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
Plaintiff, JULY 1, 2008
MARK DEAN SCHWAB,
SUCCESSIVE 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 June 30th, 2008.
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. denied 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. denied 127
S.Ct. 1126 (Mem), 166 L.Ed.2d 897. The State previously filed a memorandum on July
26, 2007 titled AThe Issues Raised in Prior 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. Mr. Schwab
filed a successive motion to vacate on August 15, 2007. In it he raised two issues
challenging the constitutionality of Florida’s lethal injection procedure and raising the
claim that newly discovered mitigation evidence of neurological brain damage made his
sentence of death unreliable. The postconviction court denied relief. On November 1,
2007, the Florida Supreme Court affirmed the denial of all relief. Schwab v. State, No.
SC07-1603 (November 1, 2007). On November 9, 2007, Mr. Schwab filed another
motion for post-conviction relief based on newly discovered evidence regarding
mitigation and a claim addressing Florida’s method of execution. Relief was denied on
January 24th, 2008, by the Florida Supreme Court. Prior to the ruling, however, the
United States Supreme Court granted Mr. Schwab a stay of execution on November 15th,
This motion is predicated on the recent United States Supreme Court decision in
Baze v. Rees and the evidence supporting the claims that Florida’s procedures for
carrying out executions by lethal injection create a “substantial risk of serious harm”.
Baze v. Rees, Slip Op. at 10-11 (Opinion of Roberts, C.J.) The witness information is
furnished on a witness list which is being filed simultaneously with this motion. These
witnesses will be available to testify under oath. The relief sought is an order vacating the
sentence of death, or a stay of execution, or such other relief as this Court may deem
THE UNITED STATES SUPREME COURT’S DECISION IN BAZE V. REES
SUPERCEEDED THE STANDARD OF REVIEW RELIED UPON BY FLORIDA
COURTS IN REJECECTING EVIDENCE THAT CLEARLY REVEALS THAT
FLORIDA’S LETHAL INJECTION EXECUTION PROCEDURES CREATES A
SUBSTANTIAL RISK OF SERIOUS HARM AND THUS VIOLATES THE
EIGHTH AND FOURTEENTH AMENDMENTS AND CORRESPONDING
PROVISIONS OF THE FLORIDA CONSTITUTION.
I. The Baze Decision
On April 16, 2008, the United States Supreme Court issued its plurality opinion in
Baze v. Rees, No. 07-5439, (April 16, 2008). The Supreme Court in Baze attempted to
define the standard applicable to method of execution cases. Due to the nature of the
Baze opinion, no clear standard was affirmatively adopted by a majority of the Court. In
fact, four standards emerged from the various opinions with only two having at least
three justices joining. In an opinion by Chief Justice Roberts, joined by Justices Kennedy
and Alito, the three members of the Court proposed that the proper standard should be a
“substantial risk of serious harm”. Baze v. Rees, Slip Op. at 10-11 (Opinion of Roberts,
C.J.)(hereinafter “Baze decision”). Further, this three-justice opinion requires an
additional showing by a “condemned prisoner” for a stay of execution of a comparison
between the challenged execution procedures and “known and available alternatives”. Id.
at 22. Three other Justices, Breyer, Ginsburg and Souter, proposed a standard that
requires a showing of an “untoward, readily avoidable risk of inflicting severe and
unnecessary pain”. Baze v. Rees, Slip Op. at 11 (Ginsburg, J., dissenting); Id., at 1
(Breyer, J., concurring).
The Standards announced in Baze squarely conflict with the standard relied upon
by the Florida Supreme Court in the January 24th, 2008, opinion in which it reviewed Mr.
Schwab’s claim under an “inherent cruelty” standard. In fact, the United States Supreme
Court explicitly rejected the “unnecessary risk” standard also announced by the Florida
Supreme Court. The Chief Justice’s opinion is perhaps the one to be adopted by the
lower courts. This opinion explains the standard which should be applied by the lower
Our cases recognize that subjecting individuals to a risk of future harm-not simply
actually inflicting pain-can qualify as cruel and unusual punishment. To establish
that such exposure violates the Eighth Amendment, however, the conditions
presenting the risk must be “sure or very likely to cause serious illness and
needless suffering,” and give rise to “sufficiently imminent dangers.” … We have
explained that to prevail on such a claim there must be a “substantial risk of
serious harm,” an “objectively intolerable risk of harm” that prevents prison
officials from pleading that they were “subjectively blameless for purposes of the
Baze v. Rees, Slip Op. at 10-11 (Opinion of Roberts, C.J.)
Additionally, the United States Supreme Court now requires an additional
evidentiary showing for Mr. Schwab in order to obtain a stay of execution. The Supreme
Court now requires that Mr. Schwab proffer alternatives that effectively address a
substantial risk of serious harm. Further, the Court stated that “the alternative procedure
must be feasible, readily implemented, and in fact significantly reduce a substantial risk
of severe pain.” Baze v. Rees, Slip Op. at 13.
Based on Florida’s prior experience with lethal injection and documentary
evidence concerning the Florida Department of Corrections’ current training program, as
discussed below, Florida’s lethal injection execution procedures create a substantial risk
of serious harm.
