Motion filed in Mark Schwab

http://www.angel-diaz.us/lethal/motionSchwab.htm

http://www.angel-diaz.us/lethal/A982648815.PDF

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,
v.
MARK DEAN SCHWAB,
Defendant
______________________/

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 November 12,
2007.

Information required by Rule 3.851(e): 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. den. 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. den.127 S.Ct. 1126 (Mem),
166 L.Ed.2d 897.

The State filed a memorandum on July 26, 2007 titled AThe Issues Raised in Prior

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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. Rule 3.851(e)(2)(B).

This motion is predicated on newly discovered evidence. The names, addresses and
telephone numbers of witnesses supporting the claims raised in this motion are furnished on a
witness list which is being filed simultaneously with this motion. Said witnesses will be available
to testify under oath to the facts alleged herein should an evidentiary hearing be scheduled. Existing
documentary evidence supporting the claims raised herein is attached hereto. Rule 3.851(e)(2)(C).

The relief sought in this proceeding is an order vacating the sentence of death. In the
alternative Schwab moves for a stay of execution, or such other relief as this Court may deem
appropriate.

CLAIM I

FLORIDA=S LETHAL INJECTION METHOD OF
EXECUTION VIOLATES THE EIGHTH AND FOURTEENTH
AMENDMENTS AND CORRESPONDING PROVISIONS OF
THE FLORIDA CONSTITUTION

The Eighth Amendment prohibits Athe unnecessary and wanton infliction of pain,@
Gregg

v. Georgia, 428 U.S. 153 (1976). Nor may executions Ainvolve torture or a lingering death.@ In re
Kemmler, 136 U.S. 436, 447 (1890). In particular, the execution method cannot create a risk of
unnecessary pain. Farmer v. Brennan, 511 U.S. 825, 842 (1994). In Hill v. McDonough, --- U.S.
----, ----, 126 S.Ct. 2096, 2101, 165 L.Ed.2d 44 (2006), the Supreme Court quoted the petitioner's
statement of his claim, noting, A[t]he specific objection is that the anticipated protocol allegedly
causes >a foreseeable risk of ... gratuitous and unnecessary= pain.@ Id. at 2102. The Court expressed
no dissatisfaction with that statement of the issue. Lower courts have routinely analyzed Eighth
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Amendment challenges to lethal injection under a foreseeable risk standard:

The State . . . argues that the district court erred in finding a
constitutional violation on the basis of its determination that the
Missouri lethal injection protocol involves an unnecessary risk of
causing the wanton infliction of pain. The State asserts that the
Supreme Court's articulation of the standard forbids only punishment
that actually involves >the unnecessary and wanton infliction of
pain= . . . not a mere risk of pain. We respectfully disagree . . .
Court of Appeals cases to the effect that the Eighth Amendment
protects against sufficiently imminent dangers as well as current
unnecessary and wanton infliction of pain and suffering are legion .
. .@

Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007).

Florida=s lethal injection method of execution creates a foreseeable risk of unnecessary and

extreme pain and therefore violates the Eighth Amendment to the U.S. Constitutional and Article

I, Section 17 of the Florida Constitution, which prohibit cruel and unusual punishments. Because

this challenge to Florida=s method of execution is a valid claim for relief, denial of the Defendant=s

access to the Court in order to seek relief constitutes a denial of due process.

Recent events

On December 13, 2006, Angel Diaz was executed by lethal injection. Numerous reports by
the press and other witnesses indicated that the execution was botched. The execution took almost
three times as long as normal. Diaz grimaced, arched his body, appeared to be mouthing words, and
otherwise evidenced that he was in pain, despite the injection of a paralytic. The medical examiner
who conducted an autopsy reported that Athe fluids to be injected were not going into a vein, but
were going into small tissues in the arm.'' Later investigation showed that in both the primary venous
access site in Diaz= left arm and a backup site in the other arm the needle and catheter had been
pushed through the target vein into the tissue beyond. When the executioners encountered

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substantial resistance during the injection process, they improperly continued to inject the drugs into
Diaz, switching back and forth between the two failed IV lines.

As a result of the medical examiner=s findings, the Governor suspended all executions in
Florida and appointed a Commission to review the execution and make recommendations. The
Commission Report concluded that the execution team failed to properly obtain and maintain venous
access, failed to administer the chemicals properly, and failed to follow the execution protocols. The
protocols as written were found to be insufficient to deal with complications that are known to have
arisen in lethal injection executions around the country, and in any event the execution team had not
been adequately trained as to the protocols then in effect. The Commission made detailed
recommendations which included changes to the actual execution procedures and the physical
structure where the execution was to take place, rewriting the protocols, thorough documentation
of the actual execution, and proof of adequate training.

