IN THE SUPREME COURT OF FLORIDA
CASE NO. 08-1199
MARK DEAN SCHWAB,
Appellant,
Death Warrant Signed
Execution July 1, 2008
STATE OF FLORIDA
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE EIGHTEENTH JUDICIAL CIRCUIT FOR BREVARD COUNTY,
STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
MARK S. GRUBER
Fla. Bar No. 0330541
PETER J. CANNON
Fla. Bar No. 0109710
DAPHNEY GAYLORD
Fla. Bar No. 0136298
Capital Collateral Regional
Counsel-Middle Region
3801 Corporex Park Drive
Suite 210
Tampa, FL 33619-1136
(813) 740-3544
COUNSEL FOR APPELLANT
TABLE OF CONTENTS
Page
TABLE OF CONTENTS...............................................i TABLE OF AUTHORITIES...........................................ii STATEMENT OF THE CASE...........................................2 STANDARD OF REVIEW..............................................5 SUMMARY OF ARGUMENT.............................................5
ARGUMENT........................................................8
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
CONCLUSION.....................................................46
CERTIFICATE OF SERVICE.........................................46
CERTIFICATE OF COMPLIANCE......................................47
TABLE OF AUTHORITIES
Baze v. Rees, (April 16, 2008) ................................31
Foster v. Moore, 810 So.2d 910 (Fla. 2002) .....................5
Hill v. McDonough, 126 S.Ct 2096 (2006) ........................4
Hodges v. State, 885 So.2d 338 (Fla. 2004) .................5, 15
Jones v. State, 591 So.2d 911 (Fla. 1991) ..................6, 27
Jones v. State, 709 So.2d 512 (Fla. 1998) .....................20
McLin v. State, 827 So.2d 948 (Fla. 2002) ......................5
Mendoza v. State, 964 So.2d 121 (Fla. 2007) ....................9
New Hampshire v. Maine, 532 U.S. 742 (2000) ...............12, 28
Pope v. State, 441 So.2d 1073 (Fla. 1983) .................12, 28
Rutherford v. State, 727 So.2d 216 (Fla. 1998) ................16
Schwab v. Crosby, 451 F.3d 1308 (2006) .........................2
Schwab v. State, 636 So.2d 3 (Fla. 1994) .......................2
Schwab v. State, 814 So.2d 402 (Fla. 2002) .................2, 18
Scott v. Dugger, 604 So.2d 465 (Fla. 1992) .................6, 27
Terry v. State, 668 So.2d 954 (Fla. 1996) .................12, 28
Thompkins v. State, 32 Fla. L. Weekly S232 (Fla. May 10,
2007)…...……10
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).
On November 9, 2007, Schwab filed a Second Successive Motion
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
STANDARD OF REVIEW
Florida Rule of Criminal Procedure 3.850(d) provides that a
defendant is entitled to an evidentiary hearing on postconviction
1 Exhibits listed in the brief are the exhibits submitted with the Motion to Vacate filed with the lower court on June
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,
914 (Fla.2002)).
SUMMARY OF ARGUMENT
Florida’s method of execution creates a substantial risk of
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.
ARGUMENT
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:
Our cases recognize that subjecting individuals to a risk of
future harm-not simply actually inflicting pain-can qualify
as cruel and unusual punishment. To establish that such
exposure violates the Eighth Amendment, however, the
conditions presenting the risk must be “sure or very likely
to cause serious illness and needless suffering,” and give
rise to “sufficiently imminent dangers.” … We have explained
that to prevail on such a claim there must be a “substantial
risk of serious harm,” an “objectively intolerable risk of
harm” that prevents prison officials from pleading that they
were “subjectively blameless for purposes of the Eighth
Amendment.
Baze v. Rees, Slip Op. at 10-11 (Opinion of Roberts, C.J.)
Additionally, the United States Supreme Court now requires
an additional evidentiary showing for Mr. Schwab in order to
obtain a stay of execution. The Supreme Court now requires that
Mr. Schwab proffer alternatives that effectively address a
substantial risk of serious harm. Further, the Court stated that
“the alternative procedure must be feasible, readily implemented,
and in fact significantly reduce a substantial risk of severe
pain.” Baze v. Rees, Slip Op. at 13.
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:
Even taking Schwab's allegations as true, Schwab has not met
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).
Schwab v. State, Slip Op. at 4-5 (Fla. Jan. 24, 2008)(emphasis
added).
