Judge's ruling may assist killer's case

An Ocala challenge to lethal injections may affect Mark Dean Schwab's sentence.

Laurin Sellers

Sentinel Staff Writer

July 26, 2007

TITUSVILLE

Attorneys representing Mark Dean Schwab said Wednesday they hope an Ocala circuit judge's objections to the state's updated lethal-injection procedures will help the condemned killer.

"We are hoping that will provide some relief in Schwab's case, but one ruling by a circuit judge is not binding on another circuit judge," said Daphney Gaylord, one of Schwab's state-appointed attorneys. Gaylord is with the Capital Collateral Regional Counsel, an agency that represents death-row inmates in final appeals.

Last week, Gov. Charlie Crist ended a seven-month moratorium on executions in Florida when he signed Schwab's death warrant for the 1991 kidnap, rape and strangulation murder of 11-year-old Junny Rios-Martinez of Cocoa.

Circuit Judge Carven D. Angel ruled Sunday that Ian Lightbourne, 47, cannot be put to death for the 1981 slaying of Nancy O'Farrell until the Florida Department of Corrections revises its procedures.

Angel outlined what he characterized as several problems with the new protocols Florida officials adopted after the botched Dec. 13 execution of convicted killer Angel Diaz.

Department of Corrections Secretary Jim McDonough didn't think the legal challenge could again freeze executions.

"I really don't see it as a big roadblock," McDonough said. "I think what the court is seeking is a rational explanation of the criteria involved."

Crist, however, hedged when asked this week about Schwab's fate.

"Whether it will affect the warrant that I signed last week, I think is yet to be determined," Crist said, referring to the death warrant he signed for Schwab. "I'm hoping it doesn't."

During a hearing Wednesday before Brevard County Circuit Judge Charles Holcomb, Gaylord said she plans to file a motion Aug. 13 asking Holcomb to consider Angel's concerns.

In signing his first death warrant, Crist said he felt confident lethal injections could continue in line with constitutional bans on cruel and unusual punishment.

During the weekend hearing in Ocala, Angel said the new procedures were not clear enough or were inadequate, noting that the only qualification of the executioner is that he or she be at least 18.

The "execution team" should be trained and the "objective is to carry out a process that is consistent with evolving notions of the decency of man," Angel said, according to a transcript obtained by the Orlando Sentinel on Wednesday.

"It is not going to involve unnecessary lingering or unnecessary or wanton infliction of pain or lingering death."

No death warrant has been signed in Lightbourne's case, but both his and Schwab's case are scheduled to be reviewed by the Florida Supreme Court on Oct. 11, Gaylord said. The higher court's decision on one case could affect the other, she said.

The ban on lethal injections came after Diaz took twice as long as usual to die and required double the normal dosage.

John Kennedy contributed to this report. Laurin Sellers can be reached at lsellers@orlandosentinel.com or 321-795-3251.