To Arthur with love ..
Thursday, October 19, 2006
Justice Anstead, Florida Supreme Court dissent - Arthur Rutherford
ANSTEAD, J., concurring specially.
I concur in the majority's denial of relief because I, too, am bound by the rulings of this Court rejecting similar challenges to the State's procedures for execution by lethal injection in Hill and Rutherford as cited by the majority.
I am troubled, however, by the fact that the State has not at all times made its execution procedures and protocols a matter of public record, and by the fact that since our initial decision in Sims approving the use of lethal injection based substantially on theory, there has been no public evidentiary hearing focused on the purpose and effectiveness of the State's procedures, and on what actually takes place during the course of an execution by lethal injection.
Now that this method of execution has been in place for a number of years we would all benefit by such a hearing.
Wednesday, October 18, 2006
Killer of Australian widow executed
By Michael Peltier in Florida
PRISON officials have executed a 57-year-old former handyman by lethal injection for the 1985 murder of an Australian-born woman in Florida's rural Panhandle.
Prison officials at Florida State Prison near Starke pronounced Arthur Rutherford dead at 6.13pm EDT after giving him a deadly cocktail of chemicals that paralysed his lungs and stopped his heart.
Rutherford became the 62nd prisoner executed in Florida since the death penalty was reinstated in 1976. He is the 19th inmate to be executed during the tenure of Governor Jeb Bush, the younger brother of US President George W. Bush.
Rutherford was convicted in August 1986 for the death of Australian-born Stella Salamon, 63, for whom he did odd jobs.
She was found drowned in her bath after being badly beaten and strangled. The jury, on a 7-5 vote, recommended he be put to death.
Rutherford had been due to die in January and had been strapped to a gurney in the death chamber at Florida State Prison, but he was spared by a last-minute stay from the United States Supreme Court.
The stay was prompted by a legal challenge claiming the anesthesia administered during legal injection might not be adequate to prevent an inmate from experiencing extreme pain.
The high court sent the case back for further review and in September the 11th Circuit Court of Appeals rejected the anesthesia challenge without taking more evidence.
Executions using lethal injection have been postponed in at least five states pending further review of execution procedures, and Rutherford's execution came despite a flurry of appeals before the Florida and US Supreme courts.
PRISON officials have executed a 57-year-old former handyman by lethal injection for the 1985 murder of an Australian-born woman in Florida's rural Panhandle.
Prison officials at Florida State Prison near Starke pronounced Arthur Rutherford dead at 6.13pm EDT after giving him a deadly cocktail of chemicals that paralysed his lungs and stopped his heart.
Rutherford became the 62nd prisoner executed in Florida since the death penalty was reinstated in 1976. He is the 19th inmate to be executed during the tenure of Governor Jeb Bush, the younger brother of US President George W. Bush.
Rutherford was convicted in August 1986 for the death of Australian-born Stella Salamon, 63, for whom he did odd jobs.
She was found drowned in her bath after being badly beaten and strangled. The jury, on a 7-5 vote, recommended he be put to death.
Rutherford had been due to die in January and had been strapped to a gurney in the death chamber at Florida State Prison, but he was spared by a last-minute stay from the United States Supreme Court.
The stay was prompted by a legal challenge claiming the anesthesia administered during legal injection might not be adequate to prevent an inmate from experiencing extreme pain.
The high court sent the case back for further review and in September the 11th Circuit Court of Appeals rejected the anesthesia challenge without taking more evidence.
Executions using lethal injection have been postponed in at least five states pending further review of execution procedures, and Rutherford's execution came despite a flurry of appeals before the Florida and US Supreme courts.
Significant events in case of Arthur Rutherford
Significant events in case of Arthur Rutherford
Associated Press
Following are significant events in the death case against Arthur Rutherford, whose execution was scheduled Wednesday:
Aug. 22, 1985: Body of 63-year-old Stella Salamon found submerged in bathtub in Milton home. She had a broken arm, bruises on her face and arms and severe head wounds. Medical examiner said she died from drowning or asphyxiation.
Aug. 23: Arthur Rutherford arrested after getting assistance from friend to cash as $2,000 check on Salamon's account. Rutherford had done some carpentry work for Salamon. His finger and palm prints were found in bathroom where Salamon was killed.
Sept. 11: Rutherford indicted on charges of first-degree murder and robbery with a firearm.
Jan. 31, 1986: Rutherford found guilty of all charges.
Feb. 1: Jury recommends death sentence by an 8 to 4 majority.
April 2: Judge grants mistrial due to discovery violations by the state.
Oct. 2: On retrial, Rutherford was found guilty on all charges. The jury, on a 7 to 5 vote, recommends death penalty.
Dec. 9: Rutherford sentenced to death for murder count and 30 years on armed robbery.
June 16, 1989: Florida Supreme Court affirms conviction and sentence.
Oct. 30: U.S. Supreme Court denies appeal.
Dec. 17, 1998: Florida Supreme Court denies appeal.
Nov. 29, 2005: Gov. Jeb Bush signs death warrant.
Jan. 30, 2006: U.S. Supreme Court stays Rutherford execution minutes before his scheduled death.
Sept. 22: Bush reinstates death warrant and schedules execution for Oct. 18.
Oct. 5: Appeal returned by the U.S. Supreme Court dismissed by appeals court in Atlanta.
Oct. 6: State court rejects Rutherford's appeal.
Oct. 12: Florida Supreme Court rejects Rutherford's appeal.
Oct. 17: Florida Supreme Court and 11th U.S. Circuit Court of Appeals deny appeals.
