Signaling a potential end to an 18-month hiatus for the state's embattled death penalty, Gov. Rick Scott on Monday rescheduled the execution date of convicted killer Mark James Asay for Aug. 27.
"I think the execution machine is going to get started again immediately," said Pete Mills, an assistant public defender in the 10th Judicial Circuit who also serves as chairman of the Florida Public Defenders Association Death Penalty Steering Committee.
Asay was one of two Death Row inmates whose executions were put on hold by the Florida Supreme Court early last year after the U.S. Supreme Court, in a case known as Hurst v. Florida, struck down as unconstitutional the state's death penalty sentencing system.
The federal court ruling, premised on a 2002 decision in a case known as Ring v. Arizona, found that Florida's system of allowing judges, instead of juries, to find the facts necessary to impose the death penalty was an unconstitutional violation of the Sixth Amendment right to trial by jury.
The January 2016 federal court decision set off a string of court rulings that have effectively put Florida's death penalty in limbo for 18 months.
A year ago, the Florida Legislature hurriedly addressed the U.S. Supreme Court ruling by passing a law requiring at least 10 jurors to recommend death for the sentence to be imposed.
But the state Supreme Court struck down that law, saying the Hurst ruling requires that death recommendations be unanimous, even though the federal court did not address the issue.
This spring, lawmakers again amended the state's death penalty statute, this time mandating unanimous jury recommendations in capital sentencing cases.
Meanwhile, the Florida Supreme Court in December lifted the hold on Asay's execution, in one of a pair of key rulings focused on the implications of Hurst.
In Asay's case, the court ruled that Hurst should not apply retroactively to cases finalized before the 2002 Ring decision because, in part, of the impact on the administration of justice.
"Penalty phase resentencing is a time-intensive proceeding that requires significant preparation and discovery, death-qualifying a jury, and generally, a multi-day trial," the majority wrote. "While some of the prior witnesses' statements could be admitted based on the transcripts from the prior sentencing, the jury's ability to weigh the strength of those witnesses would clearly be impacted. Finally there is an important consideration regarding the impact a new sentencing proceeding would have on the victims' families and their need for finality."
Since the December rulings, the Florida court has consistently vacated the death penalty in sentences handed down by non-unanimous juries after Ring.
In a letter Monday to Florida State Prison Warden Barry Reddish, Scott --- who signed a record number of death warrants before the Supreme Court ruling last year and urged lawmakers in 2014 to pass a measure aimed at speeding up executions --- ordered Asay to be put to death on August 27.
But the new execution date could also be problematic. Scott scheduled Asay to be put to death by lethal injection just after the Florida Supreme Court --- which, along with federal courts, often must consider last-minute appeals --- resumes work after a summer recess. The court is scheduled to issue its first set of rulings after a month-long summer break on Aug. 31.
Asay will be the first Death Row inmate put to death under a new, untested lethal injection protocol adopted by state corrections officials in the midst of the upheaval over the death penalty earlier this year. The changes to the three-drug lethal injection procedure come after the previous drugs used by the state to execute prisoners expired.
The move to the new drugs in Florida --- never before used in lethal injection procedures, according to national experts --- is almost certain to spur additional litigation, generally launched by the first inmate scheduled to undergo a new protocol, which in this instance would be Asay.
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.
Asay's case has also involved a legal tangle over destroyed records and a lawyer who was the subject of an investigation ordered by Florida Supreme Court Chief Justice Jorge Labarga.
The high court dropped the inquiry after Mary Catherine Bonner, who repeatedly missed critical deadlines in death penalty cases, resigned from a statewide registry that made her eligible to represent defendants in capital cases.
Marty McClain, a lawyer appointed to represent Asay after Scott signed a death warrant early last year, found that the Death Row inmate had gone for nearly a decade without representation. Many of the records related to Asay's case provided by Bonner were destroyed by insects or exposure to the elements, according to court records filed by McClain.
