Attorneys cite Fetal Alcohol Syndrome in Florida killer’s death penalty appeal

TALLAHASSEE — Pointing to a “medical consensus” about Fetal Alcohol Syndrome, attorneys for inmate Michael Duane Zack on Sunday urged the Florida Supreme Court to block his scheduled Oct. 3 execution in the 1996 murder of a woman in Escambia County.

In a brief and an accompanying motion for a stay of execution, attorneys for Zack argued that putting him to death would violate a constitutional ban on executing people with intellectual disabilities.

The brief said Zack suffered Fetal Alcohol Syndrome because his mother drank alcohol while pregnant and that “the medical community now recognizes the unique cognitive, practical and social impairments inherent to FASD (fetal alcohol spectrum disorders) as indistinguishable from those of ID (intellectual disability).”

“Due to Mr. Zack’s FAS (Fetal Alcohol Syndrome), the most severe form of FASD, he has functioned as intellectually disabled for the entirety of his life,” the brief said. “He is possessed of a lesser culpability and his execution would violate equal protection and constitute cruel and unusual punishment with no legitimate retributive or deterrent effect. Thus, he is categorically exempt from execution and his death sentence must be permanently set aside.”

Zack’s attorneys went to the Supreme Court after Escambia County Circuit Judge Linda Nobles on Aug. 31 denied a request for a stay of execution and rejected other arguments.

Nobles wrote that Zack’s argument about Fetal Alcohol Syndrome is “procedurally barred,” in part, because courts in the past have rejected intellectual-disability claims by Zack.

Also, she wrote that the “alleged consensus (about Fetal Alcohol Syndrome meeting the criteria for intellectual disability) does not constitute newly discovered evidence and, even if it were, it has not been timely raised.” In addition, the judge concluded that Zack was trying to “expand the protection” of a key U.S. Supreme Court ruling that bars execution of people with intellectual disabilities.

“Defendant’s claim is without merit,” Nobles wrote. “Intellectual disability is clearly defined under Florida law, and defendant does not now claim he qualifies as intellectually disabled as so defined.”

Gov. Ron DeSantis on Aug. 17 signed a death warrant for Zack in the 1996 murder of Ravonne Smith during a crime spree that also included killing another woman. State and federal courts have turned down a series of appeals over nearly two decades.

A 2017 Florida Supreme Court opinion in one of his appeals said Zack met Smith, an employee of Dirty Joe’s bar, on June 13, 1996. They wound up going to Smith’s house, where evidence indicated Zack hit her in the head with a beer bottle and sexually assaulted her, the opinion said.

Zack then was accused of pursuing Smith into a bedroom, where he beat her head against a floor, before stabbing her in the chest, the opinion said. He stole a television, a video-cassette recorder and Smith’s purse and was arrested days later after trying to pawn the television and VCR in Panama City.

A jury in September 1997 convicted Zack of first-degree murder, robbery with a firearm and sexual battery, records show. He also is serving a life sentence for murdering the other woman in Okaloosa County.

The U.S. Supreme Court, in a 2002 decision known as Atkins v. Virginia, ruled that executing people with intellectual disabilities would violate Eighth Amendment protections against cruel and unusual punishment.

Attorneys for Zack, now 54, have long argued he is intellectually disabled. But in the brief filed Sunday, Zack’s attorneys said the arguments were rejected, at least in part, because he had an IQ of 79.

In the past, Florida used a cutoff of a 70 IQ in considering whether defendants had intellectual disabilities. But in 2014, the U.S. Supreme Court said the state couldn’t use a “rigid” score of 70. That decision said using a 70 score as a cutoff would prevent courts from considering other types of potentially important evidence in determining whether a person is intellectually disabled.

The brief filed Sunday by Zack’s attorneys focused, in part, on how understanding of Fetal Alcohol Syndrome has evolved.

“Now, there exists a new definitive medical consensus that Fetal Alcohol Syndrome — the most severe form of Fetal Alcohol Spectrum Disorder and a diagnosis Mr. Zack has carried since the time of his trial in 1997 — is a uniquely ID-equivalent disorder that is entitled to the same social supports and legal protections, notwithstanding IQ cutoffs,’ the brief said. “These legal protections include exemption from execution under the Eighth Amendment, as articulated in Atkins and refined by its (legal) progeny.”

In February, however, the Florida Supreme Court turned down similar arguments raised by attorneys for inmate Donald David Dillbeck. The attorneys contended that a condition, neurodevelopmental disorder associated with prenatal alcohol exposure, or ND-PAE, is “recognized by the medical community as an intellectual disability-equivalent condition.”

After the Supreme Court rejected the appeal, Dillbeck became the first of five inmates executed this year in Florida.

Meanwhile, attorneys for Zack last week filed a separate appeal in federal court. That appeal contends Zack’s due-process rights were violated in a flawed clemency process.