Monday, 30 June 2008
Florida set to resume executions
By Nathan Crabbe
Sun staff writer
Last Modified: Sunday, June 29, 2008 at 11:24 p.m.
The Gainesville Sun
Florida is set to put convicted child killer Mark David Schwab to death Tuesday, resuming executions for the first time since a botched execution more than 18 months ago.
In that time, the state has made changes to the lethal injection process such as redesigning the death chamber and adding a step to ensure an inmate is unconscious before lethal drugs are injected,
But critics say the state failed to address problems with the drugs themselves and training of the people administering them.
"If you keep doing what you've done in the past, why do you not expect the same result?" asked Peter Cannon, an attorney representing Schwab for the Capital Collateral Regional Counsel's Tampa office.
Florida and the three dozen other states with lethal injection use a similar three-drug combination in executions. Inmates are first injected with a sedative, then a paralyzing agent and finally a drug that stops the heart.
Legal challenges have raised questions about the drugs. Schwab's appeal suggests Florida's high dosage of the sedative slows the effect of the other drugs. An Ohio judge earlier this month ordered the state to drop two of the drugs and deliver only a massive dosage of the sedative.
Members of a commission studying Florida's execution method recommended the state consider discontinuing use of the paralyzing agent, which is banned in the euthanization of pets. The commission also recommended the state look into updating all the chemicals used in the process.
But the Florida Department of Corrections decided to stick with the existing drugs because they're the same ones used in other states, said spokeswoman Gretl Plessinger.
"Right now, this is the protocol that other states are using, so we didn't want to deviate from that," she said.
Unless a court issues a stay, Schwab will be executed at 6 p.m. Tuesday at Florida State Prison near Starke. Schwab was sentenced to death for the rape and murder of 11-year-old Junny Rios-Martinez in 1991.
His execution would end a hiatus that started with the botched execution of Angel Diaz and continued with the U.S. Supreme Court considering a legal challenge to lethal injection.
The execution of Diaz, who appeared to be wincing in pain and required a second round of lethal drugs, led to the appointment of the commission that studied Florida's execution process. The commission found IV lines had been pushed through Diaz's veins and recommended changes to prevent the problem from happening again.
Before executions could resume, however, the U.S. Supreme Court took up a lethal injection challenge that put executions on hold across the country. In April, the court issued a decision upholding lethal injection in a Kentucky case, Baze v. Reese.
The high court ruling didn't end the debate over lethal injection, said Deborah Denno, a professor at Fordham Law School who specializes in death penalty issues.
"Baze didn't close doors at all," she said. "It left a wide-open door."
Denno said an Ohio judge's decision this month to drop two of the three drugs in the combination could start a trend of such cases. She said attention to lethal injection has also spurred a wave of new research exposing flaws in the method.
"This is stoking the fire of the issue," she said.
University of Miami researcher Teresa Zimmers has taken part in three studies of executions. She said one problem with lethal injection is that states fail to adjust the drug dosage depending on the inmate's body weight or medical history.
"That one-size-fits-all approach doesn't seem to be working well," Zimmers said.
While states use the same drugs, they deliver different amounts. Florida administers five grams of the sedative sodium pentothal, compared to two grams in Georgia and Ohio. Florida officials have argued the larger amount ensures an inmate is unconscious.
But Cannon studied previous executions in the state, finding the larger dose could be interfering with other drugs. Florida executions lasted 13.8 minutes on average - longer than the time a state expert testified they should take, and longer than the average times in Georgia and Ohio.
Schwab's appeal suggests the sedative is slowing the effect of the other drugs. But Dr. Kayser Enneking, chairwoman of the anesthesiology department in UF's College of Medicine, questioned that conclusion.
"I'm not sure that a larger dosage would have any effect on slowing the effect of the other drugs," she said.
There are also questions about the paralytic drug. Because the drug can mask unconsciousness, the American Veterinary Medical Association bans its use in euthanizing animals.
Some members of Florida's commission, including Gainesville Circuit Court Judge Stan Morris, suggested the state consider dropping use of the paralyzing drug. State officials argued the drug serves a purpose by masking involuntary convulsions that could shock observers, including the victim's family.
Denno said an Ohio case shows the drug issue is fertile legal ground.
Earlier this month, an Ohio judge ordered the state to use only a massive dosage of the sedative drug to execute inmates - the same method used in euthanizing animals, but a method that could make executions last as long as 45 minutes.
Zimmers said states are essentially conducting unethical medical experiments with inmates in continually tweaking execution procedures.
"They're pretty much arbitrary decisions made in some cases by judges," she said.
But medical ethics have limited the involvement of doctors in the process. Florida shields the identity of medical professionals involved in executions, going so far as to mask the doctor who declares inmates dead.
Enneking said those ethical constraints, as well as the fact the drugs were made for purposes other than causing death, make it difficult to identify problems with the method.
"There's no perfect way to do this as far as I can tell," she said.
Zimmers said doctors are already involved in the process, so it's time for them to apply medical knowledge to lethal injection.
"If it's so ethically loaded, it demands it should be examined," she said.
Sunday, 29 June 2008
Child killer Mark Dean Schwab faces execution Tuesday
- Sarah Lundy |Sentinel Staff Writer
- June 29, 2008
Child killer Mark Dean Schwab -- who kidnapped, raped and murdered 11-year-old Junny Rios-Martinez of Cocoa -- is set to die Tuesday by lethal injection.
His execution marks Florida's first state killing since the U.S. Supreme Court ruled in April that the commonly used, three-drug lethal cocktail is not cruel and unusual punishment under the U.S. Constitution.
That ruling ended a de facto moratorium on the death penalty that had swept the nation while the high court focused on the issue.
Since the ruling, nine condemned men have been put to death across the country -- far fewer than the "bloodbath" death-penalty opponents had feared would follow the decision.
Now, eyes shift to Florida on Tuesday, when Schwab, barring any last minute legal moves, will become the 10th man to die since the ruling.
"There is no question of his guilt, and the law says [lethal injection] is an appropriate punishment," said Wayne Holmes, a Seminole-Brevard assistant state attorney and prosecutor on the initial Schwab case.
Junny's parents, Vicki and Braulio "Junny" Rios-Martinez, could not be reached for comment.
For the past 16 years, Schwab has lived in a 6-by-9-foot cell in Florida State Prison in Starke. He joined death row in 1992 after he was convicted of killing Junny, a little boy who loved surfing and baseball.
On April 18, 1991, Schwab called the 11-year-old's school and identified himself as the boy's father. He left a message for Junny to go to a baseball field after school. Witnesses said they saw Junny get into a U-Haul with Schwab.
Five days later, Schwab led investigators to the boy's body, which he hid inside a footlocker in a palmetto thicket in Canaveral Groves, north of Cocoa.
Schwab was originally scheduled to die by lethal injection Nov. 15. The U.S. Supreme Court issued a last-minute stay that postponed the execution while it considered the lethal-injection issue in a case that originated in Kentucky.
Some had hoped the top court's decision would quash many of the legal challenges to lethal injection. But the closely watched ruling did little to settle the debate, and some say it has actually sparked more on the issue.
"It's really started the ball rolling," said Deborah Denno, a law professor at Fordham University and a death-penalty expert. The U.S. Supreme Court "hasn't changed things that much, but there is a more heated discussion," she said.
