Politics

Death penalty may go on hold

With U.S. court action pending, the state high court considers whether to proceed.

By ALEX LEARY, Times Staff Writer
Published October 12, 2007

TALLAHASSEE - Gov. Charlie Crist may have lifted the state's moratorium on the death penalty, but the execution of a pedophile and murderer next month may be postponed as the U.S. Supreme Court weighs in on lethal injection.

The federal case - which may not be resolved until June - hung over the state Supreme Court Thursday as justices heard challenges to Florida's lethal injection procedures, and the convergence of the two underscored growing nationwide attention to the issue.

"I'm having difficulty seeing what the urgency is in going forward with an execution when we're about to get the law from the horse's mouth," Justice Harry Lee Anstead said.

"Wouldn't the better part of valor to wait and stay the execution?" asked Justice Barbara Pariente.

Florida has not had an execution since December, when it took twice as long as normal for Angel Diaz to die because toxic chemicals were injected into his soft tissue, not his vein. Witnesses said Diaz appeared to wrench in pain during the process.

The Department of Corrections revised its procedures, and in July Crist signed a death warrant for Mark Dean Schwab, 38, who raped and murdered an 11-year-old boy from Cocoa. The execution is scheduled for Nov. 15.

Given the nearness of that date, the Florida court is expected to rule shortly.

Attorneys for death row inmates say that the new procedures are flawed and that qualifications for the people who oversee executions remain unknown.

Lawyers for Schwab and Ian Deco Lightbourne, another inmate who is facing the death penalty but for whom no death warrant has been signed, argued various technical points before the state Supreme Court Thursday morning.

Despite their reticence to rush forward, justices seemed satisfied with the new procedures. Pariente called one of the protocol changes - a mandatory pause after an anesthetic is administered to ensure the inmate is unconscious - very significant.

"How much can this branch interfere with the training that goes on?" Pariente asked.

The nation's top court agreed last month to hear a challenge from two inmates in Kentucky - Ralph Baze and Thomas Clyde Bowling Jr. - that lethal injection is cruel and unusual punishment, a violation of the Eighth Amendment. Arguments are not expected until January, and a decision might not come until May or June, when the court recesses.

At stake is not the constitutionality of the death penalty itself (the court upheld the practice in 1976). Rather, the court will weigh in on lethal injection as a means of execution and even then, some experts say, it will focus on the drugs being used and how they are administered.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., thinks the scope of the Supreme Court decision will be fairly narrow. "It could be that states have to make modest changes or no changes."

Florida Assistant Attorney General Kenneth Nunnelley urged the court Thursday not to postpone the Schwab execution.

He argued that the federal case deals specifically with the three-drug mix used to kill a person, while the Florida case centers more on the administration of that lethal cocktail. He expressed confidence that the state would withstand scrutiny.

"Florida's procedures will meet any standard they may possibly choose to apply," said Nunnelley, who later called the state a leader in lethal injection.

Lightbourne's attorney, Suzanne Keffer, disagreed. "The fact of the matter is other states have far more information about the execution process than Florida has."

While her arguments deal mainly with the procedures, Keffer said if the first drug is not administered correctly, then the inmate will feel pain, violating the constitutional prohibition.

The first chemical injected is sodium pentothal, an anesthetic, followed by pancuronium bromide, which causes paralysis, and then potassium chloride, which stops the heart.

Death from potassium chloride can be painful if the anesthetic wears off or is not properly administered, but the paralyzing agent prevents inmates from showing any sign of that pain, lawyers said.

Schwab's lawyer, Mark Gruber, urged the justices to order a trial court hearing where he could present evidence, showing that use of the paralytic drug results in an unconstitutional risk of pain.

Errors 'inevitable'

He said the biggest potential problem, which occurred in the Diaz case, is the placement of the intravenous needles.

"There will be errors," Gruber said. "It's inevitable."

Nunnelley argued that procedural changes made since the Diaz execution ensure that won't happen. Besides more training, there's a delay after the sodium pentothal is administered.

A warden then is required to make sure the inmate is unconscious by procedures that include shaking, brushing the eyelids and calling his name before the other two chemicals are injected.

Crist, who signed the death warrant in May, was asked by reporters about the concern the justices displayed with moving forward.

"A lot of people are waiting for justice to be done for the loss of a loved one," he said. "My heart is with them."

Staff writer Jennifer Liberto contributed to this report, which includes information from the Associated Press.

By the numbers

64 Florida inmatesexecuted since 1976

20 Killed by lethalinjection

385 Inmates ondeath row

[Last modified October 11, 2007, 23:06:11]