Oct. 18: U.S. Supreme Court denied two petitions and two motions for a stay of execution.
Associated Press
Following are significant events in the death case against Arthur Rutherford, whose execution was scheduled Wednesday:
Aug. 22, 1985: Body of 63-year-old Stella Salamon found submerged in bathtub in Milton home. She had a broken arm, bruises on her face and arms and severe head wounds. Medical examiner said she died from drowning or asphyxiation.
Aug. 23: Arthur Rutherford arrested after getting assistance from friend to cash as $2,000 check on Salamon's account. Rutherford had done some carpentry work for Salamon. His finger and palm prints were found in bathroom where Salamon was killed.
Sept. 11: Rutherford indicted on charges of first-degree murder and robbery with a firearm.
Jan. 31, 1986: Rutherford found guilty of all charges.
Feb. 1: Jury recommends death sentence by an 8 to 4 majority.
April 2: Judge grants mistrial due to discovery violations by the state.
Oct. 2: On retrial, Rutherford was found guilty on all charges. The jury, on a 7 to 5 vote, recommends death penalty.
Dec. 9: Rutherford sentenced to death for murder count and 30 years on armed robbery.
June 16, 1989: Florida Supreme Court affirms conviction and sentence.
Oct. 30: U.S. Supreme Court denies appeal.
Dec. 17, 1998: Florida Supreme Court denies appeal.
Nov. 29, 2005: Gov. Jeb Bush signs death warrant.
Jan. 30, 2006: U.S. Supreme Court stays Rutherford execution minutes before his scheduled death.
Sept. 22: Bush reinstates death warrant and schedules execution for Oct. 18.
Oct. 5: Appeal returned by the U.S. Supreme Court dismissed by appeals court in Atlanta.
Oct. 6: State court rejects Rutherford's appeal.
Oct. 12: Florida Supreme Court rejects Rutherford's appeal.
Oct. 17: Florida Supreme Court and 11th U.S. Circuit Court of Appeals deny appeals.
Oct. 18: U.S. Supreme Court denied two petitions and two motions for a stay of execution.
Rutherford executed for killing woman 21 years ago
STARKE, Fla. (AP) — Convicted killer Arthur Rutherford was executed by lethal injection this evening for the 1985 murder of a Milton woman.
The governor's office said the 57-year-old Vietnam veteran and handyman was declared dead at 6:13 p.m.
Rutherford was executed after the U.S. Supreme Court denied his challenges over the state's lethal injection procedure and other issues.
He was condemned for the 1985, attack on 63-year-old Stella Salamon, a widow whose naked body was found submerged in the bathtub of her Panhandle home.
Rutherford was executed after the Supreme Court turned down four separate efforts by him today to halt his execution. Justice John Paul Stevens, alone among his colleagues, voted to grant a stay of execution.
Rutherford had last visits this morning with more than a dozen relatives, including his father, children, grandchildren, sisters and brothers. He ate a final meal of fried green tomatoes, fried eggplant, fried catfish, hush puppies and sweet tea.
The governor's office said the 57-year-old Vietnam veteran and handyman was declared dead at 6:13 p.m.
Rutherford was executed after the U.S. Supreme Court denied his challenges over the state's lethal injection procedure and other issues.
He was condemned for the 1985, attack on 63-year-old Stella Salamon, a widow whose naked body was found submerged in the bathtub of her Panhandle home.
Rutherford was executed after the Supreme Court turned down four separate efforts by him today to halt his execution. Justice John Paul Stevens, alone among his colleagues, voted to grant a stay of execution.
Rutherford had last visits this morning with more than a dozen relatives, including his father, children, grandchildren, sisters and brothers. He ate a final meal of fried green tomatoes, fried eggplant, fried catfish, hush puppies and sweet tea.
Prayer for Arthur
Go your way to the land of the Ancestors,
where they wait for you with open arms,
there on the edge between this world and the next.
See; there they stand.
Ancestral spirits, welcome this oneto the place where we all must go.
- Ceisiwr Serith
Arthur be at peace~
Blessed Be. Carie
where they wait for you with open arms,
there on the edge between this world and the next.
See; there they stand.
Ancestral spirits, welcome this oneto the place where we all must go.
- Ceisiwr Serith
Arthur be at peace~
Blessed Be. Carie
Rutherford executed for killing woman
ASSOCIATED PRESS
Convicted killer Arthur Rutherford was executed today by lethal injection for the 1985 murder of a Milton woman.
Rutherford, a 57-year-old Vietnam veteran and handyman, was pronounced dead at 6:13 p.m., the governor's office said.
He was executed after the U.S. Supreme Court denied his challenges over the state's lethal injection procedure and other issues.
He was condemned for the Aug. 22, 1985, attack on 63-year-old Stella Salamon, a widow whose naked body was found submerged in the bathtub of her Panhandle home.
Convicted killer Arthur Rutherford was executed today by lethal injection for the 1985 murder of a Milton woman.
Rutherford, a 57-year-old Vietnam veteran and handyman, was pronounced dead at 6:13 p.m., the governor's office said.
He was executed after the U.S. Supreme Court denied his challenges over the state's lethal injection procedure and other issues.
He was condemned for the Aug. 22, 1985, attack on 63-year-old Stella Salamon, a widow whose naked body was found submerged in the bathtub of her Panhandle home.
