NEW WARRANT: Edward Zakrzewski's execution scheduled July 31
Gov. DeSantis has signed a death warrant scheduling Edward Zakrzewski’s execution for July 31 at 6:00 p.m. It is the ninth warrant in the State this year and could set a new record for the State.
Gov. DeSantis has signed a death warrant scheduling Edward Zakrzewski’s execution for July 31 at 6:00 p.m. This is the ninth warrant in the State this year.
As the Tallahassee Democrat reported this evening, if both pending executions are completed (Bell on July 15 and Zakrzewski on July 31), it will be the highest number of executions in the State since at least 1976 when the death penalty was reinstituted after Furman v. Georgia.1 The highest number to date was in 2014 when the State completed 8 executions.
Shortly after the Governor issued the warrant, the Florida Supreme Court issued its standard scheduling order for warrant-related litigation.
The Order sets forth the following schedule:
July 14 at 11:00 a.m.: Circuit court proceedings must be completed.
July 14 at 1:00 p.m.: Notice of appeal and writ petition due
July 16 at 5:00 p.m.: Initial brief due
July 17 at 5:00 p.m.: Answer brief due
July 18 at 2:00 p.m.: Reply brief due
The full scheduling order and warrant can be found on the Court’s docket here.
Background of Zakrzewski’s Case
Trial & Direct Appeal
Zakrzewski pled guilty to killing his wife, Sylvia, and two children—Edward, age seven, and Anna, age five—in 1994 in Okaloosa County after his wife told him he wanted a divorce.2 The facts are as follows:
Zakrzewski and his wife had been experiencing marital problems for some time prior to the murders. Zakrzewski twice told a neighbor that he would kill his family rather than let them go through a divorce. On June 9, 1994, the morning of the murders, Edward called Zakrzewski at work and stated that Sylvia wanted a divorce. During his lunch break, Zakrzewski purchased a machete. He returned to work and completed his daily routine. That evening, Zakrzewski arrived home before his wife and children. He hid the machete in the bathroom.
After his family arrived home, Zakrzewski approached Sylvia, who was sitting alone in the living room. He hit her at least twice over the head with a crowbar. The testimony established that Sylvia may have been rendered unconscious as a result of these blows, although not dead. Zakrzewski then dragged Sylvia into the bedroom, where he hit her again and strangled her with rope.
Zakrzewski then called Edward into the bathroom to come brush his teeth. As Edward entered the room, Zakrzewski struck the boy with the machete. Edward realized what his father was doing and tried to block the blow with his arm, causing a wound to his wrist. Further blows caused severe head, neck, and back injuries, and resulted in death.
Zakrzewski then called Anna into the bathroom to brush her teeth. Zakrzewski testified that he hit the girl with the machete as soon as she entered the bathroom. The State's expert testified that the blood spatters from Anna show that the girl was kneeling over the bathtub when she was struck by the machete. Cuts were found on Anna's right hand and elbow, consistent with defensive wounds. The blows from the machete resulted in Anna's death. The evidence was in conflict as to whether Anna was aware of her impending death.
Finally, Zakrzewski dragged his wife from the bedroom to the bathroom. He still was not sure if she was dead, so he hit her with the machete. Sylvia died from blunt force injuries as well as sharp force injuries.3
The trial then proceeded to a penalty phase.
“[T]he jury recommended death for the murders of Zakrzewski's wife and son by a 7–5 vote, and life in prison without possibility of parole for [his daughter’s] murder. At the time of the murders, Zakrzewski was serving in the Air Force.4
At sentencing, the trial court found that the State proved three aggravating factors beyond a reasonable doubt as to each murder:
(1) the defendant was previously convicted of other capital offenses (the contemporaneous murders), (2) the murders were committed in a cold, calculated, and premeditated manner without pretense of legal or moral justification (CCP), and (3) the murders were committed in an especially heinous, atrocious, or cruel manner (HAC).5
The trial court found two statutory mitgating circumstances: “(1) no significant prior criminal history; and (2) the murders were committed while the defendant was under the influence of extreme mental or emotional disturbance.”6 The trial court also considered various nonstatutory mitigating circumstances that Zakrzewski presented at trial, including his “exemplary [service] in the United States Air Force.”7
The court sentenced Zakrzewski to death for all three murders, meaning his third sentence of death is the result of a jury override.
On direct appeal, in an opinion dated June 11, 1998, the Florida Supreme Court affirmed Zakrzewski’s convictions and sentences of death. Justice Anstead, joined by Chief Justice Kogan and Justice Shaw, addressed the jury override in his concurring in part and dissenting in part opinion, writing:
[T]his bottom-line result should give us substantial reason to pause in disturbing and deviating from our principled and established case law on the issue of a jury override, which I fear the majority, in an emotional reaction to the factual circumstances presented here, has done. The majority has not honored Tedder and our consistent case law in holding that, despite the unusual and unique circumstances involved herein, and the extensive amount of statutory and non-statutory mitigation established, no reasonable juror could vote for mercy, as the jury did here, and spare appellant's life for the killing of the child Anna, while voting for death in the killing of Edward.
