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A death penalty landmark for Florida: Executing a white man for killing a black man

Florida is scheduled to put to death convicted murderer Mark James Asay by lethal injection that includes the drug etomidate. (Video: Reuters)

Since Florida reinstated the death penalty in 1976, at least 18 black men have been executed for killing white victims there, according to data from the Death Penalty Information Center.

But in Florida’s modern history no white man has been executed for killing a black victim.

On Thursday, Mark James Asay — a former member of a prison white supremacist gang and once inked with a swastika tattoo — is scheduled to become the first, by way of lethal injection with a drug never before used in a U.S. execution.

Statistics showing racial disparities in application of the death sentence have been among the chief weapons of capital punishment opponents, like Adora Obi Nweze, president of the Florida State Conference NAACP, who told the Miami Herald that Asay’s historical case only highlights how black inmates are disproportionately sentenced.

She told the newspaper that even Asay shouldn’t be executed.

And Asay’s sentence won’t undo the past, Mark Elliott, executive director of Floridians for Alternatives to the Death Penalty, told the Associated Press.

“This does nothing to change the 170-year-long history of Florida not executing whites for killing blacks,” Elliot said.

Nationally, the racial pattern of death sentences, while not so stark as it is in Florida, leans sharply the same way. Since 1976, 20 whites have been executed for murdering blacks, according to the Death Penalty Information Center, while 288 blacks have been put to death for killing whites.

Asay was convicted in 1988 of two racially motivated murders on the same night in Jacksonville, Fla. Witnesses and a jail house informant testified that Asay used racial slurs during the first murder and after the second. The jury, unanimous in its verdict, sentenced him to death by a 9-3 vote.

But his execution date was delayed for nearly two years, caught in legal limbo over a U.S. Supreme Court ruling that determined Florida’s death penalty system was unconstitutional. In Hurst v. Florida, the high court ruled that the state’s sentencing scheme gave too much power to judges over juries. Executions screeched to a halt while Florida lawmakers crafted new legislation — twice — that ultimately required a jury to unanimously agree before sentencing someone to death.

The Hurst decision left hundreds of capital punishment cases in limbo. Eventually the state supreme court ruled that only inmates sentenced to death after 2002, when the U.S. Supreme Court ruled on a different death penalty case, would be allowed new hearings.

Asay was not one of those inmates. His attorneys appealed the decision without success.

Asay will be the first death row inmate to die in Florida since the Hurst decision, which was issued more than 18 months ago. He’ll also be the first to die by Florida’s new execution drug cocktail, a combination of etomidate, rocuronium bromide and potassium acetate, reported the Associated Press.

Etomidate has never been used in an execution before, Jen Moreno, a lethal injection expert who works as a staff attorney at the University of California at Berkeley Law School’s death penalty clinic, told the AP. It will be administered first, followed by the paralytic rocuronium bromide. Finally, the potassium acetate will stop the heart.

Moreno said there are “outstanding questions” about whether etomidate, an anesthetic, will “do what it needs to do during an execution.”

“The state hasn’t provided any information about why it has selected this drug,” Moreno told the AP.

The Florida Supreme Court signed off on the drug and Assay appealed, but was rejected. In a dissenting opinion, one state justice wrote that the execution was rushed and Asay was being treated as “the proverbial guinea pig of its newest lethal injection protocol,” reported the News Service of Florida.

But state corrections officials defended the choice.

“The Florida Department of Corrections follows the law and carries out the sentence of the court,” Michelle Glady, the Florida Department of Corrections’ spokeswoman, said in a statement to the AP. “This is the Department’s most solemn duty and the foremost objective with the lethal injection procedure is a humane and dignified process.”

Another appeal, unanimously rejected earlier this week, stemmed from the double-murder case’s racial implications. For decades, Asay’s victims, 34-year-old Robert Lee Booker and 26-year-old Robert McDowell, were classified in legal documents as black. Their race, prosecutors argued, was what motivated Asay’s violent behavior in 1987.

But, it turns out, McDowell was biracial — white and Hispanic — not black.

The court apologized for the error and issued a rare mea culpa, but ultimately ruled that their mistake had no bearing on the overall outcome of Asay’s death sentence.

McDowell, who had been described as “a black man dressed as a woman,” was also “known to friends and neighbors as Renee Torres,” the state court wrote.

“Torres was identified at trial by everyone who testified as white and Hispanic. Renee Torres nee Robert McDowell may have been either white or mixed-race, Hispanic but was not a black man,” the Supreme Court wrote. “We regret our previous error.”

Asay’s attorneys argued that the mistake granted him the right to a new hearing because prosecutors had built their original case on the man’s alleged racial animus. The justices disagreed.

“While this court may have mislabeled the racial identity of the victim in its prior opinions, this fact does not negatively affect this court’s final determination,” they wrote Monday afternoon, according to the News Service of Florida.

In a jailhouse interview this week with News 4 Jax, Asay admitted to killing McDowell but maintained he never shot Booker. He was drunk that night, he told the TV station, but racism had nothing to do with his actions. Asay claimed he was never a white supremacist and only joined the prison gang for safety while he was serving time in his late teens in Texas. The tattoos, he told News 4 Jax, were a gang requirement. Asay said he has since covered them up or burned them off.

At trial, prosecutors and witnesses presented a far different story.

The night of the murders, they said, Asay was out drinking with his brother and a friend in Jacksonville, Fla. They closed down a bar and went looking for prostitutes. The friend had offered to buy them all oral sex.

Asay’s brother was inside his vehicle and speaking to Booker, who stood outside. Asay approached and called Booker a “n—–,” then pulled a gun and shot the man in the stomach. He ran but died from internal bleeding. His body was found by a nearby home.

Asay and the friend, “Bubba” McQuinn, fled in Asay’s red truck. McQuinn testified in court that he asked Asay why he shot Booker, and Asay responded: “Because you got to show a n—– who is boss.”

The two kept looking for prostitutes, found McDowell and drove into a nearby alley. McQuinn testified that Asay stood watch outside while McDowell climbed into the truck. Then Asay grabbed McDowell by the arm and shot six times.

In his interview with News 4 Jax, Asay said he had no intention of killing McDowell, whom he claimed was a friend. Asay said the dispute was over stolen money.

Unless a court or Florida’s governor steps in, Asay will be executed Thursday evening after 6 p.m. He has served 36 years of his life in prison and told News 4 Jax he is “not a violent person or threat to society.”

“If the purpose of prison is not accomplished now, it’s never going to be accomplished. If the purpose is just to protect me from society and protect society from me, okay, I accept that,” Asay told the TV station. “But if the government is like, ‘Well, we can’t be sure,’ then I’m prepared to submit to the execution Thursday and go on and be at peace with my Lord.”

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