11 circuit order denying stay - Arthur Rutherford
http://www.arthurrutherford.us/legal/11circuitorder.htm
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 17, 2006
THOMAS K. KAHN
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________
No. 06-10783
________________
ARTHUR D. RUTHERFORD,
Plaintiff-Appellant,
versus
JAMES MCDONOUGH,
CHARLIE CRIST,
Defendants-Appellees.
-------------------------
On Appeal from the United States District Court for the
Northern District of Florida
------------------------
(October 17, 2006)
ON PETITION FOR REHEARING
BEFORE: CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
We have before us Rutherford’s petition for a rehearing, which was filed
late this afternoon. It asks us to grant rehearing and change our previous decision
in this case, Rutherford v. McDonough, ___ F.3d ___, 2006 WL 2830968 (11th
2
Cir. Oct. 5, 2006) (Rutherford II), because of amendments he believes were made
to Florida’s lethal injection protocol August 16, 2006 but which Rutherford did
not become aware of until very recently.
Our October 5, 2006 decision in this case affirmed the district court’s
January 28, 2006 judgment dismissing Rutherford’s 42 U.S.C. § 1983 complaint,
which “challenge[d] the three-drug protocol Florida had been using since 2000 to
carry out executions by lethal injection.” Rutherford II, 2006 WL 2830968, at *1.
The basis for dismissal which we affirmed was that Rutherford had unnecessarily
delayed in bringing the claim—“[h]e deliberately waited until the last few days
before his execution to file what he could have filed many months, if not years,
earlier.” Id. at *2; Rutherford v. Crosby, 438 F.3d 1087, 1102–03 (11th Cir.
2006) (Rutherford I) (reproducing district court order), vacated sub nom.,
Rutherford v. McDonough, ___ U.S. ___, 126 S. Ct. 2915 (2006).
Rutherford says that six-and-one-half months after entry of the district
court’s judgment dismissing his complaint, which is the judgment we have
affirmed in Rutherford II, the State of Florida revised its lethal injection protocols.
In his rehearing petition, Rutherford describes the August 16, 2006 changes in
those protocols as follows:
3
The new procedures include a requirement that the
execution team receive training, that execution
simulations be conducted on a quarterly basis, that a
lethal injection checklist be completed after each
execution documenting what occurred (or did not occur)
and that the checklist will be signed by the warden under
oath, that the amount of the drugs being used is no
longer the amount this Court discussed most recently in
Hill v. State, 921 So. 2d 579, 583 n.3 (Fla. 2006) (the
Florida Supreme Court opinion indicated that 2 grams of
sodium pentothal were to be used, while the new
procedures seems [sic] to indicate 5 grams will be used).
The new procedures include provision for a “cut-down”;
no mention of a “cut-down” appears in the old,
superseded protocol.
Petition for Rehearing at 8 n.4.
The State of Florida is adamant that there have
been no changes to its lethal injection protocol. We need not resolve this dispute.
We will assume for present purposes only that the changes Rutherford contends
were made on August 16, 2006 were made and that they are as he describes them.
Rutherford also argues that the Department of Corrections, which made the
alleged changes, and the lawyers representing the State throughout this proceeding
have hidden the fact that changes were made. Apparently, the purpose of this
argument is to absolve Rutherford and his attorneys of any blame for not bringing
the alleged change in procedures to the attention of this and other courts before
now.
We do not blame them in any way for the timing of this petition for
rehearing, but that is an entirely different thing from saying that it has merit.
4
The changes that Rutherford says were made hurt, instead of help, the case
that he brought in the district court and argued in this Court. Throughout these
proceedings he has made a number of arguments, but all of them turn on the
factual premise that the State of Florida uses too little sodium pentothal in carrying
out lethal injections.
That is what Rutherford claimed in his complaint.
Complaint at ¶16 (“because Florida’s practices are substantially similar to those of
the lethal-injection jurisdictions which conducted autopsies and toxicology
reports, which kept records of them, and which disclosed them to the Lancet
scholars, there is at least the same risk (43%) as in those jurisdictions that Mr.
Rutherford will not be anesthetized at the time of his death”); id. at Attach. A
(Declaration of Dr. David A. Lubarsky) at ¶ 16 (“Based on our research, the
[Lancet] article concludes that toxicology reports from the four lethal injection
jurisdictions which provided them showed that postmortem concentrations of
thiopental (sodium pentothal) in the blood of persons who had been executed were
lower than that required for surgery in 43 of 49 cases reported (88%), and 21
(43%) inmates had concentrations consistent with awareness.”); id. at Attach. B
(Leonidas G. Koniaris et al., Inadequate anaesthesia in lethal injection for
execution, 365 The Lancet 1412, 1412 (2005) (“The assumption that 2 g.
thiopental assures anaesthesia is overly simplistic, however.”)).
5
That is also how the district court interpreted Rutherford’s claim.
Rutherford I, 438 F.3d at 1102 (reproducing district court order) (describing “[t]he
factual basis of Petitioner’s claim [as being] that the doses of the anesthetic
sodium pentothal may be insufficient thus permitting those injected to experience
the feelings of being suffocated and having a heart attack, but unable to express
their pain by virtue of being paralyzed by pancuronium” (parentheses omitted)).
It
is how Rutherford characterized his claim to us. Appellant’s July 20, 2006 Supp.
Br. at 2 (describing his challenge as based on The Lancet article which he
summarized as evidence that executed inmates “had an inadequate amount of
sodium pentothal in their bloodstream to provide anesthesia.”). And it is how we
interpreted his claim. Rutherford II, 2006 WL 2830968, at *7 (describing The
Lancet article as the factual basis for Rutherford’s claim).
