By Elizabeth Koh
In the 41 years since Florida reinstated the death penalty, a white person convicted of killing a black person has never been put to death.
But barring any last-minute legal maneuvers, that will happen around 6 p.m. Thursday at Florida State Prison in Starke. Mark James Asay, 53, convicted of gunning down two men -- one black -- in Jacksonville three decades ago, will be executed by lethal injection.
He would be the 93rd person executed since the state re-established the death penalty in 1976, following a U.S. Supreme Court ruling reinstating capital punishment. His would be the first execution in Florida in 19 months amid legal challenges to the state's death penalty sentencing law.
Asay was sentenced in 1988 for the murders of two men in downtown Jacksonville in the early morning of July 18, 1987. According to prosecutors, 23-year-old Asay shot Robert Lee Booker, who was black, and Robert McDowell, whom Asay had found dressed in women's clothes after agreeing to pay for sex.
McDowell was not black but was described as such during the trial, with prosecutors alleging that Asay shot both Booker and McDowell because of their race. Asay had white supremacist tattoos over his body. The jury voted 9-3 to convict Asay on two counts of first-degree murder.
But in the years since, Asay's lawyer and death penalty opponents have raised questions about Asay's death sentence, citing errors in the case and changes in how Florida juries decide the death penalty.
"If you're going to take a human being's life, you should make sure every issue has been briefed and argued thoroughly -- and that has not happened in this case," said Stephen Harper of the Florida Center for Capital Representation at Florida International University's law school.
Asay's lawyer Martin McClain has filed petitions and appeals in state and federal court asking for a stay, noting past deficient legal counsel and improperly handled court records.
The Florida Supreme Court said earlier this week that prosecutors had mistakenly identified McDowell's race during the trial, but said it did not change the trial's outcome. The U.S. Supreme Court hasn't responded to the latest stay request.
McClain said Asay's sentence should also be negated based on the stricter standards Florida has set for juries that recommend the death penalty.
When Asay was convicted, judges needed only seven of 12 jurors to vote for the death penalty. But a January 2016 U.S. Supreme Court ruling said the state's sentencing law was unconstitutional.
In March, state legislators upped the required number of votes to a unanimous 12, after the state Supreme Court ruled that jurors had to be united in recommending a death sentence.
The state Supreme Court said the new law applied only back to June 2002, the date of a related U.S. Supreme Court ruling. Asay and about 128 other inmates who were sentenced to death on non-unanimous jury verdicts before that date remain on Death Row.
"He would not get a death sentence today if he went on trial today, that much is clear," said McClain. "I absolutely believe it's unconstitutional to execute someone with a 9-3 vote."
Gov. Rick Scott spokeswoman Lauren Schenone said he stood by his decision to sign Asay's death warrant: "Signing death warrants is one of the Governor's most solemn duties," she said in a statement. "His foremost concerns are consideration for the families of the victims and the finality of judgments."
Asay's status as the first white person to be executed in Florida for killing a black person in the state's modern history has refocused attention on Death Row's racial disparities. Adora Obi Nweze, president of the Florida State Conference NAACP and an opponent of capital punishment, said the death penalty should be abolished even for Asay, but noted his case shows how black inmates are punished disproportionately.
"It does make the case even stronger that there's this disparity gap that exists between black and white -- who gets the death penalty and who gets exonerated," she said.
Asay's execution will set another precedent: the use of a drug that has not been used previously in state executions. Florida approved etomidate in an untested triple cocktail earlier this year, making Asay a "guinea pig," McClain said.
Unless a court steps in, Asay will be the first inmate in Florida to receive the lethal combination. He is unlikely to be the last. No other executions are yet scheduled in Florida, but more than 360 other prisoners still sit on Death Row.
(c)2017 Miami Herald