The Standards announced in Baze squarely conflict with the
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 government in its answer to the motion to vacate filed in
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:
Alternatively, even if the Court did review this claim under a
"foreseeable risk" standard as Lightbourne proposes or "an
unnecessary" risk as the Baze petitioners propose, we
likewise would find that Lightbourne has failed to carry his
burden of showing an Eighth Amendment violation. As stressed
repeatedly above, it is undisputed that there is no risk of
pain if the inmate is unconscious before the second and third
drugs are administered. After Diaz's execution, the DOC added
additional safeguards into the protocol to ensure the inmate
will be unconscious before the execution proceeds. In light of
these additional safeguards and the amount of the sodium
pentothal used, which is a lethal dose in itself, we conclude
that Lightbourne has not shown a substantial, foreseeable or
unnecessary risk of pain in the DOC's procedures for carrying
out the death penalty through lethal injection that would
violate the Eighth Amendment protections.
Lightbourne v. McCollum, 969 So. 2d 326, 353 (Fla. 2007)(footenote
omitted, emphasis added).
The lower court in its order denying relief, relied upon this
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.
Until the Baze decision, the United States Supreme Court
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:
Does the Eighth Amendment to the United States Constitution
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.
Finally, it is impossible to guess whether this Court utilized
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.
III. Facial Comparative Analysis of the Florida and Kentucky
Protocols
The Baze plurality opinion stated that “A State with a
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:
Despite the fact that the Florida procedure has the
potential to function as a better means of controlling and
ensuring the acceptability of an execution, its potential is
unrealized. It suffers from a number of serious deficiencies
and inconsistencies (as identified in my letter to your
attention, dated August 14, 2007) that render it ineffective
in achieving its goal of controlling the execution process
to achieve an acceptable result.
In contrast, despite the fact that the Kentucky protocol
provides relatively little detail, it addresses issues that
have the potential to cause critical failure of the
execution process, but that are not addressed in the Florida
procedure.
See exhibit 8.
In her report, Ms. Arvizu identifies several examples where
the Florida protocols fail to meet the standards approved by the
Baze Court. Id.
The lower court in its Order finds that the Florida and
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:
Moreover, these IV team members, along with the rest of the
execution team, participate in at least 10 practice sessions
per year. These sessions, required by the written protocol,
encompass a complete walk-through of the execution
procedures, including the siting of IV catheters into
volunteers.
Baze, Slip Op. at 16 (record citation omitted, emphasis added).
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.
The lower court did not find this a substantial difference
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.
Mr. Schwab was not granted an evidentiary hearing on this
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.
IV. Comparative of the Kentucky Protocols and The Florida
Protocols as Implemented by the Department of Corrections.
Furthermore, the recently received DOC training session
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:
The problems identified through review of Florida’s training
records are more readily apparent in comparison to the
relevant provisions of the Kentucky protocol. Florida’s
training records document the nature and scope of the
contingencies that have been addressed during training. The
substantive contingencies that have been addressed during
training are largely limited to blocked lines. During
practice exercises, Florida has not addressed some of the
contingencies that have been experienced in past Florida
executions or that have the potential to compromise the
execution process (e.g., execution duration of >12 minutes,
or an inability to site the IV lines within more than an
hour); requirements for addressing these serious
contingencies are explicitly addressed in the Kentucky
protocols.
Based on the recently received training records, Florida has
not provided training to address an inmate’s known medical
problems. In contrast, the Kentucky protocol is designed to
ensure that the inmate’s recent, and potentially changing
medical and psychiatric condition is well documented in
advance of the execution.
See exhibit 8.
Again, it is clear that the DOC is not training in a manner
that is consistent with the standards announced in Baze.
V. Florida Department of Corrections Execution Training
Assuming arguendo that Florida’s protocols are facially similar
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
arguments.
On December 13, 2006, the execution of Angel Diaz created
concerns whether Florida’s lethal injection protocols were being
adequately implemented by the Florida Department of Corrections. As
a result, then Governor Jeb Bush created the Governor’s Commission
on the Administration of Lethal Injection to review the method in
which the lethal injection protocols are administered by the
Department of Corrections (“DOC”) and to make findings and
recommendations as to how administration of the procedures and
protocols can be revised. As found by the Governor’s Commission on
Administration of Lethal Injection (“GCALI”) in its final report,
inadequate training was a major contributing factor leading to the
events of the Diaz execution. To reduce the risk of these events
recurring, GCALI determined that better and proper training of the
DOC execution team was required. (exhibit 3) The DOC, pursuant to
the newly revised protocols of May, 2007, conducted several training
sessions for the execution team. These initial training sessions
included both the DOC execution team members and observers from the
Florida Department of Law Enforcement (“FDLE”)(exhibit 4).