The alleged revisions in the drug protocols, as Rutherford
concedes,
apparently double the amount of sodium pentothal used. Petition for Rehearing at
8 n.4 (“the Florida Supreme Court opinion indicated that 2 grams of sodium
pentothal were to be used, while the new procedures seems [sic] to indicate 5
grams will be used”). That makes it less likely, not more likely, that the pain
Rutherford claimed might result from using too little of the drug will result.
There
is no basis in law or logic for precluding the State from addressing the problem
6
that Rutherford claimed its previous procedures had created. He has no vested
interest in any problem with the procedures.
Rutherford also argues that we ought to change our prior decision because
the attorneys for the State have misled the state and federal courts that have
considered his claim. The misrepresentations, he says, are that the method Florida
uses to execute by lethal injection had not been changed.
All of the
representations by Florida’s attorneys that Rutherford recites, however, were made
well before August 16, 2006, the date he says that the procedures were changed.
Even if the procedures were changed on that date, the statements before that date
that the procedures had not been changed were true when made. They were not
misrepresentations.
All that we have before us, and all that we decide, is whether rehearing
should be granted to modify our prior decision which affirmed the district court’s
dismissal on equitable grounds of Rutherford’s complaint, the gist of which was
that the amount of sodium pentothal used was inadequate to prevent unnecessary
pain and suffering. We conclude that rehearing should not be granted.
PETITION FOR REHEARING DENIED.
7
WILSON, Circuit Judge, concurring:
My consideration of Rutherford's claims are fully stated in my dissent to our
prior opinion affirming the denial of Rutherford's 28 U.S.C. § 1983 complaint.
Rutherford v. McDonough, No. 06-10783, 2006 U.S. App. LEXIS 24860 (11th
Cir. Oct. 5, 2006). I concur in the denial of Rutherford's petition for rehearing
because it fails to raise a matter that specifically affects the conclusion in the
opinion that Rutherford's complaint was dilatory.
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 17, 2006
THOMAS K. KAHN
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________
No. 06-10783
________________
ARTHUR D. RUTHERFORD,
Plaintiff-Appellant,
versus
JAMES MCDONOUGH,
CHARLIE CRIST,
Defendants-Appellees.
-------------------------
On Appeal from the United States District Court for the
Northern District of Florida
------------------------
(October 17, 2006)
ON PETITION FOR REHEARING
BEFORE: CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
We have before us Rutherford’s petition for a rehearing, which was filed
late this afternoon. It asks us to grant rehearing and change our previous decision
in this case, Rutherford v. McDonough, ___ F.3d ___, 2006 WL 2830968 (11th
2
Cir. Oct. 5, 2006) (Rutherford II), because of amendments he believes were made
to Florida’s lethal injection protocol August 16, 2006 but which Rutherford did
not become aware of until very recently.
Our October 5, 2006 decision in this case affirmed the district court’s
January 28, 2006 judgment dismissing Rutherford’s 42 U.S.C. § 1983 complaint,
which “challenge[d] the three-drug protocol Florida had been using since 2000 to
carry out executions by lethal injection.” Rutherford II, 2006 WL 2830968, at *1.
The basis for dismissal which we affirmed was that Rutherford had unnecessarily
delayed in bringing the claim—“[h]e deliberately waited until the last few days
before his execution to file what he could have filed many months, if not years,
earlier.” Id. at *2; Rutherford v. Crosby, 438 F.3d 1087, 1102–03 (11th Cir.
2006) (Rutherford I) (reproducing district court order), vacated sub nom.,
Rutherford v. McDonough, ___ U.S. ___, 126 S. Ct. 2915 (2006).
Rutherford says that six-and-one-half months after entry of the district
court’s judgment dismissing his complaint, which is the judgment we have
affirmed in Rutherford II, the State of Florida revised its lethal injection protocols.
In his rehearing petition, Rutherford describes the August 16, 2006 changes in
those protocols as follows:
3
The new procedures include a requirement that the
execution team receive training, that execution
simulations be conducted on a quarterly basis, that a
lethal injection checklist be completed after each
execution documenting what occurred (or did not occur)
and that the checklist will be signed by the warden under
oath, that the amount of the drugs being used is no
longer the amount this Court discussed most recently in
Hill v. State, 921 So. 2d 579, 583 n.3 (Fla. 2006) (the
Florida Supreme Court opinion indicated that 2 grams of
sodium pentothal were to be used, while the new
procedures seems [sic] to indicate 5 grams will be used).
The new procedures include provision for a “cut-down”;
no mention of a “cut-down” appears in the old,
superseded protocol.
Petition for Rehearing at 8 n.4.
The State of Florida is adamant that there have
been no changes to its lethal injection protocol. We need not resolve this dispute.
We will assume for present purposes only that the changes Rutherford contends
were made on August 16, 2006 were made and that they are as he describes them.
Rutherford also argues that the Department of Corrections, which made the
alleged changes, and the lawyers representing the State throughout this proceeding
have hidden the fact that changes were made. Apparently, the purpose of this
argument is to absolve Rutherford and his attorneys of any blame for not bringing
the alleged change in procedures to the attention of this and other courts before
now.
We do not blame them in any way for the timing of this petition for
rehearing, but that is an entirely different thing from saying that it has merit.
4
The changes that Rutherford says were made hurt, instead of help, the case
that he brought in the district court and argued in this Court. Throughout these
proceedings he has made a number of arguments, but all of them turn on the
factual premise that the State of Florida uses too little sodium pentothal in carrying
out lethal injections.