II. Florida Department of Corrections Execution Training
On December 13, 2006, the execution of Angel Diaz created concerns whether
Florida’s lethal injection protocols were being adequately implemented by the Florida
Department of Corrections. As a result, then Governor Jeb Bush created the Governor’s
Commission on the Administration of Lethal Injection to review the method in which the
lethal injection protocols are administered by the Department of Corrections (“DOC”)
and to make findings and recommendations as to how administration of the procedures
and protocols can be revised. As found by the Governor’s Commission on
Administration of Lethal Injection (“GCALI”) in its final report, inadequate training was
a major contributing factor leading to the events of the Diaz execution. To reduce the
risk of these events recurring, GCALI determined that better and proper training of the
DOC execution team was required. (exhibit 3) The DOC, pursuant to the newly revised
protocols of May, 2007, conducted several training sessions for the execution team.
These initial training sessions included both the DOC execution team members and
observers from the Florida Department of Law Enforcement (“FDLE”)(exhibit 4).
As previously noted before this Court, Mr. Schwab obtained the services of Janine
Arvizu, a certified quality auditor, to review the protocols and session notes. After a
review of the notes taken during the mock executions, it was determined that two of the
five July 2007 mock executions resulted in failed exercises.1 This was an error rate of
40%. This continued level of training would result in a probability of eight failed
“exercises” for every twenty practice executions and sixteen failed exercises for every
forty practice executions. This is shown in exhibit 14, Table 1a.
As a result of the Lightbourne litigation, the DOC revised their protocols which
were effective August 1, 2007. The execution process remained the same except for the
inclusion of an extra step to “assess consciousness” just prior to the injection of the
second chemical. Using these revised protocols, the DOC conducted seven mock
executions. (exhibit 4) Again, based on these training session notes, it was determined
that two of the seven August 2007 mock executions resulted in failed exercises. This is a
1 The definition of a “failed exercise” for the purposes of this analysis has several key aspects. First, a
failure does not encompass an exercise where the error or errors would result in “some risk of pain”, Baze,
at 8, or an “isolated mishap”. Id. at 11. A failed exercise would encompass a substantial error where an
29% error rate. This continued level of training would result in a probability of six failed
exercises for every twenty practice executions and twelve failed exercises for every forty
practice executions. These August training notes were not addressed in Mr. Schwab’s
prior motion for relief. This is shown in exhibit 14,Table 1b.
Combining July and August, there were twelve trials in which four were failed
exercises. This is a 33% error rate with a probability of seven failed exercises for every
twenty practice executions and thirteen failed exercises for every forty practice
executions. This combined analysis is shown in exhibit 14, Table 1c.
On May 27th, 2008, Mr. Schwab filed a renewed records request for the DOC
training session notes for the period between September, 2007, to the present. This Court
granted the motion and the DOC records were received on June 16, 2008. These records
indicate that between September, 2007 and May, 2008, the DOC conducted thirty
training exercises. Again, after review of these records, Ms. Arvizu found significant
training failures. (exhibit 8). The records indicated that nine of the thirty exercises were
failures resulting in an error rate of 30%.
III. Prior Florida Executions
Objectively, the data from the DOC training sessions and data obtained from
Florida’s prior twenty lethal injection executions are relevant to show a substantial risk of
harm. In Baze, the Court distinguished between two types of error:
In terms of our present Eighth Amendment analysis, such a situation-unlike an
“innocent misadventure,” -would demonstrate an “objectively intolerable risk of
harm” that officials may not ignore. In other words, an isolated mishap alone
does not give rise to an Eighth Amendment violation, precisely because such an
event, while regrettable, does not suggest cruelty, or that the procedure at issue
gives rise to a “substantial risk of serious harm.”
Baze, Slip Op. at 11-12 (citations omitted, emphasis added).
This objective analysis based on the data discussed infra establish that these errors are not
“isolated” mishaps but, instead, reoccurring errors in both training and past executions.
Florida’s prior lethal injection execution data were collected in order to focus on
three major areas of concern 1) technical issues, 2) duration issues, and 3) myoclonic
Eighth Amendment violation would be presented or where the error shows objective evidence that the
achievement of significant learning objectives were not obtained.
observation issues. Specifically, the data set to be included involved the executions by
lethal injection conducted in Florida between 2000 and 2006.
a. Florida Technical Issues
Investigation reports conducted by the medical examiner provided the basis for
the data. The only data available were for seventeen of the twenty lethal injection
executions conducted during this time period. These reports were reviewed for technical
anomalies which included 1) irregular IV placements, along with evidence of iatrogenic
manipulation,2 2) surgical incisions for IV access, 3) recent multiple needle puncture
marks indicating failure to gain IV access at the initial site, and 4) one instance indicating
subcutaneous IV insertion. Out of the seventeen executions for which data were
available, six post-execution investigative reports found technical anomalies, or in
probability terms, a 35% error rate with an expected total of fourteen technical anomalies
after Florida executes forty individuals by lethal injection. This is shown in exhibit 14,
The existence of past technical anomalies and the high probability (or certainty)
of their occurrence in the future implicate deviations in the execution mechanics and
show that due to inadequate training, the execution team is routinely incapable of finding
proper IV access without several attempts. While the argument can be made that such
problems occur in a clinical setting, the fact that the DOC fails 35% of the time indicates
a high level of failure due to inadequate training.
