BREAKING: Florida Supreme Court denies Michael Zack's appeal.
This morning, as part of its regular release of opinions, the Florida Supreme Court issued its decision affirming the denial of Zack's postconviction claims seeking relief from his execution.
Michael Zack’s execution is scheduled for October 3 at 6:00 p.m.—less than two weeks from today.
This morning, as part of its regular release of opinions, the Florida Supreme Court issued its decision in Zack’s appeal of the trial court’s denial of his postconviction claims seeking relief from the execution. The Court denied Zack’s claims and also denied Zack’s motion for stay of execution and request for oral argument.
Justice Francis wrote the 34-page opinion, which was unanimous with Justice Labarga concurring in result. The opinion spends considerable time going through the history of Zack’s case, using terms that foreshadow the outcome of the decision like “Unsurprisingly” and “Nonetheless” in referencing the claims raised by Zack throughout the litigation related to his sentence.
As to his most recent postconviction motion, the opinion states:
On August 17, 2023, Governor DeSantis issued a death warrant for the execution of Zack. The execution is scheduled for Tuesday, October 3, 2023, at 6:00 p.m. Zack timely filed his fourth successive postconviction motion raising two claims asserting that his execution is barred by the Eighth Amendment on the basis that (1) his FAS diagnosis is the functional equivalent of an intellectual disability, and (2) his penalty phase jury recommendation was not unanimous. The postconviction court summarily denied both claims, finding both to be untimely, procedurally barred, and meritless under this Court’s recent Dillbeck decision.
On appeal, Zack asserts that the postconviction court erred by summarily denying his fourth successive postconviction motion. We find no error and affirm.
On the first claim, the Court says the postconviction court did not err in determining the claim is procedurally barred, writing that Zack “has long known his IQ range . . . and his experts’ FAS diagnosis . . . .“ As to Zack’s argument that there’s a new scientific consensus on the effects of FAS, the Court says that the materials Zack submitted “rely on older sources” and that the Court “has found ‘new scientific consensus’ to be an unpersuasive reason to restart the clock for purposes of timely filing successive postconviction motions.” In doing so, the Court cites Dillbeck and Barwick, among other sources—both cases from executions earlier this year.
As to the merits, the Court says the claim still fails, as indicated in Dillbeck and Barwick. The Court reasons that it “lacks the authority to extend Atkins to individuals who ‘are not intellectually disabled as provided in Atkins” and “must interpret Florida’s prohibition against cruel and unusual punishment in conformity with decisions of the United States Supreme Court under the conformity clause in article I, section 17 of the Florida Constitution.”
On the second claim, the Court agrees that the claim is procedurally barred and untimely because Hurst does not apply to Zack and the claim could’ve been raised as early as direct appeal. On the merits, the Court says the claim still fails because, as explained in Dillbeck, U.S. Supreme Court “precedent establishes that the Eighth Amendment does not require a unanimous jury recommendation of death.” On this point, the Court relies on its decision in Poole, which overturned the Court’s prior decision in Hurst on this point.1
The full decision can be downloaded here.
Zack’s last option for relief on these claims is at the U.S. Supreme Court, where he can file a petition for writ of certiorari seeking review of the Florida Supreme Court’s decision.
Zack’s claims also remain pending in federal court.
Prior TFDP Coverage of the Zack Warrant
The full background of Zack’s case is available here.
The Florida Supreme Court’s Scheduling Order
Beginning of trial court litigation here
The trial court’s Scheduling Order
The litigation related to public records is covered here.
Continuance due to Hurricane Idalia
The State’s responses to Zack’s motions in the trial court
A closer look at Fetal Alcohol Syndrome
Trial court denies Zack’s claims
Claims filed in federal court
State seeks to dismiss federal claims
Briefing begins at the Florida Supreme Court
Litigation update as of September 13
Litigation update as of September 17
Zack’s appeal from the federal court’s denial of a stay
My thoughts are with everyone involved in the warrant and execution process.