That is what Rutherford claimed in his complaint.
Complaint at ¶16 (“because Florida’s practices are substantially similar to those of
the lethal-injection jurisdictions which conducted autopsies and toxicology
reports, which kept records of them, and which disclosed them to the Lancet
scholars, there is at least the same risk (43%) as in those jurisdictions that Mr.
Rutherford will not be anesthetized at the time of his death”); id. at Attach. A
(Declaration of Dr. David A. Lubarsky) at ¶ 16 (“Based on our research, the
[Lancet] article concludes that toxicology reports from the four lethal injection
jurisdictions which provided them showed that postmortem concentrations of
thiopental (sodium pentothal) in the blood of persons who had been executed were
lower than that required for surgery in 43 of 49 cases reported (88%), and 21
(43%) inmates had concentrations consistent with awareness.”); id. at Attach. B
(Leonidas G. Koniaris et al., Inadequate anaesthesia in lethal injection for
execution, 365 The Lancet 1412, 1412 (2005) (“The assumption that 2 g.
thiopental assures anaesthesia is overly simplistic, however.”)).
5
That is also how the district court interpreted Rutherford’s claim.
Rutherford I, 438 F.3d at 1102 (reproducing district court order) (describing “[t]he
factual basis of Petitioner’s claim [as being] that the doses of the anesthetic
sodium pentothal may be insufficient thus permitting those injected to experience
the feelings of being suffocated and having a heart attack, but unable to express
their pain by virtue of being paralyzed by pancuronium” (parentheses omitted)).
It
is how Rutherford characterized his claim to us. Appellant’s July 20, 2006 Supp.
Br. at 2 (describing his challenge as based on The Lancet article which he
summarized as evidence that executed inmates “had an inadequate amount of
sodium pentothal in their bloodstream to provide anesthesia.”). And it is how we
interpreted his claim. Rutherford II, 2006 WL 2830968, at *7 (describing The
Lancet article as the factual basis for Rutherford’s claim).
The alleged revisions in the drug protocols, as Rutherford
concedes,
apparently double the amount of sodium pentothal used. Petition for Rehearing at
8 n.4 (“the Florida Supreme Court opinion indicated that 2 grams of sodium
pentothal were to be used, while the new procedures seems [sic] to indicate 5
grams will be used”). That makes it less likely, not more likely, that the pain
Rutherford claimed might result from using too little of the drug will result.
There
is no basis in law or logic for precluding the State from addressing the problem
6
that Rutherford claimed its previous procedures had created. He has no vested
interest in any problem with the procedures.
Rutherford also argues that we ought to change our prior decision because
the attorneys for the State have misled the state and federal courts that have
considered his claim. The misrepresentations, he says, are that the method Florida
uses to execute by lethal injection had not been changed.
All of the
representations by Florida’s attorneys that Rutherford recites, however, were made
well before August 16, 2006, the date he says that the procedures were changed.
Even if the procedures were changed on that date, the statements before that date
that the procedures had not been changed were true when made. They were not
misrepresentations.
All that we have before us, and all that we decide, is whether rehearing
should be granted to modify our prior decision which affirmed the district court’s
dismissal on equitable grounds of Rutherford’s complaint, the gist of which was
that the amount of sodium pentothal used was inadequate to prevent unnecessary
pain and suffering. We conclude that rehearing should not be granted.
PETITION FOR REHEARING DENIED.
7
WILSON, Circuit Judge, concurring:
My consideration of Rutherford's claims are fully stated in my dissent to our
prior opinion affirming the denial of Rutherford's 28 U.S.C. § 1983 complaint.
Rutherford v. McDonough, No. 06-10783, 2006 U.S. App. LEXIS 24860 (11th
Cir. Oct. 5, 2006). I concur in the denial of Rutherford's petition for rehearing
because it fails to raise a matter that specifically affects the conclusion in the
opinion that Rutherford's complaint was dilatory.
Florida Supreme Court order denying relief - Arthur Rutherford
http://www.arthurrutherford.us/legal/Orderdenyingrelief.htm
Supreme Court of Florida
TUESDAY, OCTOBER 17, 2006
CASE NO.: SC06-2023
ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR.,
ETC., ET AL
___________________________________________________________________
Petitioner(s) Respondent(s)
Arthur Rutherford, who is under a pending death warrant, has filed a Petition
Seeking to Invoke this Court's All Writs Jurisdiction and a Motion for Stay of
Execution, which is scheduled for October 18, 2006. Rutherford's petition concerns
the Department of Corrections' denial of a public records request for current lethal
injection procedures, followed by the circuit court's denial of a motion to compel
production. The State has filed a response to which it has attached the Department's
procedures governing execution by lethal injection, effective August 16, 2006. We
permitted Rutherford to file a reply.
We deny relief. Our review of the current lethal injection procedures, attached
to the State's response, reveals nothing that would cause this Court to revisit our
previous conclusions "that procedures for administering the lethal injection as attested
do not violate the Eighth Amendment's prohibition on cruel and unusual punishment."
Rutherford v. State, 926 So. 2d 1100, 1113 (Fla. 2006) (quoting Hill v. State, 921 So.
2d 579, 583 (Fla. 2006), and Sims v. State, 753 So. 2d 657, 668 (Fla. 2000)).
CASE NO. SC6-2023
PAGE 2
Accordingly, Rutherford's petition and motion for a stay of execution are
hereby denied. No motion for rehearing will be allowed.
It is so ordered.
LEWIS, C.J., and WELLS, PARIENTE, QUINCE and CANTERO, JJ., concur.
