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BREAKING: Death Warrant signed for Michael D. Zack, III
Late this afternoon, Gov. DeSantis signed the sixth death warrant of 2023, scheduling Michael Zack's execution for October 3.
Late this afternoon, Gov. Ron DeSantis signed the sixth death warrant of 2023, scheduling Michael Zack’s execution for October 3 at 6:00 p.m. The warrant period (47 days) is a bit longer than the prior warrants.
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Background of Zack’s Case
Zack is 56 years old and has been on death row since 1997 for crimes that occurred in 1996. Below is an excerpt of the Florida Supreme Court’s description of the crimes from its 2000 opinoin in Zack’s direct appeal:
[Zack] arrived [at Dirty Joe’s bar in Pensacola] on the afternoon of June 13, 1996, and met the decedent, Ravonne Smith. Throughout the afternoon, Smith, a bar employee, and Zack sat together in the bar talking and playing pool or darts. . . . Both bar employees and patrons testified that Zack did not ingest any significant amount of alcohol and that he did not appear to be intoxicated. In the late afternoon, Smith contacted her friend Russell Williams (Williams) and invited him to the bar because she was lonely. Williams arrived at the bar around 5:30 p.m. Prior to leaving the bar around 7 p.m., Smith called her live-in boyfriend, Danny Schaffer, and told him she was working late. Smith, Williams, and Zack then left the bar and drove to the beach where they shared a marijuana cigarette supplied by Zack. Afterwards, they returned to the bar and Williams departed. Zack and Smith left the bar together sometime around 8 p.m. and eventually arrived at the house Smith shared with her boyfriend.
Forensic evidence indicates that immediately upon entering the house Zack hit Smith with a beer bottle causing shards of glass and blood to spray onto the livingroom love seat and two drops of blood to spray onto the interior door frame. Zack pursued Smith down the hall to the master bedroom leaving a trail of blood. Once in the bedroom Zack sexually assaulted Smith as she lay bleeding on the bed. Following the attack Smith managed to escape to the empty guest bedroom across the hall. Zack pursued her and beat her head against the bedroom's wooden floor. Once he incapacitated Smith, Zack went to the kitchen where he got an oyster knife. He returned to the guest bedroom where Smith lay and stabbed her in the chest four times with the knife.1
The jury recommended a sentence of death by a vote of 11-1.2 Sentencing Zack to death, the trial judge found six aggravating factors:
(1) the defendant was convicted of a capital felony while under a sentence of felony probation; (2) the crime was committed in conjunction with a robbery, sexual battery, or burglary; (3) the defendant committed the crime to avoid lawful arrest; (4) the defendant committed the crime for financial gain; (5) the crime was especially heinous, atrocious, and cruel; and (6) the crime was committed in a cold, calculated, and premeditated manner. 3
The trial court found four mitigating circumstances, each of which was assigned little weight:
(1) the defendant committed the crime while under an extreme mental or emotional disturbance; (2) the defendant was acting under extreme duress; (3) the defendant lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law; and (4) nonstatutory mitigating factors of remorse, voluntary confession, and good conduct while incarcerated.4
Direct Appeal (2000)
On direct appeal, Zack raised twelve issues challenging both his convictions and his sentence of death. In part, Zack argued that the trial court failed to consider certain mitigation, including:
(1) Zack's brain damage; (2) Zack's skewed perception of reality; (3) Zack's mental hospitalization when he was eleven years old; (4) Zack's dysfunctional family; (5) Zack's mental age of fifteen years and emotional maturity of ten years; (6) Zack's alcohol and marijuana addiction; and (7) Zack's tragic childhood.5
Zack also argued that “the State failed to prove he killed Smith to avoid being arrested.” The Court agreed but determined the error was harmless.6 The Court also agreed that it was error for an aggravating factor to be applied retroactively to his case but found that error was harmless.7 The Court unanimously affirmed Zack’s sentence, which became final in October 2000.
Initial Postconviction (2005)
In 2002, Zack filed his initial motion for postconviction relief, which was amended to add a claim under the U.S. Supreme Court’s decision in Atkins v. Virginia, where the U.S. Supreme Court held that it violates the Eighth Amendment to execute a person who is intellectually disabled.8 Ultimately, Zack raised six claims for relief:
(1) whether counsel was ineffective for failing to object to the DNA evidence and failing to request a Frye hearing; (2) whether the trial court erred in failing to sua sponte hold a Frye hearing; (3) whether trial counsel was ineffective for calling Zack to testify without preparing him for cross-examination or explaining to him that he had a choice to testify or not; (4) whether the death penalty is disproportionate due to the possibility that Zack suffers from a possible brain dysfunction and mental impairment, both of which are in the same category as mental retardation, thereby prohibiting execution under Atkins v. Virginia, 536 U.S. 304 (2002); (5) whether trial counsel was ineffective in closing arguments to the jury; and (6) whether the sentence is unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584 (2002).9
“The trial court summarily denied issues two, four, and six, but held an evidentiary hearing on issues one, three, and five.”10 After the evidentiary hearing, the trial court denied all claims. Zack appealed and filed a petition for writ of habeas corpus.
