Child killer challenges execution

Attorney: State method could cause pain

BY JOHN A. TORRES • FLORIDA TODAY • June 21, 2008

Arguing that the state's revised execution protocol is not good enough and still may cause an inmate pain, attorneys for convicted child killer Mark Dean Schwab petitioned the court Friday to vacate his death sentence.

Schwab is scheduled to die by lethal injection at 6 p.m. July 1 for the kidnapping, rape and murder of 11-year-old Junny Rios-Martinez in 1991.

A governor-appointed task force last year recommended certain changes to the lethal injection execution method after a botched execution in 2006 caused the death of killer Angel Diaz to take twice as long as
normal.

The adopted changes are said to be similar to the method used by Kentucky. That method was approved by the U.S. Supreme Court earlier this year.

But attorneys Mark Gruber and Peter Cannon, representing Capital Collateral Regional Counsel, which defends death row inmates, say data obtained last week shows that Florida's Department of Corrections continues to botch mock executions.

Schwab was hours away from being executed last November when the U.S. Supreme Court issued a stay as justices considered Kentucky's lethal injection protocol.

"These records indicate that between September 2007, and May 2008, the DOC conducted thirty training exercises," the petition reads. "The records indicated that nine of the thirty exercises were failures resulting in an error rate of 30 percent."

Department of Corrections officials said botching the mock executions was done intentionally as part of training.

"Our execution procedure says execution training should include possible contingencies including power failure, equipment failure, combative inmate, incapacity of an execution team member, etc.," wrote Department of Corrections spokeswoman Gretl Plessinger via e-mail. "Training for the unexpected is not a failed mock execution."

But Janine Arvizu, a certified quality auditor retained by Schwab, argued that there are too many irregularities in the training records to go forward with the scheduled execution.

"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," she is quoted as saying in the defense materials.

Junny's abduction and death stunned Central Florida nearly two decades ago. Schwab was already a convicted child-rapist when he posed as a photographer interested in advancing the boy's burgeoning surfing career. When attempts to get close to the family failed, he called the child's school posing as his father and asked that Junny meet him at a baseball field after school.

He took the child to a Cocoa Beach hotel room where he raped and killed him.

A spokeswoman for State Attorney Norman Wolfinger said both Wolfinger and Assistant State Attorney Wayne Holmes were aware of Friday's filing and that it was in line with what they expected. They vowed to continue working with the Attorney General's office in the matter.

In the past, Holmes has called the continuous motions and delays "justice denied."

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