Judge suspends execution

A circuit court questions the "experience and competence" of masked executioners.

By ALEX LEARY and STEVE BOUSQUET
Published July 24, 2007


TALLAHASSEE - Less than a week after Gov. Charlie Crist lifted a moratorium on executions, a judge has halted the process for a death row inmate, raising new questions about the future of Florida's death penalty.

Circuit Judge Carven Angel in Ocala questioned the "experience and competence" of the hooded executioner who's paid by the state to apply lethal chemicals in the death chamber.

The judge, speaking during a court hearing Sunday, also questioned numerous protocols established after it took twice as long as normal for murderer Angel Diaz to die because the chemicals did not enter his bloodstream correctly.

The incident led to a seven-month moratorium on the death penalty in Florida, which ended last week when Crist signed a death warrant for rapist and murderer Mark Dean Schwab.

"Our objective is to carry out a process that is consistent with evolving notions of the decency of man," the judge said, according to a transcript of the hearing.

State officials played down the effect of the judge's actions, but others said it could have far-reaching consequences.

"It's going to hold up everything," said Neal Dupree, one of the attorneys for condemned killer Ian Deco Lightbourne, who initiated the challenge now before Angel.

"The DOC is not ready to proceed. They are absolutely not ready," said Mark Elliott, director of Floridians for Alternatives to the Death Penalty, who attended the hearing.

Lightbourne, 47, is on death row for the 1981 murder of Nancy O'Farrell of Marion County. He broke into her home, took some of her belongings and raped her. Authorities say he shot O'Farrell in the face because he knew her and did not want to be identified. No death warrant has been signed in the case.

Dozens of other death row inmates have filed challenges based on the same argument as Lightbourne: The Diaz execution proves Florida's death penalty violates the constitutional protection against cruel and unusual punishment.

The Diaz execution on Dec. 13 took 34 minutes, twice as long as normal, because the lethal drug cocktail went into his flesh, not his bloodstream. Some witnesses said Diaz, condemned for the 1979 murder of a topless club manager, grimaced and clenched his jaw during the procedure.

The Florida Supreme Court has chosen the Lightbourne case to weigh in on lethal injection. While Angel's decision would only serve as a guide, the high court will use the evidence in making its own ruling.

Erin Isaac, a spokeswoman for Crist, played down the effect the suspension would have on the Schwab case and any future death warrants the governor may consider.

Isaac noted that a task force carefully reviewed the state's execution procedures and made recommendations that were then adopted by the Department of Corrections. "The governor is comfortable with that process," Isaac said.

Crist, however, anticipated potential legal wrangling and set Schwab's execution for Nov. 15.

The Supreme Court is scheduled to begin oral arguments in the Lightbourne and Schwab cases on Oct. 11.

Schwab's attorney could not be reached Monday, but he is expected to raise the judge's reservations during a status hearing Wednesday in Brevard County.

- - -

After the Diaz incident, a state panel examined what went wrong. In May, the Corrections Department announced it was heeding the panel's recommendations.

The death penalty chamber was enlarged to give the execution team more room to work, videocameras were installed and a team of nearly 20 went through extensive training.

"Our main objective is for a human and dignified death, and we believe the current procedure does that," department spokeswoman Gretl Plessinger said Monday.

"But the bottom line is this is a dynamic procedure. It's always moving. We plan to improve it at any opportunity we get."

The changes did not seem to satisfy Angel. He focused largely on the qualifications of the prison system's anonymous hooded executioner, who is paid $150 per execution and whose identity is confidential by state law.

The executioner is defined as "a person 18 years of age or older who is selected by the warden to initiate the flow of lethal chemicals into the inmate."

"I don't think that any 18-year-old executioner with the pressure of a governor's warrant behind him to carry out an execution, and with the pressure of the whole world, the press and the whole world in front of him, and looking at him, is going to have enough experience and competence to stop an execution when it needs to be stopped," the judge said, according to the transcript. "I just don't think that's going to happen."

He was also concerned over "putting too much of the burden" on the warden to pick someone to administer the lethal dose and said job descriptions and qualifications for members of the execution team should be detailed.

The judge suggested a system for allowing "public input" in reviewing the procedures for future executions in Florida.

In his statement from the bench, the judge directed some of his comments at Crist.

"He needs to know that the process is going to be consistent with evolving standards and notions of the dignity of man," he said. "... Well, how can the governor know that ... when he's considering whether or not he ought to sign a warrant?"

The judge gave the state until Aug. 17 to respond to his concerns.

Angel, 64, has been a circuit judge since 1975, serving the 5th Judicial Circuit, which is made up of Marion, Lake, Sumter, Citrus and Hernando counties.

He is a graduate of the University of North Carolina and the University of Florida law school.

Staff writer Chris Tisch contributed to this report.