Florida Supreme Court order denying stay in Mark Schwab

http://www.oranous.com/florida/MarkSchwab/FSCstayorder.htm

http://www.oranous.com/florida/MarkSchwab/Filed_11-07-2007_Order_Denying_Stay.pdf

Supreme Court of Florida

WEDNESDAY, NOVEMBER 7, 2007

CASE NO.: SC07-1603

Lower Tribunal No.: 05-1991-7249-AXXX

MARK DEAN SCHWAB vs.STATE OF FLORIDA
Appellant(s) Appellee(s)

Appellant's Motion to Stay Execution has been considered by the Court and
is hereby denied.

LEWIS, C.J., and WELLS, PARIENTE, CANTERO, and BELL, JJ., concur.

PARIENTE, J., concurs with an opinion.

ANSTEAD, J., dissents with opinion, in which QUINCE, J., concurs.

PARIENTE, J., concurring.

I agree with this Court’s denial of the motion to stay execution and hold
proceedings in abeyance and write to explain my reasoning. Schwab will likely
seek a stay in the United States Supreme Court as was done by the defendant in
Berry v. Epps1 and, in my view, that is exactly the procedure that should be

1. Berry v. Epps, No. 07-70042, 2007 WL 3121824 (5th Cir. Oct. 26, 2007),
petition for cert. filed, (U.S. Oct. 29, 2007) (No. 07-7348). In Berry, the United
States Supreme Court granted a stay pending disposition of Berry’s petition for
writ of certiorari, providing that if the petition for writ of certiorari is denied, the
stay “shall terminate automatically.” Id. (U.S. Oct. 30, 2007) (unpublished order).
The order also provides that if Berry’s petition is granted, “the stay shall terminate
upon the sending down of the judgment of the Court.” Id. In this case, if Schwab
moves the United States Supreme Court for a stay in conjunction with the filing of
a petition for writ of certiorari, that Court can decide whether to grant the stay and
petition, and can then consider the facts of Schwab and Lightbourne in conjunction

followed in this case. Schwab should seek a stay from the United States Supreme
Court and it should be that Court’s decision to determine whether it intends a de
facto moratorium on the death penalty and whether the issues it is presently
reviewing regarding lethal injection justify a stay of Schwab’s execution.

with Baze v. Rees, 76 U.S.L.W. 3154 (U.S. Sept. 25, 2007) (No. 07-5439). This
provides the State of Florida and this Court with the best chance of receiving
specific guidance from the United States Supreme Court as to the constitutionality
of future lethal injection procedures.

More importantly, as to whether this Court should grant a stay, if this were a
case involving the guilt or innocence of Mark Dean Schwab, or a case involving
the fairness of his penalty phase, or a case involving the broad question of the
constitutionality of the death penalty as a sentence in Florida, I would without
hesitation vote to grant a stay. If any of these circumstances were present here, it
would truly be a travesty of justice to allow an execution to proceed.

The issue in this case, however, is not even an Eighth Amendment challenge
to the constitutionality of lethal injection as a method of executing defendants in
Florida. Rather, as explained in detail in Lightbourne v. McCollum, No. SC06-
2391 (Fla. Nov. 1, 2007), the claim is “whether the method of execution through
lethal injection, as currently implemented in Florida, is unconstitutional because it
constitutes cruel and unusual punishment” under the Eighth Amendment. Id. slip
op. at 14-15 (emphasis added). Specifically, unlike challenges to “prior methods

at 48.
of execution, Lightbourne does not assert that lethal injection is inherently cruel
and inhumane, only that if it is not properly carried out, there will be a risk of
unnecessary pain.” Id.

