Mark Asay Executed, Who Will Be Next?

On Thursday August 24, 2017 the State of Florida executed Mark Asay - who we all knew as "Catfish", even though there was absolutely no question that he was illegally sentenced to death and in an unprecedented act, only days before he was put to death the Florida Supreme Court recognized that the factual basis for the theory upon which he was prosecuted was wrong.

Specifically, Asay was prosecuted on the theory that he had killed two blacks for no other reason than that they were black. The media repeatedly characterized him as a "white supremacist" and the state bragged to the media that Asay would be the first white person ever executed in the state of Florida for killing a black person. But the problem is, Asay didn't kill any black person. As the Florida Supreme Court recognized only days before Asay was executed, the one victim ( Robert McDowell) was not black (contrary to what prosecutors told the jury!), but was white, or maybe mixed white/Hispanic - but not black.

As for the second victim, Asay has always said that he did not kill Robert Booker - but nobody would listen. For 30 years the prosecutor never disclosed evidence that indicated that, according to three witnesses, Roland Pough actually killed Booker. This undisclosed evidence also revealed that shortly after these witnesses identified Roland Pough as the person who actually killed Booker, the Jacksonville police shot and killed Pough in what their own interdepartmental investigation showed was an "unjustified" shooting - the cop claimed that his gun accidentally misfired, killing Pough. That was awfully convenient - Asay's jury never knew about that.

Last year when I was on death watch counting down the days to my own scheduled execution, Mark Asay was also down there with me. I've personally known 'Catfish" for about 30 years and he's never once wavered in admitting that he shot the transvestite prostitute McDowell that night when he "spontaneously" stripped while drunk - but that he did not kill Booker. And that while he was previously associated with a "white supremacy" group in a Texas prison, he got away from that and race had nothing to do with what happened that night - he was drunk.

                                                                    

One consolation is that I also knew that "Catfish" found comfort in his own strong religious beliefs as a "born again" Christian. As with so many victims of injustice he had long ago abandoned any faith in the politically corrupt "justice" system, and accepted that truth means nothing to the courts when it comes to carrying out the death penalty - and prosecutors will never admit they were wrong.

The question now becomes who will be the next? To be honest, I expected them to immediately reschedule my own execution the next day after they killed Catfish and I am now the only other person (in Florida) under an active death warrant and previously granted stay of execution lifted. In the past Governor Scott has consistently signed a new death warrant (or re-cheduled one previously signed) the morning after an execution was carried out, and then scheduled each execution precisely 5 weeks apart. This is why he has put more people to death than any other governor in Florida history - and he still has over a year left in office.

For that reason, the morning after they killed Catfish I was expecting them to come get me and take me back down to death watch. But they didn't come. And so I went through a long weekend of uncertainty, assuming that they'd come early Monday morning instead. But again, they didn't come. And nobody else was scheduled either. Governor Scott had broken his pattern - but why? Could it be that now that Scott is running for a seat on the United states senate (elections are in early November 2018) he's starting to see the death penalty as a political liability?

The reality of it is that public support for the death penalty has been consistently dropping and is now at almost historic lows, barely over fifty percent - and that support drops even lower if people are given a choice of mandatory life sentences instead of death.

Equally so, Governor Scott knows that while his won political base - rural deep south Rabid Redneck Republicans - ("R.R.R.") fanatically support the death penalty - but he cannot win that seat on the US Senate he wants with only their support as he's running against a very popular Democratic incumbent, Senator Bill Nelson. That means that Scott will need support beyond his typical R.R.R. base.

That also means that any controversy surrounding even one execution could easily cost him any chance of winning next years Senate election and as we all know only too well, when it comes down to it, the administration of the death penalty is not about justice, but the politics of a vengeance driven system.

It was for that reason that up until recently Governor Scott was all but pathologically methodical in selecting whose death warrants he would sign - he deliberately focused on so called "serial killers" and the child killers and those who killed law enforcement. each death warrant he signed was a strategic play to win votes.

But there were only so many of those high profile killers eligible for a death warrant and it didn't take long before he ran out of those and found himself in a real political dilemma - his support base wanted more executions but there were not many left on Florida's death row legally eligible to be executed as they still has appeals pending and had not yet had their obligatory "clemency review", required before a death warrant can be signed.

As it stands at the time I am writing this (August 31) no new death warrant has been signed. Governor Scott could sign a new warrant tomorrow - it could be me, or someone else.

It used to be that as long as you had legitimate appeals still pending they would not sign a death warrant. But as evidenced by Mark Asay's case, under Governor Scott the signing of death warrants are now being used to stack the deck in favor of the state, as they know that by signing a warrant the courts will be far less likely to grant relief.

I currently have four (4) appeals pending in various courts, with two petitions in front of the United States Supreme Court specifically arguing my actual innocence and a new state appeal arguing that because Florida law now mandates an unanimous jury vote to condemn anyone to death, my non-unanimous jury vote renders my death sentence illegal.

In the fourth and most recently filed Petition for Writ of Habeas corpus, my lawyers lay out how the readily available evidence, including DNA evidence, substantiates my consistently plead claim of innocence and that I'm constitutionally entitled to a full review of this evidence before the State of Florida puts me to death.

