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Florida Man Is First To Die Under New Lethal Injection Protocol

Florida State Prison in Raiford, Fla., where Mark James Asay was held after being sentenced to die for two murders he committed in 1987.
Phil Sears

Updated at 7:00 p.m. ET

A man convicted of killing two people in what prosecutors argued were racially motivated murders in 1987 was executed by lethal injection on Thursday evening in Florida.

The execution was the first of its kind on two accounts. This is the first time Florida has executed a white person for killing a black person since the death penalty was reinstated in the U.S. in 1976, according to data collected by the Death Penalty Information Center.

Mark James Asay was sentenced to death by a jury vote of nine to three in 1988, and denied a new trial in 2016 after the sentencing guidelines were overturned.

This was also the first time a person was executed using a new three-drug protocol that included the drug etomidate. It replaced the sedative midazolam, which has been used in multiple prolonged or seemingly painful executions in the past, and which pharmaceutical companies have refused to sell for use in executions, leading to shortages.

A spokesperson for Janssen, the division of Johnson & Johnson that makes etomidate, told The Washington Post the company objects to the drug's use in an execution.

Asay's lawyers filed an objection to the use of etomidate, but the Florida Supreme Court denied the stay request, writing "Asay failed to establish sure or very likely risks of sufficiently imminent danger or a proposed alternative that is readily available."

Jen Moreno, a lethal injection expert at the University of California, Berkeley Law School's death penalty clinic, told the Miami Heraldit was unclear if the drug would work. "There are outstanding questions about whether it's going to do what it needs to do during an execution," she told the paper. "The state hasn't provided any information about why it has selected this drug."

The newspaper reported:

"State corrections officials defended the choice, saying it has been reviewed. The corrections department refused to answer questions from The Associated Press about how it chose etomidate.

" '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. "'This is the Department's most solemn duty and the foremost objective with the lethal injection procedure is a humane and dignified process.' "

Asay, 53, was convicted of murdering two people in downtown Jacksonville, Fla. He shot the first, a black man named Robert Lee Booker, 34, after calling him a racial epithet, according to court documents.

Booker's son, Vittorio Robinson, was 15 years old when his father was killed. "I was in shock. I was in disbelief. I just couldn't believe it," he told The Florida Times-Union.

The newspaper reported:

"As a young child Robinson heard the stories of the South's terrible treatment of black people from the days after Reconstruction into the 1960s era of John F. Kennedy and the Rev. Martin Luther King Jr. But this, the death of his father ... in 1987, apparently over race, was hard for him to understand.

'And then it dawned on me, there are actually still people out there that thought that way,' he said."

The same night, Asay killed a second person, Renee Torres, 26, after negotiating "a deal for oral sex." Torres was referred to in original court documents by the legal name Robert McDowell, and erroneously as a "black man dressed as a woman," a description the Florida Supreme Court later said was incorrect. Torres "may have been either white or mixed-race, Hispanic but was not a black man," the court wrote in a decision denying a stay of execution for Asay earlier this month.

Thomas Gross, who shared a jail cell with Asay before trial, recounted a conversation that suggests Asay believed both people he killed were black. Gross also said Asay showed him tattoos, "which included a swastika, the words 'White Pride,' and the initials 'SWP' which Gross said stand for supreme white power."

This is the first execution in Florida since the U.S. Supreme Court ruled the state's sentencing procedure was unconstitutional in January 2016, because it gave too much power to judges rather than juries. Florida was one of the last states in which defendants could be sentenced to die without a unanimous jury decision for the death penalty.

It took almost two years, and another trip to the state supreme court, before lawmakers revamped state laws to meet constitutional requirements, paving the way for executions to resume.

There are currently 362 people on death row in Florida. Asay's is the only execution currently scheduled in the state in 2017.

Copyright 2020 NPR. To see more, visit https://www.npr.org.

Rebecca Hersher is a reporter on NPR's Science Desk, where she reports on outbreaks, natural disasters, and environmental and health research. Since coming to NPR in 2011, she has covered the Ebola outbreak in West Africa, embedded with the Afghan army after the American combat mission ended, and reported on floods and hurricanes in the U.S. She's also reported on research about puppies. Before her work on the Science Desk, she was a producer for NPR's Weekend All Things Considered in Los Angeles.
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