Some states -- such as Georgia and Texas -- are moving forward with executions this year. Texas has 16 scheduled to die before the end of the year.
Others -- such as Ohio and Delaware -- are examining the way they carry out capital punishment. Last month, a judge in Ohio became the first in the country to order authorities to stop using the three-drug cocktail and opt for a single, large dose of barbiturate, which is often used in animal euthanasia.
"This may have reverberations in other states," said Ty Alper, associate director of the death penalty clinic at the University of California Berkeley school of law.
It doesn't appear that Florida is headed toward the one-dose process yet.
Last year, Florida enacted new and detailed procedures for how to administer the three-drug cocktail after convicted-killer Angel Nieves Diaz needed a second dose of the fatal chemicals and took 34 minutes to die in 2006.
The state responded by requiring more staff training and better monitoring of proceedings in the death chamber.
Schwab will be the first condemned prisoner to enter the chamber since Diaz. There are no other executions scheduled in Florida. But there are 377 Florida prisoners waiting on death row.
Out of options
In 1992, Mark Dean Schwab was sentenced to death in the 1991 slaying of Junny Rios-Martinez, but the execution was delayed by appeals. On Nov. 14, Schwab's execution was delayed until the U.S. Supreme Court decided whether lethal injection is constitutional. In April, the court ruled it is, and in May, Gov. Charlie Crist ordered that Schwab be executed.
Sarah Lundy can be reached at email@example.com or 407-420-6218.
Florida prepares for 1st execution since foul up
By RON WORD – 39 minutes ago
STARKE, Fla. (AP) — Florida's new procedure for lethal injections could be tested Tuesday when executioners strap down a condemned inmate for the first time since a botched execution.
Mark Dean Schwab, 39, is scheduled to die exactly 16 years after he was sentenced in the 1991 kidnapping, rape and murder of 11-year-old Junny Rios-Martinez.
Florida officials say they have resolved problems with the December 2006 execution of Angel Diaz when needles were accidentally pushed through his veins, causing the lethal chemicals to go into his muscles instead, delaying his death for 34 minutes — twice as long as normal. Some experts said that would cause intense pain.
Then-Gov. Jeb Bush stopped all executions after Diaz was killed, but Florida and other states were also held up as they waited for the U.S. Supreme Court to rule the three-drug method of lethal injection used by Kentucky was constitutional. Thirty-four other states, including Florida, use a similar method.
Florida's new procedure requires the warden to make sure the inmate is unconscious following the injection of the first chemical, sodium pentothal. Then the executioner will inject pancuronium bromide to paralyze his muscles and potassium chloride to stop his heart. It also requires people with medical training to be involved in the process.
Schwab and his attorneys aren't so sure the problems are fixed. An analysis done for Schwab's lawyers showed that nine of the 30 mock executions performed by Florida's Department of Corrections between September 2007 and May were failures, said one of his state-paid attorneys, Mark Gruber.
The corrections department said its mock exercises have included preparation for potential problems such as a combative inmate, the incapacity of an execution team member, power failure and finding a vein.
"Training for the unexpected is not a failed mock execution," said Gretl Plessinger, a corrections department spokeswoman. "We're planning for contingencies."
Schwab's legal options are running out. On Friday, the Florida Supreme Court rejected his latest appeal claiming the new procedure still carries the risk of causing intense pain and suffering.
The state has argued successfully in several courts that the procedure meets all constitutional tests against cruel and unusual punishment and that Schwab cannot raise the issue again.
Schwab's attorneys did not return calls after the appeal was rejected Friday, but they are expected to next turn to the federal courts. The U.S. Supreme Court has allowed eight lethal injections to continue since upholding the Kentucky case.
That ruling raised a lot of questions, said D. Todd Doss, an attorney in northern Florida who has handled several death penalty cases but isn't involved in Schwab's appeals.
"I didn't think it cleared the legal landscape," Doss said, because it did not determine whether there was a substantial risk that Schwab would experience intense pain and suffering.
Senior Assistant Attorney General Kenneth S. Nunnelley said Schwab's claims in two previous challenges to lethal injection have also been rejected. "He does not get another bite at the apple," he said.
Family of Schwab's victim are counting down the days to execution with a timer on a Web site devoted to the boy. They've been through years of appeals, and they decided not to comment on the latest.
"The roller coaster has begun, and we don't want to get on," Vickie Rios-Martinez, Junny's mother, said recently.
Schwab raped and killed Junny a month after he was released early from a prison sentence he got for raping a 13-year-old boy, who was from Cocoa, a small town on the Atlantic coast of Florida.
Schwab got close to the boy and his family by posing as a reporter who promised to help the boy with his dream of becoming a professional surfer. On the day of the rape and murder, Schwab called the boy's school posing as his father, then picked him up there.
The case prompted Florida's Junny Rios-Martinez Act of 1992, which prohibits sex offenders from early release from prison or getting credit for good behavior.
"The state is the one who is the biggest victimizer. They let him out. They knew who he was," the boy's mother told The Associated Press in November.
Schwab's execution is to be held at the state's death chamber in Starke, which is about 40 miles southwest of Jacksonville.
Warden on death penalty: "This is wrong"
By DARA KAM
Palm Beach Post Capital Bureau
Saturday, June 28, 2008
TALLAHASSEE — Murderer Pedro Medina was strapped into "Old Sparky"
shortly after midnight on March 25, 1997, at Florida State Prison.
Warden Ron McAndrew stood nearby as a guard placed a wet sponge to
conduct more than 2,000 volts of electricity onto Medina's shaved head.
The executioner pulled the switch. Within seconds, an arm's length
from McAndrew, 6-inch flames leaped out the side of the mask on
The cramped chamber immediately filled with smoke and a putrid, acrid
The executioner, wearing oversize insulated gloves that protect
linemen working on electrical wires, sought advice from the warden.
"He looked at me with this big question on his face, and he said,
'Continue?' " McAndrew recalled recently. "I said, 'Continue.
Continue.' There's no way we could stop at that point."
Medina's searing death and two executions before it led McAndrew down
an unlikely path since he quit prison work: He is a working opponent
of the death penalty.
"All three executions ignited a fire of thought," McAndrew said.
"Each time I carried out one of those executions, I certainly was
asking myself why I was there and is this necessary."
Witness entire process, ex-warden says
On Tuesday, Florida plans to execute by lethal injection Mark Dean
Schwab, who raped and strangled 11-year-old Junny Rios-Martinez of
Cocoa. McAndrew opposes the execution.
During his time at Florida State Prison, McAndrew earned the moniker
"The Walking Warden" because he spent more time outside his office
walking the grounds than behind his desk.
He said he visited Death Row every day.
McAndrew said he supported the death penalty during his 20-plus years
with the Department of Corrections.
"One day I just sat down and said, 'This is wrong. This is wrong. We
have no business killing people,' " he said, except in self-defense,
in defense of someone else or in defense of the nation.
Not everyone agrees.
Proponents of the death penalty, including some families of murdered
children such as Rios-Martinez, argue that the execution helps them
deal with their loss.
"That will not serve as a substitute for getting our son back, but it
is as close as we can get to justice in this rather imperfect world
we live in," said Don Ryce, whose 9-year-old son Jimmy was raped,
murdered and dismembered in Miami-Dade County in 1995. Juan Carlos
Chavez was convicted of the crime.
