STARKE, Fla. – 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.