TALLAHASSEE, Fla. – The family of a man murdered in Jacksonville is outraged that the Supreme Court has delayed the execution of his killer, while the convicted man's family is overjoyed and hoping for a new trial.
Mark Asay, 51, was sentenced to death in 1988 for the murders of two men: Robert Lee Booker and Robert McDowell.
Asay 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.
Booker's family said he was killed in a hate crime.
“People like that don't deserve to be on the face of the earth,” said Frank Booker, the eldest brother of Robert Lee Booker. “I think that the system has failed us in that way, because it's been too many years, way too many years. If that was one of us, we would have been gone long ago. I think it's injustice, and my nephew and I are here to see that justice gets done.”
Robert Lee Booker's son, Vittorio C. Robinson, was 15 years old when his father was killed in 1987 in the Oceanway area of Jacksonville while walking home from work. He said it's unfair that Asay's family has been able to see him for the last three decades.
“They can correspond with him. They can love him. They can cry with him and laugh with him,” Robinson said. “I can't do any of that. When you're convicted of a crime and you do your time, you've completed your sentence. He was given the death penalty nearly 30 years ago, and he has not yet received his sentence.”
Asay's execution was scheduled for March 17, but Wednesday it was indefinitely postponed.
It was the second time the court indefinitely delayed a scheduled execution since a U.S. Supreme Court decision last month that struck down Florida's death-penalty sentencing structure as unconstitutional. Gov. Rick Scott issued the death warrants before the U.S. Supreme Court's decision in a case known as Hurst v. Florida.
The Florida House passed a bill Thursday to change the state’s death penalty sentencing system to require at least 10 out of 12 jurors to recommend execution. That bill now awaits the signature of the governor.
Asay's sister said her heart goes out to the Booker family and she understands why they feel her brother should be put to death, but he has shared his remorse while in prison -- along with his hopes for this future.
“He said if God wants him to walk out the door he will,” Gloria Dean said. “If he doesn’t, then he’ll die. He does not want to spend any more time in prison. He’s been there long enough. Even the guards say Mark is a totally different person than when he walked through that door.”
Supreme Court halts Jacksonville inmate's execution
The Florida court's unanimous decision Wednesday to indefinitely postpone Asay's execution came as the justices consider the potentially widespread impact of the Jan. 12 ruling on the sentences of Florida's Death Row inmates.
During arguments in the case earlier in the day, Asay's attorney, Marty McClain, argued that his client, who went for a decade without a lawyer to represent him in state appeals, should be able to present new evidence in his case.
McClain has argued that his client received inadequate representation before McClain took over the case last month, five days after Gov. Rick Scott signed a warrant ordering Asay to be put to death on March 17. McClain also argued that he discovered new evidence questioning a ballistics analysis that found Booker and McDowell were shot by the same gun. McClain is questioning whether Asay actually shot Booker or another black man who was shot nearby around the same time.
But Assistant Attorney General Charmaine Millsaps told the justices that the evidence clearly showed Asay killed both men, and that a new hearing would not reveal anything new.
"All we're going to do in any evidentiary hearing is I'm going to stand up and produce these two documents" that are already in the record, Millsaps argued.
Asay's case is further complicated because 33 boxes of records, many of them eaten by insects, were missing when McClain took over the case. Moving forward with the execution "would be a violation of due process, equal protection and fundamental fairness," McClain wrote when requesting the stay of execution last month.
Justice Barbara Pariente asked why it wouldn't be better to hold an evidentiary hearing to clear up the issues in the case, including the fact that Asay went without a lawyer for a decade. State law requires Death Row inmates to have legal representation.
"This does seem like an unusual set of circumstances … having no state lawyer for 10 years," Pariente said.
Part of Wednesday's arguments focused on the U.S. Supreme Court ruling that found the state's system of allowing judges -- not juries -- to impose the death penalty is an unconstitutional violation of defendants' Sixth Amendment rights to trial by jury.
The ruling dealt with the sentencing phase of death-penalty cases after defendants are found guilty, and it centered on what are known as aggravating circumstances that must be determined before defendants can be sentenced to death. A 2002 U.S. Supreme Court ruling, in a case known as Ring v. Arizona, requires that determinations of such aggravating circumstances must be made by juries, not judges.
The 8-1 decision did not address whether the ruling should be applied retroactively to inmates already on Death Row, something the justices have been considering since the Jan. 12 ruling. The Florida high court is scheduled to hear a swath of arguments regarding the impact of the Hurst decision on death penalty cases next week.
During Wednesday's hearing, McClain echoed arguments from other defense lawyers, who contend that the ruling must be applied retroactively to all 390 inmates on Death Row. If not, the state risks applying the death penalty in an arbitrary manner, which could be considered unconstitutional by the courts, McClain said.
Earlier this month, the Florida Supreme Court indefinitely postponed the execution of Cary Michael Lambrix while the justices consider the impact of the Hurst decision on his and other Death Row inmates' sentences.
"They need to have some sort of global resolution," instead of deciding on a case-by-case basis, McClain said after the hearing.
Wednesday's arguments came shortly before the Florida Senate considered a measure aimed at curing the constitutional deficiencies in the death penalty law.
The proposal (HB 7101), which has already passed the House, would require at least 10 jurors to recommend the death penalty for the sentence to be imposed. The bill would also require unanimous jury decisions on at least one aggravating circumstance in order for a defendant to be eligible for the death penalty.
The Hurst decision did not specifically address unanimous jury recommendations to judges about imposing the death penalty, a process that happens after jurors determine whether aggravating factors exist. But the issue of unanimity -- or 10-2 or 9-3 recommendations -- has been a flashpoint for lawmakers in debate over the legislation. The Senate version originally would have required unanimous recommendations, but the measure was amended in what leaders called a compromise with the House.
During debate on the measure Wednesday, the Senate narrowly rejected an attempt by Sen. Jeff Clemens, a Lake Worth Democrat, to reinsert the unanimous jury recommendation requirement.
"If we do not come to an agreement and fix this, then there will be justice delayed for victims and victims' families," Sen. Rob Bradley, R-Fleming Island, warned.
But Clemens argued that, of the 31 states with the death penalty, Florida is one of only three that do not require unanimous jury recommendations, making the state an outlier.
The News Service of Florida contributed to this report.