Wednesday, November 14, 2007

Convicted child killer's execution halted

"We no longer choose to be victims," the mother said Wednesday. "Once the criminal victimizes you, the state victimizes you over and over again. It seems to be endless."


A federal court granted a stay Wednesday blocking the execution of Mark Dean Schwab, who was scheduled to die Thursday for the murder of an 11-year-old boy. The state quickly filed an appeal seeking to overturn the order.

The U.S. District Court's delay of Schwab's execution was widely expected. The U.S. Supreme Court is considering the appeals of two Kentucky inmates challenging the toxic three-drug combination administered there.

Florida uses the same drugs and Schwab's appeal claims the chemicals violate the Eighth Amendment ban on cruel and unusual punishment. Schwab's execution for the 1991killing Junny Rios-Martinez was set for 6 p.m. Thursday and would have been the irst in the state since the botched execution of Angel Diaz last Dec. 13. It took 34 minutes for Diaz to die - twice as long as normal - because the guards pushed the needles through his veins.

On Wednesday afternoon, state attorneys asked the 11th U.S. Circuit Court of Appeals to overturn the stay issued by U.S. District Judge Anne C. Conway of Orlando. She ruled that the execution could not go forward until the high court considers the Kentucky cases.

"Not only is the Supreme Court poised to clarify the standards by which the Eighth Amendment is to be interpreted in death cases, but the high court also has before it the constitutionality of using the very chemicals employed in this state as a means of carrying out the death sentence and challenged in this instant action," Conway wrote.

But the appeal, filed by Attorney General Bill McCollum, argues that Schwab's filing was too late and should be denied.

"Schwab's lack of diligence is not a basis for a stay of execution," McCollum's motion says. It was not known when the appeals court could rule.

"I am disappointed that Junny Rios's family has yet again seen justice delayed, but we will continue to pursue this case," McCollum said in a statement.

The U.S. Supreme Court has delayed executions in three other states while it considers the appeals of the Kentucky inmates. Junny's mother, Vicki Rios-Martinez, said despite the court's decision, her family would celebrate the boy's life Saturday at Junny Rios-Martinez Park in Cocoa Beach.

"We no longer choose to be victims," the mother said Wednesday. "Once the criminal victimizes you, the state victimizes you over and over again. It seems to be endless."

In its response to Schwab's appeal, the state argued that he should not be given a stay because he did not raise the chemical issue in the Florida courts. It also said the state's procedure is designed to prevent potentially painful drugs from being injected until an inmate is "deeply unconscious."

Schwab was released from prison after serving three years of an eight-year sexual assault sentence in March 1991. During the same month, a newspaper published a picture of Junny for winning a kite contest. Schwab gained the confidence of Junny's family, claiming he was with the newspaper and was writing an article on the boy.

On April 18, Schwab called Junny's school and pretended to be Junny's father and asked that the boy meet him after school. A friend saw Junny get into a truck with a man. Two days later, Schwab called his aunt in Ohio and claimed that someone named Donald had made him kidnap and rape the boy.

He was later arrested and told police where he left Junny's body - in a footlocker in a rural part of Brevard County.

"The state is the one who is the biggest victimizer. They let him out. They knew who he was," Rios-Martinez said.

After the boy's murder, the Legislature passed the Junny Rios-Martinez Act, which prohibits sex offenders from early release from prison.

Schwab waived a jury trial and argued his case before a trial judge. He was found guilty and sentenced to death.

During the trial, it was revealed that Schwab kidnapped the boy, bound his hands and face with duct tape and cut off the boy's clothes. He raped the crying boy before strangling him.

Schwab's appeal argued that the combination of the three drugs could subject him to "excruciatingly painful and torturous death." He also claims that the anesthesia procedures lack medically necessary safeguards and that the personnel who are conducting the execution lack minimum qualifications and expertise.

Florida uses three drugs, as do most states. Sodium pentothal is the first drug given and it is an anesthesia. Second is pancuronium bromide, which paralyzes the muscles, and the third is potassium chloride, which stops the heart.

Gov. Charlie Crist issued a statement saying, "I am disappointed that the family of the victim, Junny Rios-Martinez, will have to continue to wait to see justice done."

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