On appeal, the Florida Supreme Court affirmed the trial court’s rulings denying Zack’s motion for postconviction relief.
In his petition for writ of habeas corpus, Zack raised six claims:
“ineffective assistance of appellate counsel based on appellate counsel's failure to raise the issue of two alleged racially motivated peremptory challenges”;
“appellate counsel was ineffective in failing to raise on appeal several issues involving prosecutor misconduct”;
appellate counsel was ineffective for failing to raise a claim on appeal related to “the admission of evidence relating to a nonstatutory aggravator is a constitutional error in light of the fact that the United States Supreme Court has upheld Florida's statutory scheme, and the statutory scheme does not permit the introduction of nonstatutory aggravators”;
appellate counsel was ineffective for failing argued on appeal that it was inappropriate for the trial court to admit “certain photos of the victim”;
“despite proper objection at trial, appellate counsel failed to raise the issue regarding the improper use of the Williams Rule evidence to prove aggravating circumstances at the penalty phase”; and
“appellate counsel was ineffective for failing to” raise an issue regarding the admission of Zack’s baseball cap.
The Court denied each claim.
Federal Habeas (2013)
After the Florida Supreme Court denied his initial postconviction appeal, Zack filed a federal habeas petition “rais[ing] multiple claims for relief, including a claim under Atkins. The district court dismissed all of Zack's non-Atkins claims as untimely and denied the Atkins claim on the merits.”11 The district court granted a certificate of appealability “as to whether Zack's non-Atkins claims were timely under the habeas statute of limitations.”12 A panel of the Eleventh Circuit vacated and remanded the case, holding “that Zack's timely assertion of his Atkins claim made timely all the other claims asserted in his petition.” On a motion, the Eleventh Circuit “vacated the panel opinion and reheard the case en banc,” ultimately affirming the district court’s determination that “Zack's non-Atkins claims [were] time-barred” and denying relief.13
Successive Postconviction (2017)
On May 26, 2015, Zack filed a second successive postconviction motion raising a claim of intellectual disability based on the U.S. Supreme Court’s 2014 decision in Hall v. Florida, where the Court held Florida’s rule for determining intellectual disability was unconstitutional:
Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is foreclosed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.14
The trial court summarily denied the motion on July 8, 2015. On appeal, Zack raised two claims:
[T]he court erred in (1) summarily denying Zack an evidentiary hearing on his intellectual disability claim and (2) dismissing Zack's motion on the basis that his I.Q. was too high for an Atkins hearing without considering other evidence as required by Hall.15
The Court denied both claims in a decision issued June 15, 2017. On the first claim, the Court explained:
The record demonstrates five I.Q. scores for Zack: a score of 92 in 1980 when Zack was 11 years old, and four scores after Zack turned 18—84 and 86 in 1997 at 27 years of age, 79 in 2002, and 80 in 2015. While a holistic hearing is required, defendants must still be able to meet the first prong of Hall. Because Zack's current score is well above 75, and there are no scores in his history below 75, it is unlikely that he would ever be able to satisfy the significantly subaverage intellectual functioning prong.
Zack also filed a petition for writ of habeas corpus, in which he argued that his sentence is unconstitutional under Hurst.16 That claim was denied because his sentence became final before Ring in 2002.
The Court’s votes on that decision were as follows:
Successive Postconviction (2018)
On January 11, 2017, Zack filed his third successive motion for postconviction relief raising a Hurst-related claim. The trial court summarily denied the claim, and Zack appealed. In a decision dated October 4, 2018, the Supreme Court affirmed teh denial, writing:
We have previously addressed and rejected each of the claims presented. Zack has not provided a compelling argument for this Court to reconsider our previous rulings. Accordingly, we affirm the circuit court's order summarily denying Zack's claims.17
My thoughts are with everyone involved in the warrant and execution process.
Zack v. State, 753 So. 2d 9, 14-15 (Fla. 2000).
Id. at 13.
Id. at 12-13.
Id. at 13.
Id. at 20.
Id. at 25.
Atkins v. Virginia, 536 U.S. 304, 321 (2002) (“[D]eath is not a suitable punishment for a mentally retarded criminal.”).
Zack v. State, 911 So. 2d 1190, 1196 (Fla. 2005) (footnote omitted) (parallel citations omitted).
Zack v. Tucker, 704 F.3d 917, 919 (11th Cir. 2013).
Id. at 926.
Hall v. Florida, 572 U.S. 701, 704 (2014).
Zack v. State, 228 So. 3d 41, 46 (Fla. 2017).
Zack v. State, 2018 WL 4784204, at *2 (Fla. Oct. 4, 2018).