The fight against the never used before death penalty drug continues in Florida.
Governor Rick Scott signed the first death warrant for Mark James Asay in January 2016. Asay’s death by lethal injection has been on hold ever since because of numerous court proceedings related to the death penalty.
Since January 2016, the Florida Department of Corrections has made a change to the lethal cocktail used during executions. The state is now using etomidate instead of midazolam as the first drug that will sedate prisoners first. Then, the next drug is a paralytic. The final chemical is the one that stops the heart.
Scott has signed a new warrant for Asay, scheduling the inmate’s execution for August 24. But his attorney are fighting the warrant, even after failing to convince a Duval County judge the new drug and protocol are unconstitutional. Now, Asay’s attorney wants the state to use the former drug formula and protocol for Asay’s execution.
Asay’s lawyer, Marty McClain, says the new drug will not stop the inmate from involuntary body spasms and has asked the Florida Supreme Court to consider and accept a “declaration” made by an anesthesiologist, John Robert Sneyd, that indicates using etomidate as part of the execution is dangerous.
Sneyd wrote: “Excitatory movements such as myoclonus may compromise electronic brain monitoring and render this method of patient monitoring ineffective for the person attempting the killing to be confident that the subject of the execution attempt is unconscious.”
Attorney General Pam Bondi’s team of lawyers are asking the Florida Supreme Court to deny the “declaration” and proceed with the August 24 execution.
“This (Supreme) Court cannot consider factual matters that were not presented to the trial court. The declaration is an attempt to circumvent the trial court’s fact-finding role,” wrote an attorney from Bondi’s office.
Asay was convicted in Duval County for the 1988 murders of two victims, Robert Lee Booker and Robert McDowell.