Florida Supreme Court refuses to block execution; rejecting Fetal Alcohol claims

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Protesters hold signs on the corner of a busy Pinellas intersection. By Chris Young/WMNF News (23 Feb. 2023).

By Jim Saunders ©2023 The News Service of Florida

TALLAHASSEE — The Florida Supreme Court on Thursday unanimously refused to block the scheduled Oct. 3 execution of Michael Duane Zack, rejecting arguments that he should be spared the death penalty because of Fetal Alcohol Syndrome.

Justices upheld an Escambia County circuit judge’s ruling last month against Zack, who was sent to Death Row in the 1996 murder of a woman during a crime spree in Northwest Florida. Attorneys for Zack also are asking a federal appeals court to halt the execution, after a U.S. district judge turned down their arguments.

Zack’s attorneys have contended that he should be shielded from execution because of Fetal Alcohol Syndrome that he suffered because his mother drank alcohol while pregnant. The U.S. Supreme Court has ruled that executing people with intellectual disabilities is unconstitutional — and Zack’s attorneys argue that Fetal Alcohol Syndrome has led to him being intellectually disabled.

But the Supreme Court on Thursday said Zack has raised intellectual disability arguments over two decades of appeals. As a result, the court opinion said the latest arguments do not meet legal tests for “timeliness” and are procedurally barred.

The opinion, written by Justice Renatha Francis, said Zack’s claim that he should be shielded from execution under the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment “is, at its core, the same claim he’s repeatedly raised since 2002.”

“As demonstrated by the extensive history of Zack’s postconviction and habeas proceedings, the facts upon which his intellectual disability claim is predicated have long been known to him and his attorneys,” Francis wrote in the 34-page opinion. “He has long known his IQ score range (the lowest score of 79 was established in 2002) and his experts’ FAS (Fetal Alcohol Syndrome) diagnosis (relied on at trial in 1997). Yet, he relies on this 20-year-old-plus information to now claim he should be deemed intellectually disabled and, thus, categorically exempt from execution. … But Zack raises no newly discovered evidence on this point.”

Also, the opinion said “Zack cited to no new case (legal precedent) announcing a newly recognized, retroactive fundamental constitutional right establishing that FAS is the functional equivalent of an intellectual disability. Rather, it appears Zack improperly sought to have a new fundamental constitutional right recognized.”

Gov. Ron DeSantis on Aug. 17 signed a death warrant for Zack in the murder of Ravonne Smith, who was killed in her Escambia County home after meeting Zack in a bar where she worked. A jury in September 1997 convicted Zack of first-degree murder, robbery with a firearm and sexual battery, records show. He also is serving a life sentence for the murder of Laura Rosillo in Okaloosa County during the 1996 crime spree.

Since the death warrant was signed, Zack’s attorneys have focused heavily in state and federal courts on his diagnosis of Fetal Alcohol Syndrome. They went to the Florida Supreme Court after Escambia County Circuit Judge Linda Nobles on Aug. 31 rejected the arguments and denied a stay of execution.

In a Supreme Court brief, Zack’s attorneys said “the medical community now recognizes the unique cognitive, practical and social impairments inherent to FASD (fetal alcohol spectrum disorders) as indistinguishable from those of ID (intellectual disability).”

“Due to Mr. Zack’s FAS (Fetal Alcohol Syndrome), the most severe form of FASD, he has functioned as intellectually disabled for the entirety of his life,” the brief said. “He is possessed of a lesser culpability and his execution would violate equal protection and constitute cruel and unusual punishment with no legitimate retributive or deterrent effect. Thus, he is categorically exempt from execution and his death sentence must be permanently set aside.”

But Attorney General Ashley Moody’s office urged the Supreme Court to reject the arguments and Zack’s request for a stay. State lawyers wrote in a brief that Zack, 54, cannot use Fetal Alcohol Syndrome to make an intellectual disability claim under a key U.S. Supreme Court precedent known as Atkins v. Virginia.

“Zack raises an Eighth Amendment claim seeking to expand Atkins v. Virginia, to include a diagnosis of Fetal Alcohol Syndrome, arguing that it is the functional equivalent of intellectual disability,” the state’s brief said. “The expansion-of-Atkins claim is procedurally barred, untimely, and meritless as a matter of law under this (Florida Supreme) Court’s long-standing precedent.”

In arguing against a stay of execution, Moody’s office also cited a 2018 state constitutional amendment known as “Marsy’s Law,” which included a wide range of issues about victims’ rights. While the Supreme Court rejected a stay Thursday, it did not specifically address the Marsy’s Law arguments.

U.S. District Judge Robert Hinkle last week also refused to block the execution. Zack’s attorneys have appealed to the 11th U.S. Circuit Court of Appeals, which had not ruled as of Thursday morning, according to an online docket.

If Zack’s execution is carried out, he would be the sixth inmate put to death this year in Florida.

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