Zack Warrant: State's response to Zack's filings
Yesterday afternoon, the State filed its responses to Zack’s postconviction motion and Motion for Stay of Execution, et al.
On Monday, Zack filed his successive postconviction motion seeking relief from his execution scheduled for October 3 at 6:00 p.m. Zack’s first claim in his postconviction motion is that the Eighth Amendment bars his execution because "individuals with Fetal Alcohol Syndrome meet the functional criteria for intellectual disability.” Zack also filed a Motion for Stay of Execution, Postponement of All Proceedings, and Leave to Amend Motion for Postconviction Relief, which the State references as Zack’s “Omnibus Motion.”
Yesterday afternoon, the State filed its responses to Zack’s postconviction motion and Omnibus Motion.
Background on Intellectual Disability
For context, here’s a bit of background on intellectual disability claims in capital cases in Florida…
In 2002, the U.S. Supreme Court held in Atkins v. Virginia that executing a person with intellectual disability amounts to cruel and unusual punishment and is, therefore, prohibited under the Eighth Amendment.
Since then, there has been extensive litigation regarding the standard for establishing intellectual disability. Following Atkins, Florida used a bright-line rule for determining intellectual disability based on IQ scores. However, the U.S. Supreme Court determined that approach was unconstitutional in Hall v. Florida in 2014:
Florida's rule misconstrues the Court's statements in Atkins that intellectually disability is characterized by an IQ of “approximately 70.” 536 U.S., at 308, n. 3, 122 S. Ct. 2242. Florida's rule is in direct opposition to the views of those who design, administer, and interpret the IQ test. By failing to take into account the standard error of measurement, Florida's law not only contradicts the test's own design but also bars an essential part of a sentencing court's inquiry into adaptive functioning. Freddie Lee Hall may or may not be intellectually disabled, but the law requires that he have the opportunity to present evidence of his intellectual disability, including deficits in adaptive functioning over his lifetime.
The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida's law contravenes our Nation's commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.
Now, Florida courts apply a three-prong test for determining intellectual disability:
A defendant must establish intellectual disability by demonstrating the following three factors: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen.1
Section 921.137, Florida Statutes, addresses how a defendant may avoid the death penalty at the trial phase and defines “intellectual disability” as follows:
significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term “significantly subaverage general intellectual functioning,” for the purpose of this section, means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities. The term “adaptive behavior,” for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community. The Agency for Persons with Disabilities shall adopt rules to specify the standardized intelligence tests as provided in this subsection.
(Emphasis added.) This definition is consistent with the three-prong test courts use for determining intellectual disability, as stated above.
The first prong of the test—”significantly subaverage general intellectual functioning”—is where courts review the prisoner’s IQ scores. In its 2017 decision in Zack’s case, the Florida Supreme Court explained:
Generally, the standard error of measurement is approximately five points. Thus, an “I.Q. score of 70 is considered to represent a band or zone of 65 to 75.”2
State’s Response to Postconviction Motion
In its Response to Zack’s successive postconviction motion, the State argues that the Florida Supreme Court recently denied both of Zack’s claims in its decision in Dillbeck (denying claims ahead of the execution of Donald Dillbeck), which is controlling. (The full Response can be downloaded here.)
As to Zack’s first “claim of intellectual disability . . ., combined with a diagnosis of Fetal Alcohol Syndrome (FAS),” the State argues Zack’s claim is untimely, procedurally barred, and otherwise without merit because Zack fails to meet the statutory definition for intellectual disability. As to expanding Atkins to include FAS, the State argues that the Florida Supreme Court does not have the authority to do so:
Further, the State argues the Court already denied this claim in Dillbeck:
Second, Zack argues that his execution violates the Eighth Amendment because he was sentenced to death after a non-unanimous jury recommendation. Again, the State argues Zack’s claim is untimely, procedurally barred, and otherwise without merit. On the merits, the State argues, in part, that the Eighth Amendment has nothing to do with jury sentencing and that “Zack may not turn a Sixth Amendment claim into an Eighth Amendment claim”:
State’s Response to Omnibus Motion
In its Response to Zack’s Omnibus Motion, the State argues that Zack has failed to set forth a colorable claim for relief to substantiate a stay. As to his due process arguments related to the short warrant period, the State points to the Florida Supreme Court’s prior denials of similar claims—in cases with even shorter warrant periods. As to Zack’s request for leave to amend, the State says it is “premature and meritless given the Florida Supreme Court’s scheduling order.”
With this post and the trial court’s continuance moving the hearing that was scheduled for this morning, TFDP is now up-to-date on the docket.
Prior TFDP Coverage of the Zack Warrant
The full background of Zack’s case is available here.
The Florida Supreme Court’s Scheduling Order is available here.
Beginning of trial court litigation here
The trial court’s Scheduling Order is discussed here.
The litigation related to public records is covered here.
Continuance due to Hurricane Idalia
My thoughts are with everyone involved in the warrant and execution process. My thoughts are also with everyone affected by Hurricane Idalia.
Salazar v. State, 188 So.3d 799, 811 (Fla. 2016).
Zack v. State, 228 So.3d 41, 46 (Fla. 2017) (citations omitted).