January 24, 2008
State justices reject Schwab appeal
THE ASSOCIATED PRESS
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Appeal.
Child killer Mark Dean Schwab lost an appeal to the state?s highest court Thursday, but his execution remains on hold until the U.S. Supreme Court rules on the lethal injection method used by Florida and other states.
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WEB EXTRAS
 Justice for Junny
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TALLAHASSEE ? Child killer Mark Dean Schwab lost an appeal to the state?s highest court Thursday, but his execution remains on hold until the U.S. Supreme Court rules on the lethal injection method used by Florida and other states.
The Florida Supreme Court unanimously rejected arguments that the three-drug combination is cruel or unusual punishment because the Corrections Department execution team botched two of five training sessions using recently adopted procedures.
Schwab?s lawyers also contended that during those exercises, a Florida Department of Law Enforcement official who is supposed to monitor the mixing of lethal chemicals was insufficiently trained.
The justices wrote in an unsigned opinion that even if those allegations were true, Schwab failed to show they amount to cruel or unusual punishment.
In a 1997 decision, the justices defined such punishment as involving ?torture or a lingering death? or inflicting ?unnecessary and wanton pain.?
The question of what cruel or unusual means is the key issue before the U.S. Supreme Court in a Kentucky case. The federal justices have stayed the executions of death row inmates across the country until they rule.
Schwab, 39, received his stay just four hours before his scheduled execution in November. He was convicted of raping and murdering 11-year-old Junny Rios-Martinez, of Cocoa, who was killed in 1991 by smothering or choking.
?Once again, the state of Florida has affirmed that Junny Rios-Martinez deserves justice,? said Attorney General Bill McCollum, Florida?s chief legal officer. ?We expect the U.S. Supreme Court will not deny his family their opportunity to see this case come to its rightful conclusion.?
In the meantime, Schwab will ask the Florida justices to rehear his case and if that fails he could appeal to the U.S. Supreme Court or lower federal courts, said Peter Cannon, one of his lawyers.
?They say the chemicals are fine if they are administered properly,? Cannon said. ?We now have evidence they are not administered properly.?
Gov. Charlie Crist signed a death warrant for Schwab in July, lifting a moratorium on executions that his predecessor, Jeb Bush, had ordered after it took twice as long as usual ? 34 minutes ? for convicted killer Angel Diaz, 55, to die in December 2006.
An investigation found the needles had been pushed through Diaz?s veins into his flesh, reducing the drugs? effectiveness.
Corrections officials responded by ordering more training and monitoring of its execution team. The new procedures also include a delay after the first chemical, the anesthetic sodium pentothal, is injected to make sure an inmate is unconscious before the other drugs are administered.
The second chemical causes paralysis and the third stops the heart from beating, which can result in severe pain if a person is conscious.
Critics of the three-drug system say the paralyzing drug is unnecessary and prevents an inmate from showing any sign of pain. Some have advocated using only sodium penthotal because it also is lethal in large doses.
Schwab?s lawyers also argued that a mental health expert who examined him before trial has changed his opinion and now says he was suffering from extreme mental disturbance that prevented him from following the law.
The justices, though, wrote that change probably would not result in a less severe sentence if Schwab is retried. The only alternative to death for first-degree murder is life in prison.
Justice Harry Lee Anstead concurred only with the opinion?s result but did not explain his stance.
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