Under a Baze analysis, these data establish that Florida is “subjecting individuals
to a risk of future harm”. Id. at 10. The Baze decision discussed in great length this issue
of proper IV placement, the issue that lead to the events of the Diaz execution. Baze, Slip
Op. at 15. The Baze Court discussed Kentucky’s training procedure in this area:
Moreover, these IV team members, along with the rest of the execution team,
participate in at least 10 practice sessions per year. These sessions, required by the
written protocol, encompass a complete walk-through of the execution
procedures, including the siting of IV catheters into volunteers.
Baze, Slip Op. at 16 (record citation omitted, emphasis added).
2 “Iatrogenic” is defined as being “induced inadvertently by a physician or surgeon or by medical
treatment.” MERRIAM-WEBSTER MEDICAL DICTIONARY (2005 Ed.).
Kentucky trains the IV team by siting the lines into a person. Florida does not,
even though improper IV placement was major cause of the problems during the Diaz
execution. Florida’s substandard training of the technical team members responsible for
gaining IV access create conditions that present a risk of harm which is “sure or very
likely to cause serious illness and needless suffering,” and give rise to “sufficiently
imminent dangers.” Id. at 10-11.
b. Florida Duration Issues
Relevant to the Baze standard is the amount of time that elapses from the start of
the lethal injection chemical sequence until death. Evidence about the mechanics of
lethal injection and the pharmacological and pharmacokinetic properties of the chemicals
was obtained from the Lightbourne record through the testimony of the state’s expert Dr.
Dershwitz. (exhibit 1)
Based on this evidence, the normal duration of an execution by lethal injection
should last no more than eleven minutes. Compared to the duration of prior executions in
Florida, ten out of nineteen, or 53%, of Florida’s lethal injection executions exceeded this
time parameter. Further, this trend will continue and after twenty more executions (for a
total of forty), there is a statistical certainty that twenty-one executions will exceed the
constitutional duration limit. The mean duration for these executions is 13.8 minutes.
(exhibit 11) This is illustrated in exhibit 14, Table 3a.
Applying a t test, where the null hypothesis is true, shows that 83% of Florida’s
future executions will take longer than the eleven minute parameter established through
Dr. Dershwitz’s testimony. These findings show that 34% of future executions will take
between 13.79 and 20.12 minutes and 16% of future executions will take more than 20.12
minutes. Finally, the top 25% of Florida’s future executions will take more seventeen
minutes. (exhibit 11) Exhibit 14, Table 3b shows the t test and results.
These data are relevant to a Baze analysis in several respects. First, the execution
duration parameter is based on the scientific testimony of Dr. Dershwitz. The foundation
of this testimony is the pharmacokinetic and pharmacological properties of the three
drugs used in Florida and the weight and volume of their administration. According to
this testimony, an execution should take no longer than eleven minutes. Clearly, this is
not the case in Florida since a majority of past executions exceeded this parameter. This
means that these drugs are being “maladministered” as understood by the Baze Court. It
is more probable than not that this error rate is due to the improper administration of the
chemicals because of the 35% technical error rate, an error that featured prominently
during the Diaz execution. Since there is a statistical correlation between the training
session error rates and past lethal injection error rates, there is no doubt that these errors
Second, the Baze Court also recognized the notion of “needless suffering” as part
of the Court’s Eighth Amendment jurisprudence. See id. at 10-11. The touchstone of
“needless suffering” is the mechanics of a particular method of execution, See id. at 8,
which were established by Dr. Dershwitz. Thus the high duration error rate in past
executions objectively shows a “substantial risk” of “unnecessary suffering”.
Third, the choice by Florida to use a large dose of sodium pentathol, as opposed
to the smaller doses used by other states, appears to prolong an execution rather than
hasten death.3 This is again supported by the testimony of Dr. Dershwitz concerning the
pharmacokinetic properties of sodium pentothal which slow the circulatory and
respiratory systems.4 This leads to a troubling conclusion concerning the “proper
administration of the first drug”. Baze, Slip. Op. at 5. Since there are no clinical studies
with this amount of sodium pentothal, the definition of a “proper administration” can
only be based on the pharmacokinetic properties of the first drug. This, however, creates
a conflict: either the testimony of Dr. Dershwitz is wrong or the drug is being improperly
administered. In other words, “we know not what we do”, or we know what to do but
cannot do it right.
c. Florida Myoclonic or Other Observable Movements
The last area of concern involves witness observations during past lethal
injections of certain involuntary movements, termed myoclonus, by the prisoner. This
term as used here includes spasms, convulsions or other involuntary movements
witnessed during the injection of the lethal chemicals. For the prior twenty lethal
3 This issue is fully developed in part III, infra.
4 See exhibit 6. It should be noted that when discussing the pharmacokinetics of the three drugs, the
sodium pentothal reaction time is measured from the start of administration as opposed to the completion of
administration for the other two drugs. See Baze, at 6.
injection executions in Florida, seven, or 35%, had observable myoclonic events. (exhibit
11) This is shown in exhibit 14, Table 4.
Based on the evidence contained in Lightbourne, these events should not occur
during executions by lethal injections. These data show that 35% of Florida’s prior
executions include either complications due to the pharmacological properties of the
chemicals or inadequate training of the DOC execution team.
Under a Baze analysis, myoclonic observations are relevant for several reasons.
First, the propriety of using pancuronuim bromide was debated by the Baze litigants. The
Baze Court found its use proper:
First, it prevents involuntary physical movements during unconsciousness that
may accompany the injection of potassium chloride. The Commonwealth has an
interest in preserving the dignity of the procedure, especially where convulsions
or seizures could be misperceived as signs of consciousness or distress. Second,
pancuronium stops respiration, hastening death. Kentucky's decision to include
the drug does not offend the Eighth Amendment.
