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Florida Attorney General urges use of 'Marsy's Law' in death cases

Brian Turner

TALLAHASSEE — Nearly five years after voters passed a constitutional amendment about victims’ rights, Attorney General Ashley Moody’s office Monday urged the Florida Supreme Court to use the measure to make it harder for Death Row inmates to get stays of execution.

Moody’s office cited the amendment, known as “Marsy’s Law,” in a document arguing that the Supreme Court should reject a request by inmate Michael Duane Zack for a stay of his scheduled Oct. 3 execution.

If the Supreme Court agrees with the Marsy’s Law argument, it would “heighten” a standard used in determining whether to grant stays after death warrants have been signed, according to the document.

“The Marsy’s Law amendments to the Florida Constitution require Florida’s courts to modify the stay-of-execution standard to account for the victims’ rights to be free from unreasonable delay and prompt finality,” Moody’s office argued.

But Maria DeLiberato, executive director of Floridians for Alternatives to the Death Penalty, called the state’s approach “a stretch” and pointed to already-existing procedural rules in appeals.

“Trying to use Marsy’s Law to truncate litigation at the execution stage is too far of a reach. The specific procedures outlined in the rules of criminal procedure contemplate this exact process,” DeLiberato, an attorney, said.

Zack’s attorneys on Sunday filed a motion for a stay of execution and a broader appeal that focused heavily on arguments that Zack should be shielded from execution because of Fetal Alcohol Syndrome. His attorneys contend that putting him to death would violate a constitutional ban on executing people with intellectual disabilities.

Gov. Ron DeSantis on Aug. 17 signed a death warrant for Zack in the 1996 murder of a woman in Escambia County. The warrant came after state and federal courts turned down a series of appeals over nearly two decades, including appeals dealing with whether he was intellectually disabled.

Escambia County Circuit Judge Linda Nobles on Aug. 31 denied a request for a stay of execution and rejected other arguments. Nobles wrote that Zack’s argument about Fetal Alcohol Syndrome is “procedurally barred,” in part, because courts in the past have rejected intellectual-disability claims by Zack.

In Monday’s document, Moody’s office contended that a stay should be denied under a current legal standard. But it also argued that the Supreme Court should go further and toughen the standard because of Marsy’s Law.

Marsy’s Law, passed in 2018, included a wide range of issues about victims’ rights, but the arguments by Moody’s office focus on part of the amendment that says victims have a “right to proceedings free from unreasonable delay, and to a prompt and final conclusion of the case and any related postjudgment proceedings.”

Moody’s office said the Supreme Court should set a new standard that would apply after death warrants are signed. Under such a standard, an inmate seeking a stay would be required to show that arguments aimed at blocking the execution could not have been made earlier.

“This (Marsy’s Law) right should be protected by a threshold analysis of whether the defendant’s claim could have been brought before a death warrant was signed. If the claim could have been brought earlier, then a stay should be automatically denied,” the response said. “The victims’ constitutional rights to ‘prompt’ finality and freedom from ‘unreasonable delay’ demands no less.”

Also, Moody’s office urged justices to “announce this rule now and ensure capital defendants and their counsel across Florida are aware they cannot wait until a warrant is signed to employ extraordinary efforts and expect a stay.”

But DeLiberato said the appeals process includes safeguards related to stays.

“It’s the last opportunity for any claims to be raised to make sure that Florida is executing the most-aggravated and least-mitigated, quote-unquote, the worst of the worst,” she said.

A jury in September 1997 convicted Zack of first-degree murder in the murder of Ravonne Smith. Zack also is serving a life sentence for murdering another woman in Okaloosa County shortly before Smith was killed.