2017-07-31 13:47:14 UTC
Judge Rejects Challenge To New Execution Drugs
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 1st 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 3-drug
protocol is unconstitutional. Etomidate, also known by the brand name
"Amidate," is a short-acting anesthetic that renders patients unconscious. 20 %
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 execution of Asay, who has until 10 a.m. Monday to appeal the circuit court
decision, is slated to be the 1st in Florida in more than 18 months; the
state's death penalty has been in limbo due to a series of state and federal
Asay was 1 of 2 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.
(source: WLRN news)
Nebraska Supreme Court agrees to take death-row inmate's appeal
The Nebraska Supreme Court last week accepted the appeal of death row inmate
Marco Torres, who was denied a hearing in Hall County District Court where his
attorneys had sought to argue the state's death penalty is unconstitutional.
Torres' case is the 1st of the 11 men on death row to reach the state's highest
court since a U.S. Supreme Court decision in 2016 struck down Florida's
Defense attorneys, like Bob Creager of Lincoln, say Hurst v. Florida, which
said jurors must make every finding necessary for someone to get the ultimate
penalty, put the constitutionality of Nebraska's system in doubt, too.
Creager said he thinks the decision means the court would strike down
Nebraska's scheme, too.
That's because here a 3-judge panel weighs mitigating circumstances after a
jury finds a case death-eligible.
While attorneys can raise the issue in cases going forward, he said, the big
question now is if it could apply to those already on death row.
Torres filed a 38-page motion for post-conviction relief in state court on June
14, with the help of attorneys with Federal Defender Services of Eastern
Tennessee, appointed by a U.S. District Judge in his federal case.
A week later, the attorneys filed a 109-page petition in U.S. District Court in
Lincoln arguing that Torres' death sentences are unconstitutional.
A week after that, on June 28, retired state District Judge James Livingston
denied the motion in state court, saying Torres raised the issue 5 months too
He cited a case that sets a one-year limitation period to raise an issue, which
in the Hurst case ran up Jan. 12, 2017.
Torres has appealed that decision, and the Nebraska Supreme Court agreed to
take his case last week. But the court only would be deciding if he should've
gotten a hearing.
So the question of whether Nebraska's death penalty procedures are
constitutional won't be answered any time soon. Unless the U.S. Supreme Court
takes a case and answers whether the Florida decision should be retroactive.
It's just another step in a slow process of reviews for death penalty cases.
Creager said every time a decision comes down or lawmakers make a change to the
death penalty or the protocol, it raises potential issues.
"Death is different, as the court says," he said.
In 2009, a jury convicted Torres of 1st-degree murder for killing roommates
Timothy Donohue, 48, and Edward Hall, 60, in Grand Island in 2007. His DNA was
at the crime scene and he had used Hall's debit card 2 days before his body was
While Torres is the 1st of the state's death row inmates to reach the state's
highest court raising the constitutionality issue, 5 others have open cases in
2 others, John Lotter and Jeffrey Hessler, have both state and federal
Only Carey Dean Moore, Ray Mata, Jose Sandoval, Erick Vela and Jorge Galindo
have no pending appeals.
(source: Lincoln Journal Star)
Nebraska inmate accused of strangling cellmate may face death penalty
A Nebraska inmate accused of strangling his cellmate may now be facing the
Patrick Schroeder has plead guilty to the April killing of 22-year-old Terry
Berry Junior at Tecumseh Prison.
Schroeder and Berry were sharing a cell for less than a week when Berry was
Schroeder says he had grown intolerant of Berry's constant talking and
strangled him with a towel.
Schroeder told a judge he wants to drop his legal challenges to the death
He is already serving a life sentence for killing a Pawnee city farmer.
(source: KMTV news)
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