Friday, October 12, 2007

State Looks Higher in Execution Case

By Lloyd Dunkelberger
Ledger Tallahassee Bureau

Tallahassee Reporter
Dept.: Tallahassee Bureau
(850) 224-8411

TALLAHASSEE Florida Supreme Court justices will have to decide whether to put future state executions on hold until the U.S. Supreme Court reviews the use of lethal injections.

In hearing two state cases that challenged the use of lethal injection as unconstitutionally cruel Thursday, several justices said they had concerns with allowing more state executions while the U.S. Supreme Court takes up a Kentucky case, where two inmates are arguing that the drug "cocktail" used to execute prisoners causes needless pain. The nation's highest court is expected to decide that case sometime next year.

"Why in the world would we move forward and approve an execution when there is some possibility that the U.S. Supreme Court will give specific guidance on this very issue?" said Justice Harry Lee Anstead. "I'm having difficulty seeing what the urgency is in going forward with an execution when we're about to get the law from the horse's mouth."

At immediate issue is the scheduled Nov. 15 execution of Mark Schwab, convicted of raping and killing 11-year-old Junny Rios-Martinez in Brevard County in 1991. But the state court is also facing a more direct challenge of the lethal injection method from Ian Lightbourne, convicted of killing Nancy O'Farrell in Marion County in 1981.

Lightbourne, who has yet to be scheduled for his execution, challenged the use of lethal injection after the controversial execution of Angel Diaz last December, when the inmate took some 34 minutes to die and officials later determined his protracted death was the result of a botched IV procedure.

No Florida prisoner has been executed since Diaz. But Gov. Charlie Crist ended the moratorium when he signed Schwab's death warrant in July.

On Thursday, Crist seemed to indicate he wanted the execution carried out.

"There are a lot of families that are waiting for justice to be done for the loss of a loved one and my heart bleeds for them," Crist said.

Assistant Attorney General Kenneth Nunnelley told the state Supreme Court that the state should resume using lethal injections, arguing that the recent revision of the Department of Corrections' execution protocol would withstand any ruling from the federal courts.

"Florida's procedures will meet any standards that they might choose to apply," Nunnelley said.

He also told the state justices that they should leave the decision of blocking executions to the federal court rather than deciding that themselves. "No one knows exactly what is going to happen," he said. "No one knows how they will decide the case."

But in challenging Florida's continued use of lethal injections, Suzanne Keffer, a lawyer for Lightbourne, argued that although the state has changed its execution procedures, there are no assurances that problems won't happen again.

"We can no longer rely on the DOC to do what they say they're going to do," she said. "The Diaz execution was the best evidence of that."

Keffer also argued that because of secrecy provisions little is known about the "medically trained" personnel who carry out all the execution procedures short of the final administration of the fatal drugs.

"We don't know what any of their backgrounds are," she said.

Nunnelley said all the personnel were medical technicians familiar with procedures like inserting IV lines.

Florida prisoners are executed using three drugs.

First the inmates are given sodium pentothal, a sedative that is used to make the prisoner unconscious. It is followed by two other drugs designed to paralyze the prisoner and then stop the heart.

Keffer said Florida's procedure was flawed and prisoners may face a painful death because the state is not using more highly trained medical personnel or even a doctor to determine whether the sodium pentothal has worked properly.

Nunnelley said the prisoners receive 5,000 milligrams of the drug, more than ten times the amount used in a typical surgery procedure.

"We are using far, far, far more of the anesthetic drug than is necessary to anesthetize the defendant," he said.

After the Diaz execution, Nunnelley said the state added the requirement that the procedure come to a halt after the sodium pentothal is injected to make sure it is working.

He also said the prisoner is more closely monitored during the execution, including the use of three television monitors that focus on the prisoner's arms and face.

Mark Gruber, a lawyer representing Schwab, said he thinks the state court should halt Florida executions until the U.S. Supreme Court decides the Kentucky case.

The state Supreme Court will issue its ruling the Lightbourne and Schwab cases at a later date.

[ Joe Follick of the Tallahassee Bureau contributed to this report. ]

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