Ryce said Chavez's execution would bring his wife, Claudine, and him
"as close to a feeling of peace to that chapter of our life that
we're ever going to get." He said he supports the death penalty,
although he may not live to witness Chavez die because of the lengthy
"He'll probably outlive us because of our screwed-up system," Ryce
said. "But if we're still alive, we'll be there for the execution.
And we have had some people promise us if we don't make it, they'll
be there for us."
"From the standpoint of not only myself but Claudine, we feel the
death penalty is appropriate in this case, knowing that won't bring
our child back. Knowing there's no such thing as closure. Knowing
that justice has been done. We don't feel that way yet," said Ryce,
of Vero Beach.
Although McAndrew understands the feeling of the victims' families,
the executions he witnessed still haunt him.
Schwab's will be the first execution since former Gov. Jeb Bush put a
moratorium on executions in 2006 pending a U.S. Supreme Court ruling
on lethal injection. The court ruled recently that lethal injection
is not cruel and unusual punishment.
McAndrew, a slow-spoken activist, grows agitated when talking about
lethal injection and the likelihood that executions will resume in
The most recent inmate executed by lethal injection, Angel Diaz, took
more than 30 minutes to die because the needles had been pushed
through his veins into his flesh.
But none of the 26 witnesses on the other side of the glass window
looking into the execution chamber knew that because, when the
curtains behind the window were opened, Diaz was already on a gurney
with IVs in his arms.
"If they're going to be honest and forthcoming about what's going on
in the death chamber, then from the second the condemned walks into
the chamber until the body is placed in a body bag, all 26 witnesses
should be there," McAndrew said.
Opponents welcome an insider's voice
Other death penalty opponents tell him that he's an invaluable resource.
"They say only someone who's been that close to it can speak about it
in the way that you do," McAndrew said, his voice growing soft.
The former Air Force sergeant began his career in corrections after
returning to the United States following a 15-year stint living and
traveling throughout France and Asia as a manager for an
He never imagined then that, less than two decades later, he would be
the warden of one of the state's toughest institutions, landing in
1996 at Florida State Prison.
There, he oversaw three executions in the electric chair: John Earl
Bush, John Mills Jr. and Medina.
His first experience, Bush's execution, was uncomfortable, he said.
Bush had killed 18-year-old Frances Slater after abducting her from a
Stuart convenience store.
The members of the execution team told the warden that it was a
tradition to have breakfast at Shoney's after the early morning
"I got to Shoney's and the food started looking very disgusting,"
McAndrew said. "At the table directly in front of me, I could see the
back of the female attorney (for Bush). She turned and looked over
her shoulder at me. She had a look of pain on her face."
He left without eating.
'I'd had all the breakfast I could stand'
Starke is a small town with a population of about 5,500 people, most
of whom work at the nearby prison, have retired from there or have
family members who do.
Everyone at the restaurant knew the group had performed the execution.
What troubled McAndrew was that the public might misconstrue the
breakfast as celebratory.
Before the next execution, McAndrew spoke with the colonel on the
team: "I told him I'd had all the breakfast I could stand."
Paul Schauble Jr. spent more than a decade as a Death Row officer,
taking condemned inmates to showers and recreation and delivering
He doesn't have any qualms about the job he performed for 12 years.
"Most of us believe we have a job to do. And whether I believe they
are innocent or deserve their punishment, my job is to make sure they
stay inside the fence and I take care of all their needs and then I
go home," Schauble said.
Although he didn't enjoy it, he believes that the prisoners he tended
to deserved to die because their crimes were so egregious and their
court appeals, over and over again, had been exhausted. He has been
the target of Death Row inmates' wrath. He has been hit with feces
and bricks, been gouged and stitched up.
The union representative of the Police Benevolent Association doesn't
have a lot of sympathy for the prisoners.
"By the time they get on Death Row, the investigation is so
extensive ... I truly believe they are guilty of that crime,"
Before dawn on the day of the execution, McAndrew would sit on the
side of the inmate's bunk and read the death warrant aloud after
explaining that he was required to do so by state law.
"You ask them if there's anything you can do for them. If there's any
phone call you'd like me to make, I'll be glad to do that," McAndrew
Those last moments alone with the person whose death he was about to
facilitate haunt him.
"They share things with you in those last moments too, things that
you'll never talk about again," he said.
The positions are reversed now.
"These men come and sit on the edge of my bed, so to speak," McAndrew
said. "In my mind, I see them a lot. I wish I had never been involved
in carrying out the death penalty."
Saturday, 28 June 2008
Court denies Schwab's appeal
BY BILL COTTERELL • FLORIDA TODAY • June 27, 2008
TALLAHASSEE -- Mark Dean Schwab's legal alternatives are diminishing ahead of his Tuesday execution.
The Florida Supreme Court, in a unanimous decision Friday, denied Schwab's appeal. Schwab, a child rapist and killer, now heads to the U.S. Supreme Court as the last stop before his scheduled lethal injection. The Florida high court affirmed a Brevard County circuit court that denied Schwab a full hearing on the constitutionality of Florida's death-sentence procedures. One of Schwab's attorneys, Peter Cannon of the Capital Collateral Regional Counsel, said the case is poised for a U.S. Supreme Court challenge. He said he and co-counsel Mark Gruber and Daphney Gaylord contend that Florida's mix of chemicals, training methods and physical procedures do not comply with the U.S. Supreme Court's rulings in an April case that set lethal-injection standards. "We're exactly where we should be now," said Cannon. "It's up to the U.S. Supreme Court to decide if Florida is doing it right or not doing it right." State Attorney General Bill McCollum said precedent is on Florida's side. "Based on the litigation that has occurred thus far, I stand by our belief that the procedures used to carry out lethal injection in Florida are constitutionally sound and the decisions made by the state and federal courts, as well as the U.S. Supreme Court, have been correct," McCollum said. Schwab was sentenced to death July 1, 1992, for the abduction, sexual assault and murder of Junny Rios-Martinez, 11, of Cocoa. Scwhab's execution would be Florida's first since December 2006 when a botched lethal injection led to a state-imposed moratorium, since lifted. Schwab's November execution was delayed by a U.S. Supreme Court review of lethal injection in a Kentucky case.
|06/27/2008||DISP-AFFIRMED||We affirm the circuit court's order denying relief. No motion for rehearing will be entertained by the Court. The mandate shall issue immediately.|
Florida Bishops: No to Death Penalty
Zenit News Agency (www.zenit.org)
TALLAHASSEE, Florida (Zenit) - Nine bishops of Florida sent a letter to Governor Charlie Crist urging him to stop executions in Florida, beginning with the scheduled execution of Mark Dean Schwab next week.
"We can never fully comprehend the pain the victim’s family feels after losing their loved one and we extend our sincere sympathy to the family of Junny Rios-Martinez, the victim in this crime," the bishops acknowledged in the note sent Wednesday.
Schwab was convicted in 1992 of raping and killing 11-year-old Junny Rios-Martinez. He is scheduled to die by lethal injection Tuesday evening.
"But killing someone because they killed only perpetuates violence and coarsens the public’s attitude about the sanctity of life, including the lives of those who have committed grave offenses," they added.