On December 14, 2006, the day after the botched Diaz execution, the Capital Collateral
Regional Counsel, Southern Region, filed a petition in the Florida Supreme Court seeking to invoke
that Court=s all writs jurisdiction on behalf of all of its death row clients, alleging that Florida=s
lethal injection procedure was unconstitutional in itself and as applied, as evidenced by the Diaz
execution. The court dismissed all of the petitioners' claims except for that of Ian Deco Lightbourne
stating, "The dismissal is without prejudice to the petitioners filing any claim which they may have
in the appropriate court for that individual petitioner." Lightbourne, SC06- 2391. The court
relinquished jurisdiction to the Fifth Judicial Circuit Court in Marion County, where an evidentiary
hearing continues to be conducted at the time the instant motion is being filed. State v. Lightbourne,
Circuit Court Case No. 1981-170-CF-A-01, Marion County.

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On July 18, 2007, the Governor signed a warrant for the execution of Mark Schwab. The
warrant and attachments scheduled the execution for the week of November 12, which is a notably
longer time between the signing of a warrant and scheduled execution than has been the case in the
past. The same morning, the Florida Supreme Court issued an order establishing a trial court
litigation deadline and appellate briefing schedule in Lightbourne, with oral argument set for
October 11. The next day, the Court issued a similar schedule in this case, with oral argument set
at the same time as in Lightbourne.

In the meantime, on July 27, after the warrant was signed and after litigation schedules were
established in the two cases, the presiding judge in Lightbourne, Judge Angel, granted relief in the
form of a temporary injunction against the state carrying out an execution in that case. That
injunction remains in effect at this time this motion is being drafted.

The DOC issued new protocols on May 9, 2007 in response to the Commission Report. The
protocols came under heavy scrutiny during the Lightbourne hearings, and the State eventually
revealed that they were being revised. New protocols were written for executions occurring after
August1, 2007.
Sims and progeny are not controlling; timeliness; pleading requirements

A challenge to Florida=s lethal injection method of execution is properly made by way of
a motion for postconviction relief under Rule 3.851. Diaz v. State, 945 So.2d 1136 (2006)
(A[E]xecution procedures . . . can and have been challenged through postconviction proceedings
under rule 3.851 . . . In light of the exigencies inherent in the execution process, judicial review and
oversight of the DOC procedures is preferable to chapter 120 administrative proceedings. @).

This claim is predicated on newly discovered evidence and recent changes in the law. It is

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therefore timely. The newly discovered evidence includes all that revealed by the Diaz execution,
the Commission proceedings and the Lightbourne hearings, all of which have occurred within the
past year. F.S. 922.105 providing for execution by lethal injection is not self implementing, it must
be implemented in accordance with the protocols written by the Florida Department of Corrections.

Those protocols have been revised twice since the Diaz execution in December, 2006.

In Sims v. State, 754 So.2d 657 (Fla.2000) the Florida Supreme Court held that Florida=s
lethal injection procedure did not violate the Eighth Amendment. The court has reaffirmed that
holding in a number of cases, including Diaz v. State, 945 So.2d 1136 (Fla.2006). A few days after
that opinion was released, Diaz was the subject of a botched execution. That event led to the
Governor=s Commission, the Lightbourne hearings, and two revisions of the protocols. Sims and
progeny were predicated on protocols that have been superseded. Within 48 hours of the signing of
the instant warrant the Florida Supreme Court set both Lightbourne and this case on similar
litigation tracks with oral argument set on the same day. The expectation that lethal injection would
be raised and considered in this case is clear.

In Darling v. State, --- So.2d ----, 2007 WL 2002499, 32 Fla. L. Weekly S486, (Fla. July 12,
2007) the Florida Supreme Court denied a lethal injection claim raised in an original 3.851
proceeding, citing Hill v. State, 921 So.2d 579 (Fla.2006), one of Sims' progeny, but added this
footnote: AThis habeas claim was presented to the Court in connection with facts existing prior to
the execution of Angel Diaz on December 13, 2006. No events that may have occurred in connection
with the Diaz execution have been considered as part of this proceeding.@ Id.n.5. The court thus
left open the door to reconsideration of Sims.

Finally, the text of Sims supports this view. The Sims court quoted from a federal case

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which referred to eyewitness accounts of two executions where the prisoner lost consciousness
within seconds and rejected the petitioner=s argument as Aspeculation.@ The court also referred
dismissively to Sims= expert testimony as a Aparade of horribles.@ Since then, lethal injections
have been botched around the country and if one theorizes that Diaz did not suffer pain despite all
the evidence to the contrary, a careful examination of the record shows that it was only because the
execution team managed to botch the second access site along with the first. Lethal injection is ripe
for review.

Lethal injection as practiced is constitutionally flawed

Lethal injection is the method of execution used by 37 of the 38 capital punishment states.

The basic procedure used by essentially all of these states, including Florida, is the three drug
regimen first developed in Oklahoma in 1977. The procedure begins with securing venous access,
followed by an injection of sodium thiopental, an ultra fast acting barbiturate, to render the prisoner
unconscious.1 The prisoner is then injected with a paralytic agent, pancuronium bromide, in
sufficient quantities to stop respiration. Lastly, the prisoner receives an injection of potassium
chloride, which induces cardiac arrest and permanently stops the prisoner=s heartbeat. There is a
general consensus that the administration of either of the second two drugs in a prisoner who is not
adequately anesthetized will cause extreme and unnecessary pain and suffering.