As previously noted before this Court, Mr. Schwab obtained the
services of Janine Arvizu, a certified quality auditor, to review
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.
Combining July and August, there were twelve trials in which
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
1c.
On May 27th, 2008, Mr. Schwab filed a renewed records request
for the DOC training session notes for the period between September,
2007, to the present. This Court granted the motion and the DOC
records were received on June 16, 2008. These records indicate that
between September, 2007 and May, 2008, the DOC conducted thirty
training exercises. Again, after review of these records, Ms.
Arvizu found significant training failures. (exhibit 8). The
records indicated that nine of the thirty exercises were failures
resulting in an error rate of 30%.
VI. Prior Florida Executions
Objectively, the data from the DOC training sessions and data
obtained from Florida’s prior twenty lethal injection executions are
relevant to show a substantial risk of harm. In Baze, the Court
distinguished between two types of error:
In terms of our present Eighth Amendment analysis, such a
situation-unlike an “innocent misadventure,” -would
demonstrate an “objectively intolerable risk of harm” that
officials may not ignore. In other words, an isolated mishap
alone does not give rise to an Eighth Amendment violation,
precisely because such an event, while regrettable, does not
4 “Iatrogenic” is defined as being “induced inadvertently by a physician or surgeon or by medical treatment.”
suggest cruelty, or that the procedure at issue gives rise to
a “substantial risk of serious harm.”
Baze, Slip Op. at 11-12 (citations omitted, emphasis added).
This objective analysis based on the data discussed infra establish
that these errors are not “isolated” mishaps but, instead,
reoccurring errors in both training and past executions.
Florida’s prior lethal injection execution data were collected
in order to focus on three major areas of concern 1) technical
issues, 2) duration issues, and 3) myoclonic 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:
Moreover, these IV team members, along with the rest of the
execution team, participate in at least 10 practice sessions
per year. These sessions, required by the written protocol,
encompass a complete walk-through of the execution
procedures, including the siting of IV catheters into
volunteers.
Baze, Slip Op. at 16 (record citation omitted, emphasis added).
Kentucky trains the IV team by siting the lines into a
person. Florida does not, even though improper IV placement was
major cause of the problems during the Diaz execution. Florida’s
substandard training of the technical team members responsible
for gaining IV access create conditions that present a risk of
harm which is “sure or very likely to cause serious illness and
needless suffering,” and give rise to “sufficiently imminent
dangers.” Id. at 10-11.
b. Florida Duration Issues
Relevant to the Baze standard is the amount of time that
elapses from the start of the lethal injection chemical sequence
until death. Evidence about the mechanics of lethal injection
and the pharmacological and pharmacokinetic properties of the
chemicals was obtained from the Lightbourne record through the
testimony of the state’s expert Dr. Dershwitz. (exhibit 1)
Based on this evidence, the normal duration of an execution
by lethal injection should last no more than eleven minutes.
Compared to the duration of prior executions in Florida, ten out
of nineteen, or 53%, of Florida’s lethal injection executions
exceeded this time parameter. Further, this trend will continue
and after twenty more executions (for a total of forty), there is
a statistical certainty that twenty-one executions will exceed
the constitutional duration limit. The mean duration for these
executions is 13.8 minutes. (exhibit 11) This is illustrated in
exhibit 14, Table 3a.
Applying a t test, where the null hypothesis is true, shows
that 83% of Florida’s future executions will take longer than the
eleven minute parameter established through Dr. Dershwitz’s
testimony. These findings show that 34% of future executions
will take between 13.79 and 20.12 minutes and 16% of future
executions will take more than 20.12 minutes. Finally, the top
25% of Florida’s future executions will take more seventeen
minutes. (exhibit 11) Exhibit 14, Table 3b shows the t test and
results.
These data are relevant to a Baze analysis in several respects.
First, the execution duration parameter is based on the scientific
testimony of Dr. Dershwitz. The foundation of this testimony is the
pharmacokinetic and pharmacological properties of the three drugs
used in Florida and the weight and volume of their administration.
