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.