Monday, June 30, 2008

Warden on death penalty: "This is wrong"


By DARA KAM dara_kam@pbpost.com
Palm Beach Post Capital Bureau

Saturday, June 28, 2008

TALLAHASSEE — Murderer Pedro Medina was strapped into "Old Sparky" shortly after midnight on March 25, 1997, at Florida State Prison.

Warden Ron McAndrew stood nearby as a guard placed a wet sponge to conduct more than 2,000 volts of electricity onto Medina's shaved head.

The executioner pulled the switch. Within seconds, an arm's length from McAndrew, 6-inch flames leaped out the side of the mask on Medina's head.

The cramped chamber immediately filled with smoke and a putrid, acrid odor.

The executioner, wearing oversize insulated gloves that protect linemen working on electrical wires, sought advice from the warden.

"He looked at me with this big question on his face, and he said, 'Continue?' " McAndrew recalled recently. "I said, 'Continue. Continue.' There's no way we could stop at that point."

Medina's searing death and two executions before it led McAndrew down an unlikely path since he quit prison work: He is a working opponent of the death penalty.

"All three executions ignited a fire of thought," McAndrew said. "Each time I carried out one of those executions, I certainly was asking myself why I was there and is this necessary."

Witness entire process, ex-warden says

On Tuesday, Florida plans to execute by lethal injection Mark Dean Schwab, who raped and strangled 11-year-old Junny Rios-Martinez of Cocoa. McAndrew opposes the execution.

During his time at Florida State Prison, McAndrew earned the moniker "The Walking Warden" because he spent more time outside his office walking the grounds than behind his desk.

He said he visited Death Row every day.

McAndrew said he supported the death penalty during his 20-plus years with the Department of Corrections.

"One day I just sat down and said, 'This is wrong. This is wrong. We have no business killing people,' " he said, except in self-defense, in defense of someone else or in defense of the nation.

Not everyone agrees.

Proponents of the death penalty, including some families of murdered children such as Rios-Martinez, argue that the execution helps them deal with their loss.

"That will not serve as a substitute for getting our son back, but it is as close as we can get to justice in this rather imperfect world we live in," said Don Ryce, whose 9-year-old son Jimmy was raped, murdered and dismembered in Miami-Dade County in 1995. Juan Carlos Chavez was convicted of the crime.

Ryce said Chavez's execution would bring his wife, Claudine, and him "as close to a feeling of peace to that chapter of our life that we're ever going to get." He said he supports the death penalty, although he may not live to witness Chavez die because of the lengthy appeals process.

"He'll probably outlive us because of our screwed-up system," Ryce said. "But if we're still alive, we'll be there for the execution. And we have had some people promise us if we don't make it, they'll be there for us."

"From the standpoint of not only myself but Claudine, we feel the death penalty is appropriate in this case, knowing that won't bring our child back. Knowing there's no such thing as closure. Knowing that justice has been done. We don't feel that way yet," said Ryce, of Vero Beach.

Although McAndrew understands the feeling of the victims' families, the executions he witnessed still haunt him.

Schwab's will be the first execution since former Gov. Jeb Bush put a moratorium on executions in 2006 pending a U.S. Supreme Court ruling on lethal injection. The court ruled recently that lethal injection is not cruel and unusual punishment.

McAndrew, a slow-spoken activist, grows agitated when talking about lethal injection and the likelihood that executions will resume in Florida.

The most recent inmate executed by lethal injection, Angel Diaz, took more than 30 minutes to die because the needles had been pushed through his veins into his flesh.

But none of the 26 witnesses on the other side of the glass window looking into the execution chamber knew that because, when the curtains behind the window were opened, Diaz was already on a gurney with IVs in his arms.

"If they're going to be honest and forthcoming about what's going on in the death chamber, then from the second the condemned walks into the chamber until the body is placed in a body bag, all 26 witnesses should be there," McAndrew said.

Opponents welcome an insider's voice

Other death penalty opponents tell him that he's an invaluable resource.

"They say only someone who's been that close to it can speak about it in the way that you do," McAndrew said, his voice growing soft.

The former Air Force sergeant began his career in corrections after returning to the United States following a 15-year stint living and traveling throughout France and Asia as a manager for an international exporter.

He never imagined then that, less than two decades later, he would be the warden of one of the state's toughest institutions, landing in 1996 at Florida State Prison.

There, he oversaw three executions in the electric chair: John Earl Bush, John Mills Jr. and Medina.

His first experience, Bush's execution, was uncomfortable, he said. Bush had killed 18-year-old Frances Slater after abducting her from a Stuart convenience store.

The members of the execution team told the warden that it was a tradition to have breakfast at Shoney's after the early morning executions.

"I got to Shoney's and the food started looking very disgusting," McAndrew said. "At the table directly in front of me, I could see the back of the female attorney (for Bush). She turned and looked over her shoulder at me. She had a look of pain on her face."

He left without eating.

'I'd had all the breakfast I could stand'

Starke is a small town with a population of about 5,500 people, most of whom work at the nearby prison, have retired from there or have family members who do.

Everyone at the restaurant knew the group had performed the execution.

What troubled McAndrew was that the public might misconstrue the breakfast as celebratory.

Before the next execution, McAndrew spoke with the colonel on the team: "I told him I'd had all the breakfast I could stand."

Paul Schauble Jr. spent more than a decade as a Death Row officer, taking condemned inmates to showers and recreation and delivering their meals.

He doesn't have any qualms about the job he performed for 12 years.

"Most of us believe we have a job to do. And whether I believe they are innocent or deserve their punishment, my job is to make sure they stay inside the fence and I take care of all their needs and then I go home," Schauble said.

Although he didn't enjoy it, he believes that the prisoners he tended to deserved to die because their crimes were so egregious and their court appeals, over and over again, had been exhausted. He has been the target of Death Row inmates' wrath. He has been hit with feces and bricks, been gouged and stitched up.

The union representative of the Police Benevolent Association doesn't have a lot of sympathy for the prisoners.

"By the time they get on Death Row, the investigation is so extensive ... I truly believe they are guilty of that crime," Schauble said.

Before dawn on the day of the execution, McAndrew would sit on the side of the inmate's bunk and read the death warrant aloud after explaining that he was required to do so by state law.

"You ask them if there's anything you can do for them. If there's any phone call you'd like me to make, I'll be glad to do that," McAndrew said.

Those last moments alone with the person whose death he was about to facilitate haunt him.

"They share things with you in those last moments too, things that you'll never talk about again," he said.

The positions are reversed now.

"These men come and sit on the edge of my bed, so to speak," McAndrew said. "In my mind, I see them a lot. I wish I had never been involved in carrying out the death penalty."

Prison: Treatment, not prison


By
The Times-Union


We used to have mental asylums.
--------------------------------------------------


Now we have prisons as a major source of treatment for the mentally ill.

We used to consider rehabilitation as the prime motive of prison.

Now we lock people up and throw away the key.

And this nation leads the world in the rate of incarceration.

Does the United States really have that many more criminals per capita than every other country in the world?

A Pew Center report estimated that one out of every 100 American adults is incarcerated, the highest rate reported in U.S. history. More than 2.3 million people nationally were in jails or prisons at the beginning of 2008.

The absolute number of people in U.S. prisons increased by nearly 25,000 people in the first half of 2007. The length of prison terms is increasing

According to The Sentencing Project, here are some rates of prisoners per 100,000 population:

- U.S.: 762.

- Russia: 611.

- U.S. Virgin Islands: 521.

- Turkmenistan: 489.

- Canada: 107.

The 713,473 people released from state and federal prisons represented a new high, The Sentencing Project reported. Are these people going to return to programs that provide treatment and job training? If not, it will be no surprise if the same criminal cycles repeat.

The public needs to be protected from violent offenders. But for nonviolent offenders, treatment often is the best way to deter them from future crimes. Compared to the cost of imprisonment, treatment also is less expensive.

When treatment programs have proven records of success, it is self-defeating not to fully fund them.

It costs more in financial and human terms to fill prisons with no hope of rehabilitation. obama: the musical boomer He listens to early Bob Dylan music on the campaign trail. He is honored that Bruce Springstein has said kind words about him. He also has music from the Rolling Stones, Elton John, Earth Wind & Fire and Stevie Wonder. Kind of like oldies from the 1970s, right? That makes Barack Obama a baby boomer, because music played a huge role in the lives of the boomers, carrying them through the racial traumas of the 1960s, the anti-war movement of the 1970s and the Watergate era. Obama says that America has to get beyond the counterproductive arguments between the Bush and Clinton wings of the boomers. He's right. He should know.




This story can be found on Jacksonville.com at http://www.jacksonville.com/tu-online/stories/062908/opi_296493995.shtml.

Update: Child killer visits relatives on eve of death


FLORIDA TODAY CAPITAL BUREAU

Condemned child rapist and murderer Mark Dean Schwab is visiting this afternoon with his mother and an aunt at Florida State Prison near Starke where he is set to be executed Tuesday evening.

"He's calm and he's following all instructions," said Gretl Plessinger, spokeswoman for the Department of Corrections.

Schwab, 39, was sentenced to death for the 1991 abduction, sexual assault and murder of Junny Rios-Martinez, 11, of Cocoa. Schwab murdered the boy about a month after getting out of prison for rape of another boy in 1987.

Schwab has a three-hour, non-contact visit from Mary Killam, his mother, and Shirley Muhs, his aunt. Both women live in Ohio, according to Department of Corrections records.

This evening Schwab will have phone contact with his attorneys, Plessinger said.

On Tuesday, Schwab will have another visit with family members. For the last hour of that three-hour visit Schwab and family will be allowed to touch each other. Schwab has put in his request for his last meal, which will be served before noon Tuesday. He has requested a religious adviser, and a Baptist minister, a state prison chaplain, is meeting with Schwab.

Schwab would be the 65th person executed in Florida since the death penalty was reinstated in 1976. There have been no executions, however, since December 2006 when a botched lethal injection led to a state-imposed moratorium, since lifted. Schwab's scheduled November execution was delayed by a U.S. Supreme Court review of lethal injection in a Kentucky case.

Earlier story: Schwab lawyer eyes US Supreme Court

BY JOHN A. TORRES
FLORIDA TODAY

Denied by Florida courts, Mark Dean Schwab has one last appeal for his life with the US Supreme Court before Tuesday's scheduled execution.

The nation's top court issued a stay of execution in November for the child rapist and murderer, only hours before he was scheduled to die. But the court has since ruled on the constitutionality of lethal injection in a Kentucky case that opened the door for several states -- including Florida -- to resume executions.

"I have not heard that he has filed anything" with the U.S. Supreme Court, Florida Attorney General's Office spokeswoman Sandi Copes said Sunday evening.

Last week, the Florida Supreme Court upheld a ruling by Titusville Judge Charles Holcomb denying Schwab's claims for a new hearing based on the argument that the state's lethal injection protocol may cause him pain. Separately, the U.S. District Court denied Schwab's request to file another appeal. At that point, Schwab's attorney, Peter Cannon, promised to take it to the U.S. Supreme Court.

"We never know, never know," Cannon said. "We have to file an appeal, but this is not a useless appeal."

Schwab's lawyers say Florida's methods do not meet the standards set by the U.S. Supreme Court in the Kentucky case. They point to Department of Corrections training records that they say reveal several errors during mock executions in the past year.

They say little has changed since the botched execution of Angel Diaz in December 2006 that took twice as long as normal and caused the inmate pain.

They argue Florida's lethal injection protocol violates the Eighth Amendment of the U.S. Constitution that protects against cruel and unusual punishment.

In their rulings, both Holcomb and the Florida Supreme Court reiterated that any form of capital punishment -- no matter how humane -- may cause pain.

Schwab was sentenced to death on July 1, 1992, for the kidnapping, rape and murder of 11-year-old Junny Rios-Martinez of Cocoa.

The crime occurred about a month after Schwab was released from prison for raping then 13-year-old Than Meyer of Cocoa Beach in 1987.

"We will never know why he would want to hurt someone so pure and beautiful as Junny," Meyer, now 34, wrote in an e-mail to FLORIDA TODAY on Saturday. "It is too bad our families have had to suffer for so long waiting for Schwab to pay his dues. But we can all look forward after Tuesday, and try to make a new beginning, without ever forgetting Junny and what beauty and joy he brings to so many people."

Contact Torres at 242-3649 or jtorres@floridatoday.com.

--------------------------------------------------------------------------------

Florida set to resume executions


By Nathan Crabbe crabben@gvillesun.com
Sun staff writer


Published: Monday, June 30, 2008 at 6:01 a.m.


Florida is set to put convicted child killer Mark David Schwab to death Tuesday, resuming executions for the first time since a botched execution more than 18 months ago.

In that time, the state has made changes to the lethal injection process such as redesigning the death chamber and adding a step to ensure an inmate is unconscious before lethal drugs are injected.

But critics say the state failed to address problems with the drugs themselves and training of the people administering them.

"If you keep doing what you've done in the past, why do you not expect the same result?" asked Peter Cannon, an attorney representing Schwab for the Capital Collateral Regional Counsel's Tampa office.

Florida and the three dozen other states with lethal injection use a similar three-drug combination in executions. Inmates are first injected with a sedative, then a paralyzing agent and finally a drug that stops the heart.

Legal challenges have raised questions about the drugs. Schwab's appeal suggests Florida's high dosage of the sedative slows the effect of the other drugs. An Ohio judge earlier this month ordered the state to drop two of the drugs and deliver only a massive dosage of the sedative.

Members of a commission studying Florida's execution method recommended the state consider discontinuing use of the paralyzing agent, which is banned in the euthanization of pets. The commission also recommended the state look into updating all the chemicals used in the process.

But the Florida Department of Corrections decided to stick with the existing drugs because they're the same ones used in other states, said spokeswoman Gretl Plessinger.

"Right now, this is the protocol that other states are using, so we didn't want to deviate from that," she said.

Unless a court issues a stay, Schwab will be executed at 6 p.m. Tuesday at Florida State Prison near Starke. Schwab was sentenced to death for the rape and murder of 11-year-old Junny Rios-Martinez in 1991.

His execution would end a hiatus that started with the botched execution of Angel Diaz and continued with the U.S. Supreme Court considering a legal challenge to lethal injection.

The execution of Diaz, who appeared to be wincing in pain and required a second round of lethal drugs, led to the appointment of the commission that studied Florida's execution process. The commission found IV lines had been pushed through Diaz's veins and recommended changes to prevent the problem from happening again.

