Judge: Chance of pain definite during Schwab execution
BY JOHN A. TORRES
Titusville Judge Charles Holcomb on Wednesday cleared the way for the execution next week of child rapist and murderer Mark Dean Schwab, who argued that a lethal injection is cruel and unusual punishment. Holcomb rejected Schwab's motion to vacate his sentence, saying any method of execution could cause pain.
He said that even though executions must be deliberated, it does not give Schwab or his attorneys the right to file motions on matters already decided.
"This process does not require the court to continually review claims which have already been found wanting," Holcomb wrote. "At this late stage in the legal process, Schwab is barred from relitigating prior claims and from raising any new claims which could have been raised at an earlier date."
Schwab was convicted in 1992 of raping and killing Junny Rios-Martinez, 11, of Cocoa. He is scheduled to die by lethal injection at 6 p.m. Tuesday.
The state revised protocol after the December 2006 execution of Angel Diaz took twice as long as normal. The state has not executed anyone since then, waiting for the U.S. Supreme Court to rule on the constitutionality of lethal injection in a Kentucky case.
Holcomb quoted Chief Justice John Roberts, who said capital punishment was constitutional. "Some risk of pain is inherent in any means of execution -- no matter how humane," Roberts wrote.