Thursday, November 8, 2007

Justices Reject Stay of Execution

Ruling puts killer Mark Schwab on track to die by injection next week.

By Lloyd Dunkelberger
Ledger Tallahassee Bureau

TALLAHASSEE With two justices dissenting, the Florida Supreme Court on Wednesday refused to stop the execution of a Florida prisoner next week, although the use of lethal injection remains under a legal cloud with a case pending in the U.S. Supreme Court.

After upholding the state's use of lethal injection in a unanimous opinion last week, the state's highest court Wednesday rejected Mark Schwab's request for a stay of his Nov. 15 execution. The court also dismissed pleas from Schwab and Ian Lightbourne, another death row inmate, to rehear last week's decision.

In rejecting Schwab's stay, the court did not issue an opinion, although Justice Barbara Pariente wrote a concurring opinion that suggested Schwab, who was convicted for the 1991 killing of an 11-year-old boy in Brevard County, seek relief from the U.S. Supreme Court.

"(I)t should be that court's decision to determine whether it intends a de facto moratorium on the death penalty and whether the issues it is presently reviewing regarding lethal injection justify a stay of Schwab's execution," Pariente wrote.

Legal experts say a national moratorium on executions has developed after the U.S. Supreme Court decided to review a Kentucky lethal injection case in late September. Since then, the nation's highest court has halted three executions in different states.

In a sharply worded dissent, two Florida justices said the state court, not the federal court, should halt Schwab's execution until the Kentucky case is resolved.

"While the pendency of a case directly on point in the Supreme Court alone constitutes a compelling reason for the entry of a stay, this factor is especially compelling in Florida because our state constitution mandates that this court must apply the U.S. Supreme Court's decision on the issue before us," wrote Justice Harry Lee Anstead in a dissenting opinion that was also supported by Justice Peggy Quince. "The majority is clearly ignoring that mandate in refusing to grant a stay."

In her opinion, Pariente reiterated the court's reasoning in last week's decision to uphold lethal injections in Florida, noting the state Department of Corrections changed its procedures after the botched execution of Angel Diaz in December, in which the inmate took more than 30 minutes to die and appeared to be suffering from pain because technicians had injected the lethal drugs into his muscle tissue, rather than his veins.

The court ruled the new "safeguards" - which include pausing the procedure to make sure an inmate is not conscious after the initial injection of sodium pentothal - were enough to determine the state's execution method did not present the likelihood for needless pain and suffering.

Pariente said if she were in the executive branch, she might consider an execution procedure that used only one drug, sodium pentothal, rather than the three-drug "cocktail" used by Florida and many other states. She also said she might consider other drugs "that carry less risk of pain" than the drugs the state uses now to stop an inmate's breathing and heart after the initial administration of the sedative.

She also said she would consider using a more sophisticated method - such as employing a special medical monitoring device - to determine an inmate's consciousness. And she said she would make sure members of the execution team had specific medical training "to adequately assess consciousness."

But again echoing last week's opinion, Pariente said those are decisions for the executive branch rather than the courts, because the federal court has not yet "signaled that it intends for the judiciary to engage in that level of scrutiny" for the execution procedures.

"I anticipate that the U.S. Supreme Court in (the Kentucky case) will clarify both the precise legal standard that should be used in the method of execution cases and, more importantly, to what extent the judiciary should scrutinize the specific choices made by the executive branch in deciding how to carry out lethal injections," she wrote.

In his dissent, Anstead said despite the state's new execution procedures, "we cannot know what may happen with the next execution."

"This is especially true because one of the primary claims of those contesting lethal injection, the necessity of professional medical supervision, remains absent in Florida's protocol," he wrote.

Anstead also said he would have granted Schwab a stay based on his argument that he should be allowed to have a hearing on his claim that the three-drug cocktail "presents a substantially greater risk of inflicting pain" than a procedure using only one drug. That is one of the issues being examined by the federal court in the Kentucky case, Anstead noted.

Suzanne Keffer, a lawyer for Lightbourne, said the court should have waited for the U.S. Supreme Court to make its decision. An execution date hasn't been set for Lightbourne, who was convicted of killing Nancy O'Farrell in 1981 after breaking into her Marion County home.

"I think it's ridiculous not to wait," Keffer said. "I think they want to push off that decision to the United States Supreme Court."

Keffer, who said she plans to appeal the Florida court's decision last week to uphold lethal injection to the U.S. Supreme Court, said she thinks the state's execution procedures remain vulnerable to problems because of the lack of stronger requirements for specifically trained medical personnel and medical procedures to assess the level of an inmate's consciousness.

"We have no idea what the specific qualifications and training are," she said. "They could be phlebotomists and they have no training whatsoever to do that."

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