Miami-Dade County

Florida Supreme Court halts scheduled execution as uncertainty clouds death penalty

Mark James Asay
Mark James Asay

The Florida Supreme Court on Wednesday halted the next scheduled execution, adding further confusion to the future of the state’s death penalty system.

Just hours after hearing oral arguments in his case, the court issued a stay on the March 17 execution of Mark James Asay, who was convicted in 1987 of two murders in Jacksonville.

Asay’s is the second execution halted by the state’s highest court after the U.S. Supreme Court ruled Florida’s death penalty laws unconstitutional in January. In its decision in Hurst vs. Florida, the court forced the Legislature to rewrite state laws and cast doubt on existing death sentences.

The court took issue with state laws giving a judge the final decision on whether to issue a death sentence, based on a jury’s recommendation. Rather, the Hurst ruling said, juries should make the final decision on death sentences.

The Florida Supreme Court’s unanimous ruling Wednesday doesn’t say anything about the merits of Asay’s case. It simply stops the execution, which was ordered by Gov. Rick Scott prior to the Hurst ruling.

But the arguments from Asay’s lawyer, Martin McClain, offered a sneak peak into the kind of legal challenges that await a “fix” to the state’s death penalty sentencing law, which is moving through the state Legislature.

Hurst doesn’t say that death sentences must be unanimous. But McClain — who last month succeeded in staying the scheduled execution of Michael Ray Lambrix — argues that Florida’s sentencing laws do.

“A jury decision has to be unanimous,” he said. “By implication it comes about.”

Lawyers for the state disagreed. Instead, Assistant Attorney General Charmaine Millsaps said that the Constitution only requires one aggravating factor be found by a jury. Because there was at least one such factor in Asay’s case, she said, there’s no reason to stay the execution.

The jury in Asay’s case voted 9-3 to recommend the death penalty.

Jeri Bustamante, a spokeswoman for Scott, said in response to the court’s decision: “We will continue to follow the law.”

Meanwhile, across the street in the state Capitol, lawmakers held firm to their proposed “fix,” which would not require unanimous juries.

On Wednesday morning, a group of senators tried but failed to undo a political compromise with the Florida House that requires at least 10 of 12 jurors to agree to impose a death sentence.

Led by Sen. Jeff Clemens, D-Lake Worth, senators tried to force the House’s hand and require a unanimous jury decision. The vote failed 17-23.

“We don’t have to yield to the House in any way shape or form,” said Sen. Thad Altman, R-Rockledge in support of Clemens., “If we don’t pass a bill, the death penalty goes away and I don’t think the House is going to let that happen, so why not send them the best product possible?”

Baker Republican Sen. Greg Evers — who advocated for the compromise — said: “The problem is there’s two bodies in the Legislature.”

“We knew that we had to do something. There had to be common ground,” Evers said.

The Senate plans to vote on the bill Thursday.

The Supreme Court has allowed several other death row inmates to bring arguments about Hurst into their appeals. Next week alone, the court plans to hear seven death penalty appeals — although none of those inmates’ executions have yet been scheduled.

With so much uncertainty surrounding the issue, McClain has called on the courts or the Legislature to make a more sweeping decision about pending death penalty cases.

“They shouldn’t be deciding this on an ad hoc basis,” McClain said. “They need to have some sort of global resolution.

Contact Michael Auslen at mauslen@tampabay.com. Follow @MichaelAuslen.

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