Lethal method okay in Florida

State Supreme Court allows the procedure despite a case before U.S. Supreme Court.

By MEG LAUGHLIN and JACOB H. FRIES, Times Staff Writers
Published November 2, 2007

The state Supreme Court ruled Thursday that lethal injections can proceed in Florida.

Executions were halted in December when then-Gov. Jeb Bush ordered an investigation into the three-injection procedure after a condemned inmate appeared to wince in pain and took more than 30 minutes to die.

Since then, the Department of Corrections implemented new procedures to ensure that the first injection renders inmates unconscious, including "an eyelash touch, calling the inmate's name and shaking the inmate."

The Supreme Court decided that the new checks are a sufficient test of unconsciousness before the paralyzing and killing injections are administered.

If inmates are not unconscious, executions can be deemed "cruel and unusual punishment."

After the problematic execution of Angel Diaz in December, questions arose about whether he felt any pain and about the training of the execution team.

While most condemned Florida inmates stop moving within a few minutes after an execution begins and are pronounced dead within 15 minutes, Diaz moved for about 26 minutes and was not pronounced dead for more than 30 minutes after the curtain opened.

Tampa anesthesiologist David Varlotta, who was appointed to the Bush investigative commission, said he was surprised at the court's decision Thursday.

"I cannot agree that individuals without advanced medical training would have the ability to adequately assess the level of anesthetic depth," he said.

Suzanne Keffer, attorney for condemned inmate Deco Lightbourne, filed one of the two challenges to the lethal injection procedure that the court addressed Thursday.

"Most states make sure the qualifications of the executioners are known, if not their identity," she said. "But not Florida. Here, they are ignoring that a nonmedical person is doing this."

Keffer said she had expected the Florida Supreme Court to wait for the U.S. Supreme Court to set the standard for lethal injection procedures, which the high court is expected to do in the next few months when it hears a Kentucky case.

But Sandi Copes, spokeswoman for the state attorney general's office, disagreed that the U.S. Supreme Court ruling would affect Florida.

"Every case is different," she said. "The two Florida cases are not the Kentucky case."

Copes said that the state Supreme Court "decided in our favor because we had a strong case that showed the improved lethal injection procedures are not an Eighth Amendment violation."

But the ruling disturbed anti-death penalty advocates. Mark Elliott, director of Floridians for Alternatives to the Death Penalty, said arguments about lethal injection procedures muddle the debate surrounding the death penalty in Florida.

"We should be focused more on the madness rather than the method," he said. "It's not how we kill captive prisoners. It's the fact that we shouldn't be killing them at all. ... It really boils down to the fact that there is not a humane way to commit an inhumane deed."

Besides Lightbourne, inmate Mark Schwab, whose execution is set for Nov. 15, also challenged Florida's method of lethal injection. But the court stated that he added no new information to the Lightbourne argument and also ruled against him.

Schwab's and Lightbourne's lawyers have until Monday to request rehearings from the Florida Supreme Court, which will rule on their motions Tuesday.

Then the lawyers for the two condemned men can appeal to the U.S. Supreme Court. Attorneys for Schwab must appeal before Nov. 15.

Schwab, 38, was convicted in the rape and murder of 11-year-old Junny Rios-Martinez in 1991.

Lightbourne, 47, was convicted of killing Nancy O'Farrell in 1981 after breaking into her Marion County home.

Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit group in Washington, said he believed Schwab's execution would be stayed pending a decision by the U.S. Supreme Court.

"It would very surprising if Florida went ahead," he said. "It's certainly our tradition that the Supreme Court does provide the law of the land and the interpretation of the Constitution."

But Dieter said he expected the high court's decision to be limited to the method of execution, and not undermine the legitimacy of the death penalty in general.

"I think we may even see a surge in executions next year," he said.

[Last modified November 1, 2007, 23:56:44]