Supreme Court Halts Double Murderer James Asay’s Execution, 2nd Stay in 4 Weeks

Last Updated: 7:39 p.m.

Hours after hearing arguments in the case, the Florida Supreme Court on Wednesday indefinitely postponed the execution of Mark James Asay, a convicted double murderer scheduled to die on March 17.

Wednesday’s order was the second time the court indefinitely delayed a scheduled execution since a U.S. Supreme Court decision last month that struck down Florida’s death-penalty sentencing structure as unconstitutional. Gov. Rick Scott issued the death warrants before the U.S. Supreme Court’s decision in a case known as Hurst v. Florida.

The Florida court’s unanimous decision Wednesday came as the justices consider the potentially widespread impact of the Jan. 12 ruling on the sentences of Florida’s Death Row inmates.

During arguments in the case earlier in the day, Asay’s attorney, Marty McClain, argued that his client, who went for a decade without a lawyer to represent him in state appeals, should be able to present new evidence in his case.

Asay was convicted in 1988 of the murders of Robert Lee Booker and Robert McDowell in downtown Jacksonville. Asay allegedly shot Booker, who was black, after calling him a racial epithet. He then killed McDowell, who was dressed as a woman, after agreeing to pay him for oral sex. According to court documents, Asay later told a friend that McDowell had previously cheated him out of money in a drug deal.

McClain has argued that his client received inadequate representation before McClain took over the case last month, five days after Gov. Rick Scott signed a warrant ordering Asay to be put to death on March 17. McClain also argued that he discovered new evidence questioning a ballistics analysis that found Booker and McDowell were shot by the same gun. McClain is questioning whether Asay actually shot Booker or another black man who was shot nearby around the same time.

But Assistant Attorney General Charmaine Millsaps told the justices that the evidence clearly showed Asay killed both men, and that a new hearing would not reveal anything new.

“All we’re going to do in any evidentiary hearing is I’m going to stand up and produce these two documents” that are already in the record, Millsaps argued.

Asay’s case is further complicated because 33 boxes of records, many of them eaten by insects, were missing when McClain took over the case. Moving forward with the execution “would be a violation of due process, equal protection and fundamental fairness,” McClain wrote when requesting the stay of execution last month.

Justice Barbara Pariente asked why it wouldn’t be better to hold an evidentiary hearing to clear up the issues in the case, including the fact that Asay went without a lawyer for a decade. State law requires Death Row inmates to have legal representation.

“This does seem like an unusual set of circumstances … having no state lawyer for 10 years,” Pariente said.

Part of Wednesday’s arguments focused on the U.S. Supreme Court ruling that found the state’s system of allowing judges — not juries — to impose the death penalty is an unconstitutional violation of defendants’ Sixth Amendment rights to trial by jury.

The ruling dealt with the sentencing phase of death-penalty cases after defendants are found guilty, and it centered on what are known as aggravating circumstances that must be determined before defendants can be sentenced to death. A 2002 U.S. Supreme Court ruling, in a case known as Ring v. Arizona, requires that determinations of such aggravating circumstances must be made by juries, not judges.

The 8-1 decision did not address whether the ruling should be applied retroactively to inmates already on Death Row, something the justices have been considering since the Jan. 12 ruling. The Florida high court is scheduled to hear a swath of arguments regarding the impact of the Hurst decision on death penalty cases next week.

During Wednesday’s hearing, McClain echoed arguments from other defense lawyers, who contend that the ruling must be applied retroactively to all 390 inmates on Death Row. If not, the state risks applying the death penalty in an arbitrary manner, which could be considered unconstitutional by the courts, McClain said.

Earlier this month, the Florida Supreme Court indefinitely postponed the execution of Cary Michael Lambrix while the justices consider the impact of the Hurst decision on his and other Death Row inmates’ sentences.

“They need to have some sort of global resolution,” instead of deciding on a case-by-case basis, McClain said after the hearing.

Wednesday’s arguments came shortly before the Florida Senate considered a measure aimed at curing the constitutional deficiencies in the death penalty law.

The proposal (HB 7101), which has already passed the House, would require at least 10 jurors to recommend the death penalty for the sentence to be imposed. The bill would also require unanimous jury decisions on at least one aggravating circumstance in order for a defendant to be eligible for the death penalty.

The Hurst decision did not specifically address unanimous jury recommendations to judges about imposing the death penalty, a process that happens after jurors determine whether aggravating factors exist. But the issue of unanimity — or 10-2 or 9-3 recommendations — has been a flashpoint for lawmakers in debate over the legislation. The Senate version originally would have required unanimous recommendations, but the measure was amended in what leaders called a compromise with the House.

During debate on the measure Wednesday, the Senate narrowly rejected an attempt by Sen. Jeff Clemens, a Lake Worth Democrat, to reinsert the unanimous jury recommendation requirement.

“If we do not come to an agreement and fix this, then there will be justice delayed for victims and victims’ families,” Sen. Rob Bradley, R-Fleming Island, warned.

But Clemens argued that, of the 31 states with the death penalty, Florida is one of only three that do not require unanimous jury recommendations, making the state an outlier.

The House would not risk keeping the death penalty on hold in favor of the 10-2 recommendation, Clemens predicted.

“The House isn’t going to let the death penalty go away,” Clemens said. “If you’re going to kill someone, you better be sure.”

–Dara Kam, News Service of Florida