You can read this "actual Innocence" appeal HERE, or go to the Florida Supreme Court website and pull up Lambrix v Jones, case No SC17-5153. But would innocence be enough to avoid execution?

Florida Cranks Up The Killing Machine

Just when we thought that executions in Florida would remain on hold for a while, Governor Scott unexpectedly rescheduled Mark Asay's execution, and he is now scheduled to be executed on August 24, 2017.

Those who regularly read my blog know that Governor Scott signed my death warrant on November 30, 2015 and I was scheduled to be executed on February 11, 2016. While I was on death watch in the segregated housing area immediately next to the execution chamber, they killed Oscar Bolin on January 6, 2016 (please read: "Execution Day - Involuntary Witness to State Sanctioned Murder") and the very next morning Governor Scott signed a death warrant on Mark Asay, commonly known as "Catfish".

But the following week the United States Supreme Court issued it's decision in Hurst v Florida which by almost unanimous vote the court recognized that the way people were being sentenced to death in Florida (since 1974) was illegal, effectively rendering these death sentences unconstitutional.

A week before my scheduled execution the Florida Supreme Court granted a "stay of execution" until they could decide whether that USSC "Hurst" decision required my death sentences to be thrown out. Subsequently, the following month the Florida Supreme Court also granted Mark Asay a full stay of execution and since early 2016 there have been no further scheduled executions.

But just a few days before Christmas (2016) the Florida Supreme Court issued a decision in Asay's case that unanimously recognized that in light of the US Supreme Court ruling in Hurst v Florida, there is no question that (like me) Asay was illegally condemned to death by a non-unanimous jury (his jury vote was 9-3).

However, once again reflecting how the politics of death override principles of moral restraint, by narrow majority the Fl Supreme Court ruled in Asay v State that they would only throw out the illegally imposed death sentences (retroactive application) of those whose sentences were filed after June 2002 as to retroactively apply Hurst to all death sentences would be too much of a burden on the state.

So, despite the unequivocal recognition that Asay (and about 190 others) were illegally sentenced to death, the Florida Supreme Court said to go ahead and kill them anyway.

   

                                                                

This absurd "partial retro activity" rule is now being challenged in my own case and many others as no court has ever before recognized a substantial change of constitutional law as only partially retroactive - it is either fully retroactive to all cases, or none.

But like a relatively few others, Mark Asay decided not to let his lawyers challenge this "partial retro activity" rule as he doesn't want his death sentence reduced to "life" in prison. The truth is that there are a number on Florida's death row who prefer to be under a sentence of death than to "life" in prison with no realistic hope to ever being set free again. The way they see it, they're going to die in prison anyway so why delay the inevitable? Growing old in prison is not an easy way to go...as you grow older, you become less able to defend yourself from the younger predatory prisoners and your existence often becomes a living hell. So, if you're going to die anyway, why not force the state to kill you instead of slowly rotting away?

Myself, despite spending way over three decades on death row and facing execution several times, somehow I do still hold on to the hope that the courts will one day do the right thing and exonerate and release me. I must admit that at 57 years old, it's becoming harder to see that rainbow in the distant horizon.

And so yesterday afternoon (July 3, 2017) when the lieutenant came on the floor and took Asay away to death watch, for a while there I wondered whether they'd come back and get me to. They always pull only one at a time when you're execution date is scheduled, so it was very possible that Governor Scott, who is running for the United States Senate now, said to hell with the courts and went ahead and rescheduled both me and Asay.

But they didn't come back and get me. That doesn't mean that they won't as the governor certainly could, as the Florida Supreme Court formally lifted my stay of execution - but unlike Asay, I'm allowing my lawyers to pursue legal challenges to that "partial retro activity" rule, so it would seem that the governor should not attempt to reschedule my own execution until that legal issue is resolved.

Even though Asay has made that choice not to allow his lawyers to pursue a similar challenge in his own case, it is still very troubling that Governor Scott made the choice of wanting to carry out his execution.

If Florida proceeds with Asay's execution, he will be the first person to be put to death despite the Supreme Court's recognition that he was illegally condemned by a non-unanimous jury vote. It's one thing to carry out a legally imposed death sentence, but another thing altogether to put a person to death who you know was illegally sentenced to death - who under current law absolutely cannot be put to death. But for no other reason but that the court decided to create a time limitation to retro active application, Florida will go ahead and try to kill him anyway.

Even more troubling is that those who would allow Asay's execution to be carried out next month knew that the pending challenges to this politically motivated "partial retro activity" rule will most likely be successful, recognizing that all of those sentenced to death by a less than unanimous jury vote are entitled to have that death sentence thrown out.

Is this really who we are as a society? Already the United States is the only Western country in the world that continues to allow for the death penalty and we stand in the company of North Korea, Iran and China when it comes to this thirst for putting people to death under the pretense of administering justice.

But Florida is now crossing another line altogether - now Florida is proceeding to carry out executions that they know are illegal. There is absolutely no question that in light of recent Supreme Court decisions the death sentence imposed on Mark Asay by non-unanimous jury vote is illegal.

Does the ends justify the means? many have long argued that it's a slippery slope from administering justice to state sanctioned murder. As Florida crosses this line they cannot come back from, I'd venture to say that as a society Florida has now slid down that slippery slope and the scheduled execution of Mark Asay is nothing less than a cold-blooded act of state sanctioned murder.