The bishops' letter acknowledged the right of the state to impose the death penalty, but urged the governor "to join the growing number of states who are re-examining the death penalty as a means of punishing those convicted of capital offenses."
The prelates explained: "In 1991, a Florida Supreme Court study commission found 'the application of the death penalty in Florida is not colorblind.' Almost 10 years later, the Governor’s Task Force on Capital Cases recommended reforms, many of which have not been implemented.
"As recently as 2006, the Florida Death Penalty Assessment Team, working with the American Bar Association, released their report citing serious problems in Florida’s death penalty system. The recurring question of innocence, the exorbitant cost, the inconsistency in sentencing, and the capriciousness of who is executed, each calls for re-examination."
"You can set a new standard of respect for life in Florida, turning away from execution and imposing a life sentence without possibility of parole for Mark Dean Schwab," the bishops told Goverenor Crist. "Incarceration allows the wrongdoer the possibility of conversion and the ability to make public restitution for crimes through life imprisonment."
"As we pray for Junny Rios-Martinez and his family," the note said, "we pray also for you, as well as for those on death row, that we all will acknowledge God as the Lord of Life, and that we all may learn, not only to obey the commandment not to kill human life, but also to revere it."
The letter was signed by Archbishop John Favalora of Miami, Bishop Victor Galeone of St. Augustine, Bishop Robert Lynch of St. Petersburg, Bishop Thomas Wenski of Orlando, Bishop John Ricard of Pensacola-Tallahassee, Bishop Gerald Barbarito of Palm Beach, Bishop Frank Dewane of Venice, and auxiliary bishops Felipe Estevez and John Noonan, both of the Archdiocese of Miami.
|06/27/2008||ORDER-STRIKE DY|| ||Appellee's Motion to Strike Exhibit is hereby denied.|
Friday, 27 June 2008
Obama's Draconian New Death Penalty Stance
By Liliana Segura, AlterNet. Posted June 27, 2008.
In a reactionary political calculation, Barack Obama comes out in support of the death penalty for child rape.
What a difference a general election makes.
Hours after the Supreme Court handed down a ruling banning the death penalty for the rape of a child, Democratic
candidate Barack Obama found his inner Scalia and declared it a miscarriage of justice.
"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most
egregious of crimes," he told reporters at a press conference in Chicago. This is true. Despite the assumptions of some
of his admirers, for at least as long as he has held political ambitions, Barack Obama has positioned himself as a
supporter of state-sanctioned murder.
There's no question the sexual assault of a child is a monstrous thing, the kind of utterly indefensible crime that can
test the resolve of anyone who opposes the death penalty on moral grounds. Indeed, it is the sort of offense death
penalty supporters reach for in arguing for the "ultimate sanction." For a political candidate, it's a particularly easy
position to take. What kind of a person would attack you for saying a child rapist deserves to die?
In fact, in the recent history of the death penalty, calling for the execution of a person who commits a crime other
than murder is a radical stance. Nobody has been executed for such an offense in the United States in over 40 years.
Until yesterday, only two people out of more than 3,200 prisoners on death row faced execution for a crime in which
the victim did not die. Affirming the death penalty for child rape would not only have potentially placed thousands
more people on death row -- as Justice Anthony Kennedy noted yesterday, there were 5,792 rapes of children under
12 in 2005 alone -- it would have vastly broadened the net for capital crimes, a trend that would quickly become a
slippery slope. Nevertheless, "I think that the rape of a small child, 6 or 8 years old, is a heinous crime," Obama said
yesterday, "and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is
at least potentially applicable, that that does not violate our Constitution.
(And yes, that is Obama embracing the conservative mantle of states' rights.)
Obama's defenders may argue, as they do about his other recent shifts to the right, that he had to take this position in
order to strengthen his candidacy. No, he didn't. The Democrats may continue to operate in a world in which
opposition to the death penalty equals political death, a world shaped by that famous 1988 Dukakis moment, in
which the Democratic presidential candidate was hapless when challenged to state that he would support the killing of
a man who raped and murdered his wife. But times have changed. While the Democrats have embraced the death
penalty, public support for it has dwindled -- especially in recent years. The regular exonerations of innocent prisoners
in this country (218 and counting), persistent evidence of rampant racial and economic bias, and botched executions
nationwide have led people -- and juries -- more and more, to reject the death penalty. Chalk it up, as the Supreme
Court likes to, to our "evolving standards of decency."
Unfortunately, presidential candidates have their own evolving standards of decency and, too often, they are a race to
the bottom. Obama, who spoke eloquently in favor of the court's decision granting habeas corpus to prisoners at
Guantanamo Bay, has now aligned himself with the same aggressively conservative justices who would have had them
remain in legal limbo. Worse, he aligns himself with the belligerent Antonin Scalia, whose enthusiasm for the death
penalty is so irrepressible, one would expect he'd administer the lethal chemicals himself if he could.
Informed voters will see Obama's move for what it is: an opportunistic embrace of a sharply right-wing stance to shed
the (dubious) stigma of being "the most liberal senator" in the Congress. In a week that saw him backpedal on the
Foreign Intelligence Surveillance Act and on free trade, his supporters may see this as just another move rightward in
his path toward the White House. But this is more than that. This is a reactionary stance that betrays those who would
be his natural base of support, not to mention those communities that are actually affected by the death penalty. The
fact that Obama was speaking at a press conference in Chicago is especially painful. It is a city that, as we speak, is
handing subpoenas to police officers who tortured African American men on the South Side into giving confessions
for crimes that they didn't commit -- men who ended up on death row. Obama, famously, was an organizer on the
South Side of Chicago in this era. He knows how the death penalty system really works. He's just choosing to ignore it
for the sake of cheap political points. How much he will actually gain from his pro-death penalty proclamation is
unclear. Is it more than he stands to lose?
It is a sad day when a candidate who so many genuinely saw as bringing "change we can believe in" takes a politically
motivated and intellectually dishonest stance in a matter of life and death. Obama risks alienating those who gave him
his rise to the top, by betraying the very ideals that attracted them to him in the first place.
Liliana Segura is an AlterNet staff writer.
Attorney General tells Florida Supreme Court executions need not be painless
By Bill Cotterell • Florida Capital Bureau Political Editor • June 27, 2008
TALLAHASSEE -- Attorney General Bill McCollum told the Florida Supreme Court today that executions don't have to be totally painless.
"Avoidance of the possibility of any pain is neither possible nor required under the Constitution," said the state's brief in an appeal by convicted child killer Mark Dean Schwab, who is set to die next Tuesday. "If unconscious, as Schwab assumes he will be, there can be no risk of pain, let alone a 'substantial risk'...."
Attorneys for Schwab argued that Florida's newly revised lethal-injection methods don't comply with U.S. Supreme Court rulings on cruel and unusual punishment. They asked the high court to return Schwab's case to a Brevard County court for a full evidentiary hearing on his claims that there are better ways to do it.
The state Supreme Court is going through the last legal maneuvers involving the legality of the new lethal-injection methods in preparation for Florida's first execution since the December, 2006, death of Angel Diaz -- which took far longer than planned, because a needle missed its mark. The Department of Corrections has extensively revised the methods and trained execution teams since then.