Baze, Slip Op. at 19 (record cite omitted, emphasis added).
While the Baze Court found the state’s interest compelling, Florida’s myoclonic error rate
disputes this finding.
Second, the myoclonosis observation is evidence that the DOC is not properly
administering the chemicals. If properly administered, the pancuronium bromide should
prevent involuntary physical movements according to the testimony of Dr. Dershwitz.
Since his testimony is the only definition of “proper administration” on the record, then it
is clear that Florida has not met this standard 35% of the time in the past.
Third, this again raises the issue of the “proper administration” of sodium
pentothal. The large dose of sodium pentothal greatly reduces the rate of circulation.
Based on the data, this dose inhibits the progress and efficacy of the pancuronium
bromide. This would result in a failures to prevent involuntary movements and hasten
d. Florida Combined Data
Taken together, the data presented above reveals that 40% of Florida’s prior lethal
injection executions had at least two shared areas of concern implicating the Eighth
Amendment. Six executions had at least two anomalies. Two executions had all three
present (one of which was the execution of Angel Diaz). These results rebut any
argument that the errors are “isolated” since 40% of Florida executions show two or more
errors. (exhibit 11) This is shown in exhibit 14, Table 5.
The combined Florida data is relevant to a Baze analysis. The proportion of
anomalies that occurred during the reported training period discussed above was 33%.
The proportion of executions with two or more anomalies that occurred was 40%. Based
on the evidence presented with this motion (see exhibit 11), one of Mr. Schwab’s experts
calculated whether the difference between these two proportions is statistically
This expert found that it is reasonable to assume (in this case with 98% certainty)
that the number of anomalies that will occur in actual executions will be not be
significantly lower or higher in the future real executions than the 33% that was observed
in the training exercises. (see attachment 11) Based on the data analysis, the expert’s
conclusion is that there is a significant (and thus legally relevant) relationship between
the DOC training error rate and the combined error rate for past executions. Id.
Thus, under a Baze analysis, Florida’s current procedure for executions by lethal
injection creates a “substantial risk of serious harm” by providing data that proves an
“objectively intolerable risk of harm.”5 Florida’s prior lethal injection procedures created
a substantial risk of serious harm that culminated in the events of the Diaz execution.
Based on the above objective analysis, it is clear that the DOC has not significantly
reduced this risk. As the Baze Court stated: “subjecting individuals to a risk of future
harm-not simply actually inflicting pain-can qualify as cruel and unusual punishment.”
Id. at 10. This is the situation in Florida.
e. The Additional Consciousness Assesment
The only major difference for this analysis between the May 2007 protocols and
the August 2007 protocols is the addition of a consciousness assessment between the
injection of the first and second chemicals. The Florida Supreme Court relied upon this
added step heavily in its Lightbourne opinion.
However, under a “step error analysis” this addition does not decrease the error
rate. As with any process, each step of a process is dependent upon the prior step being
5 It should be noted that in statistics terminology, a “significant relationship” supports evidence for
hypothesis. “Proves” is a legal term applying this evidence.
successfully completed. The number of steps and the accuracy at each step are relational
in determining the risk of error in any process. Thus there is a statistical relationship at
every step of the process and the more steps there are, a cumulative risk of error based on
the number of steps. From a statistical point of view, this only increases the level of risk.
Under the assumption that there are twenty-five steps from insertion of a
periphery IV access line up to, but not including, the injection of the second drug (with
no consciousness assessment), the probability of success per step can be calculated using
three different accuracy values of .95, .97, and .99. When the DOC adds a single step to
the process, this statistical example shows a reduction in the probability of success.
Number of Steps 95% accuracy 97% accuracy 99% accuracy
26 26% 45% 77%
25 28% 47% 78%
A similar example is shown from the data in section III(a)(2) below with the
analysis of Ohio’s error rates. After the execution of Joseph Clark (#21) on May 2, 2006,
that featured problems with gaining and maintaining IV access, Ohio added additional
steps to assess the IV lines after the first and second chemicals were injected. Instead of
lowering the error rates, they increased. For all Ohio executions up to Joseph Clark, there
was a technical error rate of 45%, a duration error rate of 50% and a myoclonic error rate
of 14%. The executions after the additional steps were added had a technical error rate of
60%, a duration error rate of 80% and myoclonic error rate of 20%.
These data support the hypothesis that Ohio did not adequately assess the
problems illustrated by the Clark execution including such factors as the IV cannulae size
and type, the adequacy of the pre-execution medical exam or the adequacy of the IV team
training. Instead, Ohio opted to add an additional step that most probably relied upon
inadequate factors, such as inadequately trained IV team members, to correct the
There is no evidence that the Florida DOC currently trains for assessing
consciousness in a manner that would significantly impact the statistical relationship
between the current DOC error rate and the prior execution error rate. Furthermore, the
high DOC training error rate supports the hypothesis that the success of this extra step to
reduce errors still relies upon poorly training personnel. As such, Florida will fare no
better than Ohio in this regard.
