Zack Warrant: Litigation Update
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Zack Warrant: Litigation Update
Here’s the latest in the litigation related to Michael Zack's scheduled execution on Oct. 3, which is pending in both state and federal courts in Florida.
Michael Zack’s execution is scheduled for October 3 at 6:00 p.m. His attorneys are currently litigating claims seeking relief from the execution in both state and federal court. Here’s the latest in the litigation.
Florida Supreme Court Appeal
Zack has an appeal pending at the Florida Supreme Court, in which he challenges the trial court’s denial of his postconviction claims seeking relief from the execution.
Zack’s Initial Brief was filed on Monday (Sept. 11), as well as a Motion for Stay of Execution, to which the State responded almost immediately. This afternoon, the State filed its Answer Brief.
As to Claim 1 regarding Fetal Alcohol Syndrome and Atkins (explanation here), the State argues that “[t]he postconviction court properly summarily denied” Zack’s claim:
The expansion-of-Atkins claim is procedurally barred, untimely, and meritless as a matter of law under this Court’s long-standing precedent. Atkins is limited to intellectual disability. Florida courts are prohibited from expanding Atkins to include other diagnoses under the State constitution’s conformity clause regarding Eighth Amendment claims . . . .
As to Claim 2 regarding the jury’s nonunanimous recommendation for death, the State argues that “[t]he postconviction court properly summarily denied” Zack’s claim, reasoning that the Eighth Amendment does not require a jury’s unanimous recommendation for death.
The Answer Brief can be downloaded here.
Zack’s Reply Brief is due by Friday at 3:00 p.m.
Federal Litigation
Zack also has claims pending in the U.S. District Court for the Northern District of Florida. The State previously moved to dismiss Zack’s claims.
On Tuesday (Sept. 12), Zack, through counsel, filed his response to the State’s Motion to Dismiss as well as a Reply in support of his Motion for Stay of Execution.
Response to Motion to Dismiss
In response to the State’s Motion to Dismiss, Zack argues that the standard for defeating dismissal is “a low bar” that his Complaint certainly meets and that he “has stated a claim upon which relief can be granted.” Specifically, he argues that his claim is based in his interest in his life:
The legal framework of the claim derives from Justice O’Connor’s plurality opinion in Ohio Adult Parole Authority, et. al v. Woodard, 523 U.S. 272, 288-89 (1998). There, Justice O’Connor reasoned that as long as the condemned person is alive, he has an interest in his life that the Due Process Clause protects.
As to merits of his claims, the Response argues:
[T]he current understanding and consensus concerning FAS and its equivalence to intellectual disability compels, at a minimum an opportunity to be meaningfully heard, and ultimately mercy for Mr. Zack.
The full Response can be downloaded here.
Reply to Response to Motion to Stay
In Reply to the State’s Response to his Motion to Stay, Zack argues that the State:
“disingenuously claim[s] the clemency process remains open to Mr. Zack”;
“mischaracterize[s] Mr. Zack’s complaint as ‘frivolous’ and ‘mere speculation’ because there is no guarantee that he would ultimately receive a grant of clemency”;
“improperly fault[s] Mr. Zack for the lack of updated clemency information”; and
“engage[s] so hollowly with the stay factors that they refuse even to acknowledge that Mr. Zack’s execution would cause an irreparable injury.”
The full Reply can be downloaded here.
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
My thoughts are with everyone involved in the warrant and execution process.