[JURIST] The US Court of Appeals for the Eleventh Circuit issued a per curiam opinion [PDF text] on Thursday overturning a district court order to stay the execution of Florida death row inmate Mark Dean Schwab [FCCD profile, DOC]. The federal district court blocked Schwab's execution [AFP report] on Wednesday pending the US Supreme Court's decision in Baze v. Rees (07-5439) [docket; cert. petition, PDF; JURIST report], where the court has been asked to rule on the constitutionality of lethal injections. The Eleventh Circuit reversed:
The district court's action in granting the stay is contrary to the unequivocal law of this circuit that because grants of certiorari do not themselves change the law, they must not be used by courts of this circuit as a basis for granting a stay of execution that would otherwise be denied. ...Schwab is scheduled to be executed at 6 PM ET on Thursday. AP has more.
The grant of certiorari on an issue does not suggest a view on the merits. We don't know how the Supreme Court is going to decide the issues on which it has granted review in the Baze case, and the Supreme Court itself probably does not know given the fact that briefing has not even been completed in that case.
The Florida Supreme Court last week denied a motion to stay Schwab's execution, consistent with the court's recent ruling [JURIST reports] that Florida's revised lethal injection protocol does not constitute cruel and unusual punishment. Florida Governor Jeb Bush suspended all executions in the state [JURIST report] last December after a medical examiner said that the execution earlier that month of Angel Diaz was botched. Diaz endured a 34-minute-long execution as a result of the improper insertion of needles during the first injection. The ban was lifted [JURIST report] in July after a review of lethal injection procedures.
Lawyers for the inmate in Baze v. Rees have argued that the three-drug mixture [DIPC backgrounder] used in Kentucky, and several other states, constitutes cruel and unusual punishment because the first drug fails to make the inmate fully unconscious, thereby making the inmate suffer excruciating pain when the heart-stopping drug is injected. Since the US Supreme Court accepted the Baze case in September, courts have stayed executions in Texas, Arizona, Nevada, Virginia, Georgia, Mississippi, and Alabama [JURIST reports].
1:56 PM ET - The US Supreme Court has now stayed Schwab's execution. AP has more.