1Florida uses a higher dose of sodium thiopental, 5 grams, which if fully injected into the
prisoner=s bloodstream will cause loss of consciousness within seconds and death due to
respiratory failure within a few minutes. The fact that Diaz took over 30 minutes to die and that
other Florida executions have taken a longer time than would be expected with an administration
of that amount of thiopental indicates two possible alternative conclusions. First, an error
occurred with the chemical delivery system and the inmate has not been adequately anesthetized.

Second, the non-clinical dosage of sodium thiopental may suppress the cardiac function of the
body to the extent where it delays the effect of subsequently administered drugs.

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The procedure embodies goals and policies that are inherently in conflict. Lethal injection
is a method of committing an inherently violent and deadly act B execution of a condemned prisoner
B masquerading as a peaceful and painless medical procedure. In particular, the use of a paralytic
drug serves no legitimate clinical purpose during an execution. In the medical setting, pancuronium
bromide (trade name Apavulon@) is used legitimately to relax respiratory function to facilitate
intubation and to keep the patient still during surgery. In an execution, the drug simply serves to
make the procedure look palatable to witnesses. Due to the effects of the paralytic drug, several
members of the Commission questioned the wisdom of using pancuronium bromide during an
execution. The most notable and forceful of the opponents was Eighth Circuit Court Judge Stan
Morris, who recommended that the DOC revisit the use of this drug. It is used for merely cosmetic
reasons but it significantly increases the risk that the prisoner will be subjected to agonizing pain
and be unable to communicate the fact. The use of pancuronium bromide or a similar paralytic
serves at best minimal state interests, but greatly increases the risk of unnecessary and extreme pain.

As such, its use violates the Eighth Amendment.

Nationally based medical associations including the American Medical Association,
American Society of Anesthesiologists, American Nurses= Association, the National Association
of Emergency Medical Technicians, and the National Commission on Correctional Health, all have
ethics guidelines that oppose participation in lethal injections, as do numerous state level
organizations.2 Partly as a result of this opposition the traditional anonymity of the actual

2Code of Ethics E-2.06 (Am. Med. Ass'n. 2000), available at http://
www.ama-assn.org/ama/pub/category/8419.html ("A physician, as a member of a profession
dedicated to preserving life when there is hope of doing so, should not be a participant in a
legally authorized execution."). Message from Orin F. Guidry, President, Am. Soc'y of
Anesthesiologists, Observations Regarding Lethal Injection (June 30, 2006), available at

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executioner has been extended to all Amedically qualified personnel@ who actually participate in
the execution. In fact, the medically qualified personnel are in reality executioners every bit as
much as the designated Aexecutioner@ whose main role is simply to push the drugs.

While ethical violations in themselves may not implicate the Eighth Amendment, the effect
of the ethical prohibition for medical participation in executions can lead to a violation in the context

http://www.asahq.org/news/asanews063006.htm (stating that the American Society of
Anesthesiologists had adopted the American Medical Association's (AMA's) code of ethics
regarding capital punishment in 2001). Am. Nurses Association, Ethics and Human Rights
Position Statements: Nurses' Participation in Capital Punishment, http://
nursingworld.org/readroom/position/ethics/prtetcptl.htm (2007) ("The American Nurses
Association (ANA) is strongly opposed to nurse participation in capital punishment.
Participation in executions is viewed as contrary to the fundamental goals and ethical traditions
of the profession."). The National Association of Emergency Medical Technicians takes the
position that "assessment, supervision[,] or monitoring of the procedure or the prisoner;
procuring, prescribing[,] or preparing medications or solutions; inserting the intravenous
catheter; injecting the lethal solution; and/or attending or witnessing the execution as an EMT or
Paramedic" are violations of the EMT Oath. NAEMT Position Statement on EMT and
Paramedic Participation in Capital Punishment, https://
www.naemt.org/aboutNAEMT/capitalpunishment.htm, (June 9, 2006). Standards for Health
Services in Prisons P-I-08 (Nat'l Comm'n on Corr. Health Care 2003) (on file with the Fordham
Law Review) ("The correctional health services staff do not participate in inmate executions.").

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of proper training of the execution team. Since the three chemicals are given in a dosage that,
individually, may be lethal in themselves, it would be impossible to clinically test their efficacy.

Every state authorizing the death penalty currently requires that official witnesses be present
at each execution.3 Reasons include First Amendment concerns as well as the fact that an execution
carried out in secret smacks of the worst kind of tyranny. Florida provides that twelve citizens
Ashall witness the execution.@ F.S. 922.11(2). Counsel for the prisoner, clergy and members of the
press are also permitted to view the execution under some limitations. Id.

Under these circumstances an execution by means of lethal injection can never meet medical
standards. Ongoing monitoring of the prisoner=s state of consciousness cannot be performed
adequately by someone medically qualified to do so without compromising the anonymity of that
person or constitutional and policy requirement that the execution be viewed by certain members
of the public.

The length of tubing used in an execution will always be substantially longer than that used
in a clinical setting because the executioner and anonymous medical personnel must be in a separate
room. That concern is heightened because the executioners who push the drugs are not required to
have any medical expertise at all, and because resistance to the push was one of the major concerns
in the Diaz case, and the State refuses to provide any information about the executioner other than
that he or she is over the age of 18.