III. Comparative Analysis
Relevant to this issue is a comparative analysis mandated by the Baze Court’s
plurality opinion, see Baze, Slip Op. at 22, and that any comparison by this court is a
finding of fact rather than a conclusion of law.
a. Ohio and Lethal Injection
Florida and Ohio use similar methods for execution by lethal injection.6 Like
Florida, Ohio has also experienced recent problems with lethal injection executions.7
Problems with IV access were well documented, leading to revisions in Ohio’s protocols.
Errors still occurred, however, during attempts to gain IV access during subsequent
executions. The Ohio data included all information available for the twenty-six
executions by lethal injection from 1999 to 2007.
1.Ohio Technical Issues
Technical issues for Ohio were gathered from data contained in the execution logs
prepared by the Ohio Department of Rehabilitation and Correction (DRC). This
information was corroborated from other sources. Out of the twenty-five executions for
which data was available, twelve executions had technical anomalies resulting in a 48%
error rate. Using a probability formulation, there will be an expected total of twenty-four
technical anomalies after Ohio executes fifty individuals by lethal injection. This is
shown in exhibit 14, Table 6.
Ohio’s recent history of lethal injection executions was plagued by technical
errors. Ohio’s DRC recognized this issue in June, 2006, and attempted to address
problems with gaining proper IV access after the execution of Joseph Clark (#21). As
shown by the data, however, these problems continue to persist (executions 22,25,26).
2. Ohio Duration Issues
6 See fn.9.
7 For example, on May 2, 2006, the execution of Joseph Clark took an “unprecedented amount of time” to
effectuate death. Due to a failure to gain proper IV access, Clark’s execution lasted fifty-three minutes.
Ohio execution duration issue data were collected from the execution logs created
by the DRC and pertained to the time from the start of the chemical injection process to
the time that death was pronounced. The expected execution duration was again
calculated from the affidavits and testimony of Dr. Dershwitz pertaining to an injection of
two grams of thiopental sodium and 100 milliequivalents of potassium chloride.
This analysis shows that the period from 1999 to May of 2006, Ohio’s mean
execution time was 8.6 minutes.8 Using the data provided by Dr. Dershwitz with a +/-
time of one minute, the mean is 2.6 minutes above the expected execution duration.
Also, during this period, ten out of twenty of Ohio’s lethal injection executions exceeded
the time parameter. This is a 50% execution duration error rate with an expected twentyfive
executions having duration errors after Ohio conducts a total of fifty executions. This
is shown in exhibit 14, Table 7a.
During the period from July 2006 to 2007, Ohio conducted five executions.9 Four
of these five executions exceeded the execution duration resulting in an 80% error rate.
This is shown in exhibit 1, Table 7b. One can reasonably conclude from this and the data
in Table 6 that Ohio’s revised protocols did not prevent error but instead increased its
Combining the data during this period (from Table 7a and Table 7b), finds that
fourteen executions by lethal injection out of the twenty-five, or 56%, for which data was
available, exceeded the established time parameters.
3. Ohio Myoclonic or Other Observable Movements
Myoclonic data for Ohio were collected from witness observations during
executions by lethal injection. For the twenty-six executions by lethal injection in Ohio,
only four had reported evidence of myoclonic movements, a 15% error rate with an
expected eight executions having observable myoclonic events during the injection
sequence out of fifty executions in Ohio. This is shown in exhibit 14, Table 8.
4. Ohio Combined Data
8 The analysis of the Ohio data was divided because the chemical injection procedure was changed after the
Joseph Clark execution. Beginning with the Rocky Barton execution in July, 2006, two separate sixty
second saline flushes and assessments were added in lieu of the previous 20mL saline flush. No other
significant changes were made.
9 The longer time for this flush and assessment replacement was added into the execution duration
originally calculated from Dr. Dershwitz’s testimony and sworn statements.
The combined data presented above reveals that like Florida, 40% of Ohio’s prior
lethal injection executions had at least two shared areas of concern implicating the Eighth
Amendment. Seven executions had at least two anomalies. Three executions had all
three present (one of which was the execution of Joseph Clark). This is shown in exhibit
14, Table 9.
b. Georgia and Lethal Injection
Georgia has also experienced problems with lethal injection executions since the
state first used this method back in 2001. Like Florida and Ohio, Georgia uses the same
three chemicals has had persistent problems with gaining proper IV access.11
Data collection for Georgia was done using information gathered primarily from
the Alderman v. Donald proceedings, a federal §1983 challenge in the United States
District Court for the Northern District of Georgia which concluded in May of 2008.12
These data included all information available from Georgia lethal injection executions
10 See section II(e) above for a complete discussion.
11 Since 2000, Georgia has adopted three different lethal injection protocols. The original execution
protocols became effective in May of 2000 with revisions in September of 2002 and June of 2007.
Georgia’s chemical weights are different in some respects to Florida and Ohio. First, similar to Ohio,
Georgia uses two grams of thiopental sodium. Next, Georgia uses only 50 mg of pancuronium bromide
compared to the 100 mg used by Florida and Ohio. Lastly, where Florida uses 240 milliequivalents of
potassium chloride and Ohio relies on a lower amount of 100 milliequivalents of potassium chloride,
Georgia utilizes 120 milliequivalents of potassium chloride. Like Florida and Ohio, Georgia injects saline
after the administration of the first two drugs. Ohio and Georgia, unlike Florida, also ends the chemical
sequence with an injection of saline.
