01/19/16 – By Dara Kam
Attorneys for a convicted murderer scheduled to be put to death on St. Patrick’s Day are asking the Florida Supreme Court for a stay, arguing that records — including some stored in an insect-infested shed — were destroyed.
Mark James Asay’s case is even more troubling because the Death Row inmate hasn’t had a lawyer to represent him in state court for nearly a decade and had no legal representation when Gov. Rick Scott signed the warrant ordering Asay’s execution, Asay’s new attorney wrote in a motion filed Tuesday.
A Jacksonville judge appointed Marty McClain to represent Asay last Wednesday, five days after Scott signed the warrant scheduling Asay’s execution for March 17. A circuit judge gave McClain until Jan. 25 — 12 days after he was appointed to represent Asay — to file any motions for relief.
That’s not enough time, McClain argued in Tuesday’s 27-page filing. Proceeding with the case “would be a violation of due process, equal protection and fundamental fairness,” he wrote.
“Providing an attorney without the client’s files and records is the equivalent of providing no counsel at all,” McClain wrote.
Hours after McClain filed his request for a stay, the Supreme Court gave Department of Corrections Secretary Julie Jones until 5 p.m. Thursday to respond.
Scott may not have been aware that Asay did not have a lawyer, as required by state law for inmates on Death Row, when the governor signed the death warrant.
“Given that the statute requires that collateral counsel be in place at all times, I would think it would be wise for the governor’s office to make sure that the statute has been complied with before a warrant is signed,” McClain said in a telephone interview Tuesday.
In the court filing, McClain wrote that Scott’s staff contacted the state agency that represents Death Row inmates after the warrant was signed on Jan. 8. Capital Collateral Counsel for the Northern Region Robert Friedman told the governor’s representative that his agency did not represent Asay.
Scott’s staff then contacted Thomas Fallis, a private attorney who had represented Asay in federal court, according to Tuesday’s filing. Fallis told the governor’s aide that he no longer represented Asay.
“What additional steps the governor’s office took to notify Mr. Asay’s state court counsel of the death warrant is unclear,” McClain wrote. “What is clear, however, is that despite being given information that at a minimum, Mr. Asay’s representation was unknown, Governor Scott did not pause or delay the execution date in order to ensure that Mr. Asay was or would be represented by competent post-conviction counsel.”
A spokesman for Scott said that the governor’s office contacted Fallis before the warrant was signed.
“As is standard procedure in our office, we spoke to his counsel of record,” spokesman John Tupps said in an email.
Fallis withdrew from Asay’s case in mid-2014, according to McClain.
Asay was convicted in 1988 of the murders of Robert Lee Booker and Robert McDowell in downtown Jacksonville. Asay allegedly shot Booker, who was black, after calling him a racial epithet. He then killed McDowell, who was dressed as a woman, after agreeing to pay him for oral sex. According to court documents, Asay later told a friend that McDowell had previously cheated him out of money in a drug deal.
McClain said he and his partner, Linda McDermott, started trying to locate Asay’s files after they were assigned to the case last week.
“What was learned was quite disconcerting — numerous boxes, probably a majority, of Mr. Asay’s files and records had been destroyed, while those records that theoretically still exist, have yet to be located,” McClain wrote, adding that 33 boxes of records pertaining to Asay’s file are missing or were destroyed.
Asay was once represented by the predecessor of the Capital Collateral Counsel for the Northern Region, but the Legislature shut down the agency in 2004. At least some of Asay’s records were transferred to Mary Katherine Bonner, a lawyer who once worked on his case, according to McClain’s brief filed Tuesday.
Fallis, who represented Asay in federal court from 2010 through 2014, obtained about 10 boxes of documents from a shed that was “infested with snakes, rats and insects” where Bonner stored them, McClain wrote.
Fallis decided the files were “worthless due to the condition in which they were stored” and ultimately destroyed them, McClain wrote.
McClain, who has worked on death penalty cases for nearly three decades and represented more than 250 clients, and his partner “have never found themselves in such dire and disturbing circumstances when representing a capital post-conviction defendant with an active death warrant,” the lawyers wrote.
During a case-management hearing Friday, lawyers with Attorney General Pam Bondi’s office and the state attorney who prosecuted Asay told McClain they would provide copies of their records regarding Asay’s case by the end of the day on Tuesday. Bondi’s office was unaware that Asay had gone so long without a lawyer, McClain wrote.
McClain is also trying to get copies of other case files from the Department of State’s archives, but he is unsure when the documents will be provided, he wrote. As of Tuesday, he still did not have copies of the trial court transcripts.
“Historically, this (Supreme) Court has been especially vigilant to the need for procedural fairness in capital proceedings, and has accordingly not hesitated to enter stays of execution in order to ensure that capital petitioners are treated fairly in the litigation of claims for relief during the pendency of a death warrant,” McClain wrote.
The Florida Supreme Court has granted stays in at least two other cases when new lawyers for inmates scheduled for execution needed more time. In 1990, the court delayed the execution of Paul Christopher Hildwin to give his lawyers extra time to review his files. In 2014, the court threw out Hildwin’s death sentence based on new DNA evidence.