ANSTEAD, J., concurs specially with an opinion.
BELL, J., recused.
A True Copy
Test:
kb
Served:
CAROLYN M. SNURKOWSKI
LINDA MCDERMOTT
MARTIN J. MCCLAIN
HON. JOHN ELLIS "JEB" BUSH, GOVERNOR
ROSA H. CARSON
CHARMAINE M. MILLSAPS
CASE NO. SC06-2023
PAGE 3
ANSTEAD, J., concurring specially.
I concur in the majority's denial of relief because I, too, am bound by the
rulings of this Court rejecting similar challenges to the State's procedures for execution
by lethal injection in Hill and Rutherford as cited by the majority.
I am troubled,
however, by the fact that the State has not at all times made its execution procedures
and protocols a matter of public record, and by the fact that since our initial decision
in Sims approving the use of lethal injection based substantially on theory, there has
been no public evidentiary hearing focused on the purpose and effectiveness of the
State's procedures, and on what actually takes place during the course of an execution
by lethal injection.
Now that this method of execution has been in place for a number
of years we would all benefit by such a hearing.
Supreme Court of Florida
TUESDAY, OCTOBER 17, 2006
CASE NO.: SC06-2023
ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR.,
ETC., ET AL
___________________________________________________________________
Petitioner(s) Respondent(s)
Arthur Rutherford, who is under a pending death warrant, has filed a Petition
Seeking to Invoke this Court's All Writs Jurisdiction and a Motion for Stay of
Execution, which is scheduled for October 18, 2006. Rutherford's petition concerns
the Department of Corrections' denial of a public records request for current lethal
injection procedures, followed by the circuit court's denial of a motion to compel
production. The State has filed a response to which it has attached the Department's
procedures governing execution by lethal injection, effective August 16, 2006. We
permitted Rutherford to file a reply.
We deny relief. Our review of the current lethal injection procedures, attached
to the State's response, reveals nothing that would cause this Court to revisit our
previous conclusions "that procedures for administering the lethal injection as attested
do not violate the Eighth Amendment's prohibition on cruel and unusual punishment."
Rutherford v. State, 926 So. 2d 1100, 1113 (Fla. 2006) (quoting Hill v. State, 921 So.
2d 579, 583 (Fla. 2006), and Sims v. State, 753 So. 2d 657, 668 (Fla. 2000)).
CASE NO. SC6-2023
PAGE 2
Accordingly, Rutherford's petition and motion for a stay of execution are
hereby denied. No motion for rehearing will be allowed.
It is so ordered.
LEWIS, C.J., and WELLS, PARIENTE, QUINCE and CANTERO, JJ., concur.
ANSTEAD, J., concurs specially with an opinion.
BELL, J., recused.
A True Copy
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CAROLYN M. SNURKOWSKI
LINDA MCDERMOTT
MARTIN J. MCCLAIN
HON. JOHN ELLIS "JEB" BUSH, GOVERNOR
ROSA H. CARSON
CHARMAINE M. MILLSAPS
CASE NO. SC06-2023
PAGE 3
ANSTEAD, J., concurring specially.
I concur in the majority's denial of relief because I, too, am bound by the
rulings of this Court rejecting similar challenges to the State's procedures for execution
by lethal injection in Hill and Rutherford as cited by the majority.
I am troubled,
however, by the fact that the State has not at all times made its execution procedures
and protocols a matter of public record, and by the fact that since our initial decision
in Sims approving the use of lethal injection based substantially on theory, there has
been no public evidentiary hearing focused on the purpose and effectiveness of the
State's procedures, and on what actually takes place during the course of an execution
by lethal injection.
Now that this method of execution has been in place for a number
of years we would all benefit by such a hearing.
REPLY TO RESPONSE TO PETITION FOR ALL WRITS - Arthur Rutherford
http://www.arthurrutherford.us/legal/Replyallwrit.htm
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
CHARLES J. CRIST, Attorney General of Florida,
JEB BUSH, Governor of Florida, JAMES R. MCDONOUGH,
Secretary, Florida Department of Corrections,
Respondent.
REPLY TO RESPONSE TO PETITION FOR ALL WRITS
LINDA McDERMOTT
Florida Bar No. 0102857
McClain & McDermott, P.A.
141 N.E. 30th Street
Wilton Manors, FL 33334
(850) 322-2172
MARTIN J. MCCLAIN
Florida Bar No. 0754773
McClain & McDermott
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
1
ARGUMENT IN REPLY
Respondents have had sixty (60) days to prepare for today -
to plan their defense for when their secret was exposed.1
Mr.
Rutherford’s counsel has had 3.5 hours to review the new lethal
injections procedures and present a response to the Respondents’
argument, while preparing pleadings for other courts in which
litigation is pending.
Though counsel’s time has been short,
though he has been denied the opportunity to consult with
experts, though he has been denied the access to other public
records regarding the promulgation of the new lethal injection
procedures, though he has been denied discovery and the
opportunity to depose those who promulgated the new lethal
injection procedures and ascertain the standard why, where, when,
who and how questions, there are certain glaring, obvious, and
substantial changes in the protocol.2
1In Jones v. Butterworth, 691 So. 2d 481 (Fla. 1997), this
Court exercised jurisdiction. In order to exercise jurisdiction,
this Court of necessity found it had jurisdiction - otherwise the
opinion and the resulting proceedings would be a nullity.
Respondents’ argument in this regard is not well taken.