According to this testimony, an execution should take no longer than
eleven minutes. Clearly, this is not the case in Florida since a
majority of past executions exceeded this parameter. This means
that these drugs are being “maladministered” as understood by the
Baze Court. It is more probable than not that this error rate is
due to the improper administration of the chemicals because of the
35% technical error rate, an error that featured prominently during
the Diaz execution. Since there is a statistical correlation
5 This issue is fully developed in part III, infra.
6 See exhibit 6. It should be noted that when discussing the pharmacokinetics of the three drugs, the sodium
pentothal reaction time is measured from the start of administration as opposed to the completion of administration for
the other two drugs. See Baze, at 6.
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
“unnecessary suffering”.
Third, the choice by Florida to use a large dose of sodium
pentathol, as opposed to the smaller doses used by other states,
appears to prolong an execution rather than hasten death.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.
Under a Baze analysis, myoclonic observations are relevant
for several reasons. First, the propriety of using pancuronuim
bromide was debated by the Baze litigants. The Baze Court found
its use proper:
First, it prevents involuntary physical movements during
unconsciousness that may accompany the injection of
potassium chloride. The Commonwealth has an interest in
preserving the dignity of the procedure, especially where
convulsions or seizures could be misperceived as signs of
consciousness or distress. Second, pancuronium stops
respiration, hastening death. Kentucky's decision to include
the drug does not offend the Eighth Amendment.
Baze, Slip Op. at 19 (record cite omitted, emphasis added).
While the Baze Court found the state’s interest compelling,
Florida’s myoclonic error rate disputes this finding.
Second, the myoclonosis observation is evidence that the DOC
is not properly administering the chemicals. If properly
administered, the pancuronium bromide should prevent involuntary
physical movements according to the testimony of Dr. Dershwitz.
Since his testimony is the only definition of “proper
administration” on the record, then it is clear that Florida has
not met this standard 35% of the time in the past.
Third, this again raises the issue of the “proper
administration” of sodium pentothal. The large dose of sodium
pentothal greatly reduces the rate of circulation. Based on the
data, this dose inhibits the progress and efficacy of the
pancuronium bromide. This would result in a failures to prevent
involuntary movements and hasten death.
d. Florida Combined Data
Taken together, the data presented above reveals that 40% of
Florida’s prior lethal injection executions had at least two
shared areas of concern implicating the Eighth Amendment. Six
executions had at least two anomalies. Two executions had all
three present (one of which was the execution of Angel Diaz).
These results rebut any argument that the errors are “isolated”
since 40% of Florida executions show two or more errors. (exhibit
11) This is shown in exhibit 14, Table 5.
The combined Florida data is relevant to a Baze analysis.
The proportion of anomalies that occurred during the reported
training period discussed above was 33%. The proportion of
executions with two or more anomalies that occurred was 40%.
Based on the evidence presented with this motion (see exhibit
11), one of Mr. Schwab’s experts calculated whether the
difference between these two proportions is statistically
significant.
This expert found that it is reasonable to assume (in this
case with 98% certainty) that the number of anomalies that will
occur in actual executions will be not be significantly lower or
higher in the future real executions than the 33% that was
observed in the training exercises. (see attachment 11) Based on
the data analysis, the expert’s conclusion is that there is a
significant (and thus legally relevant) relationship between the
DOC training error rate and the combined error rate for past
executions. Id.
Thus, under a Baze analysis, Florida’s current procedure for
executions by lethal injection creates a “substantial risk of
serious harm” by providing data that proves an “objectively
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.
However, under a “step error analysis” this addition does
not decrease the error rate. As with any process, each step of a
process is dependent upon the prior step being 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
success.
Number of
Steps
95% accuracy
97% accuracy
99% accuracy
26
26%
45%
77%
25
28%
47%
78%
A similar example is shown from the data in section
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
20%.
These data support the hypothesis that Ohio did not
adequately assess the problems illustrated by the Clark execution
including such factors as the IV cannulae size and type, the
adequacy of the pre-execution medical exam or the adequacy of the
IV team training. Instead, Ohio opted to add an additional step
that most probably relied upon inadequate factors, such as
inadequately trained IV team members, to correct the 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.
VII. Comparative Analysis of Florida, Ohio, Georgia and the
Netherlands
Relevant to this issue is a comparative analysis mandated by
the Baze Court’s plurality opinion, see Baze, Slip Op. at 22, and
that any comparison by this court is a finding of fact rather
than a conclusion of law.
8 See fn.9.
9 For example, on May 2, 2006, the execution of Joseph Clark took an “unprecedented amount of time” to effectuate
death. Due to a failure to gain proper IV access, Clark’s execution lasted fifty-three minutes.
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,
Table 6.
