TALLAHASSEE, Fla. – The U.S. Supreme Court on Monday refused to halt the planned execution of Michael Duane Zack, setting the stage for him to die by lethal injection at 6 p.m. Tuesday at Florida State Prison.
Justices issued two orders declining to take up appeals of decisions by the Florida Supreme Court and the 11th U.S. Circuit Court of Appeals and refusing to issue stays of execution. As is common, the Supreme Court did not explain its reasons.
Zack, 54, is scheduled to be the sixth inmate put to death this year in Florida. He was sentenced to death in the 1996 Escambia County murder of Ravonne Smith during a crime spree that also included killing a woman, Laura Rosillo, in Okaloosa County.
Gov. Ron DeSantis on Aug. 17 signed a death warrant for Zack, touching off attempts in state and federal courts by the inmate’s attorneys to block the execution.
The attorneys’ primary argument was that Zack should be shielded from execution because of Fetal Alcohol Syndrome, which they said caused him to function as being “intellectually disabled.” The U.S. Supreme Court ruled in a 2002 case known as Atkins v. Virginia that executing people with intellectual disabilities violates the Eighth Amendment ban on cruel and unusual punishment.
In appealing a ruling by the Florida Supreme Court and asking the U.S. Supreme Court for a stay of execution, Zack’s attorneys said “the medical community now recognizes that the unique, cognitive, practical and social impairments inherent to Fetal Alcohol Syndrome (are) indistinguishable from those of Intellectual Developmental Disability.”
“At every opportunity since his trial, Mr. Zack has presented evidence of his prenatal alcohol exposure to the full extent allowed by then-contemporaneous scientific legal and legal standards,” the request said. “Evolving standards of decency have finally progressed to the tipping point that allows Mr. Zack to establish that his FAS (Fetal Alcohol Syndrome) disability affords him the same protections established in Atkins. To deny review would penalize Mr. Zack for being right too soon.”
But in a filing Thursday at the U.S. Supreme Court, Florida Attorney General Ashley Moody’s office disputed the Fetal Alcohol Syndrome argument.
“There is no real possibility of this (U.S. Supreme) Court expanding Atkins to include a diagnosis of FAS, " the state lawyers wrote. “Zack would not succeed in having this court wholesale defer to the views of the psychiatric community on the matter of whether Atkins should be expanded to include other types of diagnoses. While he asserts that the psychiatric community now views FAS as functionally identical to intellectual disability, courts determine Eighth Amendment law, not unelected and unrepresentative experts.”
The Florida Supreme Court, in rejecting Zack’s arguments Sept. 21, said he had raised intellectual-disability arguments over two decades of appeals. As a result, Florida justices said the latest arguments did not meet legal tests for “timeliness” and were procedurally barred.
A panel of the 11th U.S. Circuit Court of Appeals also separately rejected arguments that were tied to the Fetal Alcohol Syndrome issue. Those arguments centered on whether Zack had received a proper state clemency process.
A jury in September 1997 convicted Zack of first-degree murder, robbery with a firearm and sexual battery in Smith’s death, records show. He also is serving a life sentence for murdering Rosillo.
DeSantis signed Zack’s death warrant two weeks after the state executed James Phillip Barnes, 61, in the 1988 murder of a woman in her Melbourne condominium.
That came after the June execution of Duane Owen for the 1984 murder of a Palm Beach County woman. Also, the state executed Darryl Barwick in May in the 1986 murder of a woman in her Panama City apartment; Louis Gaskin in April in the 1989 murders of a couple in Flagler County; and Donald David Dillbeck in February in the 1990 murder of a woman during a carjacking in a Tallahassee mall parking lot.
Dillbeck was the first person executed since Gary Ray Bowles was put to death by lethal injection in August 2019 for a 1994 murder in Jacksonville.