The state's reply brief said Schwab, convicted in 1992, has had ample time to raise all possible objections -- and that he had, in fact, already litigated some of the claims his attorneys are raising now. It also said that "the mere possibility of a malfunction" in the lethal-injunction equipment or dosages of three chemicals did not rise to the level of a constitutional claim.
In appealing to the Supreme Court, Schwab's attorneys said the circuit court in Brevard denied Schwab's claims in a hearing this week. His three-lawyer defense team from the state's Capital Collateral Regional Counsel asked the seven justices to order a full evidentiary hearing.
Schwab was sentenced to death July 1, 1992, for the abducting, sexually assaulting and killing Junny Rios-Martinez, 11, of Cocoa.
Scwhab's execution would be Florida's first since December 2006 when a botched lethal injection led to a state-imposed moratorium, since lifted. Schwab's November execution was delayed by a U.S. Supreme Court review of lethal injection in a Kentucky case.
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC08-1199
MARK DEAN SCHWAB,
Death Warrant Signed
Execution Scheduled for
July 1, 2008
STATE OF FLORIDA,
ON APPEAL FROM THE CIRCUIT COURT
OF THE EIGHTEENTH JUDICIAL CIRCUIT FOR BREVARD COUNTY,
STATE OF FLORIDA
ANSWER BRIEF OF APPELLEE
KENNETH S. NUNNELLEY
SENIOR ASSISTANT ATTORNEY GENERAL
Fla. Bar #998818
444 Seabreeze Blvd., 5th FL
Daytona Beach, FL 32118
Fax # (386) 226-0457
COUNSEL FOR APPELLEE
IN THE SUPREME COURT OF FLORIDA
MARK DEAN SCHWAB
Case No. SC08-1199
STATE OF FLORIDA,
MOTION TO STRIKE EXHIBIT
COMES NOW the State of Florida, and moves this Court to strike "Exhibit A" to Schwab’s Initial Brief. As grounds for granting this motion, the State submits the following:
1. "Exhibit A" purports to be the lethal injection procedures utilized in the State of Kentucky. This exhibit was not attached to Schwab’s third successive post-conviction relief motion, and was never a part of the circuit court proceedings.
2. It is inappropriate to attempt to present "evidence" for the first time on appeal. That is what Schwab is attempting to do, and that practice is improper.1
3. "Exhibit A" should be stricken because it was not a part of the proceedings below. Likewise, all references to that exhibit should be stricken from Schwab’s brief.
1 The State notes that Schwab attempted to add "evidence" under the guise of a notice of supplemental authority in Case number SC07-2138. That filing was stricken on May 21, 2008.
KENNETH S. NUNNELLEY
SENIOR ASSISTANT ATTORNEY GENERAL
Florida Bar #0998818
444 Seabreeze Blvd. 5th FL
Daytona Beach, FL 32118
Fax # (386) 226-0457
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above has been furnished by E-Mail and U.S. Mail to: Mark Gruber, Peter Cannon, Assistant CCRC-Middle, 3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619 (813)740-3554, Judge Charles M. Holcomb, Circuit Court Judge, 506 S. Palm Ave., Titusville, Florida 32796-3592 (321)264-6904, Robert Wayne Holmes, Assistant State Attorney, 2725 Judge Fran Jamieson Way, Building D, Viera, Florida 32940 (321)617-7546, on this day of June, 2008.
The exhibits filed in Schwab
RELATED: Death penalty foe presses on
Bishops to Gov. Crist, ‘set a new
standard of respect for life’
DENISE O’TOOLE KELLY | FLORIDA CATHOLIC STAFF
TALLAHASSEE | Florida’s bishops have called on Gov. Charlie Crist
to “set a new standard of respect for life” in the state by ending use
of the death penalty,
beginning by halting the July 1 scheduled execution of Mark
Schwab, 39, is on death row for the April 18, 1991, rape and murder of
Junny Rios–Martinez of Cocoa. In a letter to Crist dated June 25,
the bishops said
they are praying for the victim and know they are unable to
fully grasp the pain
experienced by his family. They lamented, though, that taking the
life of another
who has killed perpetuates violence as a solution.
“The Lord commands us to forgive, just as our heavenly
Father has forgiven us.
It is only through the process of forgiveness that we are healed
and our suffering
can be alleviated,” Bishop Victor Galeone, episcopal moderator for
the State Pro–Life Coordinating Committee of the
and bishop of the Diocese of St. Augustine, said in press release
from the conference.
Schwab was scheduled to die by lethal injection Nov. 15, 2007,
but the execution
was blocked a day earlier by the U.S. Supreme Court while the
a Kentucky case concerning the constitutionality of
lethal injection as
a method of execution. Schwab’s is the first execution to
in Florida since the high court’s April 16 ruling that the use of
cocktail is not cruel and unusual punishment.
The letter, signed by the leaders of Florida’s six dioceses
and the leader
and two auxiliary bishops of the Archdiocese of Miami,
that the state has the right to execute murderers. However,
it pointed to
problems with fairness in the way the death penalty has
“More and more states in our nation are taking a second
look at the use of
the death penalty as a form of punishment. Over the years,
within our own state have reported an inequality and
in who receives a death sentence,” Sheila Hopkins,
conference’s associate director for social
said in the conference’s release.
Catholics throughout Florida have planned prayerful
protests of Schwab’s
execution. For example, prayer vigils are scheduled
in the Diocese of
Venice for the scheduled time of the execution, and
parishes in the
Orlando Diocese have chartered a bus to protest
outside the prison
that houses that death chamber in Starke.
The bishops, too, said they are approaching the
execution with prayer.
They wrote to the governor: “As we pray for
Junny Rios–Martinez and
his family, we pray also for you, as well as for those
on death row,
that we all will acknowledge God as the Lord of Life,
and that we
all may learn, not only to obey the commandment not
to kill human life,
but also to revere it.”
MARK DEAN SCHWAB,
ON APPEAL FROM THE CIRCUIT COURT
TABLE OF CONTENTS...............................................i TABLE OF AUTHORITIES...........................................ii STATEMENT OF THE CASE...........................................2 STANDARD OF REVIEW..............................................5 SUMMARY OF ARGUMENT.............................................5
THE LOWER COURT ERRED WHEN IT SUMMARILY DENIED MR. SCHWAB’S
CHALLENGE TO FLORIDA’S LETHAL INJECTION PROCEDURES AND
PROFICIENCY OF THE FLORIDA DEPARTMENT OF CORRECTIONS IN
ADMINISTERING LETHAL INJECTIONS IN CONFORMITY WITH THE SIXTH,
EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION AS INTERPRETED BY THE UNITED STATES SUPREME COURT IN
BAZE V. REES AND CORRESPONDING PROVISIONS OF THE FLORIDA
TABLE OF AUTHORITIES
STATEMENT OF THE CASE
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.
On July 18, 2007, a death warrant was signed for Schwab with a
scheduled execution date of November 15, 2007. Schwab filed a
Successive Motion to Vacate Sentence and Stay Execution in the
circuit court on August 15, 2007 challenging the constitutionality
of Florida’s lethal injection procedure and that newly discovered
mitigation evidence of neurological brain damage made his sentence
of death unreliable. After a case management hearing, the circuit
court denied relief. Specifically, the circuit court found that
Florida’s lethal injection procedures did not violate the
Constitution and that the newly discovered evidence of neurological
brain damage was procedurally barred. On November 1, 2007, this
Court affirmed the denial of all relief. Schwab v. State, 973
So.2d 427 (Fla. 2007). On November 7, 2007, this Court denied
Schwab’s Motion for Rehearing and Renewed Motion to Stay Execution
and the mandate was issued.
