Attorneys for Florida Death Row inmate Michael Duane Zack have gone to a federal appeals court after a district judge last week refused to halt Zack’s scheduled Oct. 3 execution.
The attorneys filed a notice that is a first step in appealing a decision Friday by U.S. District Judge Robert Hinkle to deny a stay of execution. The notice, as is common, did not detail arguments the attorneys will make at the 11th U.S. Circuit Court of Appeals.
Gov. Ron DeSantis on Aug. 17 signed a death warrant for Zack in the 1996 murder of a woman in Escambia County. Zack’s attorneys argued that Hinkle should issue a stay because Zack’s due-process rights were violated in a flawed clemency process.
But Hinkle rejected the arguments.
Attorneys also are asking the Florida Supreme Court to halt the execution on separate grounds.
A federal judge Friday refused to block the scheduled Oct. 3 execution of Florida inmate Michael Duane Zack, rejecting arguments that the convicted murderer’s due-process rights were violated because of a flawed clemency process.
U.S. District Judge Robert Hinkle issued a six-page order denying a stay of execution for Zack, who was sentenced to death in the 1996 murder of a woman in Escambia County. Zack’s attorneys also are asking the Florida Supreme Court to halt the execution on different legal grounds.
In federal-court documents, Zack’s attorneys wrote that he received a clemency interview in 2014 but did not hear from the state until Aug. 17, when Gov. Ron DeSantis issued his death warrant and clemency was denied.
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They contended, in part, that he was prevented during the gap in the clemency process from offering new evidence about suffering from Fetal Alcohol Syndrome and linking it to an intellectual disability. The U.S. Supreme Court has ruled that executing people with intellectual disabilities violates the constitutional ban on cruel and unusual punishment.
“Thus, through no fault of Mr. Zack or his counsel, no clemency decisionmaker has been presented with the significant new understanding of Mr. Zack’s disability, which places him in the category of persons exempt from execution,” Zack’s attorneys wrote in a brief Tuesday.
Zack’s attorneys also raised issues about changes in the makeup of the state Board of Executive Clemency during the period. The board is made up of DeSantis and state Cabinet members, all of whom were first elected in 2018 or later.
But Hinkle sided with arguments raised by Attorney General Ashley Moody’s office in denying the stay.
“The state officials involved in the clemency process, including the governor and other members of the clemency board, were not obligated to somehow anticipate — without being notified by Mr. Zack — that he might have new information he wished to present,” Hinkle wrote. “That he did not raise the issue is understandable; if the file was being ignored, any execution was being delayed. But understandable or not, it was Mr. Zack, not clemency officials, who possessed any new information and asserted there were new grounds for clemency. Nothing prevented him from presenting the information.”
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Also, Hinkle said the state was not required to start the clemency process again when the makeup of the board changed.
“The members of the clemency board are the governor and members of the Cabinet, all elected statewide every four years,” Hinkle wrote. “It thus is commonplace for the members to change. Due process does not require the clemency process to start and finish between elections or before the clemency board’s membership changes.”
Zack’s appeal at the Florida Supreme Court focuses on the arguments that he should be shielded from execution because of Fetal Alcohol Syndrome. The Supreme Court had not issued a ruling as of late Friday afternoon.
Zack was sent to Death Row for the murder of Ravonne Smith during a crime spree that also included killing another woman.
Court documents said Zack met Smith, an employee of Dirty Joe’s bar, on June 13, 1996. They wound up going to Smith’s house, where evidence indicated Zack hit her in the head with a beer bottle and sexually assaulted her, the documents said.
Zack then was accused of pursuing Smith into a bedroom, where he beat her head against a floor, before stabbing her in the chest, the documents said. He stole a television, a video-cassette recorder and Smith’s purse and was arrested days later after trying to pawn the television and VCR in Panama City.
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