Saturday, November 10, 2007

Schwab asks U.S. Supreme Court to delay execution

Sarah Lundy

Sentinel Staff Writer

November 10, 2007

Lawyers for child killer Mark Dean Schwab filed a flurry of motions in state and federal courts Friday as they accelerated efforts to postpone his execution.

Schwab, convicted of the 1991 rape and murder of 11-year-old Junny Rios-Martinez of Cocoa, is scheduled to die by lethal injection Thursday.

A request for a stay of execution was filed with the U.S. Supreme Court. The country's highest court has postponed three executions in Texas, Mississippi and Virginia since agreeing to consider a challenge to lethal injection on behalf of a condemned inmate from Kentucky.

The justices will consider whether the way Kentucky and other states administer the three-drug cocktail to death-row prisoners is constitutional. An opinion is expected next year. Schwab's legal team filed a motion Friday in the 18th Circuit Court in Brevard County. The lawyers raise several issues, including the Department of Corrections logs of a mock execution in July that showed possible flaws in training. Also, the clinical psychologist who initially testified for the state at Schwab's sentencing in 1992 has changed part of his diagnosis. Dr. William Samek now says Schwab, 38, does not have antisocial personality disorder but has neurotic emotional problems, including shame brought about by being raped as a child, according to the court documents.

Samek was the only mental-health expert presented by the state, according to the documents. He was a crucial witness. The new evidence presented by Samek "would probably yield a less severe sentence," according to the defense's motion.

A status hearing is set for Tuesday in Brevard County.

Friday's motions don't surprise prosecutors.

"This is all part of the process," said Wayne Holmes, a Seminole-Brevard County state attorney chief of operations and prosecutor on the initial Schwab case. "A lot is done at the last minute."

Earlier this week, the Florida Supreme Court denied Schwab's motion to stay his execution. Justice Barbara J. Pariente wrote in an opinion that it should be up to the U.S. Supreme Court.

Sarah Lundy can be reached at or 407-420-6218.

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