The underlying constitutional requirements and policies that apply to executions by lethal

3See John D. Bessler, Televised Executions and the Constitution: Recognizing a First
Amendment Right of Access to State Executions, 45 Fed. Comm. L.J. 355 (1993).

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injection are fundamentally in conflict, and as a result Florida lacks a constitutionally sound method
of execution.

Regardless of its protocols, Florida=s lethal injection procedure violates the Eighth
Amendment due to inadequate training and proficiency

Prior challenges to Florida=s method of execution by lethal injection delved only into the
adequacy of the protocols themselves without considering the inherent risks. In Sims v. State, 754
So.2d 657 (Fla. 2000), the Florida Supreme Court reviewed the Department of Correction=s
protocols for executions by lethal injection. Relying on the Arizona case of LaGrand v. Lewis, 883
F.Supp. 469 (D.Ariz.1995), aff'd, 133 F.3d 1253 (9th Cir.1998), and the lower court=s order denying
relief, the Florida Supreme Court concluded that the execution protocols were sufficient. In its
opinion, the Court cited the lower court=s order with approval which stated, in relevant part:

After considering the testimony presented by the witnesses from the
DOC and the defense's experts on lethal injection, the trial court ruled
that Athe manner and method of execution to be carried out by lethal
injection in Florida is neither cruel nor unusual and that the
Department of Corrections is both capable and prepared to carry out
executions in a manner consistent with evolving standards of
decency.

Sims at 667-68.

The Governor=s Commission concluded otherwise. Its findings were that the Department of
Corrections was neither Acapable nor prepared to carry out@ an execution in accordance within the
dictates of the Eighth Amendment.4 In the six years between the Sims decision and the Diaz
execution we have learned that the DOC never trained the primary or secondary executioners, that
the execution team was never trained on the effects of the lethal chemicals, nor did it train (or tell)

4In short, Sims and progeny have been superseded by the Commission Report
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the execution team which chemicals they were injecting at any time during the execution process.

The DOC was never trained as to the proper and necessary injection sequence, a sequence now
known to be necessary under the Eighth Amendment. The DOC personnel were never properly
trained to assess the patency of the IV lines, never trained to properly monitor the IV lines, let alone
trained to insert them correctly (see GCALI testimony of Dr. Hamilton). The DOC personnel were
never properly trained to identify a problem with the IV lines when there was substantial resistance
during the injection process. Furthermore, the execution team members testified that on at least
seven prior occasions they felt similar resistance but were never trained to realize that this was due
to an improper IV insertion.

Had the DOC been Acapable and prepared@ in establishing the second of the two IV lines,
Diaz would have immediately felt the immense pain of the potassium chloride because the poorly
trained DOC personnel ignored the protocols and skipped the injection of the sodium pentothal into
the second line.

Equally disturbing, every single member of the execution team testified that nothing
extraordinary happened during the Diaz execution other than the amount of time it took to effectuate
death. Warden Randall Bryant, Assistant Warden Randall Polk, physician's assistant William
Mathews, the primary executioner, and the medically trained personnel, all testified that they did
not observe anything unusual during the execution.

Every single expert who testified, whether before the Commission, or as either a defense or
state witness in Lightbourne, has reached the opposite conclusion. Dr. Hamilton, Dr. Heath, Dr.
Dershwitz, Dr. Sperry, and Dr. Clarke, all testified about the numerous errors committed by the
poorly trained execution team in charge of the Diaz execution.

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Simple arithmetic leads us to a troubling conclusion. At best, five percent of Florida=s

executions since the Sims Court declared that the DOC was Aboth capable and prepared to carry out

executions in a manner consistent with evolving standards of decency@ have been botched. Worse

yet, if the testimony of the DOC execution team members is to be taken into account, at least forty

percent of Florida=s lethal injection executions since Sims may have been botched.

Recent litigation in other jurisdictions has raised concerns with the qualifications, training

and proficiency of the individuals delegated the responsibility of carrying out executions by lethal

injection. In Morales v. Tilton, 465 F.Supp.2d 972, 973 (N.D.Cal.2006), the federal court analyzed

many of the issues shared by the thirty-six states that use lethal injection as a method of execution.

In its Memorandum of Intended Decision, the Federal District Court summarized the issues and its

findings:

In fact, this case presents a very narrow question: does California's
lethal-injection protocol-as actually administered in practice-create
an undue and unnecessary risk that an inmate will suffer pain so
extreme that it offends the Eighth Amendment? Because this question
has arisen in the context of previous executions, see Beardslee v.
Woodford, 395 F.3d 1064 (9th Cir.2005); Cooper, 379 F.3d 1029, and
is likely to recur with frequency in the future, the Court has
undertaken a thorough review of every aspect of the protocol,
including the composition and training of the execution team, the
equipment and apparatus used in executions, the pharmacology and
pharmacokinetics of the drugs involved, and the available
documentary and anecdotal evidence concerning every execution in
California since lethal injection was adopted as the State's preferred
means of execution in 1992[.]YThe Court concludes that absent
effective remedial action by Defendants-the nature of which is
discussed in Part IV of this memorandum-this exhaustive review will
compel it to answer the question presented in the affirmative.
Defendants' implementation of lethal injection is broken, but it can
be fixed.