Also different is the injection delivery process, specifically, the syringe volumes used for the
injection sequence. Florida utilizes eight total volume 60cc (ml) syringes. Syringes 1 and 2 inject the
sodium pentothal. Syringe 3 is a saline solution. Syringes 4 and 5 inject the pancuronium bromide.
Syringe 6 is again saline. Finally syringes 7 and 8 inject the potassium chloride. In Ohio, syringes 1 and 2
each inject a volume of 40cc of sodium pentothal. Syringe 3 is a 20cc of saline flush. Syringes 4 and 5
each inject a volume of 25cc of pancuronium bromide. Syringe 6 is another 20cc of saline flush. Syringe 7
is a 50cc injection of the potassium chloride. Finally, syringe 8 is a 20cc saline flush. Georgia uses seven
total volume 60cc syringes. Syringes 1 and 1a each inject the sodium pentothal. Syringe 2 (the third in the
sequence), is a 60cc saline flush. Syringe 3 delivers the pancuronium bromide. Syringe 4 is another saline
flush. Syringe 5 is the potassium chloride. Finally, syringe 6 (the seventh in the sequence) is a saline flush.
It should be noted that the Georgia 2002 and 2007 protocols are similar with respect to the
injection process. The original 2000 protocols appear to be different. They also are vague as to the
volumes used for each chmical. However, based on testimony given in the State v. Nance hearings held on
April 30th and July 30th, 2002, the injection process appears the same.
For example, during the execution of Jose High in November of 2001, the medical technicians had
difficulty establishing IVs in both his arms. While IV access was established in High’s left hand, the
technicians were unable to establish an IV line in the right arms, hand or foot. As a result, technicians had
to perform the much more complicated procedure of establishing a central line in his neck. Jose High’s
execution, however, was not a solitary occurance. In fact, Georgia’s first four lethal injection executions
all had problems with establishing proper IV access.
12 Alderman v. Donald, Case No. 1:07-CV-1474-BBM (N.D. Atlanta).
from 2001 to 2007 during which time seventeen executions by lethal injection were
1. Georgia Technical Issues
Technical issues for Georgia were gathered from data contained in the medical
examiner reports and the execution logs maintained by the Georgia Department of
Corrections (GDOC). Technical issues data were available for all seventeen executions
in this area in which thirteen had technical anomalies resulting in a 76% error rate with an
expected total of 30 technical anomalies after Georgia executes forty individuals by lethal
injection. This is shown in exhibit 14, Table 10.
This is a substantial error rate that appears to have gone unrecognized and thus
uncorrected. The reason why Georgia has such a high technical error rate, even though
the IV team consists of two nurses, is most likely a result of the training schedule which
does not require periodic sessions.13
Further supporting this data are the initial reports about the June 6, 2008,
execution of Curtis Osborne. According to press accounts, the IV team took thirty-five
minutes to find a suitable vein. This is consistent with Georgia’s high technical error rate
(76%) and our probability calculation for future executions.
2. Georgia Duration Issues
Georgia execution duration data were collected from the execution logs
maintained by the GDOC. The relevant Georgia information pertained to the start of the
chemical injection process to the time that death was pronounced. The expected
execution duration was calculated from the affidavits and testimony of Dr. Dershwitz
specific to the chemical weight and volume used in Georgia.
Data was available for fifteen of the seventeen executions conducted from 2001 to
2007. Georgia’s mean execution time was 10.3 minutes. Based on the evidence
provided by Dr. Dershwitz, the expected execution duration in Georgia is nine minutes.
Using the same +/- one minute as before, the longest execution duration should be ten
minutes. While the mean duration was only .3 above the expected duration, 33% of
Georgia executions, or five out of fifteen, still exceeded the duration time parameter with
an expected thirteen executions having duration errors after Georgia executes forty
individuals. This is shown in exhibit 14, Table 11.
Georgia’s duration error rate is lower than that for Florida which may be due to
the significantly lower amount of sodium pentothal. For the difference between Georgia
and Ohio, it appears that the difference may involve the chemical volume being injected.
While Georgia’s injection process should take no more than seven minutes to complete,
Ohio should take no more than four minutes. This is a difference of three minutes
whereas the difference between the two means is only 1.7 minutes.
As noted in section III(b)(2), recent Georgia executions after Baze support the
data and conclusions concerning the duration error rate. According to initital press
reports, on May 6, 2008, William Earl Lynd’s execution took seventeen minutes and the
June 4th execution of Curtis Osborne took fourteen minutes. Both executions were above
the calculated duration parameter and above Georgia’s mean execution duration of 10.3
minutes. While the term “proof” is not a statistical term, it can be said that these reports
support the conclusion concerning Georgia’s duration error rate.
3. Georgia Myoclonic or Other Observable Movements
For the seventeen total executions in Georgia by lethal injection, only four had
recorded instances of myoclonosis. This is an error rate of 24% for an expected total of
ten myoclonic errors after forty executions. This is shown in exhibit 14, Table 12.
4. Georgia Combined Data
The combined data presented above reveals that 35% of Georgia’s prior lethal
injection executions had at least two shared areas of concern implicating the Eighth
Amendment. Four executions had at least two anomalies. Two executions had all three
present. This is shown in exhibit 14, Table 13.
The combined results for Florida, Ohio and Georgia show a technical issue error
rate of 43%, a duration issue error rate of 55%, and a myoclonic issue error rate of 24%.
