With convicted murderer Michael Duane Zack in Florida scheduled to be put to death in less than two weeks, his attorneys have asked a federal appeals court for a stay of execution because they say he was “shut out” of a clemency process that could help spare him.
Zack’s attorneys filed a 26-page emergency motion Tuesday at the 11th U.S. Circuit Court of Appeals, after federal district Judge Robert Hinkle last week rejected the clemency arguments.
In part, the issue centers on a diagnosis that Zack suffered Fetal Alcohol Syndrome. His attorneys wrote that the “medical community now recognizes FAS (Fetal Alcohol Syndrome) as identical to intellectual disability.”
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The U.S. Supreme Court has ruled that it is unconstitutional to execute people with intellectual disabilities. But Zack’s attorneys argue that his clemency interview was in 2014 and that he has not been able to provide medical evidence that has emerged since then about Fetal Alcohol Syndrome.
“Thus, through no fault of Zack or his counsel, no clemency decision-maker has contemplated the significant new understanding of Zack’s disability, which places him in the category of persons exempt from execution,” the motion said.
The motion also said Zack is”not attempting a second bite at the apple. The compelling information he seeks to present was not available in 2013-2014.”
Zack, 54, is scheduled to be executed Oct. 3 in the 1996 Escambia County murder of Ravonne Smith during a crime spree that also included killing another woman. Gov. Ron DeSantis issued a death warrant on Aug. 17.
The issue of Fetal Alcohol Syndrome places a key role in Zack’s federal-court appeal and a separate pending appeal at the Florida Supreme Court. The motion filed Tuesday said Zack was exposed to alcohol during his mother’s “heavy gestational drinking” but that Fetal Alcohol Syndrome was not diagnosed until 1997.
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While Zack had a clemency interview in 2014, his attorneys wrote that he “heard nothing for over nine years,” until clemency was denied last month as the death warrant was signed.
But U.S. District Judge Robert Hinkle on Friday rejected a stay of execution.
“The state officials involved in the clemency process, including the governor and other members of the clemency board, were not obligated to somehow anticipate — without being notified by Mr. Zack — that he might have new information he wished to present,” Hinkle wrote. “That he did not raise the issue is understandable; if the file was being ignored, any execution was being delayed. But understandable or not, it was Mr. Zack, not clemency officials, who possessed any new information and asserted there were new grounds for clemency. Nothing prevented him from presenting the information.”
Attorney General Ashley Moody’s office had not filed a brief as of late Wednesday afternoon at the Atlanta-based appeals court.
Court documents said Zack met Smith, an employee of Dirty Joe’s bar, on June 13, 1996. They wound up going to Smith’s house, where evidence indicated Zack hit her in the head with a beer bottle and sexually assaulted her, the documents said.
Zack then was accused of pursuing Smith into a bedroom, where he beat her head against a floor, before stabbing her in the chest, the documents said. He stole a television, a video-cassette recorder and Smith’s purse and was arrested days later after trying to pawn the television and VCR in Panama City.
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