Morales, 465 F.Supp.2d at 974.

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The court reached several conclusions. First, there was AInconsistent and unreliable
screening of execution team members@. Id at 979. Second, there was a Alack of meaningful
training, supervision, and oversight of the execution team@. Id. Third, there was AInconsistent and
unreliable record-keeping@. Id. Fourth, the court found AImproper mixing, preparation, and
administration of sodium thiopental by the execution team@. Id. at 980. Finally, the court
concluded that there was AInadequate lighting, overcrowded conditions, and poorly designed
facilities in which the execution team must work@. Id. These issues are the same concerns raised
in this case.

Since Morales, other states, in addition to Florida, have empanelled commissions in an
attempt to assess and manage the risk of human error. Since the Florida Supreme Court decided
Sims, there have been at least ten botched lethal injection executions in six states, all resulting from
human error.

While the DOC has provided logs which reflect internal training sessions, there is no
evidence that the DOC has changed its training to manage the risk of human error. Instead, the
recently released training logs reflect that the DOC may be incorporating a 5%-40% error rate into
its procedures.

In addition, the DOC has twice revised its execution protocols since the Diaz execution. The
July 31st protocols now call for specific medical qualifications of several execution team members.

These qualifications, however, are no different than those held by the Diaz execution team
members. Without more, Florida is in the same situation it was immediately after the Diaz
execution.

Florida=s execution procedure is unconstitutional because of failure to ensure unconsciousness

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Failure to anesthetize a prisoner before and throughout the lethal injection procedure will
result in a violation of the Eighth Amendment. Ensuring unconsciousness in a clinical setting is a
complicated and demanding task. Yet even there, accidents happen.5 Clinical methods of
determining depth of unconsciousness include all of the abilities and judgment of an anesthesiologist
or a certified registered nurse anesthetist who is present and monitoring the patient at all times. He
or she monitors the appearance of the patient, response to stimuli, EKG, temperature, blood pressure,
heart rate, moisture content of the skin, size of the pupils, carbon dioxide respiration levels, and
oxygenation of the blood if on a heart lung machine. Sophisticated medical equipment is used.
Before beginning the procedure the surgeon administers a painful stimulus to test the patient=s
condition.

5 "Intraoperative awareness occurs when a patient becomes conscious during a procedure
performed under general anesthesia and subsequently has recall of these events . . .
Intraoperative monitoring of depth of anesthesia, for the purpose of minimizing the occurrence
of awareness, should rely on multiple modalities, including clinical techniques (e.g., checking
for clinical signs such as purposeful or reflex movement) and conventional monitoring systems
(e.g., electrocardiogram, blood pressure, HR, end-tidal anesthetic analyzer, capnography). The
use of neuromuscular blocking drugs may mask purposeful or reflex movements and adds
additional importance to the use of monitoring methods that assure the adequate delivery of
anesthesia." American Society of Anesthesiologists, "Practice Advisory for Intraoperative
Awareness and Brain Monitoring: A Report by the American Society of Anesthesiologists Task
Force on Intraoperative Awareness" Anesthesiology 2006; 14:847-64:

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By contrast, the consciousness assessment required by the protocols falls far short of medical
standards. The warden, who is charged with making the consciousness assessment has no medical
expertise beyond that required of a law enforcement officer. He testified that he intends to make that
assessment by shaking the prisoner and speaking to him. That is not a medically acceptable way of
making the required assessment.

The greater the painfulness of the stimulation the more the subject must be anesthetized.
Administration of a high dose of potassium chloride is extremely painful and requires that the
subject be in a surgical plane of anesthesia. Notably, the most painful stimulus in the lethal injection
procedure occurs after the initial consciousness assessment is made and the execution is well
underway.
The specifications for central venous access are inadequate

Central venous access through the femoral vein is a sophisticated surgical procedure.
Protocol (3)(b) addresses the minimum qualifications required to conduct the procedure. However,
only a minority of doctors or at minimum a physician=s assistant are qualified to perform the
procedure. Mere licensure as a physician or physician=s assistant is not in itself sufficient. Moreover,
the procedure requires hospital room equipment or a surgical kit containing scalpels, catheters, suture
equipment, wires, suturing needle, and so on. Protocol (12)(c)(5) does not reflect any of these
requirements. The protocols are inadequate.
The protocol=s provisions for FDLE Monitors have not been met

The protocols assign an important role to two FDLE monitors. One is stationed in the
executioner=s room and the other is in the execution chamber. (Protocol 7). Both are to keep a
detailed log of what they observe. Importantly, an independent observer from FDLE witnesses the

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mixing of the chemicals and preparation of the syringes and all the other equipment that will be used
during the execution. FDLE is an independent agency within the executive branch and as such
performs an important oversight role. These functions can only be performed usefully by someone
who knows what to look for. Yet in response to a current public records request FDLE certified that
it does not have anyone assigned to these roles and generally had no documentation responsive to any
of Schwab=s public records requests.

