Zack Warrant: Trial court litigation on public records
After a hearing on Thursday, the trial court issued an Order Sustaining Objections and Denying Defendant’s Demand for Public Records and Directions to Escambia County Sheriff's Office.
Michael Zack’s execution is scheduled for October 3 at 6:00 p.m. (The full background of Zack’s case is available here.)
Ahead of his scheduled execution, Zack, through counsel, filed eight public records demands, to which five objections were filed.
Consistent with the Scheduling Order, on Thursday August 24, the trial court held a hearing on the public records requests. The hearing was held by Zoom. (A transcript of the hearing can be downloaded here.)
The transcript indicates that counsel for Zack learned the day Gov. DeSantis signed the warrant that Zack had been denied clemency:
Later on Thursday, the trial court issued an Order Sustaining Objections and Denying Defendant’s Demand for Public Records and Directions to the Escambia County Sheriff’s Office. (A full copy of the Order can be downloaded here.)
Here are the categories of records for which the trial court sustained objections:
District Eight Medical Examiner’s Office: Zack requested documents “concerning autopsy protocols and postmortem examinations” for the last three executions. The trial court determined Zack (a) failed to show good cause for not requesting these records sooner, and (b) “fail[ed] to show the records are relevant and likely to lead to a colorable claim for relief.”
As to (a), note that any claim related to the execution process is not ripe until a death warrant is signed. This was noted by Zack’s counsel at the hearing:
The State responded that there is no reason why the records could not be requested sooner:
In addition to ripeness, Zack’s counsel argued that these specific records could not be requested earlier because they are the most recent executions and, therefore, the most relevant:
Governor Ron DeSantis: Zack requested “any and all records relating to his clemency proceedings.” The Attorney General argued at the hearing that these records can only be released at the Governor’s discretion. The court held “[t]hese records are confidential and exempt from disclosure.” The court further determined Zack (a) failed to show good cause for not requesting these records sooner, and (b) “fail[ed] to show a colorable claim for relief.”
Florida Commission on Offender Review: Zack requested “any and all records relating to his clemency proceedings.” The court made the same findings as above.
Florida Department of Law Enforcement: Zack requested “records pertaining to Florida’s lethal injection protocol.” The trial court determined Zack (a) failed to show good cause for not requesting these records sooner, and (b) “fail[ed] to show the request is related to lead to a colorable claim for relief.”
As to (a), see above related to the ripeness of a claim related to the execution protocol before a death warrant is signed.
Attorney General: Zack requested “additional public records.” The trial court determined (a) the documents “are exempt from disclosure as appellate work product,” (b) Zack failed to show good cause for not requesting these records sooner, and (c) Zack “fail[ed] to show [the records] pertain to a colorable claim for relief.”
Florida Department of Corrections: Zack requested documents related to “FDOC’s lethal injection protocol, procedures, and process.” The trial court determined (a) the records requested “are confidential and exempt” from disclosure, (b) Zack failed to show good cause for not requesting these records sooner, and (c) Zack “fail[ed] to show [the request] is related to a colorable claim for relief.”
As to (b), see above related to the ripeness of a claim related to the execution protocol before a death warrant is signed.
In addition, other agencies complied with Zack’s demand for public records.
NOTE: Litigation regarding public records requests is common in execution-related litigation. The other execution-related litigation that has occurred this year included similar proceedings, but TFDP has not yet covered this part of the litigation in the 2023 execution-related litigation.
According to the trial court’s scheduling order issued last week, Zack’s postconviction motion seeking relief related to his scheduled execution is due Monday.
The Order also states that Zack “will be ready for transport to attend a hearing” this week if the Court orders for one to occur. It was indicated at the hearing that DOC is already arranging for Zack’s transportation if necessary:
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
My thoughts are with everyone involved in the warrant and execution process.