Thursday, November 15, 2007

Stay decision means Schwab execution likely delayed until 2008

2:40 p.m.: Supreme Court must hear Kentucky case

It's all but official, the United States has a moratorium on executions until June 2008.

The U.S. Supreme Court granted a stay of execution to Mark Dean Schwab, halting his scheduled lethal injection.

Florida Attorney General Bill McCollum's office said it will not make further court filings today in the wake of the court's stay for Schwab.

The 38-year-old convicted child rapist and murderer was scheduled to be executed at 6 p.m.

Schwab's is the fourth stay the U.S. Supreme Court has granted since September, when it took up a Kentucky case, referred to as Baze for one of the death-row inmates who brought the challenge, to consider standards for constitutional challenges to lethal injection. Other state courts and governors have followed suit and halted executions.

Alison Nathan, a professor at the Fordham Law School in New York City and an expert on death penalty litigation before the court, said Schwab's stay is definitive.

"I would venture to say that it's absolutely clear we're not going to see a lethal injection execution going forward until we see a decision in Baze," Nathan said. "I thought we had a clear signal before, but this is a strong a confirmation as you can get."

The court is likely to hear oral arguments for the Baze case in early 2008 and probably won't rule until summer of next year.

Here is the entire of the order from the U.S. Supreme Court:

"The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is granted pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court."

Nathan said that language was standard in similar cases and indicated the court will hold any rulings on the death penalty cases, and requests for stay, until after it decides Baze.

The Baze case does not challenge the constitutionality of the death penalty, nor of lethal injection. Instead, it seeks to set a higher standard for review of methods that three dozen states use for executions – a three-drug cocktail that anesthetizes, paralyzes and finally stops the heart of condemned prisoners.

The Florida Supreme Court earlier this month found the state's lethal injection procedures – new since a botched execution last December – was not only constitutional, but would withstand any standard of review the U.S. Supreme Court might come up with, including that proposed by Baze's attorneys.

But Nathan said its Supreme Court practice to put on hold cases similar to those they've agreed to consider.

"These cases are just raising the same issue. Out of fairness and justice and careful deliberation" the stays are granted, Nathan said. "It's just not enough for the state court to say, no matter what happens in Baze, we're going to be fine."

--Paul Flemming, Capital Bureau

1:50 p.m.: Move was expected

The U.S. Supreme Court halted the execution of convicted child killer Mark Dean Schwab on Thursday.

The move by the high court was widely expected as it considers the appeals of two Kentucky inmates challenging the same lethal toxic three-drug combination used in Florida.

-- Associated Press

1:20 p.m.: Attorneys file appeal

Mark Dean Schwab has made a final appeal to the Florida Supreme Court for a stay of his scheduled 6 p.m. execution.

The convicted child killer's appeal in state court comes at the same time Schwab's attorneys seek a stay from the U.S. Supreme Court. A federal appeals court this morning reinstated Schwab's death sentence, reversing a lower court's stay granted on Wednesday.

In his state appeal, Schwab attorneys Peter Cannon and Mark Gruber argue there is "new evidence truly demonstrating that Schwab could not control his conduct."

The motion also says there continue to be problems with the state's lethal injection methods. A Brevard County circuit court on Tuesday denied Schwab a hearing on the claims.

Attorneys for the state say Schwab is improperly gaming the system and his execution should go forward.

"Schwab has had ample opportunity to seek review in this Court without subjecting this Court to a stay motion at the eleventh hour," Senior Assistant Attorney General Kenneth S. Nunnelley argues in a court filing. "There is no reason this proceeding could not have been brought to this Court sooner."

-- Paul Flemming, Capital Bureau

12 p.m.: Meal served just before noon

Department of Corrections spokeswoman Gretl Plessinger said Mark Dean Schwab rejected a last meal.

"His last meal was offered to him, but he did not eat it," Plessinger said.

He was offered the meal of eggs, bacon, sausage, hash browns and chocolate milk, just before noon.

Schwab visited with his mother and his aunt this morning from 8 a.m. to 10 a.m.

Since 11 a.m., they were permitted to have contact with each other, moving into the same room. This afternoon, Schwab will meet with a Baptist chaplain, Terry Davis, who is based out of Tomoka Correctional Institution, a prison in Daytona Beach.

At 6 p.m., prison personnel will ask Schwab if he wants to make a final statement.

-- Rick Neale, FLORIDA TODAY

9: 55 a.m.: Slain boy's father heads to Raiford

The father of a slain 11-year-old boy showed up to work today thinking the execution of his son's killer was off.

But when Junny Rios-Martinez Sr. showed up at his Brevard County Parks Department job, his co-workers told him they heard the stay was overturned. An order issuing the stay of execution for convicted killer Mark Dean Schwab, issued yesterday by a federal court in Orlando, was overturned early today by the 11th Circuit Court in Atlanta.

"Anything can happen now," he said from his home just moments before heading to Raiford. "I'm not nervous, but I am a little apprehensive."

Schwab is scheduled to die by lethal injection later today. His attorneys are expected to ask the U.S. Supreme Court for a stay.

-- John Torres, FLORIDA TODAY

Appeals court clears way for Schwab execution today

A federal appeals court has ruled that the execution of child killer Mark Dean Schwab can proceed today.

The decision whether to allow Schwab’s death by lethal injection at 6 p.m. Thursday rests in the hands of the U.S. Supreme Court, with whom the killer already has an appeal. But Florida Attorney General Bill McCollum expected the execution to proceed.

“At this time, there is nothing impeding the execution,” said Sandi Copes, a spokeswoman for McCollum.

If Schwab’s execution for the 1991 killing Junny Rios-Martinez goes forward, it would be the first in the state since the botched execution of Angel Diaz last Dec. 13. It took 34 minutes for Diaz to die — twice as long as normal — because the guards pushed the needles through his veins.

But many observers expect the U.S. Supreme Court to block Schwab’s killing. The high court is considering the appeals of two Kentucky inmates challenging the toxic three-drug combination administered there.

Florida uses the same drugs and Schwab’s attorneys claim the chemicals violate the Eighth Amendment ban on cruel and unusual punishment.

The decision by the 11th Circuit Court of Appeals in Atlanta, which came a day after a federal court in Orlando blocked the execution, noted the Supreme Court had not yet ruled in the Kentucky case, allowing Schwab’s execution to go forward.

“We don’t know how the Supreme Court is going to decide the issues on which it has granted review,” the court wrote in an 11-page opinion. “And the Supreme Court itself probably does not know given the fact that briefing has not been completed in that case.”

Schwab was released from prison after serving three years of an eight-year sexual assault sentence in March 1991. During the same month, a newspaper published a picture of Junny for winning a kite contest. Schwab gained the confidence of Junny’s family, claiming he was with the newspaper and was writing an article on the boy.

On April 18, Schwab called Junny’s school and pretended to be Junny’s father and asked that the boy meet him after school. A friend saw Junny get into a truck with a man. Two days later, Schwab called his aunt in Ohio and claimed that someone named Donald had made him kidnap and rape the boy.

He was later arrested and told police where he left Junny’s body — in a footlocker in a rural part of Brevard County.

After the boy’s murder, the Legislature passed the Junny Rios-Martinez Act, which prohibits sex offenders from early release from prison.
Schwab waived a jury trial and argued his case before a trial judge. He was found guilty and sentenced to death.

During the trial, it was revealed that Schwab kidnapped the boy, bound his hands and face with duct tape and cut off the boy’s clothes. He raped the crying boy before strangling him.

-- Associated Press

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