Case: Schwab v. Florida

Schwab was convicted of first-degree premeditated murder, sexual battery of a child, and kidnapping after murdering eleven-year-old Junny Rios–Martinez in April 1991, and he was sentenced to death.

The Governor of Florida, Jeb Bush, suspended executions on December 13, 2006, after a botched injection led to an investigation of the procedures. Governor Charlie Crist lifted the moratorium when he signed Schwab's death warrant on July 13, 2007, lifting the ban. Schwab's execution was set for November 15, 2007.

On August 15, 2007, Schwab filed a motion for postconviction relief, raising two claims: that Florida's lethal injection method of execution violated the Eighth and Fourteenth Amendments of the United States Constitution and corresponding provisions of the Florida Constitution; and that newly discovered evidence showed a neurological brain impairment, which made Schwab's sentence of death constitutionally unreliable. After holding a hearing regarding Schwab's motion, the postconviction court denied Schwab's motion. Schwab appealed, and on November 1, 2007, the Florida Supreme Court affirmed the circuit court's denial of all relief and denied the motion for rehearing on November 7, 2007. The Florida Supreme Court, in rejecting the challenge to the state's new lethal injection procedures, unanimously upheld the procedures.

On November 9, 2007, Schwab filed a second successive motion to vacate with the circuit court based on newly discovered evidence. The circuit court held a hearing on November 13, 2007, and summarily denied relief without permitting an evidentiary hearing. The circuit court's order was affirmed in appeal on January 24, 2008, on the grounds that the newly discovered evidence would still probably not yield a less severe sentence on retrial. Schwab also asserted that the execution team was not being appropriately trained in preparing and administering the correct chemical amounts as required and that agents are not sufficiently trained to identify potential problems. However, the court noted that 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." The court did not find that Schwab's allegations as to these training exercises implicate any constitutional violation. 982 So.2d 1158

Schwab's execution, initially scheduled for November 15, 2007, was stayed by the United States Supreme Court while it considered a challenge to Kentucky's lethal injection protocol in Baze v. Rees. In Baze, the Supreme Court addressed whether Kentucky's particular lethal-injection procedure comports with the Eighth Amendment. On April 16, 2008, the Supreme Court upheld Kentucky's method of lethal injection. The United States Supreme Court thereafter denied Schwab's petition for a writ of certiorari and dissolved the stay.

Governor Charlie Crist rescheduled Schwab's execution, setting it for July 1, 2008. Schwab then filed a third successive motion for postconviction relief, again challenging whether Florida's lethal injection protocol violates the Eighth Amendment.

In a third successive motion to vacate sentence or stay the execution, Schwab argued that Baze sets a different and higher Eighth Amendment standard than Lightbourne, which found that cruel and unusual punishment is that which involves "torture or a lingering death" or the infliction of "unnecessary and wanton pain." Schwab argued that the Florida protocol did not meet the Baze standard because Florida's procedures were not substantially similar to those of Kentucky, thus exposing him to a substantial risk of harm. Schwab listed three areas of concern: technical error, duration of execution, and involuntary movements of prisoners during their executions.

On June 25, 2008, Judge Charles M. Holcomb denied the motion, noting that Baze held that a defendant could not succeed on an Eighth Amendment objection to a method of execution unless he can proffer a "feasible, readily implemented" procedure that would, in fact, "significantly reduce a severe risk of pain." It stated that a stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the state's lethal injection protocol creates a demonstrated risk of severe pain. Schwab had not demonstrated that the Florida protocol was not substantially similar to the one approved by the United States Supreme Court or that this protocol created a demonstrated risk of severe pain. Schwab was executed on July 1, 2008. The case is now closed.