Mark Asay will remain on the state’s death row, the Florida Supreme Court decided Thursday, likely to become the “first white person executed for the murder of a black person in this state.”
Its 80-page opinion also determined that this year’s U.S. Supreme Court opinion, Hurst v. Florida, requiring Florida juries—not judges—”to (determine) the facts necessary to sentence a defendant to death” does not apply retroactively to Asay and many others.
However, the opinion can be retroactive for certain death-sentenced inmates whose “cases were not final” when another related U.S. Supreme Court ruling came out in 2002.
But Thursday’s decision further suggested a court that continues to be fractured over the state’s death penalty. Most recently, Florida’s high court this October also said death sentences require a jury’s unanimous vote.
The controlling opinion in Asay’s case was a plurality of Chief Justice Jorge Labarga and Justices Peggy A. Quince and Ricky Polston. The latter two often are polar opposites in opinions, with Quince leaning left and Polston a reliable conservative vote.
But Labarga and Polston also weighed in with separate concurring opinions, as did Justices R. Fred Lewis and Charles Canady, who agreed with the result only.
Justice Barbara Pariente wrote a mixed-bag opinion, concurring in part with the opinion but also dissenting, and Justice James E.C. Perry, who retires at the end of the month, dissented with a stunning admission.
“The majority’s decision today leads me to declare that I no longer believe that there is a method of which the state can avail itself to impose the death penalty in a constitutional manner,” he wrote, echoing Justice Harry Blackmun that he “no longer shall tinker with the machinery of death.”
“I would find that Hurst v. Florida applies retroactively, period,” Perry wrote.
Asay, a white supremacist sentenced to death for gunning down two people in Jacksonville in 1987, had asked the court to review his case. He was on parole at the time of the shootings.
Asay, his brother, and another man were in downtown Jacksonville looking for prostitutes when a confrontation with Robert Lee Booker, who was black, turned deadly. Asay later that night shot and killed a transgender prostitute, born Robert McDowell, “a black man dressed as a woman” whom Asay had hired for sex.
“As to both murders, the trial court found Asay’s age of 23 at the time of the murders to be the only mitigation for his offenses,” the opinion said.
Asay, now 52, was sentenced in November 1988 and Gov. Rick Scott signed his death warrant this January. The court lifted a stay of execution in Asay’s case entered on March 2.
His latest claims include questioning firearms evidence used at trial and not having a lawyer when Scott signed his death warrant “and for the previous 10 years.”
Asay also argued he should be re-sentenced because of the Hurst decision, requiring juries to determine the factors that support a death sentence. And he said prosecutors had suppressed new evidence in his favor.
The plurality opinion dismissed each of his arguments, including saying Hurst can’t be applied retroactively, in part because “this Court, the State of Florida in prosecuting these crimes, and the families of the victims had extensively relied on the (then-)constitutionality of Florida’s death penalty scheme.”
Moreover, “there are a substantial number of death sentences the finality of which would be upended, nearly half of those defendants committed their crimes and had their sentences upheld decades ago,” it said.
Then, in a classic example of what law professors call a “negotiated paragraph,” the court reaches its main result.
After weighing all the applicable legal tests, it “conclude(s) that Hurst should not be applied retroactively to Asay’s case,” then says “we limit our holding to this context.” The justices immediately add, however, the tests “weigh against applying Hurst retroactively to all death case litigation in Florida.”
In her opinion, Pariente later explains the ruling “limit(s) the retroactive application of Hurst v. Florida to those cases that were not final when the United States Supreme Court decided Ring,” calling that unconstitutional.
Polston wrote that “the majority opinion has incorrectly limited the retroactive application of Hurst” in the context of the Ring case, that first said juries alone must decide on “aggravating factors” for the death penalty.
The majority “bar(s) relief to even those defendants who, prior to Ring, had properly asserted, presented, and preserved challenges to the lack of jury fact finding and unanimity in Florida’s capital sentencing procedure,” he said. “This Court need not tumble down the dizzying rabbit hole of untenable line drawing ….”
“Every pre-Ring defendant has been found by a jury to have wrongfully murdered his or her victim,” Polston said. “(T)his Court now limits the application of Hurst, resulting in the State wrongfully executing those defendants.
“It seems axiomatic that ‘two wrongs don’t make a right’; yet, this Court essentially condones that outcome with its very limited interpretation of Hurst’s retroactivity and application.”
And Labarga said separately, “our decision today does not apply to those defendants whose death sentences were imposed … solely as a result of a judicial override,” that is, a judge who imposes death over a jury recommendation of life imprisonment.
“There are only two death row defendants who satisfy this criteria—Matthew Marshall and William Zeigler Jr.,” he writes. “The impact of Hurst … upon their death sentences is an issue for another day.”