Justice Anstead’s dissent relies heavily on the fact that the United States
Supreme Court has accepted review in a case raising the very issue of lethal
injection, Baze v. Rees, 76 U.S.L.W. 3154 (U.S. Sept. 25, 2007) (No. 07-5439),
and since we are obligated to follow the Supreme Court’s interpretation of the
United States Constitution (as are all states), we should grant Schwab a stay and
wait for the United States Supreme Court to rule in Baze. Our unanimous decision
in Lightbourne acknowledged:

[T]he [United States Supreme] Court recently granted certiorari
jurisdiction in Baze v. Rees, 76 U.S.L.W. 3154 (U.S. Sept. 25, 2007)
(No. 07-5439), to review a Kentucky Supreme Court decision which
held that Kentucky’s protocol for lethal injection did not violate the
Eighth Amendment. In the Baze petition, the petitioners urge the
United States Supreme Court to adopt a standard that would interpret
the Eighth Amendment to prohibit a method of execution that creates
“an unnecessary risk of pain and suffering.” Petitioner’s Petition for
Writ of Certiorari at 6, Baze v. Rees, No. 07-5439, (U.S. Sept. 25,
2007).

Lightbourne, slip op. at 25-26. In fact, in reviewing Florida’s current procedures,
we used as an alternative standard the one urged by the Baze petitioners—that is,
whether the procedures as currently implemented create “an unnecessary risk of
pain and suffering.” Specifically, we stated in our conclusion in Lightbourne:

2. Those executions have been as follows: Terry Melvin Sims (02/23/2000);
Anthony Braden Bryan (02/24/2000); Bennie Demps (06/07/2000); Thomas
Harrison Provenzano (06/21/2000); Dan Patrick Hauser (08/25/2000); Edward
Castro (12/07/2000); Robert Dewey Glock, II (01/11/2001); Rigoberto Sanchez-
Velasco (10/02/2002); Aileen Carol Wuornos (10/09/2002); Linroy Bottoson
(12/09/2002); Amos Lee King, Jr. (02/26/2003); Newton Carlton Slawson
(05/16/2003); Paul Jennings Hill (09/03/2003); Johnny Leartice Robinson
(02/04/2004); John Blackwelder (05/26/2004); Glen James Ocha (04/05/2005);
Clarence Edward Hill (09/20/2006); Arthur D. Rutherford (10/18/2006); Danny
Harold Rolling (10/25/2006).

[E]ven if the Court did review this claim under a “foreseeable risk”
standard as Lightbourne proposes or “an unnecessary” risk as the
Baze petitioners propose, we likewise would find that Lightbourne has
failed to carry his burden of showing an Eighth Amendment violation.
As stressed repeatedly above, it is undisputed that there is no risk of
pain if the inmate is unconscious before the second and third drugs are
administered. After Diaz’s execution, the DOC added additional
safeguards into the protocol to ensure the inmate will be unconscious
before the execution proceeds. In light of these additional safeguards
and the amount of the sodium pentothal used, which is a lethal dose in
itself, we conclude that Lightbourne has not shown a substantial,
foreseeable or unnecessary risk of pain in the DOC’s procedures for
carrying out the death penalty through lethal injection that would
violate the Eighth Amendment protections.

Id. at 55-56 (footnote omitted). The converse is also true; that is, if the inmate is
not fully unconscious before pancuronium bromide is administered there is a high
probability that an inmate will suffer unnecessary pain.

The fact remains that since lethal injection was adopted as the primary
method of execution by the Florida Legislature in 2000, there have been many
executions by lethal injection. 2 These executions have been carried out without
problems in the administration of the chemicals, other than the admitted

3. A one-drug protocol, utilizing only a lethal dose of sodium pentothal
(sodium thiopental), was recommended by the Protocol Committee appointed by
the Corrections Commissioner pursuant to Tennessee Governor Bredesen’s
Executive Order directing review and adoption of new execution protocols. The
recommendation was not adopted. See Harbison v. Little, No. CIV.3:06-1206,
2007 WL 2821230 at *22 (M.D. Tenn. Sept. 19, 2007).