2The new protocol requires the warden to “select two (2)
executioners who are fully capable of performing the designated
functions to carry out the execution.” The old protocol did not
provide the warden with this discretion. This change causes many
questions and concerns: What capabilities need an executioner
possess? Does a “capable” individual possess any medical
training?
The new protocol also requires the warden to administer a
presumptive drug test and alcohol test to the executioners. The
old protocol did not include this test. And, if one or both of
the executioners is disqualified, the warden “will continue to
select and test as many additional executioners as is necessary
2
The new protocol requires that a “designated member of the
execution team will purchase, and at all times ensure a
sufficient supply of, the chemicals to be used in the lethal
injection process. The designated team member will ensure that
the lethal injection chemicals have not reached or surpassed
their expiration dates. The lethal chemicals will be stored
securely at all times . . . ”. The old protocol did not provide
for maintenance or storage of the chemicals.3
The new protocol requires that after the physical
examination of the condemned, “[i]f the team member(s) reports an
issue that could potentially interfere with the proper
administration of the lethal injection process, the warden will
consult with any or all of the members of the execution team and
to ensure the presence of two qualified executioners”. The old
protocol did not provide the warden with this discretion.
The new protocol requires that “simulations of the execution
process” be performed on a quarterly basis. The old protocol did
not provide for any simulations.
The new protocol requires that the warden to ensure “that
all members of the execution team and other involved staff have
been adequately trained. . . ”. The old protocol did not provide
the warden with this discretion or responsibility. This change
causes many questions and concerns: What training is performed?
Are there guidelines for the training? What happens, i.e., is
disclosed or prepared if training procedures do not proceed as
planned?
The new protocol calls for the use of a checklist. The old
protocol did not provide for the use of checklist. Where is the
checklist from the execution of Clarence Hill?
3This change causes many questions and concerns: How will the
chemicals be stored so that they are secure? What qualifications
does the execution member have to determine whether the chemicals
have surpassed their expiration dates?
3
resolve the issue.” The old protocol did not provide for a
determination of issues that could interfere with the lethal
injection procedure and for a process to resolve those issues.4
The new protocol calls for two hours prior to the execution
to “prepare the lethal injection chemicals. The old protocol did
not provide for preparation of the chemicals.5 The new protocol
calls for “A designated member of the execution team” to “explain
the lethal injection procedure to the inmate and offer any
medical assistance or care deemed appropriate.
The old protocol
4This change causes many questions and concerns: What type of
issues could interfere with the proper administration of the
lethal injection process? Will the condemned and/or his attorney
be notified? What resolutions will be considered in regard to
the problems? Will the condemned and/or his attorney be
notified?
5This change causes many questions and concerns: Does it matter
that the chemicals are prepared two hours prior to the execution?
Who mixes the chemicals? What is his/her training?
4
did not provide for any medical assistance.6 The new protocol
calls for a central venous line to be placed with or without a
venous cut-down if peropheral venous access cannot be achieved.
The old protocol did not provide for a cut-down.7
6This change causes many questions and concerns: What type of
medical assistance is contemplated? Does this individual have
the required medical training and ability to administer the
medical care?
7This change causes many questions and concerns: Who will do
the cut-down? How will it be done? When will it be done?
5
The new protocol calls for the administration of 2 syringes,
each with 2.5 grams of sodium pentothal.
The old protocol
contained no discussion regarding the drugs or the amounts to be
administered.8 The new protocol calls for the administration of
100 mg of pancuronium bromide. The old protocol did not provide
for this amount of pancuronium bromide.9 Nor did the testimony
elicited in the Sims hearing.
The new protocol calls for the
administration of 2 syringes of potassium chloride, each of
120mEq. The old protocol did not provide for this amount of
potassium chloride. Nor did the testimony elicited in the Sims
hearing. Contrary to what the State has represented the amounts
of the three drug protocol have changed.10
Respondents protestation that the newly adopted lethal
injections procedure is really not new or different smacks of the
child with cookie crumbs around his mouth who indignantly asserts
that he did eat the cookies missing from the cookie jar. If it
is not a substantial revision, why was it not disclosed. If
8The drugs and their amounts was discussed in the testimony
during the Sims evidentiary hearing and this Court indicated its
understanding was the amount of sodium pentathol to be
administered was 2 grams. The change in the doseage causes many
questions and concerns: Is this enough sodium pentothal?
9This change causes many questions and concerns: Why use
pancuronium bromide at all?
10These are not the only changes from the old protocol to the
new protocol, but, due to the limited time in which file his
reply, Mr. Rutherford has done his best to demonstrate that there
are significant differences between the old and new protocols.
6
Respondents truly believed that it was the same old procedure,
why did they not hand out copies on August 16th to one and all.
The new lethal injection procedure is but the tip of the ice
berg, that which we see above the waterline. What we don’t yet
know is that which is still submerged - the real story, why, what
where, when how, and who. And because we do not know the rest of
the story, we don’t know what else
Respondents are withholding
that may demonstrate that there is or has been a problem with
Florida’s method of execution.
There are many unanswered
questions:
Why were the changes made?
What information was relied upon in making the changes?
Why was this informationhidden from Mr. Rutherford and his counsel?
CONCLUSION
Mr. Rutherford respectfully requests the relief stated in
his petition.
