Vicki and Junny Rios Martinez address the media at Tuesday morning press conference.
Tim Shortt, FLORIDA TODAY
U.S. Supreme Court may be last chance for reprieve for convicted killer
BY JOHN A. TORRES FLORIDA TODAY
COCOA - Though she's waited more than 16 years to see her son's killer executed, Vicki Rios-Martinez wouldn't mind waiting a little longer.
She'd like to see Mark Dean Schwab strapped in and prepared for a lethal injection -- and then receive a temporary reprieve.
"The execution is eventually going to happen. It's inevitable. So maybe a 'psych' moment wouldn't be too bad," the 56-year-old said one recent morning in a part of her backyard she named 'Junny's Garden,' after her son.
"I'd like to see him sweat."
Schwab, who abducted, raped and killed 11-year-old Junny Rios-Martinez in 1991, is scheduled to die by lethal injection at 6 p.m. Thursday at Florida State Prison in Raiford.
While all of Schwab's multiple appeals -- starting in 1994 --were denied, his only hope for a stay of execution lies with the U.S. Supreme Court.
Just two weeks ago, the U.S. Supreme Court granted a stay of execution to a convicted murderer on Mississippi's death row. It was the third stay the court has issued since agreeing to hear a challenge on whether the use of lethal injections constitutes a form of cruel and unusual punishment.
Some states also have volunteered to place a moratorium on lethal injections pending the Supreme Court's findings.
Schwab's case may well test the notion that the U.S. Supreme Court has instituted an unofficial nationwidemoratorium on the death penalty.
While Assistant State Attorney Wayne Holmes said a last-minute stay would be unfair to the victim's family, he can also understand what Vicki Rios-Martinez is thinking.
"It's a way of making him think about justice and that his life is on the line," Holmes said.
The issue of whether death by lethal injection represents cruel and unusual punishment stems, in part, from last December's execution in Florida of murderer Angel Diaz.
Then-Gov. Jeb Bush ordered an investigation and issued a moratorium on executions after an autopsy revealed it took twice the normal time for Diaz to die because one of the needles missed the vein and pumped the deadly cocktail into his tissue.
A special panel revised lethal injection protocols, and the ban was lifted in July. Gov. Charlie Crist chose Schwab as the first post-moratorium execution in the state.
"It would not surprise me if it were delayed again," said State Attorney Norman Wolfinger, whose office prosecuted Schwab.
Wolfinger said opponents of the death penalty always will find that a method is cruel and unusual.
"Any matter of death is always going to be an issue," he said. "I don't see it as cruel and unusual at all. The real issue should be do you deserve to die. Diaz deserved to die. Do I feel sorry for these people on death row? Not one bit."
He said he wished the state would return to using the electric chair. That, he said, was something criminals feared.
Last week's 5-2 ruling by the Florida Supreme Court to deny Schwab's motion for a stay focused mainly on the U.S. Supreme Court's examination of lethal injections.
In denying Schwab's stay, Justice Barbara Pariente said she expected him to appeal to the U.S. Supreme Court -- which he did late Friday.
"I anticipate that the U.S. Supreme Court . . . will clarify both the precise legal standard that should be used in method of execution cases and, more importantly, to what extent the judiciary should scrutinize the specific choices made by the executive branch in deciding how to carry out lethal injections," she wrote.
But in voting in favor of a stay, Justice Harry Lee Anstead said it hurts no one to keep Schwab alive until the U.S. Supreme Court makes its decision.
"The defendant is not going anywhere," he said, "and, under Florida's law keeping death warrants alive indefinitely, the setting of a prompt date for execution following a United States Supreme Court decision favorable to the state will be a simple task."
Regardless of what happens, the Rios-Martinez family is going ahead Saturday with a celebration of Junny's life. The event, "Junny's Justice," will take place at 1:30 p.m. at the Cocoa park named after boy.
"You set the execution. You sign the death warrant. You set the date. Why is it not happening?" Vicki Rios-Martinez said. "It's time for us to go on with our lives. We have decided to live."
If there is a last-minute stay, Vicki Rios-Martinez will point again to how unbalanced the legal system is.
"It's the state versus the criminal versus the state," she said. "The state arrests them and prosecutes them and then the state champions for their rights. The whole time the victim is completely left out of the picture. There is no balance in this criminal justice system.
"If you're a criminal, it's the greatest system in the world," she said. "That's why we have the most crime."
Contact Torres at 242-3649 or email@example.com.
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Justice for Junny
Junny memorial Junny's Justice: A celebration of his life takes place at 1:30 Saturday afternoon at Junny Rios-Martinez Park on the corner of State Road 524 and Westminster Drive in Cocoa. Blankets and lawn chairs are recommended, as seating is limited. A news conference detailing the memorial service will be held at 9 a.m. today at the Brevard County Sheriff's Office West Precinct in Viera.