Before executions could resume, however, the U.S. Supreme Court took up a lethal injection challenge that put executions on hold across the country. In April, the court issued a decision upholding lethal injection in a Kentucky case, Baze v. Reese.

The high court ruling didn't end the debate over lethal injection, said Deborah Denno, a professor at Fordham Law School who specializes in death penalty issues.

"Baze didn't close doors at all," she said. "It left a wide-open door."

Denno said an Ohio judge's decision this month to drop two of the three drugs in the combination could start a trend of such cases. She said attention to lethal injection has also spurred a wave of new research exposing flaws in the method.

"This is stoking the fire of the issue," she said.

University of Miami researcher Teresa Zimmers has taken part in three studies of executions. She said one problem with lethal injection is that states fail to adjust the drug dosage depending on the inmate's body weight or medical history.

"That one-size-fits-all approach doesn't seem to be working well," Zimmers said.

While states use the same drugs, they deliver different amounts. Florida administers five grams of the sedative sodium pentothal, compared to two grams in Georgia and Ohio. Florida officials have argued the larger amount ensures an inmate is unconscious.

But Cannon studied previous executions in the state, finding the larger dose could be interfering with other drugs. Florida executions lasted 13.8 minutes on average - longer than the time a state expert testified they should take, and longer than the average times in Georgia and Ohio.

Schwab's appeal suggests the sedative is slowing the effect of the other drugs. But Dr. Kayser Enneking, chairwoman of the anesthesiology department in UF's College of Medicine, questioned that conclusion.

"I'm not sure that a larger dosage would have any effect on slowing the effect of the other drugs," she said.

There are also questions about the paralytic drug. Because the drug can mask unconsciousness, the American Veterinary Medical Association bans its use in euthanizing animals.

Some members of Florida's commission, including Gainesville Circuit Court Judge Stan Morris, suggested the state consider dropping use of the paralyzing drug. State officials argued the drug serves a purpose by masking involuntary convulsions that could shock observers, including the victim's family.

Denno said an Ohio case shows the drug issue is fertile legal ground.

Earlier this month, an Ohio judge ordered the state to use only a massive dosage of the sedative drug to execute inmates - the same method used in euthanizing animals, but a method that could make executions last as long as 45 minutes.

Zimmers said states are essentially conducting unethical medical experiments with inmates in continually tweaking execution procedures.

"They're pretty much arbitrary decisions made in some cases by judges," she said.

But medical ethics have limited the involvement of doctors in the process. Florida shields the identity of medical professionals involved in executions, going so far as to mask the doctor who declares inmates dead.

Enneking said those ethical constraints, as well as the fact the drugs were made for purposes other than causing death, make it difficult to identify problems with the method.

"There's no perfect way to do this as far as I can tell," she said.

Zimmers said doctors are already involved in the process, so it's time for them to apply medical knowledge to lethal injection.

"If it's so ethically loaded, it demands it should be examined," she said.

Sunday, June 29, 2008

Slain trooper's baby continues to gain weight, still hospitalized


David Blanton, grandfather of Tye Blanton, and his mother Michaela Blanton are pictured with the baby immediately following his baptism Wednesday, June 25. Family members looking on include, from left, Mary Youngbird, maternal grandmother of Tye’s father, Trooper Shawn Blanton; Jennifer Blanton, Shawn’s stepmother; Nikki Nations, Shawn’s paternal grandmother, and at center, Jeanell Youngbird, Shawn’s mother. - Special to the Citizen-Times



Mike McWilliams • MMcWilliams@CITIZEN-TIMES.com • published June 28, 2008 7:24 pm


ASHEVILLE – The prematurely born son of slain state trooper David Shawn Blanton, Jr., continued to gain weight Saturday.

In a statement released by Mission Hospitals, Michaela Blanton said her son, Tye, now weighs 3 pounds, gaining an ounce since Friday. Tye, who was born about seven weeks early on May 31, weighed 2 pounds, seven ounces at birth. He also has grown from 14 inches to 15 1/2 inches since birth.

“He’s a fighter, like his daddy,” Blanton said in the statement.

Tye remains in critical condition at Mission Hospitals. He has a heart condition that will require surgery at Duke University Medical Center.

Blanton, 24, died June 17 at the hospital after he was shot twice on the side of Interstate 40 near Canton. More than 2,000 people attended his funeral.

Michaela Blanton also said Saturday that Tye was baptized Wednesday at Mission’s neonatal intensive care unit. The Rev. David Christy, senior pastor at Central United Methodist Church of Canton, performed the baptism. Christy married Michaela and Shawn and officiated Blanton’s funeral.

About 15 family and friends attended the baptism, Blanton said.

“It was very peaceful and beautiful,” she said.

Blanton also expressed appreciation for “the tremendous outpouring of concern and love,” at a benefit Friday at Andy Shaw Ford in Sylva.

“I’m humbled by the generosity of the people, both their contributions and even more, just by being there,” Blanton said. “It was so good to have an event where people could come and just be happy with us.”

Blanton also thanked the community for the prayers for Tye and asked that the prayers continue.

Funds set up to benefit Michaela and Brendan Tye Blanton include the Trooper David Blanton Memorial Fund. Contributions can be made at Mountain Credit Union branches.

Contributions to the Michaela Nicole Blanton FBO Brendan Tye Blanton fund can be made at N.C. State Employees Credit Union branches. Checks can be mailed to SECU, c/o Michaela Nicole Blanton FBO Brendan Tye Blanton, P.O. Box 97, Waynesville, NC 28786.

Authorities have said they will seek the death penalty against Edwardo Wong II, 37, of Florida, who is charged with first-degree murder and robbery in Blanton’s death.

Saturday, June 28, 2008

Court denies Schwab's appeal


BY BILL COTTERELL • FLORIDA TODAY • June 27, 2008

TALLAHASSEE -- Mark Dean Schwab's legal alternatives are diminishing ahead of his Tuesday execution.

The Florida Supreme Court, in a unanimous decision Friday, denied Schwab's appeal.

Schwab, a child rapist and killer, now heads to the U.S. Supreme Court as the last stop before his scheduled lethal injection.

The Florida high court affirmed a Brevard County circuit court that denied Schwab a full hearing on the constitutionality of Florida's death-sentence procedures.

One of Schwab's attorneys, Peter Cannon of the Capital Collateral Regional Counsel, said the case is poised for a U.S. Supreme Court challenge. He said he and co-counsel Mark Gruber and Daphney Gaylord contend that Florida's mix of chemicals, training methods and physical procedures do not comply with the U.S. Supreme Court's rulings in an April case that set lethal-injection standards.

"We're exactly where we should be now," said Cannon. "It's up to the U.S. Supreme Court to decide if Florida is doing it right or not doing it right."

State Attorney General Bill McCollum said precedent is on Florida's side.

"Based on the litigation that has occurred thus far, I stand by our belief that the procedures used to carry out lethal injection in Florida are constitutionally sound and the decisions made by the state and federal courts, as well as the U.S. Supreme Court, have been correct," McCollum said.

Schwab was sentenced to death July 1, 1992, for the abduction, sexual assault and murder of Junny Rios-Martinez, 11, of Cocoa.

Scwhab's execution would be Florida's first since December 2006 when a botched lethal injection led to a state-imposed moratorium, since lifted. Schwab's November execution was delayed by a U.S. Supreme Court review of lethal injection in a Kentucky case.

Friday, June 27, 2008

Judge weighs death for man who killed partygoers


Kevin Evers, right, with Stephen Harper, one of his public defenders. Evers has pleaded guilty to three counts of murder and two counts of attempted murder.



The fate of the man who admitted killing three Miami Beach partyers in 2003 for playing loud music is in the hands of a judge.

BY LAURA ISENSEE lisensee@MiamiHerald.com

When Kevin Evers shot and killed three revelers at a Miami Beach birthday party in 2003, people here and abroad were shocked: Two young fathers from Argentina and a Brazilian woman died because Evers thought the music was too loud, sending him into a rage.

Now five years later, Evers awaits his fate: Life in prison or the death penalty.

The penalty phase of his case ended with closing arguments Thursday. Judge Stanford Blake will weigh Evers' actions that night and his criminal history against his mental health and childhood.

Evers pleaded guilty to three murders and two counts of attempted murder. His attorneys tried without success to persuade prosecutors to accept a plea deal for five consecutive life sentences, one for each victim and survivor.

PASSED ON JURY TRIAL

Evers gave up his right to a jury trial and instead asked Blake alone to hear the sentencing phase. In most death-penalty cases, a jury decides guilt, then has another hearing to recommend a sentence. The judge then issues the final sentence.

Prosecutor Reid Rubin on Thursday argued that two factors aggravated Evers' crime, justifying the death penalty: his previous violent criminal history, and the fact that his actions that night put many people at great risk.

Evers was charged with kidnapping with a weapon in Nevada in the 1990s, and served a three-year sentence after pleading guilty to lesser charges.

''We're not talking about rehabilitation here -- we're talking about punishment,'' Rubin said.

Rubin stressed that as many as 20 people could have been killed at the 2003 party, when Evers confronted the revelers with a loaded gun. He was carrying extra ammunition. ''He opened fire on them like they were animals,'' Rubin said.

Defense attorney Steven Yermish argued that other factors mitigated Evers' crime, warranting a life sentence: a bipolar disorder, psychotic episodes, neurological brain damage that impairs his ability to restrain his impulses, and a childhood scarred by abuse and neglect by alcoholic parents.

Yermish said Evers knows he will die in prison. ''The only question is when and by whose hand: the state of Florida or God,'' he said.

ILLNESS AND STRESS

Yermish recounted defense testimony by three medical experts that Evers suffers from mental illness, which influenced him the night he opened fire on the revelers.

''He was in need of hospitalization to prevent harm to others,'' Yermish said.

The defense argued that traumatic events in Evers' life triggered a downward spiral: the death of his wife in childbirth and giving up their daughter for adoption a few months before the shooting.

During the final arguments, Evers sat quietly, flanked by his team of defense attorneys. After the court appearance, he changed from a collared shirt and thick gray sweater into a bright orange prison uniform.

Blake is expected to sentence Evers later this summer.

Since taking the bench in 1995, Blake has given the death sentence once: He followed a jury's recommendation in 2003 and sentenced Michael Seibert to death for murdering an 18-year-old high school student and then butchering her body.

Melrose slaying suspect to face death penalty


BY RON BARTLETT

The State Attorney’s Office is expected to file paperwork today at the Putnam County Courthouse that will seek the death penalty against accused killer Toby Lee Lowry.

Assistant State Attorney Matt Cline, the prosecutor for the case, said he met with State Attorney John Tanner and Assistant State Attorney Noah McKinnon to decide the issue.

Cline said seeking death in a capital case is the most important and difficult decision the state can make, and every mitigating factor is considered.

“In any case where the death penalty is a possibility, it’s a legal weighing analysis,” he said. “You look at the aggravators, you look at the statutory mitigators. Obviously, we feel the aggravators outweigh the mitigators.

“It’s the biggest decision a prosecutor can make.”

Cline said the decision was “clear cut.”

Lowry, 22, is charged with first-degree murder, burglary with an assault or battery and robbery with a deadly weapon in the April 25 slaying of 66-year-old James Thomas Stewart.

Stewart was found in his Melrose home by investigators, having been beaten with steel rods, stabbed multiple times and suffocated.

Also charged in the murder is Lowry’s girlfriend, 15-year-old Morgan Amanda Leppert.

On May 22, a grand jury determined that Leppert will be tried as an adult. However, she will not face the death penalty because of a state statute which forbids capital punishment for minors.

Leppert and Lowry have pleaded not guilty to the crimes.

On June 13, Lowry reportedly attempted to commit suicide in his cell at the Putnam County Jail.
After being treated at Putnam Community Medical Center, he was later returned to an isolation cell at the jail where he was placed on suicide watch.

rbartlett@palatkadailynews.com

Quince to become Florida's first black woman to serve as chief justice


By Jim Ash • Florida Captial Bureau Chief • June 27, 2008

Florida Supreme Court Justice Peggy Quince can add another precedent to her resume today when she becomes the state's first black woman to serve as chief justice.

Quince, a 60-year-old product of segregated schools, takes charge of the state's court system and becomes to first black woman to head any branch of Florida government.

Quince graduated from Howard University and earned her law degree at Catholic University. She is a veteran of the Florida judicial system, serving as an assistant attorney general handling death penalty cases and judge on the Second District Court of Appeal.

In 1998, Gov. Lawton Chiles and Gov.-elect Jeb Bush shared Quince's appointment to the Supreme Court when a question arose about which administration had the authority.

Quince moved to Tampa 30 years ago and is the mother of two.

A ceremony at the Supreme Court is scheduled for 3:30 p.m.

Thursday, June 26, 2008

Judge: Chance of pain definite during Schwab execution


BY JOHN A. TORRES • FLORIDA TODAY • June 26, 2008


Titusville Judge Charles Holcomb on Wednesday cleared the way for the execution next week of child rapist and murderer Mark Dean Schwab, who argued that a lethal injection is cruel and unusual punishment. Holcomb rejected Schwab's motion to vacate his sentence, saying any method of execution could cause pain.

He said that even though executions must be deliberated, it does not give Schwab or his attorneys the right to file motions on matters already decided.

"This process does not require the court to continually review claims which have already been found wanting," Holcomb wrote. "At this late stage in the legal process, Schwab is barred from relitigating prior claims and from raising any new claims which could have been raised at an earlier date."

Schwab was convicted in 1992 of raping and killing Junny Rios-Martinez, 11, of Cocoa. He is scheduled to die by lethal injection at 6 p.m. Tuesday.

The state revised protocol after the December 2006 execution of Angel Diaz took twice as long as normal. The state has not executed anyone since then, waiting for the U.S. Supreme Court to rule on the constitutionality of lethal injection in a Kentucky case.

Holcomb quoted Chief Justice John Roberts, who said capital punishment was constitutional. "Some risk of pain is inherent in any means of execution -- no matter how humane," Roberts wrote.

Contact Torres at 242-3649 or jtorres@floridatoday.com

Prison term cut in half for Jack Abramoff associate

Jack Abramoff testifying before the Senate Indian Affairs Committee.


By Vanessa Blum South Florida Sun-Sentinel


2:23 PM EDT, June 25, 2008


A federal judge in Miami on Wednesday cut in half the prison term of a onetime business partner of disgraced lobbyist Jack Abramoff, rewarding him for cooperating with federal and state probes.

