Injections not cruel, unusual, court says

Florida's top justices deny a killer's appeal to delay his execution.

Sarah Lundy Sentinel Staff Writer

November 2, 2007

The Florida Supreme Court ruled Thursday that lethal injection -- the way it will be administered under new state rules -- is constitutional and not cruel and unusual punishment.

Justices said no to pleas for delay from convicted child-killer Mark Dean Schwab, leaving his execution by lethal injection scheduled for Nov. 15.

"They are moving forward, but we all know it can stop at any second," said State Attorney Norm Wolfinger, whose office prosecuted Schwab for the 1991 kidnap, rape and murder of 11-year-old Junny Rios-Martinez of Cocoa.

Schwab, 38, and his legal team had hoped the state's highest court would take a signal from the U.S. Supreme Court, which issued a last-minute reprieve Tuesday for a Mississippi killer who had been scheduled to die by injection.

Lawyers representing Schwab were visiting him at Florida State Prison in Starke on Thursday and could not be reached for comment.

Attorney Mark Gruber had urged the court in Tallahassee last month that Schwab should be allowed to have a hearing to present evidence why the lethal injection is cruel and unusual. He also requested a new trial based on new evidence that Schwab suffers from brain damage and research showing a connection between "brain anatomy and sexual offense."

Florida's top court shot down both requests in its opinions issued Thursday.

But Schwab's fight isn't over. His legal team can ask the state's justices to rehear the issues, and they can appeal the decision to the U.S. Supreme Court.

An unofficial moratorium of the death penalty has swept the country since the nation's highest court accepted a Kentucky case to review the constitutionality of lethal injection. The Eighth Amendment prohibits cruel and unusual punishment.

An opinion is expected next summer.

Last month passed without a single execution in the 37 states that use lethal injection. Texas, Nevada, Arizona and other states have delayed executions pending the outcome of the Kentucky case.

Problems arose in Florida last year when convicted killer �ngel Nieves Diaz required a second dose of fatal chemicals and took 34 minutes to die -- twice as long as usual. Authorities learned later that prison officials failed to properly insert intravenous needles into his arms. Many questioned whether Diaz was completely unconscious or felt pain when he died.

That sparked Ian Deco Lightbourne -- a death-row inmate convicted of killing a Marion County woman in 1981 -- to challenge the state's use of lethal injection. Unlike Schwab, no active death warrant has been signed for Lightbourne.

This summer the state enacted new and more detailed procedures on how to administer the three-drug cocktail given to condemned prisoners. Department of Corrections officials now require more staff training and better monitoring of proceedings in the prison's death chamber.

"We evaluate the procedures with the knowledge that the execution of Diaz raised legitimate concerns about the adequacy of Florida's lethal injection procedures and the ability of the DOC to implement them," the Florida Supreme Court said in its opinion.

The most "significant difference" between the old way and new way, the court said, was the addition of a pause after the first drug is administered so the prison warden can make sure the inmate is unconscious. Only then are officials to inject the second drug, which paralyzes the subject, and the third drug that stops the heartbeat.

Lightbourne's attorneys argued last month that the new rules are inadequate and don't prevent unnecessary risk of pain. They wanted to know in particular what type of training and experience the executioners and "medically qualified" team members have.

In their unanimous opinion, the Florida justices said Thursday that it was not their role to "micromanage" the Department of Corrections.

Suzanne Keffer, one of Lightbourne's attorneys, disagreed with the court's ruling. She said the DOC can't be relied on to follow its own guidelines.

"Justices still don't have the most critical information in the process," she said. "The executioners and medically qualified people that are involved -- we don't know anything about them."

The Lightbourne legal team plans to ask for a rehearing.


Sarah Lundy can be reached at slundy@orlandosentinel.com or 407-420-6218.