Florida Supreme Court OKs new lethal-injection methods

Mark Schwab's Nov. 15 execution goes ahead

By Paul Flemming and John Torres
Florida Capital Bureau

Originally published November 1, 2007

The Florida Supreme Court today unanimously ruled that the state's new lethal-injection methods, revised after a botched execution in December, are constitutional.

The decision clears the path for the Nov. 15 execution of Mark Schwab, whose appeals for a new trial in a separate case were denied today by the state's highest court.

Even so, Schwab's victim's mother said she expects the execution to be halted by the U.S. Supreme Court.

"I respect them for following Florida law," said Vickie Rios-Martinez. "I'm not a betting person, but I'll bet there is not going to be an execution."

Schwab, 38, has been on Death Row for 15 years for kidnapping, raping, torturing and murdering 11-year-old Junny Rios-Martinez of Cocoa in April 1991. He was convicted May 22, 1992, and sentenced to death.

Lawyers for Schwab in October argued that Florida's lethal-injection methods are unconstitutional. They made oral arguments to the court on the same day justices heard the challenge of Ian Deco Lightbourne -- another condemned prisoner on Florida's Death Row -- to the state's procedures as the test case for Florida's new protocols, developed after the error-riddled December execution.

The Florida Supreme Court "basically followed what we asked and what we believed. This now moves to the federal courts," said Florida Attorney General Bill McCollum.

Schwab's attorney, Mark Gruber, was visiting Schwab in prison today and did not return phone messages.

The U.S. Supreme Court has issued three stays of execution since September, when it agreed to consider a Kentucky lethal-injection case.

Alison Nathan, a professor at Fordham Law School in New York City and expert in death-penalty litigation, said the U.S. Supreme Court will address the standards lower courts should apply to cruel-and-unusual-punishment challenges to lethal injection.

Do the stays already issued by the U.S. Supreme Court, the latest earlier this week in a Mississippi case, mean there's a de facto moratorium on executions?

"I can't say a hundred percent," Nathan said. "We don't quite have enough evidence from the court. My strong sense is that we will not see any further executions" until the Kentucky case is decided.

Arguments are set for January, with a decision expected by early summer. At least three other states' governors or courts have issued stays to await the U.S. Supreme Court ruling.

McCollum said the nation's highest court decides cases individually.

"We really believe we have a good posture in this case. We've done what is necessary to develop the protocols," McCollum said.

Schwab's is the first death warrant signed by Gov. Charlie Crist and the first in the state since a moratorium on executions was lifted following an inquiry into the December lethal injection of Angel Diaz. Diaz took nearly three times as long to die as previous executions. Autopsies showed that the three-drug cocktail Florida uses to carry out lethal injections was injected into tissue rather than directly into his veins.

The Florida Supreme Court today said new training and procedures are sufficient.

"This Court's obligation is to ensure that the method used to execute a person in Florida does not constitute cruel and unusual punishment," today's ruling said.

Following Diaz's execution, then-Gov. Jeb Bush established a commission to study the state's methods, as did the state's Department of Corrections. Lower-court hearings in Lightbourne's case on those findings and the state's response ended with a finding that the new procedures are constitutional.

The Department of Corrections has instituted new training and personnel standards for executions that include checking -- with a shake and a shout -- that the first course of drugs has rendered the condemned prisoner unconscious.

"Our precedent makes clear that this Court's role is not to micromanage the executive branch in fulfilling its own duties relating to executions," the Florida Supreme Court's Lightbourne ruling said.

The court then concluded that the state had met its constitutional requirements:

"After Diaz's execution, the DOC added additional safeguards into the protocol to ensure the inmate will be unconscious before the execution proceeds. In light of these additional safeguards . . . Lightbourne has not shown a substantial, foreseeable or unnecessary risk of pain in the DOC's procedures for carrying out the death penalty through lethal injection that would violate the Eighth Amendment protections."