4. “After the Diaz execution, the report of the Governor’s Commission
suggested that the Governor have DOC ‘on an ongoing basis explore other more

complications that occurred in the well-publicized Diaz execution. As a result of
the Diaz execution, and the subsequent inquiries by the Governor’s Commission
and the Department of Corrections into what caused the complications in the Diaz
execution, changes in the procedures were made. As we observed in Lightbourne:

Determining the specific methodology and the chemicals to be used
are matters left to the DOC and the executive branch, and this Court
cannot interfere with the DOC’s decisions in these matters unless the
petitioner shows that there are inherent deficiencies that rise to an
Eighth Amendment violation. Lightbourne has failed to overcome the
presumption of deference we give to the executive branch in fulfilling
its obligations, and he has failed to show that there is any cruelty
inherent in the method of execution provided for under the current
procedures.

Id. at 55.

If I were in the executive branch and in charge of lethal injections for this
state, I would urge the adoption of a one-drug protocol so that only a lethal dose of
sodium pentothal would be necessary.3 Alternatively, I would explore the use of
other drugs that carry less risk of pain than pancuronium bromide or potassium
chloride.4 Further, I would consider other means to monitor the state of

recently developed chemicals for use in a lethal injection with specific
consideration and evaluation of the need of a paralytic drug like pancuronium
bromide in an effort to make the lethal injection execution procedure less
problematic.’” Lightbourne, slip op. at 39 (quoting Governor’s Commission, Final
Report with Findings and Recommendations (March 1, 2007) at 13).

consciousness, such as the Bispectral Index (BIS) monitor, and would employ
individuals who have the medical training and expertise necessary to adequately
assess consciousness. However, to date, the United States Supreme Court has not
signaled that it intends for the judiciary to engage in that level of scrutiny.

I anticipate that the United States Supreme Court in Baze 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. I am hopeful that our decision in Lightbourne, which was reviewed
based on a fully-developed record, will assist the United States Supreme Court in
making its determination, including answering the second question posed in Baze
regarding whether an unnecessary risk of pain and suffering is established “upon a
showing that readily available alternatives that pose less risk of pain and suffering
could be used.” Baze, 76 U.S.L.W. 3154 (U.S. Sept. 25, 2007) (petition).

ANSTEAD, J., dissenting.

The circumstances of this case, and especially the United States Supreme
Court’s pending review of the constitutional issues involved, present this Court
with a compelling case for ordering that the execution of the appellant be stayed
pending the Supreme Court’s resolution of the constitutionality of the use of lethal
injection as it is administered in Florida and other states. While the pendency of a
case directly on point in the Supreme Court alone constitutes a compelling reason
for the entry of a stay, this factor is especially compelling in Florida because our
state constitution mandates that this Court must apply the United States Supreme
Court’s decision on the issue before us. The majority is clearly ignoring that
mandate in refusing to grant a stay here.

Present Circumstances

Presently, the defendant is scheduled to be put to death by lethal injection
through the administration of what has been referred to as a three-drug cocktail.
With the majority’s denial of a stay, this execution will be the first in Florida since
the execution of Angel Diaz in December 2006. That execution has been widely
viewed as “botched” because of the difficulty and the extraordinary amount of time
it took to administer the lethal three-drug cocktail, and the perception that Diaz
was subjected to extensive and unnecessary pain before finally dying. The

Diaz execution resulted in the Governor ordering an immediate halt to any further
executions in Florida, and the appointment of a commission to investigate the Diaz

execution and the protocols utilized by the Department of Corrections for
administering the three-drug cocktail, with a view towards ensuring that any
problems, constitutional or otherwise, be identified and remedied. In turn, the
findings and recommendations of the special commission and the heightened
scrutiny on this method of execution has resulted in modifications to the protocol
used by the Department of Corrections to administer lethal injection. It is the
resulting modifications in the Department of Corrections’ protocols that were
ultimately approved by the trial court in rejecting the constitutional claims in
Lightbourne v. McCollum, No. SC06-2391 (Fla. Nov. 1, 2007), and that this Court
has in turn approved on appeal in both Lightbourne and this case.

