a ''sticker'' by Justice Charlie T. Wells, puts the needles in, and the executioner then plunges the first drug, sodium pentothal, into the body of the condemned to knock him out.

Now, however, the executioner must pause as a warden then approaches the condemned, brushes his eyelids for a reaction, jostles him and yells his name -- a period called the ``shake and shout.''

If the condemned is determined to be knocked out, the paralytic drug pancuronium bromide is shot into him, followed by potassium chloride to stop his heart.

''My only concern, and I don't know if it's a constitutional concern . . . is the process of assessing consciousness has not been formalized in any document,'' said Justice Barbara Pariente. ``How do we ensure that that process is going to be competently performed?''

The state's lawyer, Kenneth S. Nunnelley, said the warden is trained in CPR and that the ''shake and shout'' is a basic test that can competently ``be performed by a layperson.''

Nunnelly added that ''Florida's procedures will meet any standards they [U.S. Supreme Court justices] may possibly choose to apply.'' Asked Anstead: ``What is the urgency in having an execution when we know the U.S. Supreme Court is going to shed light on this and there is at least some possibility that we may be out of kilter?''

Nunnelly pushed for executions to proceed, noting Florida was ''in front of other states'' on proper death-sentence procedures.

Said Anstead: ``We're in front of other states apparently after what has been termed a botched execution.''