On November 8, 2007, Schwab filed an application for leave to
file a successive habeas corpus petition pursuant to 28 U.S.C.
§2244(b) with the Eleventh Circuit Court of Appeals. On November
9, 2007, the Eleventh Circuit denied the application. In the
Circuit Court’s denial, the order stated: “this claim cannot serve
as a proper basis for a second or successive habeas petition”. The
Eleventh Circuit noted that since Hill v. McDonough, 126 S.Ct. 2096
(2006), a §2254 proceeding is no longer the appropriate way to
raise a method of execution claim. Instead, the proper vehicle for
such a claim is a 42 U.S.C. §1983 claim. In re Schwab, 506 F.3d
1369 (11th Cir. 2007).
to Vacate Sentence and Stay Execution in the circuit court
challenging Florida’s method of execution and that newly discovered
evidence would establish that Schwab’s sentence of death is
unreliable in light of Dr. William Samek, a key state witness,
clarification of his original trial testimony. On November 13,
2007 after a case management hearing, the lower court summarily
denied relief which was affirmed by this Court on January 24, 2008.
Schwab v. State, --- So.2d ---, 2008 WL 190575 (Fla. 2008),
rehearing denied May 21, 2008.
On November 9, 2007, Schwab also filed a Petition to Stay
Execution in the United States Supreme Court in light of the
Court’s grant of certiorari in Baze v. Rees. The US Supreme Court
granted a stay of execution on November 15, 2007 and denied
certiorari May 19, 2008, which effectively dissolved the stay of
execution. Schwab v. Florida, ---S.Ct. ---, 2008 WL 953622 (2008).
On May 20, 2008, the Governor rescheduled Schwab’s execution date
for July 1, 2008.
On June 20, 2008, Schwab filed a Third Successive Motion to
Vacate Sentence and Stay Execution challenging Florida lethal
injection procedures in light of Baze v. Rees which clarified the
legal standard to be applied in a review of challenges to lethal
injection procedures under the Eighth Amendment to the United
States Constitution. On June 24, 2008, the circuit court conducted
a case management hearing and summarily denied relief by Order
dated June 25, 2008. Schwab filed a timely notice of appeal of the
circuit court’s Order on June 25, 2008.1
defendant is entitled to an evidentiary hearing on postconviction
20, 2008. Exhibit “A” is attached to this brief which are the Kentucky lethal injection protocols.
claims for relief unless Athe motion, files, and records in the
case conclusively show that the movant is entitled to no relief.@
Florida Rule of Criminal Procedure 3.851(f)(5)(B) applies the same
standard to successive postconviction motions in capital cases. In
reviewing a trial court's summary denial of postconviction relief
without an evidentiary hearing, this Court Amust accept all
allegations in the motion as true to the extent they are not
conclusively rebutted by the record.@ Hodges v. State, 885 So.2d
338, 355 (Fla.2004) (quoting Gaskin v. State, 737 So.2d 509, 516
(Fla.1999)). ATo uphold the trial court's summary denial of claims
raised in a 3.850 motion, the claims must be either facially
invalid or conclusively refuted by the record.@ McLin v. State, 827
So.2d 948, 954 (Fla.2002) (quoting Foster v. Moore, 810 So.2d 910,
serious harm as interpreted by the United States Supreme Court in
Baze. First, this Court must decide this case in light of Baze
which superceded this Court’s prior precedent establishing a
standard of review for method of execution cases. Second, a facial
review of the Florida and Kentucky Protocols reveal that they are
substantially different. Finally, Florida’s implementation of its
execution protocols create a substantial risk of serious harm.
THE LOWER COURT ERRED WHEN IT SUMMARILY DENIED MR. SCHWAB’S
CHALLENGE TO FLORIDA’S LETHAL INJECTION PROCEDURES AND PROFICIENCY
OF THE FLORIDA DEPARTMENT OF CORRECTIONS IN ADMINISTERING LETHAL
INJECTIONS IN CONFORMITY WITH THE SIXTH, EIGHTH, AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION AS INTERPRETED BY THE
UNITED STATES SUPREME COURT IN BAZE V. REES 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 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 courts:
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 Eighth
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.
II. The Florida Standard
This Court’s January 24th, 2008, opinion articulated the
standard of review relied upon by this Court in reviewing method of
execution cases. In denying relief, this Court stated:
the standard that this Court set forth in Jones v. State, 701
So.2d 76, 79 (Fla.1997):In order for a punishment to
constitute cruel or unusual punishment, it must involve
“torture or a lingering death” or the infliction of
“unnecessary and wanton pain.” Gregg v. Georgia, 428 U.S. 153,
96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Louisiana ex rel.
Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422
(1947). As the Court observed in Resweber: “The cruelty
against which the Constitution protects a convicted man is
cruelty inherent in the method of punishment, not the
necessary suffering involved in any method employed to
extinguish life humanely.” Id. at 464, 67 S.Ct. at 376. See
also Lightbourne v. McCollum, 969 So.2d 326, 32 Fla. L. Weekly
S687 (Fla. Nov. 1, 2007) (reaffirming the standard announced
in Jones, 701 So.2d at 79).
standard relied upon by the Court in the January 24th, 2008, opinion
in which it reviewed Mr. Schwab’s claim under a conflated
“unnecessary and wanton pain” and “inherent cruelty” standard.
the lower court asserted that since this Florida standard is lower
than the one announced in Baze, Mr. Schwab would not be able to
prevail. (Answer to Third Successive Motion to Vacate and
Opposition to Stay of Execution, State v. Schwab, Brevard County
2 The Order states incorrectly that the defendant argued that “Baze sets a different and higher Eighth Amendment
standard than Lightbourne”. Order at 3. This is entirely incorrect as shown in the transcripts from the CMC at 7.
Case No. 91-7249-CF-A, filed June 23rd, 2008 at 16-18)(hereinafter
“answer motion”). Additionally, the government argues that since
the Lightbourne decision “analyzed” the DOC protocols under several
standards, Mr. Schwab would not be able to obtain relief. (answer
motion at 12-13) This Court in Lightbourne stated:
"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.
omitted, emphasis added).
comparative analysis. (Order Denying Defendant’s Third Successive
Motion to Vacate or Stay Execution, State v. Schwab, Brevard County
Case No. 91-7249-CF-A, filed June 25, 2008, at 3-4) (hereinafter
“Order”).2 Both the government and the lower court erred in
reaching this conclusion.
hadn’t decided a case for one-hundred and thirty years involving
methods of execution. During this time, the various courts
presented arguably eight different standards of review. For
example the Ninth Circuit Court of Appeals utilized an
“unnecessary risk of unconstitutional pain or suffering”
standard. See Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir.
2004). The Sixth, Eighth and Tenth Circuits relied upon a
narrower standard of “unnecessary and wanton infliction of pain”.