The Stay

There are several important factors that operate together to produce a
compelling case for staying the appellant’s execution pending the United States
Supreme Court’s resolution of the constitutionality of lethal injection and the
manner in which it is administered. The first is fundamental and obvious: the
consequences of failing to enter a stay will be irremediable. That is, once the
appellant is put to death any decision by the United States Supreme Court
impacting the use of lethal injection cannot possibly be applied here no matter the
merits of the constitutional claims; on the other hand, the grant of a stay will result
in no detriment to the State because immediately following any United States

Supreme Court’s decision denying relief to Baze the State will be free to execute
the appellant in accord with that decision.

Two other factors, however, in favor of granting a stay are, perhaps, the
most compelling: First, Florida’s Constitution expressly mandates that this Court
apply the United States Supreme Court’s decisions on the cruel and unusual
punishment clause of the United States Constitution to any decision we render on
the meaning of Florida’s cruel and unusual punishment constitutional provision. In
other words, in this case there is an explicit command in Florida’s Constitution that
this Court must follow the United States Supreme Court’s decisions on whether
death by lethal injection as it is currently being administered constitutes cruel and
unusual punishment, the very issue before us. However, as the majority opinion in
Lightbourne makes abundantly clear, there is presently no United States Supreme
Court decision on this issue. If that was the end of the story, this dissent would not
be written. But, that is not the end of story, since we know as an absolute fact that
the United States Supreme Court has this very issue pending before it and will be
rendering a decision that, pursuant to the mandate in Florida’s Constitution, will
control the outcome of this case. See Baze v. Rees, 76 U.S.L.W. 3154 (U.S. Sept.
25, 2007) (No. 07-5439). In other words, there is no controlling Supreme Court
decision on point at this precise instance, but such a decision is pending. Under
these circumstances it is pure sophistry to suggest this Court can ignore the

mandate in Florida’s Constitution that we apply Supreme Court law to the
constitutional issue before us in this case. Why would we rely on speculating on
Supreme Court law, as the majority opinion in Lightbourne does, when we know a
Supreme Court decision on this very issue is forthcoming? While the majority
may be confident in the correctness of its analysis and decision, this Court is
constitutionally bound to look to the decision of the United States Supreme Court
in the pending case. And, while the risk of some contrary decision by that Court
may seem small, there is absolutely no risk of adverse consequences to the State in
entering a stay. As the majority opinion in Lightbourne acknowledges, other
courts around the country have applied a variety of standards and some have
invalidated similar lethal injection procedures. Similarly, stays of execution have
been entered in other jurisdictions.

Finally, as noted above, the last execution in Florida obviously did not
proceed as contemplated, and, despite our approval of the revised protocols of the
Department of Corrections, we cannot know what may happen with the next
execution. This is especially true because one of the primary claims of those
contesting lethal injection, the necessity of professional medical supervision,
remains absent in Florida’s protocol. Schwab’s plea for a stay is particularly
compelling, because unlike Lightbourne, he has not been afforded an evidentiary
hearing on any of his claims, including his claim that the three-drug protocol

presents a substantially greater risk of inflicting pain than would the administration
of a single lethal dosage of sodium pentothal. As noted in Justice Pariente’s
concurring opinion, this specific issue is before the United States Supreme Court in
Baze. Of course, Schwab’s right to a hearing on this issue will be mooted by his
execution. Further, the defendant is not going anywhere, 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.

For all these reasons I would grant a stay pending the United States Supreme
Court’s resolution of the constitutional issues involved herein.

QUINCE, J., concurs.

A True Copy

Test:

jn

Served:

WAYNE HOLMES

DAPHNEY ELAINE GAYLORD

MARK S. GRUBER

BARBARA C. DAVIS

KENNETH S. NUNNELLEY

HON. SCOTT ELLIS, CLERK

HON. CHARLES M. HOLCOMB, JUDGE