13 According to the testimony in Alderman, even though the protocols require only one nurse on the IV
team, Georgia in practice uses two. Order and Opinion, Alderman v. Donald, Case No. 1:07-CV-1474-
BBM, at 5.
In addition, the combined data show that 39% of the executions had the presence of two
or more anomalies.
Florida Ohio Georgia Florida,Ohio,Georgia
Technical Errors 35% 48% 76% 53%
Duration Errors 53% 56% 33% 49%
Myoclonic Errors 35% 15% 24% 24%
Two or More Errors 40% 40% 35% 38%
c. Mean Duration Comparison
As noted in section II above, a comparison between Florida, Ohio and Georgia is
relevant to a Baze analysis where some conclusions can be made about the
pharmacokinetics of these chemicals which have never been studied before in these
amounts. Most relevant is the sodium pentothal that seems to impact the duration of an
execution with the assumption, or hypothesis, that Florida uses 5grams of sodium
pentothal to hasten the death of an individual.
Florida uses five grams of sodium pentothal and 100 milligrams of pancuronium
bromide. The mean execution duration is 13.8 minutes. Next, Ohio uses 2 grams of
sodium pentothal and 100 milligrams of pancuronium bromide. Ohio’s most recent five
executions under the new protocols had a mean execution duration of 10.4 minutes. The
prior twenty executions in Ohio had a mean of 8.6 minutes. Georgia, which uses 2grams
of sodium pentothal and 50 milligrams of pancuronium bromide, has a mean execution
duration time of 10.3 minutes.
The data does not support Florida’s hypothesis that more sodium pentothal
hastens death. In fact the data is contrary to the hypothesis. The difference between the
Florida mean and the Georgia mean is 3.5 minutes. The difference between the Florida
mean and the Ohio mean under Ohio’s newest protocols is 3.4 minutes. The difference
between the Florida mean and the Ohio mean under the prior protocols is 5.2 minutes.
d. The Netherlands
Discussed during both Lightbourne and Baze was the Netherlands and its
experience with euthanasia and physician assisted suicide (“EAS”). (see exhbit 5) The
comparison is relevant because both practices are designed to end life and both profess to
do so in a humane manner. The Dutch study found that in EAS cases, there was a
technical issue error rate of 5%, a duration issue error rate of 7%, and a myoclonic issue
error rate of 4%. As noted above, Florida lethal injection executions have a technical
issue error rate of 35%, a duration issue error rate of 53%, and a myoclonic issue error
rate of 35%. Ohio lethal injection executions have a technical issue error rate of 48%, a
duration issue error rate of 56%, and a myoclonic issue error rate of 15%. Georgia lethal
injection executions have a technical issue error rate of 76%, a duration issue error rate of
33%, and a myoclonic issue error rate of 24%.While Dutch EAS practices are done in a
clinical setting, the difference between the EAS practices, Florida, Ohio and Georgia
lethal injection executions are substantial.
Florida Ohio Georgia Netherlands
Technical Errors 35% 48% 76% 5%
Duration Errors 53% 56% 33% 7%
Myoclonic Errors 35% 15% 24% 4%
IV. Comparative Analysis of the Florida and Kentucky Protocols
A comparative review of the Florida and Kentucky protocols finds that they are
not substantially similar. Based on a facial review of the protocols, Ms. Arvizu
concluded that Florida’s protocols were deficient in many important respects:
Despite the fact that the Florida procedure has the potential to function as a better
means of controlling and ensuring the acceptability of an execution, its potential
is unrealized. It suffers from a number of serious deficiencies and inconsistencies
(as identified in my letter to your attention, dated August 14, 2007) that render it
ineffective in achieving its goal of controlling the execution process to achieve an
In contrast, despite the fact that the Kentucky protocol provides relatively little
detail, it addresses issues that have the potential to cause critical failure of the
execution process, but that are not addressed in the Florida procedure.
See exhibit 8.
In her report, Ms. Arvizu identifies several examples where the Florida protocols
fail to meet the standards approved by the Baze Court. Id.
Furthermore, the recently received DOC training session notes also show that the
Florida protocols are not substantially similar to the Kentucky Protocols. She states in
The problems identified through review of Florida’s training records are more
readily apparent in comparison to the relevant provisions of the Kentucky
protocol. Florida’s training records document the nature and scope of the
contingencies that have been addressed during training. The substantive
contingencies that have been addressed during training are largely limited to
blocked lines. During practice exercises, Florida has not addressed some of the
contingencies that have been experienced in past Florida executions or that have
the potential to compromise the execution process (e.g., execution duration of >12
minutes, or an inability to site the IV lines within more than an hour);
requirements for addressing these serious contingencies are explicitly addressed
in the Kentucky protocols.
Based on the recently received training records, Florida has not provided training
to address an inmate’s known medical problems. In contrast, the Kentucky
protocol is designed to ensure that the inmate’s recent, and potentially changing
medical and psychiatric condition is well documented in advance of the
See exhibit 8.
V. Alternatives for Florida
Under Baze, in order for Mr. Schwab to obtain a stay of execution, he must
proffer alternatives that “effectively address” a substantial risk of harm. Id. at 13. These
“alternative procedures” must be “feasible, readily implemented, and in fact significantly
reduce a severe risk of pain”. Id. Mr. Schwab proffers two alternative procedures that
must be introduced in order to effectively address the substantial risk of serious harm that
the current protocols present.
a. An Effective Training Program
Mr. Schwab has consistently argued that the current DOC training program is
inadequate. In fact, Mr. Schwab in his original records request sought to obtain any
documentation that showed that such a program exists. The effective training program
that Mr. Schwab submits is necessary is an instructional system design that includes
references to learning objectives, instructor materials, training materials, records of
training delivered, and objective evidence of any achievement of learning objectives.
