Judge rejects challenge to new execution drugs

Man who killed 2 in Jacksonville in 1987 set for execution next month

JACKSONVILLE, Fla. – A death row inmate scheduled to be executed next month failed in a bid to get a Jacksonville judge to delay his execution because of the state's new triple-drug lethal injection protocol.

Duval County Circuit Court Judge Tatiana Salvador on Friday rejected a request from Mark James Asay to put a hold on an Aug. 24 execution date scheduled by Gov. Rick Scott.

Asay's appeal included a challenge to a new lethal injection protocol -- which includes a drug never used before for executions in Florida, or in any other state -- adopted by the Florida Department of Corrections earlier this year.

In its new protocol, Florida is substituting 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.

In a 30-page order issued Friday, Salvador ruled that Asay failed to prove that the new three-drug protocol is unconstitutional. Etomidate, also known by the brand name "Amidate," is a short-acting anesthetic that renders patients unconscious. Twenty percent of people experience mild to moderate pain after being injected with the drug, but only for "tens of seconds" at the longest, the judge noted.

"Defendant has only demonstrated a possibility of mild to moderate pain that would last, at most, tens of seconds," Salvador wrote. "Therefore, this Court finds the potential pain and anesthetic aspect of etomidate does not present risks that are 'sure or very likely' to cause serious illness or needless suffering or give rise to 'sufficiently imminent dangers.'"

The judge also denied a motion that Asay's conviction and sentence be thrown out. 

Monday morning, Asay's lawyers filed a motion for a re-hearing on the lethal injection issues and filed a notice of appeal of the denial of a stay to the Florida Supreme Court.

Asay's sister told News4Jax on Friday that lawyers are fighting tooth and nail -- ready to introduce new evidence. She said the truth is about to finally come out, and the new evidence would get her brother a new trial. 

"His faith is really strong, and he's prayed for God to do something. Take him home or let him out. So we're hoping for a new trial because there's new evidence that has come up," said Gloria Dean, Asay's sister.

Dean did not want to go into the details of that new evidence.

Asay's execution is slated to be the first in Florida in more than 18 months; the state's death penalty has been in limbo due to a series of state and federal court rulings.

Asay was one of two death row inmates whose executions were put on hold by the Florida Supreme Court in early 2016 after the U.S. Supreme Court, in a case known as Hurst v. Florida, struck down as unconstitutional the state's death penalty sentencing system. The federal court ruling, premised on a 2002 decision in a case known as Ring v. Arizona, found that Florida's system of allowing judges, instead of juries, to find the facts necessary to impose the death penalty was an unconstitutional violation of the Sixth Amendment right to trial by jury.

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.

Dean said she believes her brother is taking the fall for the friend who was with him that night. She showed News4Jax semitrucks and police cars that her brother crafted using materials found in prison. 

"He makes these trucks by hand -- takes him 30 hours," she said. "I visit him every other week."

She said she now prays Asay will be able to walk free.

"He said when it comes down to it, I'll walk down there with him and do what I have to do. And I'm like, 'OK.' But it just breaks my heart, because I think it's a waste of life," Dean said. "Like I told my brother, I'm not going to let him go by himself. So we're just hoping it doesn't come to that."