A Death Row inmate scheduled to be executed next month failed in a bid to get a Jacksonville judge to delay his execution because of the state's new triple-drug lethal injection protocol.
Duval County Circuit Court Judge Tatiana Salvador on Friday rejected a request from Mark James Asay to put a hold on an Aug. 24 execution date scheduled by Gov. Rick Scott. Asay's appeal included a challenge to a new lethal injection protocol — which includes a drug never used before for executions in Florida, or in any other state — adopted by the Florida Department of Corrections earlier this year.
In its new protocol, Florida is substituting etomidate for midazolam as the critical first drug, used to sedate prisoners before injecting them with a paralytic and then a drug used to stop prisoners' hearts. In a 30-page order issued Friday, Salvador ruled that Asay failed to prove that the new three-drug protocol is unconstitutional. Etomidate, also known by the brand name "Amidate," is a short-acting anesthetic that renders patients unconscious. Twenty percent of people experience mild to moderate pain after being injected with the drug, but only for "tens of seconds" at the longest, the judge noted.
"Defendant has only demonstrated a possibility of mild to moderate pain that would last, at most, tens of seconds," Salvador wrote. "Therefore, this Court finds the potential pain and anesthetic aspect of etomidate does not present risks that are 'sure or very likely' to cause serious illness or needless suffering or give rise to 'sufficiently imminent dangers.' "
The execution of Asay, who has until 10 a.m. Monday to appeal the circuit court decision, is slated to be the first in Florida in more than 18 months; the state's death penalty has been in limbo due to a series of state and federal court rulings.
Asay was one of two Death Row inmates whose executions were put on hold by the Florida Supreme Court in early 2016 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.
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.
