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Death row inmate asks court to ignore lawyer's request

Mark James Asay

TALLAHASSEE, Fla. – A Death Row inmate whose execution is on hold has asked the Florida Supreme Court to abandon in his case consideration of a U.S. Supreme Court decision that struck down the state's death-penalty sentencing process.

The Florida Supreme Court earlier this year indefinitely postponed the execution of Mark James Asay, a convicted double murderer who was scheduled to be put to death on March 17. The ruling was prompted by a U.S. Supreme Court decision that found Florida's death penalty sentencing system gave too much power to judges, and not juries.

The state's high court has focused on the fallout of the decision, which came in a case known as Hurst v. Florida, in more than a dozen Florida death penalty cases since the opinion was issued in January.

But the circumstances of Asay's case drew even more attention.

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.

After being sentenced to die, Asay went for a decade without legal representation, and almost all of the paper records involving his case went missing or were destroyed. His lawyer, Marty McClain, was appointed five days after Gov. Rick Scott signed Asay's death warrant earlier this year.

Asay's case is one of many caught up in the wake of the U.S. Supreme Court decision, which dealt with the sentencing phase of death-penalty cases after defendants are found guilty and focused on what are known as aggravating circumstances that must be determined before defendants can be sentenced to death.

During the legislative session that ended in March, Florida lawmakers hurriedly crafted a "fix" to the state law --- which defense lawyers contend is flawed --- in response to the Jan. 12 ruling,

Under Florida's new law, juries will have to unanimously determine "the existence of at least one aggravating factor" before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed, and it did away with a feature of the old law that allowed judges to override juries' recommendations of life in prison instead of death.

A jury in Asay's case recommended death on both first-degree murder counts with a vote of 9-3.

Since the Hurst ruling, McClain, on Asay's behalf, has argued that the new law should apply to Asay and that the prisoner should receive a life sentence, based on a 1972 Florida law that required death sentences to be reduced to life imprisonment without parole if the death penalty is overturned.

But this week, Asay asked the court to ignore the filings related to the Hurst decision and the new law.

"While Mr. McLain (sic) is indeed an honorable and excellent attorney in the rush and exigency of proceeding under a death warrant counsel has moved this court to review and to address claims relating to sentencing issues that petitioner simply is not interested in seeking relief from and now wishes to waive," Asay wrote in a handwritten, two-page document filed with the Supreme Court on Monday.

Documents filed by Asay on Monday and Thursday appear to indicate that he is interested in pursuing appeals based on new or rejected evidence related to his case.

The court could ignore Asay's request, ask the state to weigh in, ask McClain to respond, or send the case back to the trial court, according to legal experts.

"It's not clear what he wants. If I were the Supreme Court, I would want him to talk with his lawyer and to resolve whatever, if any, differences exist between them," Florida International University law professor Stephen Harper, who runs the school's Death Penalty Clinic, told The News Service of Florida in a telephone interview Friday.

It is not uncommon for Death Row inmates like Asay, who has spent nearly three decades awaiting execution, to abandon hope or to look for ways to expedite resolution to their cases, experts say.

"When someone's case goes unattended as long as this one did, or they believe their case has gone unattended as long as this one did, they get depressed. They get suicidal. They start to lose hope, and Mr. Asay, I believe, wants to focus on the claims that he believes will give him a new trial and potentially see the light of day sometime," Pete Mills, 10th Judicial Circuit assistant public defender who is chairman of Florida Public Defender Association's death penalty steering committee, said in an interview Friday.