STARKE, Fla. (AP) — The U.S. Supreme Court on Thursday refused to block the state's first execution in 18 months, one that also will mark the first use of the drug etomidate in a U.S. lethal injection.
The court denied without comment the final appeal of Mark Asay, who is set to die after 6 p.m. Asay, 53, was convicted by a jury of two 1987 Jacksonville murders that prosecutors said were racially motivated.
The planned execution — Florida's first since the U.S. Supreme Court halted the practice in the state after finding its method for sentencing people to death to be unconstitutional — is expected to be carried out using etomidate, an anesthetic that has been approved by the Florida Supreme Court. Two other drugs also are to be used.
Asay, who is white, fatally shot Robert Lee Booker, 34, a black man, after making multiple racist comments, prosecutors said. Asay's second victim was Robert McDowell, 26, was mixed race, white and Hispanic. Prosecutors say Asay had hired McDowell, who was dressed as a woman, for sex and shot him six times after discovering his gender.
Asay would be the first white man to be executed in Florida for killing a black man. At least 20 black men have been executed for killing white victims since the state reinstated the death penalty in 1976, according to data from the Death Penalty Information Center. A total of 92 Florida inmates have been executed in that time period.
Etomidate is the first of three drugs administered in Florida's new execution cocktail. It is replacing midazolam, which has been harder to acquire after many drug companies began refusing to provide it for executions. The etomidate is followed by rocuronium bromide, a paralytic, and finally, potassium acetate, which stops the heart. It is Florida's first time using potassium acetate too, which was used in a 2015 execution in Oklahoma by mistake, but has not been used elsewhere, a death penalty expert said.
While the state's high court has approved the use of etomidate, some experts have criticized the drug as being unproven.
State corrections officials have defended the choice, saying it has been reviewed. The corrections department refused to answer questions from The Associated Press about how it chose etomidate.
Doctors hired by Asay's attorneys raised questions about etomidate in court declarations, saying there are cases where it had caused pain along with involuntary writhing in patients.
But in its opinion allowing the drug to be used, the state's high court said earlier this month that four expert witnesses demonstrated that Asay "is at small risk of mild to moderate pain."
Asay would also be the first Florida inmate executed since a U.S. Supreme Court ruling found the state's method of sentencing people to death to be unconstitutional. The court ruled that the old system was illegal because it gave judges, not juries, the power to decide.
Since then, Florida's Legislature passed a law requiring a unanimous jury for death penalty recommendations.
In Asay's case, jurors recommended death for both murder counts by a 9-3 vote. Even though the new law requires unanimity, Florida's high court ruled that the U.S. Supreme Court's ruling did not apply to older cases.
Asay will be the 24th inmate executed since Gov. Rick Scott has taken office, the most under any governor in Florida history.