U.S. District Judge Paul Huck agreed to reduce Adam Kidan's 70-month sentence for fraud to 35 months based on requests from prosecutors . They said Kidan, 43, provided substantial assistance to officials investigating the 2001 slaying of Fort Lauderdale entrepreneur Konstantinos "Gus" Boulis and other criminal matters.

Brian Cavanagh, the prosecutor in charge of Broward County's homicide unit, said Kidan provided "a detailed explanation" of his knowledge of the Boulis killing.

Kidan is expected to testify at the trial of Anthony "Big Tony" Moscatiello, Anthony "Little Tony" Ferrari, and James "Pudgy" Fiorillo, who could face the death penalty if convicted of Boulis' murder. All three pleaded not guilty.


After Kidan gave a deposition in November 2007, three men assaulted Kidan in a prison bathroom, said his attorney, Jonathan Rosenthal.

"There was a perceived threat," Rosenthal said.

Federal prosecutors said Kidan was particularly helpful with the federal fraud case against Abramoff.

Kidan and Abramoff were co-defendants in a fraud case stemming from their purchase of Dania Beach-based SunCruz Casinos from Boulis in 2000. Both pleaded guilty to creating phony financial records to convince lenders to back their bid for the gambling cruise line and received 70-month sentences.

Federal prosecutor Lawrence LaVecchio said Kidan alerted prosecutors in 2003 to e-mails implicating Abramoff, which prosecutors said warranted a reduction of one-third.

"If it were not for Mr. Kidan's cooperation, we very well might not have had sufficient evidence to charge Mr. Abramoff," LaVecchio said.

With the reduction, Kidan has 15 months remaining on his sentence at the federal penitentiary in Lisbon, Ohio. Kidan's original release date was Dec. 14, 2011.

The SunCruz case and the Boulis case intersect because Kidan and Boulis were fighting for control of the cruise line when Boulis was killed. Kidan has denied any involvement in the hit and says two men charged in the case confessed they were behind it.

Cavanagh, who said Kidan's information filled in gaps in the government's case, told Huck he has concerns for Kidan's safety.

"I'm worried because we need him as a witness," he said. "I admire his courage."

Vanessa Blum can be reached at vbblum@sun-sentinel.com or 954-356-4605.

Wednesday, June 25, 2008

Man convicted in Curious George murder case


By Missy Diaz South Florida Sun-Sentinel


5:14 PM EDT, June 24, 2008


Although Vincent Puglisi may not have delivered any of the 37 stab wounds or 83 blunt force injuries that killed Curious George collaborator Alan Shalleck, the prosecutor argued, Puglisi was just as guilty as the man who did. After just 90 minutes of deliberations on Tuesday, a 12-member jury agreed. They convicted the 56-year-old Puglisi of first-degree murder and robbery with deadly weapon.

Puglisi will return to court next month to find out if he will spend the rest of his life in prison or die by lethal injection for his crimes. He showed no visible reaction to the jury's decision.

The plan to rob and kill Shalleck was hatched over a pizza shared between Puglisi and Rex Ditto as the sadomasochistic lovers watched the 2006 Super Bowl in a Fort Lauderdale restaurant.

The men needed $450 to move so they decided robbing and killing Shalleck, a 76-year-old retiree with little money, during a spanking party would be the best way to solve their financial quandary.



Puglisi had known Shalleck for a year, meeting him through an ad in a gay magazine in which Shalleck sought spanking partners.

Just before midnight on Feb. 5, 2006 - Super Bowl Sunday - Puglisi and Ditto arrived at Shalleck's Boynton Beach mobile home for what was supposed to be a night of consensual sex among friends. When it was over, Shalleck's lifeless body, wrapped in plastic garbage bags and drained of nearly all the blood, lay in his driveway.

In Puglisi's confession to police, he recounted that as Ditto, 32, and Shalleck, engaged in a sex act, Ditto "freaked out" and began strangling Shalleck.

When Shalleck wouldn't die, Ditto grabbed one of Shalleck's spanking paddles and clubbed him repeatedly in the head. When that didn't do the job, Ditto retrieved a steak knife from the kitchen, plunging it into Shalleck until the cutlery broke. When a second knife also broke Ditto resorted to a butcher knife, but Shalleck kept fighting, according to Puglisi.

In Tuesday's closing arguments, Assistant State Attorney Andy Slater convinced jurors that Puglisi acted as principal to Ditto in the killing.

"They were acting in concert in furtherance of the same common plan" to rob and kill Shalleck, he said. Puglisi admitted to holding a pillow over Shalleck's face while Ditto savaged him. Puglisi also helped steal Shalleck's jewelry, watch and a checkbook.

The defense painted a picture of Puglisi as a simple-minded, co-dependent follower who would do anything for another man's affection. That's what led him to collude with Ditto, a young, handsome and "crazy" arsonist who landed in South Florida following Hurricane Katrina, Assistant Public Defender Shari Vrod opined.

"Mr. Puglisi's sin was that he did absolutely nothing (to stop the killing)," Vrod said. "He stole, he lied, he covered up. He may be morally reprehensible, despicable ... but that doesn't make him guilty of a murder."

When the penalty phase begins July 21, the defense will likely address the issue of proportionality. Ditto last year took a plea deal that removed the death penalty as an option.

Missy Diaz can be reached at mdiaz@sun-sentinel.com or 561-228-5505.

Jurors vote against executing Crawford




Convicted child-murderer Richard L. Crawford is seen in court Tuesday, where a jury recommended that he receive life without parole during his advisory sentencing. The judge will decide July 18.



Life term likely for Ocala man who killed son


By Suevon Lee
STAR-BANNER


Published: Wednesday, June 25, 2008 at 6:30 a.m.
Last Modified: Wednesday, June 25, 2008 at 12:12 p.m.

OCALA -A jury recommended Tuesday that a judge spare Richard L. Crawford his life and sentence him to the lesser of two fates: life in prison, with no chance of parole. But some jurors wanted to see Crawford get a death sentence.

The recommendation for a life sentence came after nearly three-and-a-half hours of deliberations, the outcome of which dissatisfied at least one juror - Artie Adkins.

In a phone interview, Adkins - one of five men on the jury - said he was a proponent for giving Crawford capital punishment and was joined by two others, according to a poll jurors took 20 minutes before it emerged to announce its decision to the courtroom.

"The other two plus myself decided there's no use in arguing," Adkins, 60, a Vietnam War veteran, said. "We could not convince nine people to change their vote. I was very disappointed in it. I left as quickly as possible and I wouldn't even say goodbye to the jurors."

Whatever decision the jury came to, it needed a majority vote, with more than six people leaning one direction.

Senior Judge William T. Swigert must assign the recommendation "great weight" under Florida law when he sentences Crawford on July 18.

The state does not plan to request a jury override, Assistant State Attorney Robin Arnold said, explaining that in only rare circumstances in death penalty cases do prosecutors request the judge bypass the jury's recommendation.

The jury did not make its decision "haphazardly," she said.

"I can't be disappointed with what they decided," the prosecutor said.

The 12-member panel found Crawford, 33, guilty of first-degree murder and aggravated child abuse two weeks ago in the fatal beating of his 5-year-old son in February 2006.

Adkins said the jurors were unanimously convinced of Crawford's guilt during the earlier phase of the trial - but that when it came to the sentencing portion, "they all fell apart."

"[Crawford] did the crime, we all know that, so why not give him the punishment he deserves?" he asked. "The death penalty is a good deterrent for this kind of crime."

Crawford was stoic as a court clerk read the jury's decision early Tuesday afternoon. His defense attorney, James Tarquin, said afterwards his client was "relieved" and had been "very nervous" beforehand. "Anyone [in that position] would be," Tarquin said, adding that he believed the state had no business seeking the death penalty because the crime was not premeditated or intentional. "It should be used very sparingly," he said.

Tarquin said he plans to file motions for judgment for acquittal and a new trial in the days ahead.

Members of the defendant's extended family embraced outside the courtroom following the decision, but declined comment. A family friend, Pat Dalton, said in a phone interview later that nobody in the family had expected Crawford to be found guilty two weeks ago.

"I went in that day to see him walk out," Dalton, 54, said, of her attendance at court the day of the guilty verdict last Friday.

Crawford's mother, Arthur Crawford, who was once married to Dalton's uncle, is "very grateful to the Lord," Dalton said regarding Tuesday's decision. "She's a very God-fearing woman."

Earlier Tuesday, the seven-woman, five-man jury panel listened to closing arguments of the penalty phase of the trial from Assistant State Attorney Janine Nixon and Tarquin as the lawyers sought to drive home what punishment they believed the defendant deserved.

"[Crawford] left him in that room to die alone," Nixon said, referring to the place in Crawford's southeast Ocala home where the state asserted the defendant fatally whipped his son with a belt on Feb. 16, 2006.

"Coreyon knew he was going to be hit, again and again, here and here and here and here," Nixon said, gesturing with her hands the wide area where Coreyon, a kindergarten student at Evergreen Elementary School, suffered bruising on his body - injuries so severe the state portrayed the crime as heinous, atrocious, and cruel.

Tarquin, on the other hand, implored to the jury to see that the beating represented one "aberration" in his client's life and that life in prison without parole would be enough punishment for his client.

"Every single day he's going to be punished for the rest of his life," he said. "We're talking about Richard Crawford's 33 years on this earth, and they want to kill him for one day."

The defense presented as mitigators Crawford's character - which family members spoke positively about on Monday afternoon - and his relatively young age. Coreyon was one of 12 children that Crawford fathered with various women.

Still, Dalton - who said she has a relationship with both the defendant's and victim's family - is convinced Coreyon wasn't killed by his father, nor Alnethia Coley, the little boy's grandmother who had legal custody over the child at the time of his death. The defense had attempted to portray Coley as culpable in the child's death during the trial.

"The lifestyle they led - anyone could have done it," she said. "I do believe there is a guilty person out there, but they have convicted the wrong man."

Suevon Lee can be reached at 867-4065 or suevon.lee@starbanner.com.

NC prosecutor wants death penalty for Fla. man in trooper shooting

Associated Press - June 25, 2008 2:04 PM ET

WAYNESVILLE, N.C. (AP) - Prosecutors want to seek the death penalty in their case against a Florida man accused in the fatal shooting of a North Carolina Highway Patrol trooper.

The Asheville Citizen-Times is reporting that Haywood County District Attorney Michael Bonfoey asked a judge to decide whether there is enough evidence to try Edwardo Wong II of Ormond Beach, Florida, for capital murder. The judge has not yet scheduled a hearing.

Wong is accused in the June 17th shooting death of trooper David Shawn Blanton Junior. The trooper was shot during a traffic stop in western North Carolina.

Wong is charged with first-degree murder and robbery with a dangerous weapon.

Wong spent seven years in a Florida prison for crimes including assault on a law enforcement officer.

Lee mother waits for son's killer to die

Nelson: Appeal has lasted 8 years (news-press.com file photo)


Owens: Killed in north Cape Coral in '95 (news-press.com file photo)


Frustrated family talks about appeals that followed '95 murder
BY PAT GILLESPIE • pgillespie@news-press.com • June 25, 2008

Linda Owens is hoping to outlive her son's killer.

Owens, the mother of Tommy Owens, who was murdered in 1995, has watched as Josh Nelson goes through the second round of appeals on Florida's death row - there since he was sentenced in 1996.

Nelson, 18 at the time, along with Keith Brennan, were convicted of luring Tommy Owens to a remote area of north Cape Coral and beating him with a baseball bat and cutting his throat because they wanted his car. Brennan's appeals have been exhausted and he is serving a life sentence, State Attorney Steve Russell said. He was 16 at the time of the killing.

Attorneys gathered Monday to discuss Nelson's appeal - his attorney is trying to get Nelson's and Brennan's psychological and psychiatric records from five Florida agencies, who have cited public records exemptions and denied records requests.

A judge will review the requests and decide which records to order for release. Nelson's attorney hopes to use the records to save his client's life.

Nelson's most recent appeal has lasted for eight years and has been delayed because of the death of a judge, a turnover in attorneys and the natural course of appeals cases, attorneys said. A judge set another hearing for September.

Tommy Owens' father, Donald - who supports Nelson's execution -died in 2004. Now, Linda Owens is hoping she can see justice for her son's murderer.

"I would like to see Josh Nelson die and I would like to be alive to see it," she said Tuesday. "We do want to get this finished and done."

Attorney Terri Lynn Backhus of Tampa represented Nelson for a time, but said in 2004 she had a conflict with Nelson and asked to be removed from the case. Lee Circuit Judge William Nelson, who presided over the case, died in 2003 and court administrators had to reassign his cases. Two judges have been assigned to Josh Nelson's case since then - Lee Circuit Judge Thomas Corbin and Lee Circuit Judge Lynn Gerald Jr., according to court records.

Gerald addressed Backhus' motion in 2007, three years after she filed it and eight months after Gerald was appointed to the case. Then, in October, Nelson's current attorney, Michael McDonnell of Naples, was appointed to the case.

Backhus said appeals cases are supposed to take a long time - they are designed to be thorough and they don't have time constraints, unlike active criminal cases. Because of budget cuts and active criminal caseloads rising, appeals cases tend to move to the back of the court schedule.

According to the Florida Department of Corrections, death row inmates have an average stay of 14 years. Nelson has been there 12.

McDonnell, too, makes no apologies for the delays. He said he is trying to determine whether to raise issues of ineffective assistance of counsel, a common target of appeals, as well as the constitutionality of the death penalty.

"I am the only person between him and the end of his life," McDonnell said. "It's a very serious responsibility."

Russell, who is working on Nelson's appeal, said the process can be drawn out for victims' families.

"The death penalty appellate process can be frustrating for the families and others involved," he said. "Sometimes they go on too long and hopefully we'll get a resolution in this case."

Linda Owens said she doesn't believe Nelson's death will bring justice, but she wants to see the day it happens.

"It's not something you can dwell on or it will eat you up," she said. "The wheels of justice shouldn't move this slow."

School killing trial may be moved from Miami

Michael Hernandez, 18, is set to stand trial in September for stabbing to death classmate Jaime Gough.


By EVAN S. BENN
ebenn@MiamiHerald.com

A Miami-Dade judge will decide Friday whether to move a teenager's murder trial to another Florida city, where potential jurors will be less likely to be swayed by media coverage of the 2004 high-profile killing.

Michael Hernandez, 18, is set to stand trial in September for stabbing to death classmate Jaime Gough in a bathroom at Southwood Middle School when both boys were 14. He cannot get a fair trial in Miami-Dade or Broward counties because of intense media coverage of the case, defense attorney Richard Rosenbaum argued at a motion hearing Tuesday.