As outlined in her initial report of August 14, 2007, Ms. Arvizu observed “There
is no indication that team members (presumably identified as STM-#) received training
designed specifically to address learning objectives that were developed in consideration
of their responsibilities.” (exhibit 12) Ms. Arvizu outlined some aspects of a proper
training system in this report:
[The DOC Protocol] requires that training be sufficient to ensure that all
personnel are prepared to carry out their roles. In order for any party to make a
determination that delivery of a given training curriculum has been effective in
this manner, the training should include objective evidence of which individuals
achieved which learning objectives. This requirement is typically satisfied
through a written examination or practical demonstration of skills. The available
records provided no indication that the training in question was either designed to
meet specific learning objectives (cognitive, affective, or psychomotor), or that
individuals demonstrated satisfactory achievement through anything other than
Exhibit 12 at 5.
In addition her review of the trainings records which were provided revealed an
issue that creates a substantial risk of serious harm:
According to training records provided, none of the medical team members have
received training in the recently revised and approved procedure since it was
released on July 31, 2007. Such training would be a necessary prerequisite to
certifying the department’s capability.
Exhibit 12 at 5.
As a result, Ms. Arvizu concluded:
The number and nature of quality deficiencies and inconsistencies identified in
the reviewed materials lead me to conclude that the department has not
demonstrated that they have put in place the systems and controls necessary to
ensure that they can predictably and reliably perform executions by lethal
injection in accordance with their own objectives.
After reviewing additional records from the DOC, Ms. Arvizu repeated her earlier
conclusions concerning the adequacy of the DOC training program. Specific issues
concerning inadequate training concerning the effects of the chemicals were found
throughout the records. Finally, on April 1, 2008, Ms. Arvizu prepared another report for
a similar lethal injection claim. Her conclusion was:
Based on my earlier review of the DOC procedure and available training records,
I concluded that the department did not have the systems and controls necessary
to ensure that they can predictably and reliably perform executions by lethal
injection in accordance with their own objectives. Based on my review of these
additional records, my conclusion has not been altered. If I am able to obtain and
review copies of additional requested materials about the department’s training
program, I will provide additional or revised comments and conclusions, as
Exhibit 9 at 4.
Implementing such a procedure, a procedure contemplated by the Governor’s
Commission on Administration of Lethal Injection is feasible since such a program is
standard in all industries. In fact, it is very likely that the DOC uses such a model in
other areas of its operations. Since such a training program is the standard industry
model, implementation would not require a major revision to the current program but,
instead, the inclusion of several important elements into the existing procedure. Finally,
it is undisputed that proper training, a training that is up to standard, would significantly
reduce the substantial risk of pain now present under the current DOC program.
b. A Reduction in the Amount of Sodium Pentothal
Based on the data presented, there is credible evidence that the current amount of
sodium pentothal used by the DOC poses a substantial risk of serious harm. As noted by
the Baze court, Kentucky uses three grams of the sodium pentothal equivalent during the
execution process. The state has argued that since Florida uses a much higher dose, then
it more than meets the standard announced in Baze. In fact, the opposite is true. This
conclusion is based on the data for execution duration and myoclonic observations. First,
Florida’s mean execution duration is substantially greater than that for Ohio and Georgia.
Second, Florida’s myoclonic error rate is greater than that for Ohio and Georgia. Thus,
the only plausible conclusion is that the sodium pentothal is unnecessarily delaying death
and inhibiting the pancuronium bromide from reaching the target area in order to arrest
Reducing the amount of sodium pentothal injected during an execution would
substantially reduce the execution duration and myoclonic error rate and thus
significantly reduce the substantial risk of pain. This reduction is both feasible and can
be readily implemented since the DOC currently relies upon this drug during the
Based on the above stated grounds, Mr. Schwab respectfully requests that this
Court grant this motion.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Motion to Vacate
Sentence and Stay Execution has been furnished by E-mail, Fax and United States Mail,
first class postage prepaid, to all counsel of record on June 20, 2008.
/s/ Mark S. Gruber
MARK S. GRUBER
Florida Bar No. 0330541
PETER JAMES CANNON
Florida Bar No. 0109710
Capital Collateral Regional
Counsel - Middle Region
3801 Corporex Park Drive, Suite 210
Tampa, FL 33619
Fax# (813) 740-3554
Counsel for Mark Dean Schwab
Copies furnished to:
Honorable Charles M. Holcomb
Circuit Court Judge
506 South Palm Avenue
Titusville, FL 32796
Assistant Attorney General
444 Seabreeze Boulevard, 5th Floor
Daytona Beach, FL 32118-3951
Robert Wayne Holmes
Assistant State Attorney
2725 Judge Fran Jamieson Parkway, Bldg. D
Viera, FL 32940
Commission on Capital Cases
ATTN: Roger R. Maas
402 S. Monroe Street
Tallahassee, FL 32399-1300
The Honorable Thomas D. Hall
Clerk, Supreme Court of Florida
ATTN: Tangy Hardy
Supreme Court Building
500 S. Duval Street
Tallahassee, FL 32399-1927