Attorney General Pam Bondi's office Thursday asked the Florida Supreme Court to reject an appeal from Mark James Asay, a Death Row prisoner whose scheduled Aug. 24 execution would be the first in more than 18 months in the state.
Asay is challenging, among other things, a new triple-drug lethal injection formula — never used in Florida or any other state — adopted by state corrections officials this year.
Gov. Rick Scott originally set Asay's execution for early 2016, but the state Supreme Court put the execution on hold following a ruling by the U.S. Supreme Court in a case known as Hurst v. Florida. The federal court decision overturned Florida's death penalty sentencing process, saying it gave too much power to judges, instead of juries, in violation of the constitutional right to trial by jury. Lawmakers later revamped the system.
Scott this summer set Asay's execution date for Aug. 24. But since Asay's first death warrant was signed, the Florida Department of Corrections has changed its lethal injection protocol.
In the 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.
Lawyers for Asay — who was sentenced to die nearly three decades ago — accused the state of waiting for six months to inform them of the new drug protocol, giving the state's lawyers an unfair advantage, and argued that prisoners could experience pain after being injected by etomidate.
But Duval County Circuit Judge Tatiana Salvador ruled last week that Asay failed to prove that the new three-drug protocol is unconstitutional, Assistant Attorney General Charmaine Millsaps wrote in a 65-page document filed Thursday in the Supreme Court.
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 Duval County judge noted.
“Given that lethal injection protocols use needles to deliver the drugs, all such protocols involve some pain. But executions are not required to be totally painless,” Millsaps wrote. “Rather, the risk of pain from the protocol must be sure or very likely to cause `needless suffering.' ”
Both of the state's experts testified that, even though the medical literature refers to 20 percent of patients experiencing some pain from etomidate, “neither had actually seen a patient experience any pain,” Millsaps added.
Even for patients who do experience some pain, they only experience “mild to moderate pain” that lasts for “only 10 to 20 seconds,” Millsaps noted.
“Contrary to Asay's assertion, a risk of 10 to 20 seconds of `moderate or disturbing pain' cannot be considered severe pain,” she wrote.
While the etomidate has never been used in a lethal injection procedure, law-enforcement officials in Springfield, Ill., used the drug as a sedative “to remove plastic baggies containing crack cocaine from a defendant's mouth,” Millsaps wrote.
A federal appeals court upheld a challenge to that search, ruling that it was reasonable “given the low risks associated with etomidate,” she wrote.
Asay was convicted in 1988 of the murders of Robert Lee Booker and Robert McDowell in downtown Jacksonville. Asay was accused of shooting 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.
In court filings, Asay's lawyer, Marty McClain, has accused Bondi's office of hoodwinking him into agreeing to a delay in a U.S. Supreme Court review, which could make it more difficult for the condemned killer to get his case reviewed by the high court.
But in Thursday's response, Millsaps wrote that “pending litigation does not preclude the governor from signing a warrant."