Among other things, Schwab requested copies of any FDLE protocols, written procedures,
and checklists that would be used by the FDLE monitors. None exist. The request was also directed
to communications between FDLE and the DOC or the Office of the Governor with regard to any
such protocols and procedures that FDLE would followed. None exist. Nothing exists demonstrating
that FDLE monitors have the qualifications to perform their duties, yet the Secretary of Corrections
certified on July 31 that the Department had available the personnel who have the qualifications,
training and experience to carry out the execution procedures described in the protocols. That
certification is flatly contradicted by the certification provided by FDLE, and supports the argument
that written assurances by DOC must be verified.
Florida=s lethal injection procedure is constitutionally flawed because it fails to provide for
independent verification of compliance with the protocols and training and proficiency of those
who implement them

Lethal injection is a complicated procedure which requires that the members of the execution
team have considerable expertise. The protocols themselves, no matter how artfully drafted, cannot
substitute for that expertise any more than a first year medical student reading from a textbook can
substitute for a surgeon. An important finding reached by the Commission and the judge in
Lightbourne was that the execution team members in Diaz lacked training and proficiency. For

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example, the Amedically qualified@ person in the Diaz execution who actually started the IV=s
testified (anonymously) that he or she did not detect anything indicating that they were compromised,
although the autopsy and all the other evidence showed that both of them were. Moreover, vague
assurances in the protocols to the effect that the Warden will select as executioner someone who is
Afully capable of performing the designated functions@ (Protocol 2(a)) do not meet any objective
standards of verifiability and accountability.

Such standards do exist, however. They can be drawn from the fields of quality assurance,
medical auditing, and risk assessment.
Risk Assessment

Risk assessment is at heart of the Eighth Amendment requirement that the lethal injection
method of execution not create an unnecessary risk of extreme pain. As such, denying Mr. Schwab
access to records from which a risk assessment can be made or an opportunity to present his claim
at an evidentiary hearing constitutes a denial of due process and access to the courts. This is
particularly true in light of the Florida Supreme Court=s rationale in Diaz that Ajudicial review and
oversight of the DOC procedures is preferable to chapter 120 administrative proceedings.@

Risk analysis is widely used throughout society. It is obviously an essential feature of the
insurance industry. Risk analysis is used to study and assess the safety, reliability, and effectiveness
of products, processes, facilities, and activities. The U.S. Government helped standardize such
assessments when it published Risk Assessment in the Federal Government: Managing the Process
(NRC, 1983), called the "Red Book."

As such, the field is well established and has specific standards which can be applied to
Florida=s lethal injection procedure. For example, the Sims court noted expert testimony to the effect

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that 5.2 per cent of executions across the country had resulted in what it called Amishaps.@ That was
before the series of botched cases or faulty procedures that have been brought to light in the past few
years, including the Diaz execution. Mr. Schwab will present expert testimony regarding risk
assessment at an evidentiary hearing. For example, there is a nearly 30 per cent error rate in securing
venous access in clinical settings. This is especially important here, where the consciousness
assessment and monitoring required by the protocols is so inadequate. The success of the procedure
depends very heavily on properly securing venous access, exactly what was not done in the Diaz
execution.

Quality assurance and medical auditing

Mr. Schwab seeks to conduct an audit of the Department of Corrections practices and

procedures with regard to method of execution. To that end he has retained a quality assurance

auditor and requested the documentation that would normally be reviewed in the course of such an

audit.6 The attached affidavit of the auditor states among other reasons for the production of

requested documents and for conducting an audit:

The theoretical principles and practical application of quality assurance
are relevant to the Department of Correction's reliance on documented
procedures and trained personnel for administration of executions by lethal
injection. In applications throughout the country, written procedures are used
to provide explicit instructions for reliably carrying out a method in a
consistent and acceptable manner. The use of poorly documented,
incomplete, or ineffectively trained procedures increases variability,
decreases comparability, and may render the procedure unreliable in practice.
Evaluations of procedures, systems, and controls are performed in
accordance with international standards in the quality profession. The
International Organization for Standardization (ISO) is a non-governmental
organization and international standard-setting body. ISO standards are used

6A supplemental affidavit is attached to and incorporated into this motion. It addresses a
host of issues raised by the protocols as written.

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by governments, industries, and quality auditors throughout the world; they
provide guidelines to improve process management, enable better
decision-making and oversight, and provide high quality operations.

An audit would go beyond the four corners of the protocols and examine whether implementation of
the procedures described therein, as well as the training, proficiency and qualifications of the
personnel who will carry them out are up to the task. It will also provide accountability from an
independent source. This is especially important here because the protocols contemplate that
independent observation would be provided by FDLE. According to its response to Mr. Schwab=s
public records request, FDLE apparently has done nothing to fulfill that role. In light of that, neither
the Secretary=s current certification of readiness nor the assignment of FDLE observers at a later date
can provide the reliability of an independent audit.

While independent, periodic audits would be appropriate in any event, one would be
especially appropriate here. This is the first execution since the Diaz execution was botched. As a
result of the subsequent investigation, the DOC twice revised its protocols, changed its personnel,
and remodeled the execution facility. Such an audit can be performed as soon as the appropriate
documents are provided and would not cause any delay in the execution. Nor would such a review
implicate anonymity of the personnel involved in the execution because identifying information can
simply be redacted from the documents provided.