Ohio’s recent history of lethal injection executions was
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
(executions 22,25,26).
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.
11 The longer time for this flush and assessment replacement was added into the execution duration originally
calculated from Dr. Dershwitz’s testimony and sworn statements.
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.
4. Ohio Combined Data
The combined data presented above reveals that like Florida,
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.
Also different is the injection delivery process, specifically, the syringe volumes used for the injection
sequence. Florida utilizes eight total volume 60cc (ml) syringes. Syringes 1 and 2 inject the sodium pentothal.
Syringe 3 is a saline solution. Syringes 4 and 5 inject the pancuronium bromide. Syringe 6 is again saline. Finally
syringes 7 and 8 inject the potassium chloride. In Ohio, syringes 1 and 2 each inject a volume of 40cc of sodium
pentothal. Syringe 3 is a 20cc of saline flush. Syringes 4 and 5 each inject a volume of 25cc of pancuronium
bromide. Syringe 6 is another 20cc of saline flush. Syringe 7 is a 50cc injection of the potassium chloride. Finally,
syringe 8 is a 20cc saline flush. Georgia uses seven total volume 60cc syringes. Syringes 1 and 1a each inject the
sodium pentothal. Syringe 2 (the third in the sequence), is a 60cc saline flush. Syringe 3 delivers the pancuronium
bromide. Syringe 4 is another saline flush. Syringe 5 is the potassium chloride. Finally, syringe 6 (the seventh in the
sequence) is a saline flush.
It should be noted that the Georgia 2002 and 2007 protocols are similar with respect to the injection process.
The original 2000 protocols appear to be different. They also are vague as to the volumes used for each chmical.
However, based on testimony given in the State v. Nance hearings held on April 30th and July 30th, 2002, the
injection process appears the same.
For example, during the execution of Jose High in November of 2001, the medical technicians had difficulty
establishing IVs in both his arms. While IV access was established in High’s left hand, the technicians were unable to
establish an IV line in the right arms, hand or foot. As a result, technicians had to perform the much more
complicated procedure of establishing a central line in his neck. Jose High’s execution, however, was not a solitary
occurance. In fact, Georgia’s first four lethal injection executions all had problems with establishing proper IV
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
access.
14 Alderman v. Donald, Case No. 1:07-CV-1474-BBM (N.D. Atlanta).
15 According to the testimony in Alderman, even though the protocols require only one nurse on the IV team,
Georgia in practice uses two. Order and Opinion, Alderman v. Donald, Case No. 1:07-CV-1474-BBM, at 5.
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
conducted.
1. Georgia Technical Issues
Technical issues for Georgia were gathered from data
contained in the medical examiner reports and the execution logs
maintained by the Georgia Department of Corrections (GDOC).
Technical issues data were available for all seventeen executions
in this area in which thirteen had technical anomalies resulting
in a 76% error rate with an expected total of 30 technical
anomalies after Georgia executes forty individuals by lethal
injection. This is shown in exhibit 14, Table 10.
This is a substantial error rate that appears to have gone
unrecognized and thus uncorrected. The reason why Georgia has
such a high technical error rate, even though the IV team
consists of two nurses, is most likely a result of the training
schedule which does not require periodic sessions.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
executions.
2. Georgia Duration Issues
Georgia execution duration data were collected from the
execution logs maintained by the GDOC. The relevant Georgia
information pertained to the start of the chemical injection
process to the time that death was pronounced. The expected
execution duration was calculated from the affidavits and
testimony of Dr. Dershwitz specific to the chemical weight and
volume used in Georgia.
Data was available for fifteen of the seventeen executions
conducted from 2001 to 2007. Georgia’s mean execution time was
10.3 minutes. Based on the evidence provided by Dr. Dershwitz,
the expected execution duration in Georgia is nine minutes.
Using the same +/- one minute as before, the longest execution
duration should be ten minutes. While the mean duration was only
.3 above the expected duration, 33% of Georgia executions, or
five out of fifteen, still exceeded the duration time parameter
with an expected thirteen executions having duration errors after
Georgia executes forty individuals. This is shown in exhibit 14,
Table 11.
Georgia’s duration error rate is lower than that for Florida
which may be due to the significantly lower amount of sodium
pentothal. For the difference between Georgia and Ohio, it
appears that the difference may involve the chemical volume being
injected. While Georgia’s injection process should take no more
than seven minutes to complete, Ohio should take no more than
four minutes. This is a difference of three minutes whereas the
difference between the two means is only 1.7 minutes.