Prosecutors agreed with the change-of-venue request, suggesting Tampa or Orlando as possible options. Rosenbaum said he preferred Palm Beach County but would accept Tampa or Orlando.

Attorneys for both sides told Circuit Judge John Schlesinger they believed the hundreds of news stories published and broadcast about the case since 2004 have tainted potential South Florida jurors.

''It's not a matter of whether they know about it, it's whether they can be fair,'' Schlesinger said, adding that he will make a decision Friday about whether to move the trial.

Hernandez, who faces life in prison if convicted of first-degree murder, is pleading not guilty by reason of insanity. If jurors agree with that defense, Hernandez would be sent for mental-health treatment.

State attorneys dispute death penalty complaints


Schwab lawyers continue to protest Tuesday execution



BY JOHN A. TORRES • FLORIDA TODAY • June 25, 2008

Attorneys for the state said it seems lawyers representing convicted child-killer Mark Dean Schwab are using the court system to advance their position against the death penalty.



Responding to the number of appeals and motions filed on Schwab's behalf -- including a third successive motion objecting to lethal injection -- Assistant Attorney General Kenneth Nunnelley said Tuesday in court that the starting point for any argument has to be that the U.S. Constitution allows for capital punishment.

"It follows then, that there has to be a way to carry out that constitutionally permitted sentence," he said. "No method will ever be satisfactory to those who oppose capital punishment."

Schwab is scheduled to be executed by lethal injection at 6 p.m. next Tuesday.

Both sides were in court Tuesday presenting their cases to Judge Charles Holcomb, who has promised a response sometime today.

Schwab's attorneys say the state's revised lethal injection protocol does not guarantee the elimination of pain or suffering and that Department of Corrections workers are not being properly trained.

After petitioning the court for DOC training records earlier this month, Schwab's attorneys determined that more than 30 percent of the state's mock executions since last July have contained errors.

"The DOC does not understand the chemicals. Executioners are not even showing up for training," Schwab attorney Peter Cannon said. "That's why we are here. The DOC fails to live up to the standard."

Cannon also criticized an extra step the state has added in the execution process that ensures prisoners are unconscious when the lethal drugs are administered, a complaint that Nunnelley questioned.

"Ensuring the inmate is unconscious before any painful drugs are inflicted makes it worse?" he asked.

Assistant State Attorney Wayne Holmes, who helped prosecute Schwab, defended the state's record in performing executions.

"The state's Department of Corrections has been very successful putting people to death," he said after court proceedings. "I'm confident they will be able to put Mr. Schwab to death."

Schwab was convicted in 1992 of kidnapping, raping and killing 11-year-old Junny Rios-Martinez of Cocoa.

Contact Torres at 242-3649 or jtorres@floridatoday.com.

Tuesday, June 24, 2008

Prison food takes $83 million bite out of state budget


Auditors say privatizing service could save up to $38M per year.

Charlie Cain / Detroit News Lansing Bureau
Taxpayers spend $83.4 million a year feeding Michigan's 51,000 prison inmates, and could save nearly half that amount by hiring a private food service company, a critical new state audit says.

Furthermore, the State Auditor General's office says, even more money could be saved by cutting back on fresh produce and milk, trimming overall calories and preventing convicts from stealing additional meals.

"Reducing costs would assist (the Department of Corrections) in achieving its goal to provide the greatest amount of public protection while making the most efficient use of the state's resources," said the auditors, whose job is to make sure the state is getting the best bang for taxpayers' bucks.

Their review found that it costs nearly $5 per day to feed each inmate: $2.48 in food, plus $2.50 to pay the state employees who supervise food service.

Oakland County Sheriff Mike Bouchard has been bugging the state for years to trim prison costs, including reductions in its food service budget.

"The state could provide the same three square meals with someone else doing the cooking," said Bouchard, whose jail food service costs dropped by half when the county hired a private company.

"If they could get the cost down to my price, it would save the state $39 million without breaking a sweat," he said.

Bouchard, a former state senator, is among those pressuring Gov. Jennifer Granholm and state lawmakers to trim prison spending so other state programs -- such as higher education and revenue sharing with local governments -- will stop being shortchanged. Prisons eat up one-fifth of the state's general fund spending: $2 billion a year.

Russ Marlan, spokesman for the state corrections department, believes $2.48 per day for inmate food is a bargain, when you consider how far that money would stretch at a fast food drive-through. The national average for food stamps is about $21 a week, per person.

"I know some people think inmates should get bread and water and live in tents with dirt floors," Marlan said. "But I know I couldn't feed myself for $2.48 a day."

Bouchard isn't convinced. His 2,000-inmate jail hired a private company for jail food service in 2000, and overnight, he said, its food budget dropped from $3.3 million to $1.6 million.

"My cost is about 88 cents per meal," Bouchard said. "With a contract as large as the state's, I would think any good negotiator could get a lower price than mine. But, even if they got only the same price as I get, the savings would be around $39 million on food alone."

State auditors, urging the state to look into privatization, said Florida privatized its prison food operation in 2001 and now pays $2.56 per prisoner, per day. Kansas, which went private a decade ago, pays $4.14 per day to feed each inmate.

Based on those costs, the auditors estimated Michigan could save $10 million to $38 million a year if it negotiated a similar deal.

The corrections department will consider privatization, but it isn't all it's cracked up to be, Marlan said.

"The auditors didn't go to Florida to look at the system but just took numbers off the Internet. Florida is having some real issues with people getting sick and other problems," he said.

Last month, the St. Petersburg Times reported that Florida prison officials fined their private food contractor $241,000 this year for violations that included insufficient staffing, insufficient food and slow delivery of meals. In April, 277 inmates at a Panhandle prison complained of getting sick after eating chili.

Marlan said the Michigan corrections department does all it can to save money. In 2005, for example, it eliminated coffee from the chow line because it has no nutritional value. That saved $500,000 a year. Inmates can still buy java from a vending machine.

Prison farms help out, he said. Last year, inmate farmers harvested more than 257,000 pounds of produce worth $276,000 -- including asparagus, green beans, cabbage, carrots, onions, tomatoes and pumpkins.

Marlan said the state buys $14.5 million in produce and other food from farmers and firms in Michigan, but there's no guarantee that a private contractor would continue to patronize Michigan farmers and suppliers.

Other audit findings:

• Auditors questioned whether Michigan should reduce the amount of milk and fresh produce inmates get, noting that Oakland County and other states have gone that route and still meet federal dietary guidelines.

"We won't do that," said Marlan. "We will continue to provide them because it helps us in the long run to reduce future health care costs. With an average minimum sentence in our prisons of over four years, and with more than 4,000 doing life terms, health care costs are a big concern."

Food, Marlan said, helps prison officials keep inmates in line.

"Inmates are not in control of the system but they significantly outnumber our prison staff member," he said. "So the best way for us to run safe and secure prisons is to understand what the inmates' desires, needs and wants are and to respect them as human beings. Food is, and always has been, a very important tool in behavior control -- just like mail and prison visits."

• The audit said the state could save money by cutting the number of calories from 2,900 to 2,500 a day for men and from 2,600 to 2,000 for women.

Marlan said the current level of caloric intake falls within the range of federal guidelines.

The Food and Nutrition Board of the National Academy of Sciences says the number of calories needed depends on many factors including age, height, weight, body fat and physical activity.

"There is no one-size-fits-all number for caloric intake," said Christine Stencel, a spokeswoman for the academy. She said that depending on those factors, the level of calories needed by a 30-year-old man ranges from 1,848 to 3,720 a day.

• $882,000 in leftovers, which in most homes end up in a lunchbox or back on the dining room table a day or two later, were not accounted for by prison officials, auditors said.

Marlan said the leftovers were not discarded, stolen or lost. He said the prisons didn't fill out the forms to account for them, but is now.

• Auditors said inmates were apparently double-dipping in the food line and taking nearly $300,000 in extra meals.

While some inmates may occasionally grab a second meal, Marlan said that's not the reason the number of meals exceeds the prison headcount. "One of the reasons for the extra meals is that our food services directors have to predict how many of the 1,100inmates will choose between beef stew or a peanut butter and jelly sandwich."

Run-In With Murder Suspect Crunches Woman's Finances


By ANTHONY CORMIER

Sarasota Herald-Tribune

Published: June 23, 2008

WEST BRADENTON — She had a hard time getting by even before a murder suspect smashed her car one night near the interstate.

Sundstrom worked two jobs, lived alone in a duplex and drove a 1998 Chevrolet Cavalier with nearly 100,000 miles on it. She fretted over bills that she sometimes could not pay on time.

Then, on the night of June 8, came the collision with a sport utility vehicle driven by Harold Dean Wallwin, a homeless lawn man accused of murder.

Sundstrom was sitting at a light and heard a screech before Wallwin ran into her car's front end. Doctors told her not to go back to work. Her car is totaled -- the insurance company offered $800, she said -- and family can only do so much to help.

She says she feels for those who knew Mary Jane Blake, the widow who hired Wallwin to clean her garage and was found dead in her home on Lockwood Ridge Road.

She is angry with Wallwin. She says that one gruesome act affected so many people: Blake's family, her family, co-workers covering her shift at Winn-Dixie, friends who wired cab money.

"He gets three square meals and a cot in jail," Sundstrom says. "I get a stack of bills I don't know how I am going to pay."

She says she spent three years trying to get her life back together after leaving an abusive relationship and moving into a domestic-violence shelter.

Sundstrom is a chef by trade and found modest work in grocery store bakeries and, recently, the cafeteria at Haile Middle School.

She lives in west Bradenton with her birds. The Cavalier was a prized possession. It gave her independence.

The day of the crash, she taught a friend's daughter how to make cinnamon chili.

"She is a great cook," says Sol Cruz, 15.

She dropped Cruz off at 9 that night in Sarasota and headed toward the highway. She idled at Bee Ridge and Cattlemen roads. Tires screeched in the distance. A sport utility vehicle roared around the corner.

"My God," Sundstrom says she thought. "He's going to hit me."

Wallwin clipped two vehicles, drove into oncoming traffic and jumped the median to get back on Bee Ridge, authorities say. He was stopped a few minutes later.

In the back of a Florida Highway Patrol car, Sundstrom was retelling the accident to a trooper. His Motorola two-way pager chirped and the trooper put it to his ear.

"A homicide?" he said. "Really?"

Sundstrom did not want to pry. It started to rain, and she needed a cab to get home. Her back was aching. She had a few dollars, and the fare was going to be about $140 to drop her off in West Bradenton. A friend wired the money.

"Look at my car," she told the trooper. "What am I going to do?"

"You should feel lucky," the trooper said. "That guy killed a lady."

The next day, she rode her bicycle to a walk-in clinic. A doctor told her not to go back to work. She lifts heavy, frozen dough at Winn-Dixie, carries boxes and rolls bread. The doctor prescribed painkillers and ordered her not to work for at least a month.

In the doctor's office, Wallwin's mug shot appeared on a TV news program. She learned that Wallwin was accused of killing Blake, 76, with a hammer after cleaning her garage for $20.

"Sick," Sundstrom says. "He's sick."

Wallwin eventually was charged with murder, DUI and leaving the scene of an accident.

Wallwin, in jail, did not respond to requests for an interview. He will be arraigned July 11.

Police say he told them he killed Blake, and prosecutors could seek the death penalty.

Sundstrom, meanwhile, is trying to get by.

Her family drove down a temporary car from New Jersey, but the brakes were shot and they had to put it in the shop. She was using the bike and sometimes relying on friends. Her bosses have been understanding, but she needs the paycheck.

Rent is due soon, and her landlord already gave her a break after the accident. On Thursday, she realized that she could not afford both her cellular and home phone bills.

"It might be too expensive to keep the cell," she says. "But I don't know what else to do."

Ax murderer asks judge to throw out death sentence


Rene Stutzman

Sentinel Staff Writer

3:50 PM EDT, June 23, 2008

SANFORD

Ax murderer John Buzia is back in Seminole County, asking a judge to throw out his conviction and death sentence.

Buzia, 48, was convicted of murdering Charles Kersch, 71, at the victim's Oviedo home in 2000 with an ax he'd found in the victim's garage. Buzia had done home repairs for Kersch.

Buzia confessed but now is challenging one of the most powerful pieces of evidence the state presented at trial: a palm print found on the cabinet where Kersch kept his axes.

Then-Seminole County fingerprint expert Donna Birks told jurors the print belonged to Buzia. Last year, however, the Florida Department of Law Enforcement and a defense expert re-analyzed the print. Both concluded it could not be matched to Buzia or anyone else.

The sheriff's office and FDLE re-examined hundreds of other print identifications made by Birks and co-workers at the sheriff's office. They found ten bad calls, eight by Birks. She has since been fired and the fingerprint section reorganized.

Buzia was returned to Seminole County from death row for the hearing that began this morning before Circuit Judge Kenneth Lester Jr. It's expected to last most of the week.

Buzia's lawyers say his conviction and death sentence should be thrown out for a variety of reasons, including Birks' mistake.

They also allege his trial lawyer made several errors. Those attorneys, Tim Caudill and James Figgatt, presented no witnesses at trial.

Another error, Buzia's new lawyers say, was that defense attorneys let nearly two years pass before they had Buzia's blood tested for cocaine. Buzia was on a cocaine binge when he killed Kersch and attacked the victim's wife, Thea Kersch, who survived.

Florida law allows judges and juries to be more lenient with defendants who commit a crime while intoxicated.

Even if Buzia is granted another trial, it's not clear he'll be acquitted. Thea Kersch identified Buzia as her attacker.

State urges judge to deny child killer Schwab's motion


BY JOHN A. TORRES
FLORIDA TODAY

The state responded to convicted child killer Mark Dean Schwab's motion to vacate his death sentence by saying it is untimely and contains nothing new.

Judge Charles Holcomb will listen to arguments today in the latest round of filings as Schwab fights to stay alive. He is scheduled to die by lethal injection at
6 p.m. July 1.

On Friday, Schwab's attorneys filed a motion after the court-mandated 1 p.m. deadline arguing that the state's revised execution protocol is not good enough and may cause an inmate pain.

On Monday, the state responded by urging the judge to deny the motion.

"Schwab's motion is not only untimely, but also is procedurally barred," reads the response. "Nothing Schwab has alleged could not have been raised in his prior post-conviction motions."

Schwab's attorneys criticized the Department of Correction's execution methods, citing what they call failed mock executions.

