With inmate Michael Duane Zack scheduled to be put to death by lethal injection on Oct. 3, his attorneys have gone to the Florida Supreme Court after a circuit judge refused to halt the execution.
Zack’s attorneys filed a notice of appeal Friday, a day after Escambia County Circuit Judge Linda Nobles denied a request for a stay and rejected other arguments.
Gov. Ron DeSantis on Aug. 17 signed a death warrant for Zack in the 1996 murder of Ravonne Smith during a crime spree that also included killing another woman. State and federal courts have turned down a series of appeals over nearly two decades.
In her ruling Thursday, Nobles primarily focused on an argument that Zack, 54, should not be executed because he has an intellectual disability. The U.S. Supreme Court has said executing people with intellectual disabilities would violate constitutional protections against cruel and unusual punishment.
Zack argued that his execution is barred “due to a new scientific consensus that individuals with Fetal Alcohol Syndrome meet the functional criteria for intellectual disability,” Nobles wrote, adding that Zack alleged he had been diagnosed with Fetal Alcohol Syndrome since 1997.
But the judge wrote that the argument is “procedurally barred,” in part, because courts in the past have rejected intellectual-disability claims by Zack. Also, she wrote that the “alleged consensus (about Fetal Alcohol Syndrome meeting the criteria for intellectual disability) does not constitute newly discovered evidence and, even if it were, it has not been timely raised.”
In addition, the judge concluded that Zack was trying to “expand the protection” of a key U.S. Supreme Court ruling that bars execution of people with intellectual disabilities.
“Defendant’s claim is without merit,” Nobles wrote. “Intellectual disability is clearly defined under Florida law, and defendant does not now claim he qualifies as intellectually disabled as so defined.”
The notice of appeal, as is common, did not detail arguments Zack’s attorneys will make at the Supreme Court.
While Nobles’ ruling did not go into detail about Zack’s crimes, a 2017 Florida Supreme Court opinion in one of his appeals 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 opinion 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 opinion 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.
A jury in September 1997 convicted Zack of first-degree murder, robbery with a firearm and sexual battery, records show. He also is serving a life sentence for murdering a woman in Okaloosa County shortly before the Smith murder.
If Zack’s execution is carried out, he would be the sixth inmate put to death this year in Florida.