. . . .
The majority has not considered the facts in a light most favorable to the recommendation of the jury, as we are required to do, or acknowledged the unchallenged reasonable basis in the record supporting the jury's vote as to Anna's death. Further, the majority has ignored not only the evidence and inferences therefrom that would support the jury's recommendation, but has also ignored the fact that even the jury vote recommending death was by a slim seven to five margin, one vote away from a life recommendation for the appellant. Hence, the majority, in direct violation of the law and our decision in Tedder has substituted its subjective analysis of the facts for the views of the sworn and death-qualified jurors, who not only could have had reasonable but differing views as to whether death was appropriate, but did have those views and openly expressed them. The majority has apparently concluded that because its members would not have extended mercy, the views of the twelve citizens sitting on this jury extending mercy will be ignored.
There can be no legitimate dispute that the jury had an abundance of evidence upon which it could have based its life recommendation for Anna's death. Indeed, the extensive mitigation found by the trial court in this case is vastly greater than that found in the cases discussed above and, both in its nature and degree, is unique. Even the trial judge, who obviously disagreed with the jury's recommendation, acknowledged the existence of the unusual extent of the mitigation and found two statutory mitigators, no significant prior criminal history and under the influence of an extreme mental or emotional disturbance, and gave varying degrees of weight to some fourteen (14) nonstatutory mitigators, ranging from substantial to slight weight. On such a record there is simply no way that we can properly conclude that there is no “reasonable basis in the record to support the jury's recommendation.”
Moreover, the majority opinion implies that the jury's recommendation of life for Anna's murder was “unreasonable,” apparently because it was inconsistent with its recommendation of death for Sylvia's and Edward's murders: “We find that the facts suggesting the sentence of death for all three of these murders are clear and convincing, and as to Anna, even more compelling. We note that the trial judge found the same aggravating and mitigating circumstances applied to the murders of both Edward and Anna.” Majority op. at 481. However, beyond the consistency inference, the reference to the “compelling” facts of Anna's murder is perplexing because the majority opinion notes that while “Edward realized what his father was doing,” id. at 477, “[t]he evidence was in conflict as to whether Anna was aware of her impending death.” Id. Hence, in addition to the unprecedented mitigation presented, the majority has itself identified another substantial basis for the jury's recommendation by pointing out that the jury could have reasonably concluded, because the evidence was in conflict, that Anna was not aware of her impending death. In that event, for example, the jury would also not have found the HAC aggravator for Anna's death since that aggravator requires a finding of consciousness of impending death. So, the majority opinion has demonstrated a number of reasonable bases for the life recommendation.
As we approach the 21st century of our civilization, do we really want to take a law (the trial judge's sentencing discretion) that was intended to act as a rational check on a jury possibly voting for death based upon an emotional appeal, and twist that law so as to use it as a sword for the judiciary to emotionally trump a jury acting with reasoned mercy?8
Zakrzewski’s sentences of death became final on January 25, 1999. Since then, there’s been extensive litigation in Zakrzewski’s case.
Initial Postconviction
In his initial motion for postconviction relief, Zakrzewski raised four claims:
(1) trial counsel were ineffective for failing to move to suppress evidence seized from his home; (2) his guilty pleas were involuntary; (3) he was denied a fair penalty phase before a panel of impartial, indifferent jurors; and (4) trial counsel were ineffective for failing to object to the State's improper and prejudicial closing argument.
He then amended the motion to “add[] a claim that Florida's death penalty statute is unconstitutional under” Apprendi v. New Jersey, 530 U.S. 466 (2000).9
After an evidentiary hearing, the trial court denied the motion.
On appeal, Zakrzewski raised four issues:
(1) his lawyers in the penalty phase provided ineffective assistance of counsel by failing to object to certain closing arguments; (2) his lawyers were ineffective for failing to move to suppress evidence; (3) his guilty pleas were involuntary and should be set aside; and (4) his death sentence is unconstitutional based on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
In a decision dated November 13, 2003, the Florida Supreme Court “conclude[d] that no error occurred in the trial court’s denial of postconviction relief in this case and therefore affirm the trial court's order.”10
Federal Habeas
Zakrzewski then filed a federal habeas petition raising five issues. The federal court denied the petition but granted a certificate of appealability on two issues:
“(1) whether trial counsel was ineffective for failure to object to statements made by the prosecutor in closing argument, and (2) whether trial counsel was ineffective for failure to file a motion to suppress evidence contained in the house which constituted the murder scene.”11
In a decision dated July 13, 2006, the U.S. Circuit Court of Appeals for the Eleventh Circuit affirmed the denial of Zakrzewski’s petition, finding that the Florida Supreme Court’s decision on the issues was not unreasonable.