Schwab was convicted and sentenced to death in 1992 for the kidnapping, rape and murder of 11-year-old Junny Rios-Martinez of Cocoa.

Contact Torres at 242-3649 or jtorres@floridatoday.com.

Sunday, June 22, 2008

Arcadia art gallery unveils works of true Highwayman




Published Sunday, June 22, 2008 at 4:30 a.m.
Last updated Sunday, June 22, 2008 at 4:34 a.m.

ARCADIA — Albert "Blood" Black first exhibited his work in Arcadia around three decades ago. At that time, the seminal Florida artist's paintings hung near bags of chicken feed and bales of hay in a local barn.

Last month, when Black pulled up to an Arcadia gallery in his black Chrysler 300 with a trunk full of paintings, his work inspired a bit more reverence.

"You coulda knocked me over with a feather when he asked me to help him," recalls Realtor Gordon "Mac" Martin, owner of the Martin Art Gallery on Magnolia Street. "When the Highwaymen come to town, people get excited about it."

A patriarch of the now-iconic, 20th-century movement of black "Highwaymen" landscape artists, Black had heard about Martin's gallery from a client.

"See, I'm well-known in Arcadia," he says. "I used to do all the paintings in the banks and real estate offices."

Martin was happy to give him all the gallery space he needed.

The brick- and white-walled 1935 plantation house that belonged to Martin's grandparents and doubles as his realty firm's headquarters now boasts a robust sampling of 16 Highwaymen classics. Sunset scenes and depictions of Indian River Drive in Fort Pierce decorate the walls of the building's central gallery room. In the foyer are numerous impressions of the St. Lucie River, gulls circling an abandoned dinghy and royal poinciana trees.

Of the paintings in Martin's stash, 14 are by Black, the others by two of his Highwaymen peers, Willie Daniels and Harold Newton.

Martin currently has the works on informal display but is planning a higher-profile show opening next February.

The exposure may be just another notch in Black's belt of professional triumphs -- a biography covering the artist's prison stint will be published next April; his work has already made it to Gov. Charlie Crist's office walls -- but Black is grateful for every ounce of attention.

Just 50 years ago, he says, his paintings would never have commanded the four-figure prices they often do today.

In fact, in segregated Fort Pierce, where the artist first picked up a brush, a Black original might never have made it into a gallery at all.

Segregation in the arts

The road to critical acclaim was a long one for the Highwaymen.

Much of that delay was due to race.

In the mid-1950s, Florida's artistic landscape was still a white man's world, with little room for the black experience. Black painters found little acceptance at the local studios; many had to rely on their wits to hone their own talents.

"Fort Pierce was a very segregated community," says Jack Hambrick, owner of the Florida-based US News Group production company and executive producer of the recently released documentary "The Highwaymen: The Legends of the Road." "If you were black, the only type of opportunity would be to work in the orange grove fields."

According to Hambrick, selling decorative landscape paintings was, for blacks settled in Fort Pierce, more than just a conduit for artistic expression: It was a way out of menial labor.

Influenced by best-selling 1950s Florida landscape artist A.E. Backus, amateur painters such as Alfred Hair and Harold Newton would turn out favorite panoramas -- beach and backcountry scenes, mostly -- each day by the dozen, frugally splashing oils onto crude Upson board and peddling them still wet along coastal roads like State Road A1A.

The paintings only cost $25 to $35 back then. Without a proper agent, however, business was often slow.

"They didn't know how to sell," Black remembers. The Mississippi native, who reached Fort Pierce in 1961 as a 16-year-old migrant potato picker, first stumbled upon the bohemian group when he was working as a huckster for a typewriter company.

Unlike his new circle of friends -- whose business strategies entailed flashing cardboard signs and hawking their creations in the open dirt road -- Black already had significant sales experience and knew what it took to turn a profit.

"You go into an office, you put your shirt in," he explains. "That'll get you in the door."

Soon, the seasoned merchant was stuffing his friends' work into the trunk of his car and, shirt starched, marching into banks and doctors' offices from St. Lucie to DeSoto to Sarasota counties.

The target buyers were not always impressed with his pitches.

"When I first started, times were tough for a black man," he says. Some clients asked Black if his wares were stolen; others called the police.

"But by me being a man, I could level with them," he says. "Once you got in the office and were presentable, they couldn't say too much."

Black traces his own experience as a professional painter back to 1970, when his companions started letting him fix their paintings whenever their Upson canvases "got scarred on the road."

"We hung out at a bar called Eddy's Place in Fort Pierce, drinking beer and stuff," he recalls of his first taste of the artist's life. "I got better and better. Everybody liked my work -- and it sold from day one."

And sold, and sold. The salesman-turned-artist has watched his status grow from footnote of an unknown art movement to patriarch of a respected school of art.

Artistic triumph can come with personal trials, however, and Black had his share of both. About a year and a half ago, he ended a 12-year period of incarceration in several state prisons.

Convicted of fraud in 1997, Black was initially sent to the Central Florida Reception Center in Orlando. He said he had borrowed too much money from an older female patron to feed his addiction to crack cocaine, though over a span of several years, he had also been arrested on charges of bouncing checks, assault, cocaine possession and violation of parole.

He was inmate number 793362 at the Reception Center. But he was also a painter.

"I mostly got along with the other guards," the artist says of his time behind bars. The guards became his biggest patrons.

"They come up and say, 'Is you the famous Al Black?'" he recalls. "I said, 'I don't know how famous.' They said, 'We want you to fix up our offices.'"

Soon, he had covered the mess hall walls with 90 acrylic panoramas -- and later, at Daytona Beach's Tomoka Correctional Institution, he secured a fan base of fellow inmates, several of whom he began teaching in the prison's hobby shop.

"Some of them turned out to be real good artists," he says.

A scholarly revolution

Part of what helped the Highwaymen artists amass their following came from outside the movement itself.

In 1994, a Florida-based art acquisition agent named Jim Fitch published his article "The Highwaymen" in Antiques & Art Around Florida magazine, effectively launching a scholarly revolution in the way people interpreted black folk art and the "Indian River School."

The stories of struggle and creation in the Jim Crow-era South resonated with both collectors and academics. In 2001, a book called "The Highwaymen" was published identifying 26 painters as members of the group; three years later, all were inducted into the Florida Artists Hall of Fame, with eight identified as originators of the movement.

"No art movement captured the state as this art movement did," says Gary Monroe, a DeLand-based studio art professor and art historian. "And no Hollywood script writer could improve the Fort Pierce story."

For nearly a decade, Monroe has devoted himself to charting the Highwaymen history -- he was responsible for identifying the 26 innovators -- and next year will release "The Highwaymen Murals," his biography of Black and the prison murals, which Monroe calls "masterpieces."

What drew him to the paintings was their gestural style, he says, the way the unfinished-looking work somehow "beckons the viewer to finish the painting in their mind and become a co-author."

That, and the way the artists' real-life financial concerns shattered old artistic paradigms.

"It's an acquired taste," he says. "But I think by painting fast," the Highwaymen "inadvertently corrupted the cherished concerns of traditional landscape painting. In the process of painting fast to make more money, they actually brought a fresher form to the genre, and challenged it to make something newer and more relevant than the established mode.

"By painting fast, they stripped bare the artifice."

Other enthusiasts agree.

"What really makes the Highwaymen story magical is the story," says Hambrick. "People aren't buying this artwork the way you'd buy works by fine artists. It's more of a populist kind of appeal."

Identifying marks

And many of the pivotal scenes from that Highwaymen story are now on display at Martin's gallery. There's Highway A1A, Eddy's Place, a triptych of the backwoods marsh at sunset, a rendering of the Florida Everglades.

When the artist rolls into the gallery to meet with his latest exhibitor, Martin can barely contain himself.

"For a while, I had 'em in a locked room upstairs," he says of the paintings. "You have to have a certain level of confidence when handling this level of value."

Black walks around the gallery, decked in gold chains, his wrists stacked with bracelets. "She did a very good job," he says when Martin tells him his assistant did the hanging.

Soon the talk turns to money, and the former typewriter salesman has a few suggestions. The typical Al Black painting features three white birds to represent the father, the son and the Holy Spirit. Two of the paintings don't, though: these, Martin is told, can be priced higher. (The gallery owner has yet to tag the works but says many will start around $1,000.)

Black also shows Martin how to identify the prison paintings -- they are the ones where his signature is written in those austere block letters.

"When you tell them Al Black painted them in prison, they sell so fast," Black says.

Which will most likely be the fate of the tree painting on display in the front lobby.

"Man," says Martin, ecstatic. "I got me a prison poinciana!"

With killer executed, evidence to go up in flames


By NATHAN CRABBE
THE GAINESVILLE SUN
Published Friday, June 20, 2008 at 4:30 a.m.
Last updated Friday, June 20, 2008 at 11:35 a.m.

GAINESVILLE — Nearly 20 years after Danny Rolling terrorized this college town, the more than 2,000 items of evidence tying him to the murder of five college students are finally being destroyed.

Convicted and sentenced to death in the killings, the 52-year-old Rolling was executed in October 2006 at Florida State Prison near Raiford. The evidence, which had been stored away over the years as his case made its way through the appeals process, was made public this week.

The Alachua County Sheriff's Office will burn everything in the next two weeks, ensuring the items do not get into the hands of collectors, said Lt. Steve Maynard, a spokesman for the office.

"There is zero opportunity for anything here to be sold on eBay," he said.

Alachua County Sheriff Sadie Darnell, Gainesville Police spokeswoman at the time of the murders, said she worked with the victims' family members to remove personal items such as checkbooks, jewelry and photographs.

She said she was glad to clear storage space of items that constitute one of the largest cases ever handled by the office.

"It feels good to have it taken care of and destroyed," she said.

Dianna Hoyt, stepmother of victim Christa Hoyt, said nothing would provide complete closure for families. But she said Rolling's execution has removed some of the pain from events that recall the murders.

"You can never have closure in the death of a loved one; you'll always remember that person," she said. "But now at least you know the terrible part is over with."

In August 1990, Rolling murdered five college students in their Gainesville apartments. The slain students were Sonja Larson, 18, of Deerfield Beach; Christina Powell, 17, of Jacksonville; Christa Hoyt, 18, of Archer; Manuel Taboada, 23, of Carol City; and Tracy Paules, 23, of Miami.

Their bodies were found over a three-day period at the start of the University of Florida's fall semester. The crimes and their gruesome nature -- some of the victims were mutilated and posed -- had students fleeing Gainesville and the news media descending upon the city.

Ten days after the killings, Rolling ended up in custody at the Marion County jail on robbery charges. It took another five months before police linked him to the killings through DNA evidence. During that period other suspects were investigated, including UF freshman Edward Humphrey.

Humphrey's fingernail scrapings and blood samples were among the remaining evidence. Scores of bags were filled with evidence that did not pan out, including a variety of knives.

"I think every knife that was lying in Gainesville was picked up and collected and returned to us," Hewitt said.

Rolling told police he disposed of a knife used in the murders in a barn on the UF campus. A video of an excavation of the site was among the evidence. The knife was never recovered.

A native of Shreveport, La., Rolling was a homeless drifter at the time of the killings. The evidence included a tent and other camping equipment recovered from the site where he lived in the woods behind what is now UF's Phillips Center for the Performing Arts.

Among the items found at the site was an audio recording in which Rolling played guitar and concluded with these words: "Well, I'm gonna sign off for a little bit. I got something I gotta do."

The guitar was not recovered at the camp location, but tracked to a Sarasota man who had bought it from Rolling. The guitar was part of the remaining evidence.

Other items included a backpack found at a Mississippi campsite where Rolling stayed before committing a robbery there.

Rolling's crimes in other states were mostly limited to robberies and thefts, but were later found to include the August 1990 rape of a Sarasota woman and the November 1989 slayings of three Shreveport residents.

The Sarasota attack against Janet Frake occurred about a week before Rolling appeared in Gainesville. Frake was 30 at the time and lived alone. Rollins apparently entered her home through an unlocked window and waited inside for her.

"What I encountered that night was pure evil," Frake said in a 2006 interview. "That's what it was -- pure evil."

Also while in Sarasota, Rolling bought a pistol, jewelry and a pair of glasses that were found at his Gainesville campsite.

On Aug. 18, he checked into a Gainesville hotel -- eight days before the first of five bodies in the Gainesville murders was found.

As jury selection began in his murder trial in 1994, Rolling pleaded guilty.

He was sentenced to death and executed by lethal injection, an event that attracted throngs of protesters and national media attention.

Slain State Trooper Was Buried Saturday


Funeral services for slain NC State Trooper David Shawn Blanton were Saturday, at the Lake Junaluska Conference and Retreat Center in Lake Junaluska. He was buried at Thomas Memorial Cemetery in Cherokee.

Blanton was shot to death Tuesday night after a trafffic stop near Canton on I-40. Eduardo Wong, age 37 of Florida...was chased down and apprehended a short time later and is in the Haywood County jail, charged with murder, and is being held without bond. In his first court appearance, Wong was informed by Haywood County District Court Judge Monica Leslie that he could be facing the death penalty by lethal injection.

Trooper Blanton reportedly struggled with the suspect before being shot. As he attempted to flee from officers, Wong is said to have fired gunshots at Haywood County deputies and had three handguns in his possession, including Trooper Blanton's, when apprehended.

Blanton had stopped the truck Wong was driving east on I-40 for a registration violation. Wong was reportedly pulling a trailer with a gray Nissan Altima on it headed into North Carolina from Tennessee.

Wong had previously been convicted of assaulting law enforcement officers, of felony possession of narcotics, and felony possession of weapons.

Trooper Blanton is survived by his wife and infant son. After being shot in the shoulder and wrist, Blanton died in Mission Hospitals in Asheville. His infant son had recently been born pre-maturely and his wife was reportedly a patient in that hospital when Trooper Blanton was taken there after the shooting.

Saturday, June 21, 2008

MARK DEAN SCHWAB - SUCCESSIVE MOTION TO VACATE SENTENCE OR STAY EXECUTION

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, IN

AND FOR BREVARD COUNTY, FLORIDA

CASE NO. 91-7249-CF-A

STATE OF FLORIDA, CAPITAL CASE

EXECUTION SCHEDULED

Plaintiff, JULY 1, 2008

6:00 P.M.

v.

MARK DEAN SCHWAB,

Defendant

______________________/

SUCCESSIVE MOTION TO VACATE SENTENCE OR STAY EXECUTION

Mark Dean Schwab, by undersigned counsel, files this motion to vacate his

sentence of death pursuant to Fla. R. Crim. P. 3.851, or stay execution. This is a

successive motion filed under Rule 3.851(c)(2). A warrant has been signed and

execution is scheduled for the week of June 30th, 2008.

