As the clock ticks down on Wednesday’s scheduled execution of the South Miami-Dade man who killed 9-year-old Jimmy Ryce, the lawyers for Death Row inmate Juan Carlos Chavez have urged the U.S. Supreme Court to stop it.
After Chavez’s bid to the Florida Supreme Court was rejected at the end of January, his lawyers are again seeking to postpone his death by the state’s lethal-injection cocktail. As in the past, lawyers Robert and Andrea Norgard argued in a petition filed Thursday that the state’s method of execution violates the U.S. Constitution because it amounts to “cruel and unusual punishment.”
His lawyers could not be reached for comment. The lead Miami-Dade prosecutor who secured Chavez’s conviction for the 1995 murder of the boy said there’s “always a 50-50 chance” that the killer could obtain a last-minute stay.
“There’s a very small number of Death Row inmates whose executions have gone off the first time without making claims,” Miami lawyer Michael Band said Friday. “For the Ryce family, it amounts to cruel and unusual punishment. They never get closure until the execution is finally done.”
Chavez, 46, began his last-ditch legal appeal after Gov. Rick Scott signed his death warrant in early January for a slaying that shocked South Florida. At a 1998 trial, Chavez was convicted of kidnapping the boy at gunpoint after he got off a school bus near his Redland home, then of raping and fatally shooting him before dismembering his body and cementing the parts in plastic planters on a horse farm.
In mid-January, Circuit Judge Marc Schumacher, who presided over his trial and issued the death penalty, rejected the latest appeal by Chavez.
In short order, the state Supreme Court denied Chavez’s petition to stay his execution while he pursues appeals in federal court. He has an appeal pending at the federal court in Jacksonville, in addition to his more important appeal to the U.S. Supreme Court.
Chavez’s central argument is that the state’s method of lethal injection is unconstitutional. His lawyers are trying to stop the execution by raising concerns about Florida’s use of a sedative called midazolam hydrochloride, which was adopted in September. The sedative, the first of three drugs used in the lethal injection process, may constitute “cruel and unusual punishment” because, they argue, it doesn’t prevent inmates from feeling pain as they are killed.
In his federal appeal, Chavez’s lawyers are relying on the expert testimony of University of Miami anesthesiologist David Lubarsky. He says there are problems with the state's protocol for ensuring inmates are unconscious. He also says the state is not waiting long enough between injections for the anesthetic to take effect.
Lubarsky also was recently used as an expert in the appeal of another Death Row inmate awaiting execution on Feb. 26. On Thursday, the Florida Supreme Court ordered a circuit court hearing to evaluate the challenge by Paul Augustus Howell, who was tried and convicted of the 1992 murder of a highway patrol trooper in Jefferson County.
In Howell’s appeal, the UM doctor said in an affidavit that “Midazolam is not clinically appropriate for use as a total anesthetic. It has no analgesic — pain relieving — properties and without pain relieving drugs, is not suitable as a form of anesthesia as a single drug.”
Lubarsky contradicted a previous claim by an expert for the state Attorney General’s Office in yet another appeal by a Death Row inmate.
But in December, the Florida Supreme Court ruled in the appeal of Miami killer Thomas Knight that he failed to prove that the drug “presents a serious risk of needless suffering.” Knight, after nearly four decades on Death Row for the murders of a Miami couple and a prison guard, was executed in January.
And in Chavez’s subsequent appeal, the state high court said that he offered no evidence or witnesses that could disprove the finding in in the Knight case. Chavez did not use the UM doctor as a witness in his state appeal.
The justices concluded that Chavez alleged “very general challenges to the lethal injection protocol” and “his claims were completely speculative.”
The use of lethal drugs to execute Death Row inmates has stirred debate around the country.
In January, a Ohio man convicted of the 1989 rape and murder of a pregnant woman was killed by a new cocktail of drugs, which included the sedative midazolam. His death took unusually long, generating questions about the effectiveness of the anesthetic.