RAIFORD, Fla. – After spending nearly three decades on Death Row, Jacksonville killer Mark James Asay was executed Thursday evening, the state's first inmate to be put to death in more than 19 months and the first execution under a lethal injection procedure never used before in Florida or any other state.
Asay's execution at Florida State Prison was the first since a January 2016 U.S. Supreme Court decision, in a case known as Hurst v. Florida, that effectively put the state's death penalty in limbo. He also was the first white man executed for killing a black victim in Florida.
Asay, 53, was asked whether he wanted to make a final statement. "No sir, I do not. Thank you," he replied.
He was pronounced dead at 6:22 p.m., 11 minutes after corrections officials announced that the execution phase had begun.
Asay, strapped to a gurney by leather cuffs at his wrists, twitched his legs briefly during the first few minutes of the execution procedure and appeared to breathe rapidly before turning ashen prior to the announcement that “the sentence of the state of Florida” was carried out.
"I heard my brother was strong and proud. We heard the heavens open wide at 6:13 p.m. to take my brother home," said Gloria Dean, Asay's sister. "He is in the hands of his Father. We love him."
The lack of complications with the untested lethal-injection procedure used in Asay's execution may have eased concerns about Florida's new three-drug protocol.
"The execution took place without incident," Department of Corrections spokeswoman Michelle Glady told reporters gathered in a staging area beside the prison.
When asked whether Asay's execution ended concerns about the new drug protocol, Glady referred reporters to information the department had provided earlier.
"Our objective with this is a humane and dignified process, which was done this evening," she said.
Asay was convicted in the 1987 shooting deaths of Robert 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 -- who had white supremacist and swastika tattoos -- later told a friend that McDowell had previously cheated him out of money in a drug deal.
A jury found Asay guilty of two counts of first-degree murder and recommended the death penalty with a 9-3 vote.
The Florida Supreme Court this month rejected a major appeal by Asay, including a challenge to the new lethal-injection procedure. The court more recently rejected another attempt at a reprieve, after justices acknowledged the court had been mistaken for more than two decades about McDowell's race.
The U.S. Supreme Court on Thursday denied a requested stay of execution.
"Only thing we have to say is justice has finally been served. That was a big burden that was lifted from our hearts and our brother can finally rest in peace like he deserves," said Booker's siblings, Joanne Booker and Frank Booker, after Asay's execution.
Booker's son, Terrance Maddox, also issued a statement after the execution.
"I just want to thank everyone for their prayers and support. A new chapter begins. Thank you GOD," Maddox said.
While prosecutors portrayed Asay as a white supremacist, the condemned killer denied that he was a racist in an interview with News4Jax anchor Tom Wills just days before his execution.
Asay said he got the tattoos while locked up in Texas.
“I was 19 years old, forced to survive in a hostile prison environment, and I got these tattoos in that environment so that I could blend in so that I could be safe in that environment. They are not representative at all of who I am, but they are tattoos, and they're not easily removed. They're easy to put on but they're not easy to remove, and so I've had to live with them. I have covered them up. I had a swastika on my elbow; I covered that up. I had an SWP on my arm; I burned it off. I've removed every racial tattoo I had, except for the ones that I can't reach,” he told Wills.
When asked if he was a white supremacist, Asay was adamant.
“Never have been. I've had African-American friends all my life. But I've had to live in very hostile environments, and I've had to manage the best I could. While it's a poor choice, it's a choice I made, and I can't undo it,” he said.
In the interview, Asay admitted to killing McDowell but maintained his innocence in the murder of Booker.
Asay was the first Florida Death Row inmate executed with the new lethal-injection protocol that's been the focus of a tangled legal battle.
In the new protocol, Florida substituted etomidate for midazolam as the critical first drug, used to sedate prisoners before injecting them with a paralytic and then a drug used to stop prisoners' hearts.
Asay's lawyer, Marty McClain, failed to convince a Duval County judge that the new protocol is unconstitutional because etomidate can cause pain after being injected and can result in “myoclonus,” or involuntary movements, such as twitches or jerks.
Asay's last hours
Since December of last year, Asay was on Death Watch, held in 12x7 cell. His only view of the outside world was through a radio or television positioned outside his cell. His only communication was mail and a legal and social phone call after his death warrant was signed.
Asay woke up about 4:30 a.m. Thursday, a little earlier than usual, corrections department officials said. He was described as calm and in good spirits during the day.
He was fed his last meal in the morning. The guidelines for the final meal dictate that the ingredients must be purchased locally and cost no more than $40.
Asay's final meal consisted of fried pork chops, fried ham, French fries, vanilla swirl ice cream and a can of Coke. He finished the fries and ice cream, ate most of his ham, about 20 percent of the pork and drank the entire can of soda.
Asay had a final visit in the morning from his sister, his sister-in-law and his brother-in-law that lasted about two hours. According to Florida statute, they were not permitted to witness the execution, corrections officials said.