The defendant was convicted of first degree murder and capital sexual battery

after a nonjury trial and sentenced to death on July 1, 1992. The judgment and sentence

were affirmed on direct appeal to the Florida Supreme Court. Schwab v. State, 636 So.2d

3 (Fla. 1994) cert. denied 513 U.S. 950, 115 S.Ct. 364 (1994). Thereafter, Schwab filed

an original motion for postconviction relief, the denial of which was affirmed in Schwab

v. State, 814 So.2d 402 (Fla. 2002). The denial of Schwab=s federal petition for a writ of

habeas corpus was affirmed in Schwab v. Crosby, 451 F.3d 1308 (2006) cert. denied 127

S.Ct. 1126 (Mem), 166 L.Ed.2d 897. The State previously filed a memorandum on July

26, 2007 titled AThe Issues Raised in Prior Proceedings,@ which accurately quotes the

appellate courts= description of the issues which were raised on direct appeal, in state

postconviction proceedings and on federal review, and their disposition. Mr. Schwab

filed a successive motion to vacate on August 15, 2007. In it he raised two issues

challenging the constitutionality of Florida’s lethal injection procedure and raising the

claim that newly discovered mitigation evidence of neurological brain damage made his

sentence of death unreliable. The postconviction court denied relief. On November 1,

2

2007, the Florida Supreme Court affirmed the denial of all relief. Schwab v. State, No.

SC07-1603 (November 1, 2007). On November 9, 2007, Mr. Schwab filed another

motion for post-conviction relief based on newly discovered evidence regarding

mitigation and a claim addressing Florida’s method of execution. Relief was denied on

January 24th, 2008, by the Florida Supreme Court. Prior to the ruling, however, the

United States Supreme Court granted Mr. Schwab a stay of execution on November 15th,

2007.

This motion is predicated on the recent United States Supreme Court decision in

Baze v. Rees and the evidence supporting the claims that Florida’s procedures for

carrying out executions by lethal injection create a “substantial risk of serious harm”.

Baze v. Rees, Slip Op. at 10-11 (Opinion of Roberts, C.J.) The witness information is

furnished on a witness list which is being filed simultaneously with this motion. These

witnesses will be available to testify under oath. The relief sought is an order vacating the

sentence of death, or a stay of execution, or such other relief as this Court may deem

appropriate.

CLAIM I

THE UNITED STATES SUPREME COURT’S DECISION IN BAZE V. REES

SUPERCEEDED THE STANDARD OF REVIEW RELIED UPON BY FLORIDA

COURTS IN REJECECTING EVIDENCE THAT CLEARLY REVEALS THAT

FLORIDA’S LETHAL INJECTION EXECUTION PROCEDURES CREATES A

SUBSTANTIAL RISK OF SERIOUS HARM AND THUS VIOLATES THE

EIGHTH AND FOURTEENTH AMENDMENTS AND CORRESPONDING

PROVISIONS OF THE FLORIDA CONSTITUTION.

I. The Baze Decision

On April 16, 2008, the United States Supreme Court issued its plurality opinion in

Baze v. Rees, No. 07-5439, (April 16, 2008). The Supreme Court in Baze attempted to

define the standard applicable to method of execution cases. Due to the nature of the

Baze opinion, no clear standard was affirmatively adopted by a majority of the Court. In

fact, four standards emerged from the various opinions with only two having at least

three justices joining. In an opinion by Chief Justice Roberts, joined by Justices Kennedy

and Alito, the three members of the Court proposed that the proper standard should be a

“substantial risk of serious harm”. Baze v. Rees, Slip Op. at 10-11 (Opinion of Roberts,

3

C.J.)(hereinafter “Baze decision”). Further, this three-justice opinion requires an

additional showing by a “condemned prisoner” for a stay of execution of a comparison

between the challenged execution procedures and “known and available alternatives”. Id.

at 22. Three other Justices, Breyer, Ginsburg and Souter, proposed a standard that

requires a showing of an “untoward, readily avoidable risk of inflicting severe and

unnecessary pain”. Baze v. Rees, Slip Op. at 11 (Ginsburg, J., dissenting); Id., at 1

(Breyer, J., concurring).

The Standards announced in Baze squarely conflict with the standard relied upon

by the Florida Supreme Court in the January 24th, 2008, opinion in which it reviewed Mr.

Schwab’s claim under an “inherent cruelty” standard. In fact, the United States Supreme

Court explicitly rejected the “unnecessary risk” standard also announced by the Florida

Supreme Court. The Chief Justice’s opinion is perhaps the one to be adopted by the

lower courts. This opinion explains the standard which should be applied by the lower

courts:

Our cases recognize that subjecting individuals to a risk of future harm-not simply

actually inflicting pain-can qualify as cruel and unusual punishment. To establish

that such exposure violates the Eighth Amendment, however, the conditions

presenting the risk must be “sure or very likely to cause serious illness and

needless suffering,” and give rise to “sufficiently imminent dangers.” … We have

explained that to prevail on such a claim there must be a “substantial risk of

serious harm,” an “objectively intolerable risk of harm” that prevents prison

officials from pleading that they were “subjectively blameless for purposes of the

Eighth Amendment.

Baze v. Rees, Slip Op. at 10-11 (Opinion of Roberts, C.J.)

Additionally, the United States Supreme Court now requires an additional

evidentiary showing for Mr. Schwab in order to obtain a stay of execution. The Supreme

Court now requires that Mr. Schwab proffer alternatives that effectively address a

substantial risk of serious harm. Further, the Court stated that “the alternative procedure

must be feasible, readily implemented, and in fact significantly reduce a substantial risk

of severe pain.” Baze v. Rees, Slip Op. at 13.

Based on Florida’s prior experience with lethal injection and documentary

evidence concerning the Florida Department of Corrections’ current training program, as

discussed below, Florida’s lethal injection execution procedures create a substantial risk

of serious harm.

4

II. Florida Department of Corrections Execution Training

On December 13, 2006, the execution of Angel Diaz created concerns whether

Florida’s lethal injection protocols were being adequately implemented by the Florida

Department of Corrections. As a result, then Governor Jeb Bush created the Governor’s

Commission on the Administration of Lethal Injection to review the method in which the

lethal injection protocols are administered by the Department of Corrections (“DOC”)

and to make findings and recommendations as to how administration of the procedures

and protocols can be revised. As found by the Governor’s Commission on

Administration of Lethal Injection (“GCALI”) in its final report, inadequate training was

a major contributing factor leading to the events of the Diaz execution. To reduce the

risk of these events recurring, GCALI determined that better and proper training of the

DOC execution team was required. (exhibit 3) The DOC, pursuant to the newly revised

protocols of May, 2007, conducted several training sessions for the execution team.

These initial training sessions included both the DOC execution team members and

observers from the Florida Department of Law Enforcement (“FDLE”)(exhibit 4).

As previously noted before this Court, Mr. Schwab obtained the services of Janine

Arvizu, a certified quality auditor, to review the protocols and session notes. After a

review of the notes taken during the mock executions, it was determined that two of the

five July 2007 mock executions resulted in failed exercises.1 This was an error rate of

40%. This continued level of training would result in a probability of eight failed

“exercises” for every twenty practice executions and sixteen failed exercises for every

forty practice executions. This is shown in exhibit 14, Table 1a.

As a result of the Lightbourne litigation, the DOC revised their protocols which

were effective August 1, 2007. The execution process remained the same except for the

inclusion of an extra step to “assess consciousness” just prior to the injection of the

second chemical. Using these revised protocols, the DOC conducted seven mock

executions. (exhibit 4) Again, based on these training session notes, it was determined

that two of the seven August 2007 mock executions resulted in failed exercises. This is a

1 The definition of a “failed exercise” for the purposes of this analysis has several key aspects. First, a

failure does not encompass an exercise where the error or errors would result in “some risk of pain”, Baze,

at 8, or an “isolated mishap”. Id. at 11. A failed exercise would encompass a substantial error where an

5

29% error rate. This continued level of training would result in a probability of six failed

exercises for every twenty practice executions and twelve failed exercises for every forty

practice executions. These August training notes were not addressed in Mr. Schwab’s

prior motion for relief. This is shown in exhibit 14,Table 1b.

Combining July and August, there were twelve trials in which four were failed

exercises. This is a 33% error rate with a probability of seven failed exercises for every

twenty practice executions and thirteen failed exercises for every forty practice

executions. This combined analysis is shown in exhibit 14, Table 1c.

On May 27th, 2008, Mr. Schwab filed a renewed records request for the DOC

training session notes for the period between September, 2007, to the present. This Court

granted the motion and the DOC records were received on June 16, 2008. These records

indicate that between September, 2007 and May, 2008, the DOC conducted thirty

training exercises. Again, after review of these records, Ms. Arvizu found significant

training failures. (exhibit 8). The records indicated that nine of the thirty exercises were

failures resulting in an error rate of 30%.

III. Prior Florida Executions

Objectively, the data from the DOC training sessions and data obtained from

Florida’s prior twenty lethal injection executions are relevant to show a substantial risk of

harm. In Baze, the Court distinguished between two types of error:

In terms of our present Eighth Amendment analysis, such a situation-unlike an

“innocent misadventure,” -would demonstrate an “objectively intolerable risk of

harm” that officials may not ignore. In other words, an isolated mishap alone

does not give rise to an Eighth Amendment violation, precisely because such an

event, while regrettable, does not suggest cruelty, or that the procedure at issue

gives rise to a “substantial risk of serious harm.”

Baze, Slip Op. at 11-12 (citations omitted, emphasis added).

This objective analysis based on the data discussed infra establish that these errors are not

“isolated” mishaps but, instead, reoccurring errors in both training and past executions.

Florida’s prior lethal injection execution data were collected in order to focus on

three major areas of concern 1) technical issues, 2) duration issues, and 3) myoclonic

Eighth Amendment violation would be presented or where the error shows objective evidence that the

achievement of significant learning objectives were not obtained.

6

observation issues. Specifically, the data set to be included involved the executions by

lethal injection conducted in Florida between 2000 and 2006.

a. Florida Technical Issues

Investigation reports conducted by the medical examiner provided the basis for

the data. The only data available were for seventeen of the twenty lethal injection

executions conducted during this time period. These reports were reviewed for technical

anomalies which included 1) irregular IV placements, along with evidence of iatrogenic

manipulation,2 2) surgical incisions for IV access, 3) recent multiple needle puncture

marks indicating failure to gain IV access at the initial site, and 4) one instance indicating

subcutaneous IV insertion. Out of the seventeen executions for which data were

available, six post-execution investigative reports found technical anomalies, or in

probability terms, a 35% error rate with an expected total of fourteen technical anomalies

after Florida executes forty individuals by lethal injection. This is shown in exhibit 14,

Table 2.

The existence of past technical anomalies and the high probability (or certainty)

of their occurrence in the future implicate deviations in the execution mechanics and

show that due to inadequate training, the execution team is routinely incapable of finding

proper IV access without several attempts. While the argument can be made that such

problems occur in a clinical setting, the fact that the DOC fails 35% of the time indicates

a high level of failure due to inadequate training.

Under a Baze analysis, these data establish that Florida is “subjecting individuals

to a risk of future harm”. Id. at 10. The Baze decision discussed in great length this issue

of proper IV placement, the issue that lead to the events of the Diaz execution. Baze, Slip

Op. at 15. The Baze Court discussed Kentucky’s training procedure in this area:

Moreover, these IV team members, along with the rest of the execution team,

participate in at least 10 practice sessions per year. These sessions, required by the

written protocol, encompass a complete walk-through of the execution

procedures, including the siting of IV catheters into volunteers.

Baze, Slip Op. at 16 (record citation omitted, emphasis added).

2 “Iatrogenic” is defined as being “induced inadvertently by a physician or surgeon or by medical

treatment.” MERRIAM-WEBSTER MEDICAL DICTIONARY (2005 Ed.).

7

Kentucky trains the IV team by siting the lines into a person. Florida does not,

even though improper IV placement was major cause of the problems during the Diaz

execution. Florida’s substandard training of the technical team members responsible for

gaining IV access create conditions that present a risk of harm which is “sure or very

likely to cause serious illness and needless suffering,” and give rise to “sufficiently

imminent dangers.” Id. at 10-11.

b. Florida Duration Issues

Relevant to the Baze standard is the amount of time that elapses from the start of

the lethal injection chemical sequence until death. Evidence about the mechanics of

lethal injection and the pharmacological and pharmacokinetic properties of the chemicals

was obtained from the Lightbourne record through the testimony of the state’s expert Dr.

Dershwitz. (exhibit 1)

Based on this evidence, the normal duration of an execution by lethal injection

should last no more than eleven minutes. Compared to the duration of prior executions in

Florida, ten out of nineteen, or 53%, of Florida’s lethal injection executions exceeded this

time parameter. Further, this trend will continue and after twenty more executions (for a

total of forty), there is a statistical certainty that twenty-one executions will exceed the

constitutional duration limit. The mean duration for these executions is 13.8 minutes.

(exhibit 11) This is illustrated in exhibit 14, Table 3a.

Applying a t test, where the null hypothesis is true, shows that 83% of Florida’s

future executions will take longer than the eleven minute parameter established through

Dr. Dershwitz’s testimony. These findings show that 34% of future executions will take

between 13.79 and 20.12 minutes and 16% of future executions will take more than 20.12

minutes. Finally, the top 25% of Florida’s future executions will take more seventeen

minutes. (exhibit 11) Exhibit 14, Table 3b shows the t test and results.

These data are relevant to a Baze analysis in several respects. First, the execution

duration parameter is based on the scientific testimony of Dr. Dershwitz. The foundation

of this testimony is the pharmacokinetic and pharmacological properties of the three

drugs used in Florida and the weight and volume of their administration. According to

this testimony, an execution should take no longer than eleven minutes. Clearly, this is

not the case in Florida since a majority of past executions exceeded this parameter. This

8

means that these drugs are being “maladministered” as understood by the Baze Court. It

is more probable than not that this error rate is due to the improper administration of the

chemicals because of the 35% technical error rate, an error that featured prominently

during the Diaz execution. Since there is a statistical correlation between the training

session error rates and past lethal injection error rates, there is no doubt that these errors

will continue.

