Death Row inmate wants new Florida jury rules applied retroactively

Mark James Asay
Mark James Asay Florida Department of Corrections

Mark James Asay, convicted of killing two people in 1987, is asking the Florida Supreme Court to vacate his death sentence, citing a new law signed last month by Gov. Rick Scott.

He’s the first Death Row inmate to ask for a life sentence under the new death penalty laws that went into effect March 7. The U.S. Supreme Court in January threw out Florida’s death penalty sentencing laws as unconstitutional, causing the Legislature to write a massive overhaul.

Asay was found guilty of murdering Robert Lee Booker and Robert McDowell in Jacksonville.

Among the new provisions is a requirement that 10 of 12 jurors vote to impose a death sentence. In Asay’s case, just 9 did.

That, his lawyers argue in a brief filed Wednesday with the Florida Supreme Court, is cause to change his death sentence to life imprisonment.

“Because three jurors in Mr. Asay’s case formally voted to recommend life sentences, his death sentences violate the Eighth Amendment,” Asay’s lawyer, Martin McClain, wrote, referring to the U.S. Constitution’s prohibition on cruel and unusual punishments.

But the impact could be farther-reaching given the numerous questions surrounding Florida’s death penalty.

The state Supreme Court has not yet ruled in the case of Hurst v. Florida, which was remanded to them after the U.S. Supreme Court ruled Florida’s death penalty unconstitutional.

And they have not weighed in on whether the Hurst decision or the new laws written in its wake are retroactive.

Attorney General Pam Bondi’s office has argued they are not.

If one or more parts of the Hurst ruling are applied retroactively, courts could have to re-try or throw out the sentences of some of the 388 people on one of America’s most crowded Death Rows.

And if the state Supreme Court sides with Asay, applying the new law to old cases, it could affect hundreds of cases. Florida House staff found that from 2000 to 2012, 140 of the 320 death sentences issued in Florida were on votes of 7-5, 8-4 or 9-3. None of those would be legal under the new system.