See Hamilton v. Jones, 472 F.3d 814, 816 (10th Cir. 2007);
accord, Taylor v. Crawford, 2007 WL 1583874, *6 (8th Cir.);
Workman v. Bredesen, 486 F.3d 896, 906-07 (6th Cir. 2007). For
example, regarding the confusion involving these standards, the
United States Court of Appeals for the Sixth Circuit stated that
a method of execution is cruel and unusual punishment when it
involves the “unnecessary and wanton infliction of pain,” but
could not resolve the difficulty of figuring out how the U.S.
Supreme Court intended for the cruel and unusual punishment test
to be applied to method of execution cases, noting that this
Court “has considered three [method of execution] challenges
under the Eighth Amendment, only one of which reached the
merits,” and since then “has had ample opportunities to constrain
methods of execution that seem to raise far greater risk of cruel
and unusual punishment than lethal injection, but it has declined
to do so.” Workman, at 906-07 (6th Cir. 2007).
The question presented by the Petitioners in Baze
articulated the standards which were at issue:
prohibit means for carrying out a method of execution that
create an unnecessary risk of pain and suffering as opposed
to only a substantial risk of the wanton infliction of pain?
Baze v. Rees, No. 07-5439, Petition for a Writ of Certiorari to
the Supreme Court of Kentucky at iii.
Neither standard presented to the U.S. Supreme Court in Baze is
the standard relied upon by this Court in the Schwab II decision.
Nor can it be determined whether the Schwab II standard is “lower”
or “higher” than the Baze standard because it is a conflation of
several standards with broad and narrow applications. Likewise, the
statement in Lightbourne regarding a “substantial, foreseeable or
unnecessary risk of pain” are inapplicable because this is not the
standard utilized by this Court in Schwab II nor is it a correct
formulation of the Baze standard.
a narrow or broad interpretation of the standard in Schwab II simply
because this Court offers no analysis, nor does it offer any
satisfactory analysis in the Lightbourne decision.
lethal injection protocol substantially similar to the protocol
we uphold today would not create a risk that meets this
standard.” Baze, at 22. By its own language, it is clear that
the Baze Court’s opinion was only a facial review of the Kentucky
protocols. This comparative analysis has never been required
before by the High Court or this Court. In his Motion to Vacate,
Mr. Schwab presented the report of Ms. Arvizu as exhibit 8 to the
motion which outlined a comparative analysis of the two states.
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:
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 acceptable result.
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
the Florida protocols fail to meet the standards approved by the
Baze Court. Id.
Kentucky protocols are substantially similar. Order at 15. This
despite the fact that the lower court admits in its order that
the Kentucky protocols themselves were not in evidence. Order at
6, 13. While it is legally inconceivable how a court can decide
an issue of fact without the actual evidence before it, the lower
court’s finding that the two protocols are substantially similar
are errors of fact and thus an abuse of discretion. See Williams
v. State, 967 So.2d 735 (Fla. 2007); Cox v. State, 966 So.2d 337
(Fla. 2007). For example, the lower court states that Kentucky
and Florida are substantially similar even though Kentucky
utilizes 3 grams of sodium pentothal and Florida uses 5 grams.
Order at 13-14. Casting further doubt on the lower court’s
factfinding ability, it states that Florida utilizes “480
millieqivalents” of potassium chloride. This is clearly wrong
since Florida uses half that amount. Order at 14. Most of the
other procedures cited by the lower are irrelevant to this
analysis. Of the seven procedure examples, only the ones in
paragraphs 1, 3, and 6 can be considered of consequence (again,
with the finding regarding paragraph 1 being wrong). The fact
that the executions in both states use saline between injections
(¶ 2), take place in “an execution chamber” (¶ 4), deliver the
drugs remotely (¶ 5), or utilize a heart monitor (¶ 7), are not
relevant to a Baze analysis. Rather, as pointed out in the
Arvizu report, the differences between the two protocols are more
substantial than the meaningless similarities cited by the Court.
One example cited in the Arvizu report addresses a
substantial difference between the Kentucky and Florida training
exercises. 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:
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
Baze, Slip Op. at 16 (record citation omitted, emphasis added).
Kentucky trains the IV team by “siting” or placing the lines
into a person. (exhibit “A” at 984). 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.
since Florida requires “appropriate certification”. Order at 7.
This is an incorrect analysis since Kentucky does concededly
have a similar requirement. (Exhibit “A” at 984). The
difference being the quality of training these certified team
members participate in prior to an execution.
The lower court also makes a clear error of fact when
discussing the medical assessment of the inmate prior to an
execution. The court states that the Florida protocol provides
an extra safeguard apparently not in the Kentucky procedure as it
requires that, one week prior to the execution, an assessment is
made of the defendant to determine appropriate IV access. Order
at 8. This is entirely incorrect as noted both by Ms. Arvizu and
the Kentucky protocols. In fact, the first five pages of the
Kentucky protocols outline a very detailed procedure for
thoroughly examining the inmate, including an examination seven
days prior to an execution (exhibit “A” at 973) and continuing
observation for any changes in medical or psychiatric condition.
Id. at 974. Florida, on the other hand, requires only a
“limited” medical examination. See exhibit 8.
matter. Since the lower court summarily denied the motion, the
facts asserted must be accepted as true by this Court.
Furthermore, this comparative analysis is not a question of law.
It requires factfinding that was not afforded to Mr. Schwab.
Protocols as Implemented by the Department of Corrections.
notes and the prior training notes from July and August of 2007,
also show that the Florida protocols are not substantially
similar to the Kentucky Protocols. While a proper Baze analysis
concerns a facial comparison, a comparative review of Kentucky
and how Florida implements its execution protocols was addressed
by Ms. Arvizu. She states in her report:
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
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 execution.
that is consistent with the standards announced in Baze.
to those in Kentucky, one question must be addressed by this Court:
whether the implementation of a facially valid execution protocol
in a manner creating a substantial risk of serious harm violates the
Eighth Amendment. Mr. Schwab states that it does based on the below
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).
services of Janine Arvizu, a certified quality auditor, to review
3 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 Eighth Amendment violation
would be presented or where the error shows objective evidence that the achievement of significant learning
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.3 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 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.
objectives were not obtained.
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
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%.
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:
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
4 “Iatrogenic” is defined as being “induced inadvertently by a physician or surgeon or by medical treatment.”
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 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,4 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
MERRIAM-WEBSTER MEDICAL DICTIONARY (2005 Ed.).
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, Table 2.
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:
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
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)
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
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
5 This issue is fully developed in part III, infra.
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.
between the training session error rates and past lethal injection
error rates, there is no doubt that these errors will continue.
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
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.5 This is
again supported by the testimony of Dr. Dershwitz concerning the
pharmacokinetic properties of sodium pentothal which slow the
circulatory and respiratory systems.6 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
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.
for several reasons. First, the propriety of using pancuronuim
bromide was debated by the Baze litigants. The Baze Court found
its use proper:
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 death.
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 by lethal injection creates a “substantial risk of
serious harm” by providing data that proves an “objectively
7 It should be noted that in statistics terminology, a “significant relationship” supports evidence for hypothesis.
intolerable risk of harm.”7 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.
not decrease the error rate. As with any process, each step of a
process is dependent upon the prior step being 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
“Proves” is a legal term applying this evidence.
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
A similar example is shown from the data in section
VII(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
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 problem.