Second, the Baze Court also recognized the notion of “needless suffering” as part

of the Court’s Eighth Amendment jurisprudence. See id. at 10-11. The touchstone of

“needless suffering” is the mechanics of a particular method of execution, See id. at 8,

which were established by Dr. Dershwitz. Thus the high duration error rate in past

executions objectively shows a “substantial risk” of “unnecessary suffering”.

Third, the choice by Florida to use a large dose of sodium pentathol, as opposed

to the smaller doses used by other states, appears to prolong an execution rather than

hasten death.3 This is again supported by the testimony of Dr. Dershwitz concerning the

pharmacokinetic properties of sodium pentothal which slow the circulatory and

respiratory systems.4 This leads to a troubling conclusion concerning the “proper

administration of the first drug”. Baze, Slip. Op. at 5. Since there are no clinical studies

with this amount of sodium pentothal, the definition of a “proper administration” can

only be based on the pharmacokinetic properties of the first drug. This, however, creates

a conflict: either the testimony of Dr. Dershwitz is wrong or the drug is being improperly

administered. In other words, “we know not what we do”, or we know what to do but

cannot do it right.

c. Florida Myoclonic or Other Observable Movements

The last area of concern involves witness observations during past lethal

injections of certain involuntary movements, termed myoclonus, by the prisoner. This

term as used here includes spasms, convulsions or other involuntary movements

witnessed during the injection of the lethal chemicals. For the prior twenty lethal

3 This issue is fully developed in part III, infra.

4 See exhibit 6. It should be noted that when discussing the pharmacokinetics of the three drugs, the

sodium pentothal reaction time is measured from the start of administration as opposed to the completion of

administration for the other two drugs. See Baze, at 6.

9

injection executions in Florida, seven, or 35%, had observable myoclonic events. (exhibit

11) This is shown in exhibit 14, Table 4.

Based on the evidence contained in Lightbourne, these events should not occur

during executions by lethal injections. These data show that 35% of Florida’s prior

executions include either complications due to the pharmacological properties of the

chemicals or inadequate training of the DOC execution team.

Under a Baze analysis, myoclonic observations are relevant for several reasons.

First, the propriety of using pancuronuim bromide was debated by the Baze litigants. The

Baze Court found its use proper:

First, it prevents involuntary physical movements during unconsciousness that

may accompany the injection of potassium chloride. The Commonwealth has an

interest in preserving the dignity of the procedure, especially where convulsions

or seizures could be misperceived as signs of consciousness or distress. Second,

pancuronium stops respiration, hastening death. Kentucky's decision to include

the drug does not offend the Eighth Amendment.

Baze, Slip Op. at 19 (record cite omitted, emphasis added).

While the Baze Court found the state’s interest compelling, Florida’s myoclonic error rate

disputes this finding.

Second, the myoclonosis observation is evidence that the DOC is not properly

administering the chemicals. If properly administered, the pancuronium bromide should

prevent involuntary physical movements according to the testimony of Dr. Dershwitz.

Since his testimony is the only definition of “proper administration” on the record, then it

is clear that Florida has not met this standard 35% of the time in the past.

Third, this again raises the issue of the “proper administration” of sodium

pentothal. The large dose of sodium pentothal greatly reduces the rate of circulation.

Based on the data, this dose inhibits the progress and efficacy of the pancuronium

bromide. This would result in a failures to prevent involuntary movements and hasten

death.

d. Florida Combined Data

Taken together, the data presented above reveals that 40% of Florida’s prior lethal

injection executions had at least two shared areas of concern implicating the Eighth

Amendment. Six executions had at least two anomalies. Two executions had all three

present (one of which was the execution of Angel Diaz). These results rebut any

10

argument that the errors are “isolated” since 40% of Florida executions show two or more

errors. (exhibit 11) This is shown in exhibit 14, Table 5.

The combined Florida data is relevant to a Baze analysis. The proportion of

anomalies that occurred during the reported training period discussed above was 33%.

The proportion of executions with two or more anomalies that occurred was 40%. Based

on the evidence presented with this motion (see exhibit 11), one of Mr. Schwab’s experts

calculated whether the difference between these two proportions is statistically

significant.

This expert found that it is reasonable to assume (in this case with 98% certainty)

that the number of anomalies that will occur in actual executions will be not be

significantly lower or higher in the future real executions than the 33% that was observed

in the training exercises. (see attachment 11) Based on the data analysis, the expert’s

conclusion is that there is a significant (and thus legally relevant) relationship between

the DOC training error rate and the combined error rate for past executions. Id.

Thus, under a Baze analysis, Florida’s current procedure for executions by lethal

injection creates a “substantial risk of serious harm” by providing data that proves an

“objectively intolerable risk of harm.”5 Florida’s prior lethal injection procedures created

a substantial risk of serious harm that culminated in the events of the Diaz execution.

Based on the above objective analysis, it is clear that the DOC has not significantly

reduced this risk. As the Baze Court stated: “subjecting individuals to a risk of future

harm-not simply actually inflicting pain-can qualify as cruel and unusual punishment.”

Id. at 10. This is the situation in Florida.

e. The Additional Consciousness Assesment

The only major difference for this analysis between the May 2007 protocols and

the August 2007 protocols is the addition of a consciousness assessment between the

injection of the first and second chemicals. The Florida Supreme Court relied upon this

added step heavily in its Lightbourne opinion.

However, under a “step error analysis” this addition does not decrease the error

rate. As with any process, each step of a process is dependent upon the prior step being

5 It should be noted that in statistics terminology, a “significant relationship” supports evidence for

hypothesis. “Proves” is a legal term applying this evidence.

11

successfully completed. The number of steps and the accuracy at each step are relational

in determining the risk of error in any process. Thus there is a statistical relationship at

every step of the process and the more steps there are, a cumulative risk of error based on

the number of steps. From a statistical point of view, this only increases the level of risk.

Under the assumption that there are twenty-five steps from insertion of a

periphery IV access line up to, but not including, the injection of the second drug (with

no consciousness assessment), the probability of success per step can be calculated using

three different accuracy values of .95, .97, and .99. When the DOC adds a single step to

the process, this statistical example shows a reduction in the probability of success.

Number of Steps 95% accuracy 97% accuracy 99% accuracy

26 26% 45% 77%

25 28% 47% 78%

A similar example is shown from the data in section III(a)(2) below with the

analysis of Ohio’s error rates. After the execution of Joseph Clark (#21) on May 2, 2006,

that featured problems with gaining and maintaining IV access, Ohio added additional

steps to assess the IV lines after the first and second chemicals were injected. Instead of

lowering the error rates, they increased. For all Ohio executions up to Joseph Clark, there

was a technical error rate of 45%, a duration error rate of 50% and a myoclonic error rate

of 14%. The executions after the additional steps were added had a technical error rate of

60%, a duration error rate of 80% and myoclonic error rate of 20%.

These data support the hypothesis that Ohio did not adequately assess the

problems illustrated by the Clark execution including such factors as the IV cannulae size

and type, the adequacy of the pre-execution medical exam or the adequacy of the IV team

training. Instead, Ohio opted to add an additional step that most probably relied upon

inadequate factors, such as inadequately trained IV team members, to correct the

problem.

There is no evidence that the Florida DOC currently trains for assessing

consciousness in a manner that would significantly impact the statistical relationship

between the current DOC error rate and the prior execution error rate. Furthermore, the

12

high DOC training error rate supports the hypothesis that the success of this extra step to

reduce errors still relies upon poorly training personnel. As such, Florida will fare no

better than Ohio in this regard.

III. Comparative Analysis

Relevant to this issue is a comparative analysis mandated by the Baze Court’s

plurality opinion, see Baze, Slip Op. at 22, and that any comparison by this court is a

finding of fact rather than a conclusion of law.

a. Ohio and Lethal Injection

Florida and Ohio use similar methods for execution by lethal injection.6 Like

Florida, Ohio has also experienced recent problems with lethal injection executions.7

Problems with IV access were well documented, leading to revisions in Ohio’s protocols.

Errors still occurred, however, during attempts to gain IV access during subsequent

executions. The Ohio data included all information available for the twenty-six

executions by lethal injection from 1999 to 2007.

1.Ohio Technical Issues

Technical issues for Ohio were gathered from data contained in the execution logs

prepared by the Ohio Department of Rehabilitation and Correction (DRC). This

information was corroborated from other sources. Out of the twenty-five executions for

which data was available, twelve executions had technical anomalies resulting in a 48%

error rate. Using a probability formulation, there will be an expected total of twenty-four

technical anomalies after Ohio executes fifty individuals by lethal injection. This is

shown in exhibit 14, Table 6.

Ohio’s recent history of lethal injection executions was plagued by technical

errors. Ohio’s DRC recognized this issue in June, 2006, and attempted to address

problems with gaining proper IV access after the execution of Joseph Clark (#21). As

shown by the data, however, these problems continue to persist (executions 22,25,26).

2. Ohio Duration Issues

6 See fn.9.

7 For example, on May 2, 2006, the execution of Joseph Clark took an “unprecedented amount of time” to

effectuate death. Due to a failure to gain proper IV access, Clark’s execution lasted fifty-three minutes.

13

Ohio execution duration issue data were collected from the execution logs created

by the DRC and pertained to the time from the start of the chemical injection process to

the time that death was pronounced. The expected execution duration was again

calculated from the affidavits and testimony of Dr. Dershwitz pertaining to an injection of

two grams of thiopental sodium and 100 milliequivalents of potassium chloride.

This analysis shows that the period from 1999 to May of 2006, Ohio’s mean

execution time was 8.6 minutes.8 Using the data provided by Dr. Dershwitz with a +/-

time of one minute, the mean is 2.6 minutes above the expected execution duration.

Also, during this period, ten out of twenty of Ohio’s lethal injection executions exceeded

the time parameter. This is a 50% execution duration error rate with an expected twentyfive

executions having duration errors after Ohio conducts a total of fifty executions. This

is shown in exhibit 14, Table 7a.

During the period from July 2006 to 2007, Ohio conducted five executions.9 Four

of these five executions exceeded the execution duration resulting in an 80% error rate.

This is shown in exhibit 1, Table 7b. One can reasonably conclude from this and the data

in Table 6 that Ohio’s revised protocols did not prevent error but instead increased its

occurrence.10

Combining the data during this period (from Table 7a and Table 7b), finds that

fourteen executions by lethal injection out of the twenty-five, or 56%, for which data was

available, exceeded the established time parameters.

3. Ohio Myoclonic or Other Observable Movements

Myoclonic data for Ohio were collected from witness observations during

executions by lethal injection. For the twenty-six executions by lethal injection in Ohio,

only four had reported evidence of myoclonic movements, a 15% error rate with an

expected eight executions having observable myoclonic events during the injection

sequence out of fifty executions in Ohio. This is shown in exhibit 14, Table 8.

4. Ohio Combined Data

8 The analysis of the Ohio data was divided because the chemical injection procedure was changed after the

Joseph Clark execution. Beginning with the Rocky Barton execution in July, 2006, two separate sixty

second saline flushes and assessments were added in lieu of the previous 20mL saline flush. No other

significant changes were made.

9 The longer time for this flush and assessment replacement was added into the execution duration

originally calculated from Dr. Dershwitz’s testimony and sworn statements.

14

The combined data presented above reveals that like Florida, 40% of Ohio’s prior

lethal injection executions had at least two shared areas of concern implicating the Eighth

Amendment. Seven executions had at least two anomalies. Three executions had all

three present (one of which was the execution of Joseph Clark). This is shown in exhibit

14, Table 9.

b. Georgia and Lethal Injection

Georgia has also experienced problems with lethal injection executions since the

state first used this method back in 2001. Like Florida and Ohio, Georgia uses the same

three chemicals has had persistent problems with gaining proper IV access.11

Data collection for Georgia was done using information gathered primarily from

the Alderman v. Donald proceedings, a federal §1983 challenge in the United States

District Court for the Northern District of Georgia which concluded in May of 2008.12

These data included all information available from Georgia lethal injection executions

10 See section II(e) above for a complete discussion.

11 Since 2000, Georgia has adopted three different lethal injection protocols. The original execution

protocols became effective in May of 2000 with revisions in September of 2002 and June of 2007.

Georgia’s chemical weights are different in some respects to Florida and Ohio. First, similar to Ohio,

Georgia uses two grams of thiopental sodium. Next, Georgia uses only 50 mg of pancuronium bromide

compared to the 100 mg used by Florida and Ohio. Lastly, where Florida uses 240 milliequivalents of

potassium chloride and Ohio relies on a lower amount of 100 milliequivalents of potassium chloride,

Georgia utilizes 120 milliequivalents of potassium chloride. Like Florida and Ohio, Georgia injects saline

after the administration of the first two drugs. Ohio and Georgia, unlike Florida, also ends the chemical

sequence with an injection of saline.

Also different is the injection delivery process, specifically, the syringe volumes used for the

injection sequence. Florida utilizes eight total volume 60cc (ml) syringes. Syringes 1 and 2 inject the

sodium pentothal. Syringe 3 is a saline solution. Syringes 4 and 5 inject the pancuronium bromide.

Syringe 6 is again saline. Finally syringes 7 and 8 inject the potassium chloride. In Ohio, syringes 1 and 2

each inject a volume of 40cc of sodium pentothal. Syringe 3 is a 20cc of saline flush. Syringes 4 and 5

each inject a volume of 25cc of pancuronium bromide. Syringe 6 is another 20cc of saline flush. Syringe 7

is a 50cc injection of the potassium chloride. Finally, syringe 8 is a 20cc saline flush. Georgia uses seven

total volume 60cc syringes. Syringes 1 and 1a each inject the sodium pentothal. Syringe 2 (the third in the

sequence), is a 60cc saline flush. Syringe 3 delivers the pancuronium bromide. Syringe 4 is another saline

flush. Syringe 5 is the potassium chloride. Finally, syringe 6 (the seventh in the sequence) is a saline flush.

It should be noted that the Georgia 2002 and 2007 protocols are similar with respect to the

injection process. The original 2000 protocols appear to be different. They also are vague as to the

volumes used for each chmical. However, based on testimony given in the State v. Nance hearings held on

April 30th and July 30th, 2002, the injection process appears the same.

For example, during the execution of Jose High in November of 2001, the medical technicians had

difficulty establishing IVs in both his arms. While IV access was established in High’s left hand, the

technicians were unable to establish an IV line in the right arms, hand or foot. As a result, technicians had

to perform the much more complicated procedure of establishing a central line in his neck. Jose High’s

execution, however, was not a solitary occurance. In fact, Georgia’s first four lethal injection executions

all had problems with establishing proper IV access.