Failure to authorize the release of the requested documentation or to allow Mr. Schwab the
opportunity to present the results of an audit at an evidentiary hearing is a denial of due process.

CLAIM II

NEWLY DISCOVERED EVIDENCE REVEALS THAT MR.
SCHWAB SUFFERS FROM NEUROLOGICAL BRAIN
IMPAIRMENT WHICH MAKES HIS SENTENCE OF DEATH
CONSTITUTIONALLY UNRELIABLE

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In 1988, the Florida Department of Corrections (DOC) prepared a presentence investigation
report (PSI) in reference to a prior sexual offense (victim Than Meyer). Following its
recommendation, Schwab was sentenced as a mentally disordered sex offender with the requirement
that he enter a sexual offender treatment program while incarcerated. He was determined to be a
pedophile. The program, however, was terminated, and therefore after serving approximately three
and a half years, without sexual offender treatment, Mr. Schwab was released to outpatient treatment
with Dr. Duncan Bowen.

Trial counsel called Dr. Howard Bernstein, a psychologist. Dr. Bernstein was not an neither
a neuropsychologist nor an expert in mentally disordered sexual behavior. He conducted a mental
status examination of Mr. Schwab a records review of records and video recorded testimony by Dr.
Fred Berlin and Dr. Ted Shaw. He found no evidence of organicity. In rebuttal the state called Dr.
William Samek. The court relied on Dr. Samek's testimony. Dr. Samek testified that he never
interviewed Mr. Schwab. His testimony was based on a review of the record, observation of witness
testimony, and observation of videotaped testimony of Drs. Berlin and Shaw.

Dr. Samek said that: AThe biological mechanism of human sexuality is very complex. It
involves not only the genital area, but it involves the brain. It involves the hypothalamus. It=s a very
complicated area that science has not unraveled even close to fully at this point@ (ROA XVIII, 333940).
AThe issue of irresistible impulse is one that is very complicated and one that in my opinion that
psychology has never really gotten a good handle on. . . . I think that=s really not so much a
psychological determination as a personal philosophical value judgment (Id. at 3356).

Since the conclusion of Mr. Schwab=s trial and post conviction proceedings there have been
new developments in the understanding of sexual offenses and their association with brain

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functioning which would have impacted Mr. Schwab=s sentencing proceedings. Volume 1, No. 3,
September 2006, pgs 84-94 of The International Journal of Forensic Psychology published an article
entitled ANeuroanatomical Substrates for Sex Offenses.@ (Exhibit ___). This clinical research
reviewed clinical and forensic studies in order to understand the neuroanatomical basis of sexual
behavior, and how dysfunctions in these systems result in deviant sexual behavior. Prefrontal-sub
cortical systems involving the striatum and thalamus are involved in the regulation of sexual
behavior, mediating functions such as initiation, inhibition, choice, empathy, reward, and punishment.

Limbic structures such as extended amygdala, septal, nuclei, and hypothalamus mediate other
aspects of sexuality such as sex drive, and likely mediate sexual orientation and gender identity.
Dysfunction in these systems of various etiologies may lead to increased predisposition to commit
sex offenses.

Additional scholarly research was presented in a look at the ABrain Pathology in Pedophilic
Offenders,@ Arch Gen Psychiatry, 2007;64:737-746. (Exhibit __). After review of the neuroimaging
profiles of pedophilic perpetrators as compared to nonoffenders, the authors conclude that pedophilic
perpetrators show structural impairments of brain regions critical for sexual development. These
impairments are not related to age, and their extent predicts how focused the scope of sexual offenses
is on uniform pedophilic activity. Structural deficits of the right amygdale and closely connected
structures, presumably of neurodevelopmental origin, are related to the sexual deviance of pedophilic
offenders.
Neuropsycholgical Report

Recent neuropsychological testing reveals that Mr. Schwab suffers from brain impairment in
the right brain and frontal lobe in nature. The basis for this opinion is established in the

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neuropsychological report prepared by Dr. Hyman Eisenstein, Ph.D., A.B.P.N. (Exhibit ___). Mr.
Schwab has never been evaluated by a neuropsychologist and therefore the testing and evidence
presented in previous court proceedings are not comprehensive in an assessment of Mr. Schwab=s
brain functioning and constitutes newly discovered evidence. What has occurred is that Dr. Bernstein
and Dr. Samek offered several suppositions regarding the causal factors that contributed to Mr.
Schwab=s behavior. However, each supposition fell short of recognizing that brain impairment was
a major causative factor. Dr. Bernstein testified that Mr. Schwab did not suffer from organic brain
impairment, despite not being qualified to render that opinion and not having conducted
neuropsychological testing. The above cited research and current neuropsychological examination
show that the evidence which was relied on at trial was substantially inaccurate. Dr. Eisenstein will
testify unequivocally that there exists organic brain impairment.7 His expert testimony based on new

