Zack Warrant: Second petition filed at SCOTUS
Michael Zack's execution is scheduled October 3. He now has two petitions pending at the U.S. Supreme Court.
The State of Florida intends to execute Michael Zack on October 3 at 6:00 p.m. Yesterday, Zack (through his attorneys) filed his second petition for writ of certiorari at the U.S. Supreme Court. Also yesterday, the State responded to Zack’s first-filed petition and application for stay of execution.
State’s Responses in First-Filed Case
Brief in Opposition to Petition for Writ of Certiorari
Yesterday, the State filed its brief in opposition to Zack’s first-filed petition for writ of certiorari, which seeks the Court’s review of the Florida’s Supreme Court’s decision affirming the postconviction court’s denial of his claims.
On Zack’s first question—regarding his claim that his diagnosis of FAS renders his execution unconstitutional under the Eighth Amendment pursuant to Atkins v. Virginia—the State argues that the Florida Supreme Court’s rulings that Zack’s claim is “untimely and procedurally barred . . . are independent and adequate state law grounds precluding review by this Court.” On the merits of the claim, where the Florida Supreme Court said its hands were tied by the U.S. Supreme Court’s precedent, the State argues that the U.S. Supreme Court “has never even hinted that Atkins should be expanded to include other types of diagnoses.” The State also notes that the Court recently denied review of the same question in Dillbeck.
On Zack’s second question—regarding the right to a jury’s unanimous recommendation for death—the State argues again that the Florida Supreme Court’s rulings that Zack’s claim is “untimely and procedurally barred . . . are independent and adequate state law grounds precluding review by this Court.” On the merits, the State argues that “it is the Sixth Amendment right-to-a-jury trial provision that governs the jury’s role in sentencing, not the Eighth Amendment.”
Remember, though, the Florida Supreme Court’s decision stated: “In so doing, Poole clarified that Ring and Hurst were Sixth Amendment cases that had ‘nothing to do with jury sentencing.’” The State relies on this statement from the Florida Supreme Court to say later in the Brief: “The Florida Supreme Court clarified that neither Ring nor Hurst had anything ‘to do with jury sentencing’ in capital cases.” The State seems to distinguish between decisions addressing the jury’s role in capital sentencing and “jury sentencing,” meaning a jury actually making the sentencing determination.
The first sentence of the majority’s decision in Ring is:
This case concerns the Sixth Amendment right to a jury trial in capital prosecutions.
In the introduction of Hurst, Justice Sotomayor wrote for the majority:
The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough.
As to Justice Scalia’s statement in Ring that is being quoted, he was addressing Justice Breyer’s stance on Apprendi, which was the precursor to Ring. Here is what it says in context:
While I am, as always, pleased to travel in Justice BREYER's company, the unfortunate fact is that today's judgment has nothing to do with jury sentencing. What today's decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so—by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase. There is really no way in which Justice BREYER can travel with the happy band that reaches today's result unless he says yes to Apprendi. Concisely put, Justice BREYER is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.
The full Brief can be downloaded here.
For a full explanation on this caselaw, see the TFDP five-part series here.
Response to Application for Stay of Execution
In response to Zack’s application for stay of execution, the State argues that the Court “should simply deny the petition and then deny the stay.” The State argues that “there is little chance that four justices of th[e] Court would vote to grant certiorari review of either of the two questions presented in the petition.”
The full response can be downloaded here.
Second Petition
Yesterday, Zack (through his attorneys) filed his second petition for writ of certiorari at the U.S. Supreme Court seeking review of the U.S. Court of Appeals for the Eleventh Circuit’s decision.
The petition presents three questions:
Zack also filed an application for stay of execution related to this second petition. The full application 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
Litigation update as of September 13
Litigation update as of September 17
Zack’s appeal from the federal court’s denial of a stay
Florida Supreme Court denies Zack’s appeal
Litigation update as of September 24
Petition filed at SCOTUS
My thoughts are with everyone involved in the warrant and execution process.