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.
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.
8 See fn.9.
death. Due to a failure to gain proper IV access, Clark’s execution lasted fifty-three minutes.
a. Ohio and Lethal Injection
Florida and Ohio use similar methods for execution by lethal
injection.8 Like Florida, Ohio has also experienced recent
problems with lethal injection executions.9 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,
10 The analysis of the Ohio data was divided because the chemical injection procedure was changed after the Joseph
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
2. Ohio Duration Issues
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.10 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 twenty-five executions having duration errors after Ohio
conducts a total of fifty executions. This is shown in exhibit
14, Table 7a.
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.
calculated from Dr. Dershwitz’s testimony and sworn statements.
During the period from July 2006 to 2007, Ohio conducted
five executions.11 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 occurrence.12
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.
40% of Ohio’s prior lethal injection executions had at least two
12 See section II(e) above for a complete discussion.
13 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.
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.
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.
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
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.13
Data collection for Georgia was done using information
Georgia in practice uses two. Order and Opinion, Alderman v. Donald, Case No. 1:07-CV-1474-BBM, at 5.
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
2008.14 These data included all information available from
Georgia lethal injection executions 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.
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.15
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
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.
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,
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 VII(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.
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,
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%. In addition, the
combined data show that 39% of the executions had the presence of
two or more anomalies.
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.
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.
Discussed during both Lightbourne and Baze was the
Netherlands and its experience with euthanasia and physician
assisted suicide (“EAS”). (see exhibit 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
VIII. Executive Discretion vs. Judicial Oversight
Schwab and Lightbourne reaffirmed this Court’s decision in
Sims v. State, 754 So.2d 657 (Fla. 2000) to accord heavy
deference to the DOC with regard to virtually every aspect of the
lethal injection protocols and the way they are implemented. The
lower court in its Order likewise followed this reasoning.
Justice Thomas declined to join the plurality opinion in Baze in
part because, in his view, comparative risk standards “require
courts to resolve medical and scientific controversies” that he
felt were “beyond judicial ken,” and the judiciary should not, as
he put it, “micromanage the State’s administration of the death
penalty in this manner.” The language and reasoning he employed
are strikingly similar to that expressed by this Court in Sims,
Lightbourne and Schwab. Since those views now represent the
losing side, presumably the courts must now resolve at least some
medical and scientific controversies and engage in at least some
management of the administration of the death penalty.
punishment has long been diminished. Article I, section 17 of the
Florida Constitution, the conformity clause, provides that: “The
prohibition against cruel or unusual punishment, and the
prohibition against cruel and unusual punishment, shall be
construed in conformity with decisions of the United States
Supreme Court which interpret the prohibition against cruel and
unusual punishment provided in the Eighth Amendment to the United
States Constitution.” This constitutional amendment, ratified by
the electorate, removed any separate and independent discretion
that the DOC may have had in this area and firmly placed it with
the United States Supreme Court.
Furthermore, judicial oversight of capital punishment at the
expense of executive discretion has a long tradition in our
jurisprudence. This principle was again reaffirmed this term in
the U.S. Supreme Court’s decision in Kennedy v. Louisiana (June
25, 2008). In Kennedy, the Supreme Court is very clear as to
which branch of government controls the process of capital
punishment in the country. The Court stated:
meaning of the Eighth Amendment in capital cases. When the
law punishes by death, it risks its own sudden descent into
brutality, transgressing the constitutional commitment to
decency and restraint. For these reasons we have explained
that capital punishment must “be limited to those offenders
who commit ‘a narrow category of the most serious crimes'
and whose extreme culpability makes them ‘the most deserving
of execution.’ ” Roper, supra, at 568, 125 S.Ct. 1183
(quoting Atkins, supra, at 319, 122 S.Ct. 2242). Though the
death penalty is not invariably unconstitutional, see Gregg
v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859
(1976), the Court insists upon confining the instances in
which the punishment can be imposed. Applying this
principle, we held in Roper and Atkins that the execution of
juveniles and mentally retarded persons are punishments
violative of the Eighth Amendment because the offender had a
diminished personal responsibility for the crime. See Roper,
supra, at 571-573, 125 S.Ct. 1183; Atkins, supra, at 318,
320, 122 S.Ct. 2242. The Court further has held that the
death penalty can be disproportionate to the crime itself
where the crime did not result, or was not intended to
result, in death of the victim. In Coker, 433 U.S. 584, 97
S.Ct. 2861, 53 L.Ed.2d 982, for instance, the Court held it
would be unconstitutional to execute an offender who had
raped an adult woman. See also Eberheart, supra (holding
unconstitutional in light of Coker a sentence of death for
the kidnaping and rape of an adult woman). And in Enmund v.
Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140
(1982), the Court overturned the capital sentence of a
defendant who aided and abetted a robbery during which a
murder was committed but did not himself kill, attempt to
kill, or intend that a killing would take place. On the
other hand, in Tison v. Arizona, 481 U.S. 137, 107 S.Ct.
1676, 95 L.Ed.2d 127 (1987), the Court allowed the
defendants' death sentences to stand where they did not
themselves kill the victims but their involvement in the
events leading up to the murders was active, recklessly
indifferent, and substantial. In these cases the Court has
been guided by “objective indicia of society's standards, as
expressed in legislative enactments and state practice with
respect to executions.” Roper, 543 U.S., at 563, 125 S.Ct.
1183; see also Coker, supra, at 593-597, 97 S.Ct. 2861
(plurality opinion) (finding that both legislatures and
juries had firmly rejected the penalty of death for the rape
of an adult woman); Enmund, supra, at 788, 102 S.Ct. 3368
(looking to “historical development of the punishment at
issue, legislative judgments, international opinion, and the
sentencing decisions juries have made”). The inquiry does
not end there, however. Consensus is not dispositive.
Whether the death penalty is disproportionate to the crime
committed depends as well upon the standards elaborated by
controlling precedents and by the Court's own understanding
and interpretation of the Eighth Amendment's text, history,
meaning, and purpose. See id., at 797-801, 102 S.Ct. 3368;
Gregg, supra, at 182-183, 96 S.Ct. 2909 (joint opinion of
Stewart, Powell, and STEVENS, JJ.); Coker, supra, at 597-
600, 97 S.Ct. 2861 (plurality opinion).Based both on
consensus and our own independent judgment, our holding is
that a death sentence for one who raped but did not kill a
child, and who did not intend to assist another in killing
the child, is unconstitutional under the Eighth and
It is very clear that the United States Supreme Court mandates
that judicial oversight of capital punishment must never give way to
any claim of executive discretion. The Court is very clear in
stating which branch of government sets the limits of the Eighth
Amendment, reaffirming the primacy of judicial oversight.
Based on the foregoing arguments, Mr. Schwab requests that this
Court issue an Order remanding his case for a full and fair
evidentiary hearing or for such other relief as this Court may deem
I HEREBY CERTIFY that a true copy of the foregoing Initial
Brief of Appellant has been furnished by e-mail and U.S. Mail,
first class postage, to all counsel of record on this 26th day of
COUNSEL - MIDDLE REGION
Tampa, Florida 33619
Pursuant to Fl.R.App.P. 9.210, I hereby certify that this
brief is prepared in Courier New 12 point font and complies with
the requirement of Rule 9.210.