12 Alderman v. Donald, Case No. 1:07-CV-1474-BBM (N.D. Atlanta).

15

from 2001 to 2007 during which time seventeen executions by lethal injection were

conducted.

1. Georgia Technical Issues

Technical issues for Georgia were gathered from data contained in the medical

examiner reports and the execution logs maintained by the Georgia Department of

Corrections (GDOC). Technical issues data were available for all seventeen executions

in this area in which thirteen had technical anomalies resulting in a 76% error rate with an

expected total of 30 technical anomalies after Georgia executes forty individuals by lethal

injection. This is shown in exhibit 14, Table 10.

This is a substantial error rate that appears to have gone unrecognized and thus

uncorrected. The reason why Georgia has such a high technical error rate, even though

the IV team consists of two nurses, is most likely a result of the training schedule which

does not require periodic sessions.13

Further supporting this data are the initial reports about the June 6, 2008,

execution of Curtis Osborne. According to press accounts, the IV team took thirty-five

minutes to find a suitable vein. This is consistent with Georgia’s high technical error rate

(76%) and our probability calculation for future executions.

2. Georgia Duration Issues

Georgia execution duration data were collected from the execution logs

maintained by the GDOC. The relevant Georgia information pertained to the start of the

chemical injection process to the time that death was pronounced. The expected

execution duration was calculated from the affidavits and testimony of Dr. Dershwitz

specific to the chemical weight and volume used in Georgia.

Data was available for fifteen of the seventeen executions conducted from 2001 to

2007. Georgia’s mean execution time was 10.3 minutes. Based on the evidence

provided by Dr. Dershwitz, the expected execution duration in Georgia is nine minutes.

Using the same +/- one minute as before, the longest execution duration should be ten

16

minutes. While the mean duration was only .3 above the expected duration, 33% of

Georgia executions, or five out of fifteen, still exceeded the duration time parameter with

an expected thirteen executions having duration errors after Georgia executes forty

individuals. This is shown in exhibit 14, Table 11.

Georgia’s duration error rate is lower than that for Florida which may be due to

the significantly lower amount of sodium pentothal. For the difference between Georgia

and Ohio, it appears that the difference may involve the chemical volume being injected.

While Georgia’s injection process should take no more than seven minutes to complete,

Ohio should take no more than four minutes. This is a difference of three minutes

whereas the difference between the two means is only 1.7 minutes.

As noted in section III(b)(2), recent Georgia executions after Baze support the

data and conclusions concerning the duration error rate. According to initital press

reports, on May 6, 2008, William Earl Lynd’s execution took seventeen minutes and the

June 4th execution of Curtis Osborne took fourteen minutes. Both executions were above

the calculated duration parameter and above Georgia’s mean execution duration of 10.3

minutes. While the term “proof” is not a statistical term, it can be said that these reports

support the conclusion concerning Georgia’s duration error rate.

3. Georgia Myoclonic or Other Observable Movements

For the seventeen total executions in Georgia by lethal injection, only four had

recorded instances of myoclonosis. This is an error rate of 24% for an expected total of

ten myoclonic errors after forty executions. This is shown in exhibit 14, Table 12.

4. Georgia Combined Data

The combined data presented above reveals that 35% of Georgia’s prior lethal

injection executions had at least two shared areas of concern implicating the Eighth

Amendment. Four executions had at least two anomalies. Two executions had all three

present. This is shown in exhibit 14, Table 13.

The combined results for Florida, Ohio and Georgia show a technical issue error

rate of 43%, a duration issue error rate of 55%, and a myoclonic issue error rate of 24%.

13 According to the testimony in Alderman, even though the protocols require only one nurse on the IV

team, Georgia in practice uses two. Order and Opinion, Alderman v. Donald, Case No. 1:07-CV-1474-

BBM, at 5.

17

In addition, the combined data show that 39% of the executions had the presence of two

or more anomalies.

Florida Ohio Georgia Florida,Ohio,Georgia

Technical Errors 35% 48% 76% 53%

Duration Errors 53% 56% 33% 49%

Myoclonic Errors 35% 15% 24% 24%

Two or More Errors 40% 40% 35% 38%

c. Mean Duration Comparison

As noted in section II above, a comparison between Florida, Ohio and Georgia is

relevant to a Baze analysis where some conclusions can be made about the

pharmacokinetics of these chemicals which have never been studied before in these

amounts. Most relevant is the sodium pentothal that seems to impact the duration of an

execution with the assumption, or hypothesis, that Florida uses 5grams of sodium

pentothal to hasten the death of an individual.

Florida uses five grams of sodium pentothal and 100 milligrams of pancuronium

bromide. The mean execution duration is 13.8 minutes. Next, Ohio uses 2 grams of

sodium pentothal and 100 milligrams of pancuronium bromide. Ohio’s most recent five

executions under the new protocols had a mean execution duration of 10.4 minutes. The

prior twenty executions in Ohio had a mean of 8.6 minutes. Georgia, which uses 2grams

of sodium pentothal and 50 milligrams of pancuronium bromide, has a mean execution

duration time of 10.3 minutes.

The data does not support Florida’s hypothesis that more sodium pentothal

hastens death. In fact the data is contrary to the hypothesis. The difference between the

Florida mean and the Georgia mean is 3.5 minutes. The difference between the Florida

mean and the Ohio mean under Ohio’s newest protocols is 3.4 minutes. The difference

between the Florida mean and the Ohio mean under the prior protocols is 5.2 minutes.

d. The Netherlands

Discussed during both Lightbourne and Baze was the Netherlands and its

experience with euthanasia and physician assisted suicide (“EAS”). (see exhbit 5) The

comparison is relevant because both practices are designed to end life and both profess to

do so in a humane manner. The Dutch study found that in EAS cases, there was a

18

technical issue error rate of 5%, a duration issue error rate of 7%, and a myoclonic issue

error rate of 4%. As noted above, Florida lethal injection executions have a technical

issue error rate of 35%, a duration issue error rate of 53%, and a myoclonic issue error

rate of 35%. Ohio lethal injection executions have a technical issue error rate of 48%, a

duration issue error rate of 56%, and a myoclonic issue error rate of 15%. Georgia lethal

injection executions have a technical issue error rate of 76%, a duration issue error rate of

33%, and a myoclonic issue error rate of 24%.While Dutch EAS practices are done in a

clinical setting, the difference between the EAS practices, Florida, Ohio and Georgia

lethal injection executions are substantial.

Florida Ohio Georgia Netherlands

Technical Errors 35% 48% 76% 5%

Duration Errors 53% 56% 33% 7%

Myoclonic Errors 35% 15% 24% 4%

IV. Comparative Analysis of the Florida and Kentucky Protocols

A comparative review of the Florida and Kentucky protocols finds that they are

not substantially similar. Based on a facial review of the protocols, Ms. Arvizu

concluded that Florida’s protocols were deficient in many important respects:

Despite the fact that the Florida procedure has the potential to function as a better

means of controlling and ensuring the acceptability of an execution, its potential

is unrealized. It suffers from a number of serious deficiencies and inconsistencies

(as identified in my letter to your attention, dated August 14, 2007) that render it

ineffective in achieving its goal of controlling the execution process to achieve an

acceptable result.

In contrast, despite the fact that the Kentucky protocol provides relatively little

detail, it addresses issues that have the potential to cause critical failure of the

execution process, but that are not addressed in the Florida procedure.

See exhibit 8.

In her report, Ms. Arvizu identifies several examples where the Florida protocols

fail to meet the standards approved by the Baze Court. Id.

Furthermore, the recently received DOC training session notes also show that the

Florida protocols are not substantially similar to the Kentucky Protocols. She states in

her report:

The problems identified through review of Florida’s training records are more

readily apparent in comparison to the relevant provisions of the Kentucky

protocol. Florida’s training records document the nature and scope of the

19

contingencies that have been addressed during training. The substantive

contingencies that have been addressed during training are largely limited to

blocked lines. During practice exercises, Florida has not addressed some of the

contingencies that have been experienced in past Florida executions or that have

the potential to compromise the execution process (e.g., execution duration of >12

minutes, or an inability to site the IV lines within more than an hour);

requirements for addressing these serious contingencies are explicitly addressed

in the Kentucky protocols.

Based on the recently received training records, Florida has not provided training

to address an inmate’s known medical problems. In contrast, the Kentucky

protocol is designed to ensure that the inmate’s recent, and potentially changing

medical and psychiatric condition is well documented in advance of the

execution.

See exhibit 8.

V. Alternatives for Florida

Under Baze, in order for Mr. Schwab to obtain a stay of execution, he must

proffer alternatives that “effectively address” a substantial risk of harm. Id. at 13. These

“alternative procedures” must be “feasible, readily implemented, and in fact significantly

reduce a severe risk of pain”. Id. Mr. Schwab proffers two alternative procedures that

must be introduced in order to effectively address the substantial risk of serious harm that

the current protocols present.

a. An Effective Training Program

Mr. Schwab has consistently argued that the current DOC training program is

inadequate. In fact, Mr. Schwab in his original records request sought to obtain any

documentation that showed that such a program exists. The effective training program

that Mr. Schwab submits is necessary is an instructional system design that includes

references to learning objectives, instructor materials, training materials, records of

training delivered, and objective evidence of any achievement of learning objectives.

As outlined in her initial report of August 14, 2007, Ms. Arvizu observed “There

is no indication that team members (presumably identified as STM-#) received training

designed specifically to address learning objectives that were developed in consideration

of their responsibilities.” (exhibit 12) Ms. Arvizu outlined some aspects of a proper

training system in this report:

[The DOC Protocol] requires that training be sufficient to ensure that all

personnel are prepared to carry out their roles. In order for any party to make a

determination that delivery of a given training curriculum has been effective in

this manner, the training should include objective evidence of which individuals

20

achieved which learning objectives. This requirement is typically satisfied

through a written examination or practical demonstration of skills. The available

records provided no indication that the training in question was either designed to

meet specific learning objectives (cognitive, affective, or psychomotor), or that

individuals demonstrated satisfactory achievement through anything other than

attendance.

Exhibit 12 at 5.

In addition her review of the trainings records which were provided revealed an

issue that creates a substantial risk of serious harm:

According to training records provided, none of the medical team members have

received training in the recently revised and approved procedure since it was

released on July 31, 2007. Such training would be a necessary prerequisite to

certifying the department’s capability.

Exhibit 12 at 5.

As a result, Ms. Arvizu concluded:

The number and nature of quality deficiencies and inconsistencies identified in

the reviewed materials lead me to conclude that the department has not

demonstrated that they have put in place the systems and controls necessary to

ensure that they can predictably and reliably perform executions by lethal

injection in accordance with their own objectives.

Id.

After reviewing additional records from the DOC, Ms. Arvizu repeated her earlier

conclusions concerning the adequacy of the DOC training program. Specific issues

concerning inadequate training concerning the effects of the chemicals were found

throughout the records. Finally, on April 1, 2008, Ms. Arvizu prepared another report for

a similar lethal injection claim. Her conclusion was:

Based on my earlier review of the DOC procedure and available training records,

I concluded that the department did not have the systems and controls necessary

to ensure that they can predictably and reliably perform executions by lethal

injection in accordance with their own objectives. Based on my review of these

additional records, my conclusion has not been altered. If I am able to obtain and

review copies of additional requested materials about the department’s training

program, I will provide additional or revised comments and conclusions, as

appropriate.

Exhibit 9 at 4.

Implementing such a procedure, a procedure contemplated by the Governor’s

Commission on Administration of Lethal Injection is feasible since such a program is

standard in all industries. In fact, it is very likely that the DOC uses such a model in

21

other areas of its operations. Since such a training program is the standard industry

model, implementation would not require a major revision to the current program but,

instead, the inclusion of several important elements into the existing procedure. Finally,

it is undisputed that proper training, a training that is up to standard, would significantly

reduce the substantial risk of pain now present under the current DOC program.

b. A Reduction in the Amount of Sodium Pentothal

Based on the data presented, there is credible evidence that the current amount of

sodium pentothal used by the DOC poses a substantial risk of serious harm. As noted by

the Baze court, Kentucky uses three grams of the sodium pentothal equivalent during the

execution process. The state has argued that since Florida uses a much higher dose, then

it more than meets the standard announced in Baze. In fact, the opposite is true. This

conclusion is based on the data for execution duration and myoclonic observations. First,

Florida’s mean execution duration is substantially greater than that for Ohio and Georgia.

Second, Florida’s myoclonic error rate is greater than that for Ohio and Georgia. Thus,

the only plausible conclusion is that the sodium pentothal is unnecessarily delaying death

and inhibiting the pancuronium bromide from reaching the target area in order to arrest

involuntary convulsions.

Reducing the amount of sodium pentothal injected during an execution would

substantially reduce the execution duration and myoclonic error rate and thus

significantly reduce the substantial risk of pain. This reduction is both feasible and can

be readily implemented since the DOC currently relies upon this drug during the

execution procedure.

VI. Conclusion

Based on the above stated grounds, Mr. Schwab respectfully requests that this

Court grant this motion.

CERTIFICATE OF SERVICE

22

I HEREBY CERTIFY that a true copy of the foregoing Motion to Vacate

Sentence and Stay Execution has been furnished by E-mail, Fax and United States Mail,

first class postage prepaid, to all counsel of record on June 20, 2008.

/s/ Mark S. Gruber

MARK S. GRUBER

Florida Bar No. 0330541

Assistant CCC

PETER JAMES CANNON

Florida Bar No. 0109710

Capital Collateral Regional

Counsel - Middle Region

3801 Corporex Park Drive, Suite 210

Tampa, FL 33619

(813) 740-3544

Fax# (813) 740-3554

Email: GRUBER@ccmr.state.fl.us

Counsel for Mark Dean Schwab

Copies furnished to:

Honorable Charles M. Holcomb

Circuit Court Judge

Titusville Courthouse

506 South Palm Avenue

Titusville, FL 32796

Kenneth Nunnelley

Assistant Attorney General

444 Seabreeze Boulevard, 5th Floor

Daytona Beach, FL 32118-3951

Robert Wayne Holmes

Assistant State Attorney

2725 Judge Fran Jamieson Parkway, Bldg. D

Viera, FL 32940

Commission on Capital Cases

ATTN: Roger R. Maas

402 S. Monroe Street

Tallahassee, FL 32399-1300

23

The Honorable Thomas D. Hall

Clerk, Supreme Court of Florida

ATTN: Tangy Hardy

Supreme Court Building

500 S. Duval Street

Tallahassee, FL 32399-1927