TALLAHASSEE
Florida high court weighs fairness, secrecy of death penalty
The state Supreme Court is considering the fairness of both the lethal injection process and of keeping secret the identities of officials who carry out the process.
Posted on Fri, Oct. 12, 2007
BY MARC CAPUTO
mcaputo@MiamiHerald.com
It will likely remain that way, judging by the questions asked by Florida's Supreme Court justices during oral arguments Thursday. They indicated they'll likely uphold Florida's death penalty and rules that shield the identities and records of those doing the injections.
However, the justices suggested that the state would not be executing any inmates anytime soon, as the U.S. Supreme Court considers a Kentucky case over whether the three-drug lethal-injection cocktail used there, in Florida and in 35 other states violates the Eighth Amendment's safeguards against cruel and unusual punishment.
That means killer-pedophile Mark Dean Schwab, scheduled for a Nov. 15 execution, and Ian Deco Lightbourne will wait longer on Death Row, regardless of the Florida justices' decisions in the cases, both of which were argued Thursday.
Florida's leading death penalty case, Lightbourne, didn't focus on the lethal cocktail he would be injected with, but on records and abilities of those giving the injections -- an issue that came to the forefront with the botched execution of Miami killer Angel Diaz, who took 34 minutes to die Dec. 13.
Lightbourne's attorney, Susan Myers Keffer, said other states have less secrecy and that Florida should be more open about who's sticking needles into inmates.
''We don't know these people's personnel records and their employment. We don't know if they are making mistakes in their employment, if they've been cited for problems in their work file,'' she said. ''We don't know what any of their background is, if they've ever had any complaints filed against them.'' But Justice Harry Lee Anstead repeatedly said he had trouble understanding the thrust of her arguments. He said he was ''having a lot of difficulty'' with the idea that the court could ''impose that kind of supervision,'' or order that Keffer could take depositions and inspect the files of the injectors, because it could intrude on the powers of the executive branch.
CHANGES TO PROCESS
The justices seemed content that the state Department of Corrections had changed its procedures for lethal injections after the needles were improperly inserted in Diaz's arms. And though Florida shoots enough anesthetic to knock an inmate out -- and perhaps kill him -- it still took the grimacing Diaz twice as long to die than any other condemned prisoner. In the wake of that execution, DOC announced changes.
The first part of the procedure remains the same: The injector -- called a ''sticker'' by Justice Charlie T. Wells -- puts the needles in, and the executioner then injects the first drug, sodium pentothal, to knock the inmate out.
Now, however, the executioner must pause as a warden then approaches the condemned, brushes his eyelids for a reaction, jostles him and yells his name -- a period called the ``shake and shout.''
If the inmate is determined to be knocked out, the paralytic drug pancuronium bromide is then injected, followed by potassium chloride to stop his heart.
''My only concern, and I don't know if it's a constitutional concern . . . is the process of assessing consciousness has not been formalized in any document,'' said Justice Barbara Pariente. ``How do we ensure that that process is going to be competently performed?''
STATE'S POSITION
The state's lawyer, Kenneth S. Nunnelly, said the warden is trained in CPR and that the ''shake and shout'' can competently ``be performed by a layperson.''
Nunnelly added that ''Florida's procedures will meet any standards [the U.S. Supreme Court] may possibly choose to apply.'' Asked Anstead: ``What is the urgency in having an execution when we know the U.S. Supreme Court is going to shed light on this and there is at least some possibility that we may be out of kilter?''
Nunnelly pushed for executions to proceed, noting Florida was ''in front of other states'' on proper death-sentence procedures.
Said Anstead: ``We're in front of other states apparently after what has been termed a botched execution.''
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