As noted in section 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.
3. Georgia Myoclonic or Other Observable Movements
For the seventeen total executions in Georgia by lethal
injection, only four had recorded instances of myoclonosis. This
is an error rate of 24% for an expected total of ten myoclonic
errors after forty executions. This is shown in exhibit 14,
Table 12.
4. Georgia Combined Data
The combined data presented above reveals that 35% of
Georgia’s prior lethal injection executions had at least two
shared areas of concern implicating the Eighth Amendment. Four
executions had at least two anomalies. Two executions had all
three present. This is shown in exhibit 14, Table 13.
The combined results for Florida, Ohio and Georgia show a
technical issue error rate of 43%, a duration issue error rate of
55%, and a myoclonic issue error rate of 24%. In addition, the
combined data show that 39% of the executions had the presence of
two or more anomalies.
Florida
Ohio
Georgia
Florida,Ohio,Georgia
Technical
Errors
35%
48%
76%
53%
Duration
Errors
53%
56%
33%
49%
Myoclonic
Errors
35%
15%
24%
24%
Two or
More
Errors
40%
40%
35%
38%
c. Mean Duration Comparison
As noted above, a comparison between Florida, Ohio and
Georgia is relevant to a Baze analysis where some conclusions can
be made about the pharmacokinetics of these chemicals which have
never been studied before in these amounts. Most relevant is the
sodium pentothal that seems to impact the duration of an
execution with the assumption, or hypothesis, that Florida uses
5grams of sodium pentothal to hasten the death of an individual.
Florida uses five grams of sodium pentothal and 100
milligrams of pancuronium bromide. The mean execution duration
is 13.8 minutes. Next, Ohio uses 2 grams of sodium pentothal and
100 milligrams of pancuronium bromide. Ohio’s most recent five
executions under the new protocols had a mean execution duration
of 10.4 minutes. The prior twenty executions in Ohio had a mean
of 8.6 minutes. Georgia, which uses 2grams of sodium pentothal
and 50 milligrams of pancuronium bromide, has a mean execution
duration time of 10.3 minutes.
The data does not support Florida’s hypothesis that more
sodium pentothal hastens death. In fact the data is contrary to
the hypothesis. The difference between the Florida mean and the
Georgia mean is 3.5 minutes. The difference between the Florida
mean and the Ohio mean under Ohio’s newest protocols is 3.4
minutes. The difference between the Florida mean and the Ohio
mean under the prior protocols is 5.2 minutes.
d. The Netherlands
Discussed during both Lightbourne and Baze was the
Netherlands and its experience with euthanasia and physician
assisted suicide (“EAS”). (see 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
are substantial.
Florida
Ohio
Georgia
Netherlands
Technical
Errors
35%
48%
76%
5%
Duration
Errors
53%
56%
33%
7%
Myoclonic
Errors
35%
15%
24%
4%
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.
However, executive discretion in the area of capital
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:
This is of particular concern when the Court interprets the
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
Fourteenth Amendments.
Kennedy, Slip Op. at 9-10.
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.
CONCLUSION
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
appropriate.
CERTIFICATE OF SERVICE
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
June, 2008.
s/Peter J. Cannon
Peter J. Cannon
Florida Bar No. 0109710
Mark S. Gruber
Florida Bar No. 0330541
CAPITAL COLLATERAL REGIONAL
COUNSEL - MIDDLE REGION
3801 Corporex Park Drive, Suite 210
Tampa, Florida 33619
(813) 740-3544
Attorneys for Defendant
CERTIFICATE OF COMPLIANCE
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.
s/Peter J. Cannon
Peter J. Cannon
Fla. Bar No. 010710
Copies furnished to:
Honorable Charles M. Holcomb
Circuit Court Judge
Titusville Courthouse
506 South Palm Avenue
Titusville, FL 32796
Kenneth Nunnelley
Assistant Attorney General
444 Seabreeze Boulevard, 5th Floor
Daytona Beach, FL 32118-3951
Robert Wayne Holmes
Assistant State Attorney
2725 Judge Fran Jamieson Parkway, Bldg. D
Viera, FL 32940
Commission on Capital Cases
ATTN: Roger R. Maas
402 S. Monroe Street
Tallahassee, FL 32399-1300
The Honorable Thomas D. Hall
Clerk, Supreme Court of Florida
ATTN: Tangy Hardy
Supreme Court Building
500 S. Duval Street
Tallahassee, FL 32399-1927
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