Zakrzewski then filed a motion for relief from judgment “on the basis that his former habeas counsel, John W. Nall (‘Nall’), perpetrated a fraud on the court.” The district court construed the motion as a second or successive habeas petition and denied the motion for lack of jurisdiction. On appeal, the Eleventh Circuit concluded that the motion “was no second or successive habeas petition,” “vacate[d] the district court's judgment and remand[ed] for consideration of the merits of the motion.”12
On remand, in 2008, the federal court again denied Zakrzewski’s motion. On appeal in 2009, the Eleventh Circuit affirmed the denial on the merits in a short opinion that said in part:
The district court found that Petitioner was not defrauded by the lawyer: the lawyer made no material misrepresentations and Petitioner did not rely on the lawyer's representations to Petitioner's detriment. In addition, apart from the authority Petitioner vested in the lawyer, the Court independently vested the lawyer with the needed authority to represent Petitioner when the Court appointed the lawyer to represent Petitioner. The district court has found that no misrepresentation made by the lawyer to the district court was material to that court when it made the pertinent appointment and that the district court did not rely on misrepresentations when the appointment was made.13
Successive Postconviction
First Successive Motion
Zakrzewski filed a first successive motion for postconviction relief. After it was denied, Zakrzewski appealed and raised two claims:
(1) that the court erred in summarily denying his claim that Florida's procedures for carrying out lethal injection violate the Eighth Amendment to the United States Constitution; and (2) that the court erred in denying his claim that newly discovered evidence, consisting of the 2006 American Bar Association Report entitled Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report, demonstrates that his conviction and sentence constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution.14
The Court denied relief, stating it had “previously rejected each of these claims.”
Second Successive Motion
Zakrzewski filed a second successive motion for postconviction relief. After the trial court denied relief, Zakrzewski appealed, raising the following claims:
(1) the circuit court erred in denying Zakrzewski's claim that Porter v. McCollum, 130 S.Ct. 447 (2009), applies retroactively and requires reconsideration of his previously denied ineffective assistance of counsel claim; and (2) the circuit court erred in denying Zakrzewski's motion to amend his postconviction motion in light of the June 8th adoption of a new lethal injection protocol, which changed the first drug used in the three-drug protocol, and in denying an evidentiary hearing on this claim.15
In 2012, the Court denied relief. On the first issue, the Court held that Zakrzewski did not present a compelling reason for it to revisit its decision that Porter did not apply retroactively. On the second issue, the Court determined that any error was harmless.
Third Successive Motion
Zakrzewski filed a third successive motion for postconviction relief. After the trial court denied relief, Zakrzewski appealed, raising the following claims:
(1) he is entitled to postconviction relief because a recently submitted affidavit shows that penalty-phase witnesses provided inaccurate testimony concerning the beliefs of philosopher Friedrich Nietzsche; and (2) because the Florida Legislature recently adopted the standard announced in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 587 (1993), this standard should be retroactively applied to the admissibility of the testimony concerning Nietzsche during his 1996 penalty-phase proceeding.16
On appeal, in June 2014, the Florida Supreme Court determined Zakrzewski’s claims were untimely. The Court also held, on the second claim, that the legislative change to the Daubert standard did not apply retroactively.
Hurst Motion
After the U.S. Supreme Court’s 2016 decision in Hurst v. Florida,17 Zakrzewski filed a successive motion for postconviction relief. In 2018, the Florida Supreme Court affirmed the trial court Order denying Zakrzewski’s motion because his sentences of death became final before 2002—despite the jury override and nonunanimous recommendations for death.18 And despite the fact that Zakrzewski had raised the claim that was ultimately validated in Hurst since the beginning of his case.
Justice Pariente concurred in result.
TFDP Prior Coverage of Zakrzewski’s Case
News Articles
My thoughts are with everyone involved in the warrant- and execution-related process.
Zakrzewski v. State, 717 So. 2d 488, 490 (Fla. 1998); Zakrzewski v. State, 866 So. 2d 688, 690 (Fla. 2003).
Zakrzewski, 866 So. 2d at 690 (citation omitted).
Zakrzewski v. McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006).
Zakrzewski, 717 So. 2d at 491.
Zakrzewski, 866 So. 2d at 691.
Zakrzewski, 717 So. 2d at n.1.
Id. at 496-97 (Anstead, J., concurring in part and dissenting in part)
Zakrzewski, 866 So. 2d at 691-92.
Id. at 689-90.
Zakrzewski v. McDonough, 455 F.3d 1254 (11th Cir. 2006).
Zakrzewski v. McDonough, 490 F.3d 1264 (11th Cir. 2007).
Zakrzewski v. McNeil, 573 F.3d 1210 (Mem) (11th Cir. 2009).
Zakrzewski v. State, 13 So.3d 1057 (Table) (Fla. 2009).
Zakrzewski v. State, 115 So.3d 1004 (Table) (Fla. 2012).
Zakrzewski v. State, 147 So.3d 531 (Table) (Fla. 2014).
Zakrzewski v. State, 254 So.3d 324 (Fla. 2018).