7Dr. Eisenstein reports as follows: Schwab has a history of head trauma with several
reported instances in infancy, childhood, and adolescence. Multiple head traumas have a
synergistic effect, which is far greater than the sum of the effects of the individual episodes. On
the Wechsler Adult Intelligence Scale, Mr. Schwab is of average intelligence but does show
some difficulty with mathematical computations which have persisted throughout his education.
On the Tactual Performance Task, Mr. Schwab scored within the mildly impaired range in
correct location and severely impaired range with correct position. These results are significant
in that one would expect the subject to improve over trials. The increase in time required by Mr.
Schwab using his non-dominant left hand is highly atypical and suggestive of contra-lateral,
right brain impairment. On the category test Mr. Schwab scored within the mildly impaired
range of functioning. On the Wisconsin Card Sorting Test Mr. Schwab scores were eight times
more than the normal error level and therefore are pathognomonic for brain damage, particularly
in the frontal lobe region. On the Trail Making Test, a test of speed for attention, sequencing,
mental flexibility, visual search and motor function, Mr. Schwab scores indicated deficits in both
visual immediate and visual delayed memory which were significantly lower than to be expected
based upon his IQ. Additionally, the significant differences in visual memory and auditory
memory demonstrate impairment in right brain areas that mediate visual memory functioning. In
the Language component, Mr. Schwab scored within the average range. The Stroop Color and
Word Test proved difficult when the task required inhibition of on e response in favor of another,
which is indicative of frontal lobe dysinhibition impairment. The Rey-Osterrieth Complex Test
scores were within the mildly impaired range with a significant decay of information taken in.

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scientific findings will show that the brain impairment had a direct causative effect on Schwab=s
criminal behavior.

Schwab requests an evidentiary hearing in order to fully develop this claim. Dr. Bowen
would testify that he examined Mr. Schwab in 1988 and determined that Schwab had been the victim
of a sexual assault as a child. Defense counsel made this allegation during sentencing. The trial court
rejected it but specifically commented on the fact that neither party had called Dr. Bowen as a
witness. The new scientific findings coupled with Dr. Eisenstein=s examination and conclusions
would show that the trial court=s assessment of the substantial impairment mitigator was based on
faulty evidence. Dr. Bowen=s testimony would show that there was an environmental event beyond
Schwab=s ability to control which reduced his culpability in the same way that mental retardation
or illness or extreme emotional disturbance reduce the culpability of an offender. The new evidence
would alter the balance of aggravating and mitigating circumstances such that there exists a
reasonable probability of a different outcome, and would further show that Schwab is actually
innocent of the death penalty.

The neuropsychological report of Dr. Eisenstein and the academic literature review indicate
that neuroimaging will show that Mr. Schwab=s brain functioning was a primary contributing factor

This is also indicative of right brain dysfunction. On the Motor Function grip strength test, mild
and moderately impaired functioning is established and the discrepancies in performance further
establish contra-lateral, right brain impairment. Dr. Eisenstein=s neuropsychological evaluation
concludes that the data establishes brain damage; the brain impairment is right, frontal lobe;
uncontrolled sexual impulses, which are mediated by brain functioning are especially
compromised when brain damage exists to frontal lobe structures; Mr. Schwab=s thinking is
chaotic, and preservative; He is unable to modify his method of problem solving. When he is
stuck in a pattern, he becomes unstable to make appropriate decisions; when under stress his
abilities are further compromised, and he tends to decompensate further; Mr. Schwab=s
feedback loop becomes impaired; the brain damage heightens his impulsivity and dyscontrol;
and his inability to regulate his actions is decreased.

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to the crimes charged. Therefore it is further requested that Mr. Schwab be permitted to obtain
neuroimaging testing, including MRI and PET scan to determine the nature of the organic
involvement and brain pathology.

WHEREFORE, based on the foregoing claims for relief, Mr. Schwab requests a full and fair
evidentiary hearing at which to present evidence in support thereof, and that this motion be granted.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Motion to Vacate Sentence or Stay
Execution has been furnished by fax, e-mail and U.S. Mail, first class postage, to all counsel of
record on this 15th day of August, 2007.

Mark S. Gruber
Florida Bar No. 0330541
Assistant CCC
CAPITAL COLLATERAL REGIONAL
COUNSEL-MIDDLE REGION
3801 Corporex Park Drive, Suite 210
Tampa, Florida 33619
813-740-3544
Attorney for Defendant

Copies furnished to:

The Honorable Charles M. Holcomb Circuit Court Judge

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Titusville Courthouse
506 South Palm Avenue
Titusville, FL 32796

Kenneth S. Nunnelley
Assistant Attorney General
Office of the Attorney General
444 Seabreeze Blvd., 5th Floor
Daytona Beach, FL 32118-3958

Robert Wayne Holmes
Assistant State Attorney
Office of the State Attorney
2725 Judge Fran Jamieson Way
Building D
Viera, Florida 32940

Roger R. Maas
Commission on Capital Cases

maas.roger@leg.state.fl.us.

Thomas Hall, Clerk
Florida Supreme Court

warrant@flcourts.org

Maximillian Changus
FL Department of Corrections

Changus.maximillian@mail.dc.state.fl.us