Dean, Asay's sister, said she held her brothers hand during their visit and then they hugged at the end. She said he also gave her his Bible of 21 years to remember him.
Asay also told her he had no last words because he said, "I said everything I needed to stay to Mr. Wills. That's why I had the interview."
His spiritual adviser, Norman Smith, also visited one last time in the afternoon.
"He was full of spirit, forgiveness. He holds no animosity toward anyone," Smith said. "For the two hours that we spoke, he spoke about the possibility if God decided not to let him go today, what he could do with what he's learned. But he was also prepared either way."
News4Jax asked Smith about his last conversation with Asay.
"In his words, he said, he believes No. 1, this should go down today. He's going to a better place," he said. "And No. 2, he still had some issues with things he said were left undone."
An hour before the execution, Asay was permitted a supervised shower, and 30 minutes before, he was taken into the execution chamber. The procedure was explained to him, and he was offered medication to ease anxiety.
He was then put into restraints and a heart monitor was applied.
Witnesses were brought into a secured gallery 15 minutes before the execution, and the warden checked the phone line to see if a stay had been granted by the governor. The witnesses included victims' family members, a nurse or medical technician and 12 media representatives.
Asay was permitted to make a final statement, but declined to do so.
The warden then announced that the execution had begun.
Asay's body will be taken to the Medical Examiner's Office in Alachua County for an autopsy. His family will have the option to claim his body.
Asay's appeals history
Gov. Rick Scott initially signed a death warrant for Asay in January 2016.
But not long afterward, in the case Hurst v. Florida, the U.S. Supreme Court struck down the state's death-penalty sentencing system as unconstitutional because it gave too much power to judges, instead of juries.
Lawmakers revamped the law, but a series of court rulings kept the death penalty in limbo until this spring, when the Florida Supreme Court lifted a hold on Asay's execution, more than a year after it was supposed to take place.
It's not unusual for Death Row prisoners, especially those with pending death warrants, to launch myriad appeals in one of the judicial system's most complicated arenas.
But Asay's case was even more tangled than most:
- Asay spent a decade on Death Row without legal representation, a violation of state law.
- Dozens of boxes of records related to his case were destroyed after being left in a rat- and roach-infested shed.
- One of his previous defense lawyers was the subject of an investigation by the Florida Supreme Court after a federal judge chided her for shoddy work.
- Asay's current lawyer maintains that Attorney General Pam Bondi's office hoodwinked him into agreeing to a delay by the U.S. Supreme Court, which could ultimately make it more difficult for the condemned killer to have a review by the high court.
- The Florida Supreme Court recently issued a rare mea culpa, acknowledging that it had for more than 20 years mistakenly believed that both of the convicted murderer's victims were black, when only one was.
- Florida Department of Corrections officials changed the three-drug lethal injection protocol a year after Scott signed Asay's death warrant, adopting the use of a drug never before used in Florida or in any other state for executions.
Executions under Scott
Thursday's execution made Asay the 24th Death Row prisoner put to death since Scott -- who has ordered more executions than any Florida governor since the death penalty was reinstated in 1976 -- took office in 2011.
The number of death warrants signed by Scott, during a shorter period of time than other governors, was steadily growing until the Hurst decision put executions on hold.
While death penalty lawyers didn't wish for any complications Thursday, they worried that an uneventful lethal injection could prompt Scott to issue a flurry of new death warrants.
“The attention focused on this execution happens as a result of the lack of state-sponsored killings in the last year and a half. I suspect the execution machine will start up again, these judicially approved medical homicides will become the norm again, and news about them will move to the back pages, if they make the paper at all,” Pete Mills, an assistant public defender in the 10th Judicial Circuit who also serves as chairman of the Florida Public Defenders Association Death Penalty Steering Committee, said in an interview.
Ocala-area State Attorney Brad King, a veteran prosecutor and outspoken defender of the death penalty, wouldn't predict what the impact of Thursday's execution would be in terms of Scott.
But “if this execution is carried out without any problems, without any stays by any appellate courts, then I think the road would be clear for executions to begin on a regular basis again,” King told The News Service of Florida in a telephone interview Tuesday.
Florida Supreme Court Justice Barbara Pariente, who dissented in last week's ruling on Asay's appeal, raised concerns that the execution is being rushed. She wrote, in part, that the state had thwarted attempts by Asay's lawyers, led by Marty McClain, to obtain public records regarding the change in the lethal injection protocol.
“In its rush to execute Asay, the state has jeopardized Asay's fundamental constitutional rights and treated him as the proverbial guinea pig of its newest lethal injection protocol,” she wrote in a lengthy dissent Aug. 14.
Mills raised similar concerns.
“If the state is going to kill someone on behalf of the people of that state, I would hope they would take the time to get things done right,” Mills said.
But Asay has had “multiple trips through the appellate system,” the veteran prosecutor King said, adding that “there's nothing rushed about it.”