Respectfully submitted,
______________________
LINDA MCDERMOTT
Fla. Bar No. 0102857
_______________________
MARTIN J. MCCLAIN
Fla. Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
7
8
I HEREBY CERTIFY that a true copy of the foregoing Petition
Seeking to Invoke this Court’s All Writs Jurisdiction has been
furnished by United States Mail, first class postage prepaid, to
Carolyn Snurkowski, Deputy Attorney General, Office of the
Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-
1050; Charmaine Millsaps, Assistant Attorney General, Office of
the Attorney General, The Capitol, PL-01, Tallahassee, Florida
32399-1050, on October 17, 2006.
LINDA MCDERMOTT
Fla. Bar No. 0102857
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing petition has been
reproduced in a 12 point Courier type, a font which is not
proportionately spaced.
LINDA MCDERMOTT
Fla. Bar No. 0102857
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
CHARLES J. CRIST, Attorney General of Florida,
JEB BUSH, Governor of Florida, JAMES R. MCDONOUGH,
Secretary, Florida Department of Corrections,
Respondent.
REPLY TO RESPONSE TO PETITION FOR ALL WRITS
LINDA McDERMOTT
Florida Bar No. 0102857
McClain & McDermott, P.A.
141 N.E. 30th Street
Wilton Manors, FL 33334
(850) 322-2172
MARTIN J. MCCLAIN
Florida Bar No. 0754773
McClain & McDermott
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
1
ARGUMENT IN REPLY
Respondents have had sixty (60) days to prepare for today -
to plan their defense for when their secret was exposed.1
Mr.
Rutherford’s counsel has had 3.5 hours to review the new lethal
injections procedures and present a response to the Respondents’
argument, while preparing pleadings for other courts in which
litigation is pending.
Though counsel’s time has been short,
though he has been denied the opportunity to consult with
experts, though he has been denied the access to other public
records regarding the promulgation of the new lethal injection
procedures, though he has been denied discovery and the
opportunity to depose those who promulgated the new lethal
injection procedures and ascertain the standard why, where, when,
who and how questions, there are certain glaring, obvious, and
substantial changes in the protocol.2
1In Jones v. Butterworth, 691 So. 2d 481 (Fla. 1997), this
Court exercised jurisdiction. In order to exercise jurisdiction,
this Court of necessity found it had jurisdiction - otherwise the
opinion and the resulting proceedings would be a nullity.
Respondents’ argument in this regard is not well taken.
2The new protocol requires the warden to “select two (2)
executioners who are fully capable of performing the designated
functions to carry out the execution.” The old protocol did not
provide the warden with this discretion. This change causes many
questions and concerns: What capabilities need an executioner
possess? Does a “capable” individual possess any medical
training?
The new protocol also requires the warden to administer a
presumptive drug test and alcohol test to the executioners. The
old protocol did not include this test. And, if one or both of
the executioners is disqualified, the warden “will continue to
select and test as many additional executioners as is necessary
2
The new protocol requires that a “designated member of the
execution team will purchase, and at all times ensure a
sufficient supply of, the chemicals to be used in the lethal
injection process. The designated team member will ensure that
the lethal injection chemicals have not reached or surpassed
their expiration dates. The lethal chemicals will be stored
securely at all times . . . ”. The old protocol did not provide
for maintenance or storage of the chemicals.3
The new protocol requires that after the physical
examination of the condemned, “[i]f the team member(s) reports an
issue that could potentially interfere with the proper
administration of the lethal injection process, the warden will
consult with any or all of the members of the execution team and
to ensure the presence of two qualified executioners”. The old
protocol did not provide the warden with this discretion.
The new protocol requires that “simulations of the execution
process” be performed on a quarterly basis. The old protocol did
not provide for any simulations.
The new protocol requires that the warden to ensure “that
all members of the execution team and other involved staff have
been adequately trained. . . ”. The old protocol did not provide
the warden with this discretion or responsibility. This change
causes many questions and concerns: What training is performed?
Are there guidelines for the training? What happens, i.e., is
disclosed or prepared if training procedures do not proceed as
planned?
The new protocol calls for the use of a checklist. The old
protocol did not provide for the use of checklist. Where is the
checklist from the execution of Clarence Hill?
3This change causes many questions and concerns: How will the
chemicals be stored so that they are secure? What qualifications
does the execution member have to determine whether the chemicals
have surpassed their expiration dates?
3
resolve the issue.” The old protocol did not provide for a
determination of issues that could interfere with the lethal
injection procedure and for a process to resolve those issues.4
The new protocol calls for two hours prior to the execution
to “prepare the lethal injection chemicals. The old protocol did
not provide for preparation of the chemicals.5 The new protocol
calls for “A designated member of the execution team” to “explain
the lethal injection procedure to the inmate and offer any
medical assistance or care deemed appropriate.
The old protocol
4This change causes many questions and concerns: What type of
issues could interfere with the proper administration of the
lethal injection process? Will the condemned and/or his attorney
be notified? What resolutions will be considered in regard to
the problems? Will the condemned and/or his attorney be
notified?
5This change causes many questions and concerns: Does it matter
that the chemicals are prepared two hours prior to the execution?
Who mixes the chemicals? What is his/her training?
4
did not provide for any medical assistance.6 The new protocol
calls for a central venous line to be placed with or without a
venous cut-down if peropheral venous access cannot be achieved.
The old protocol did not provide for a cut-down.7
6This change causes many questions and concerns: What type of
medical assistance is contemplated? Does this individual have
the required medical training and ability to administer the
medical care?
7This change causes many questions and concerns: Who will do
the cut-down? How will it be done? When will it be done?
5
The new protocol calls for the administration of 2 syringes,
each with 2.5 grams of sodium pentothal.
The old protocol
contained no discussion regarding the drugs or the amounts to be
administered.8 The new protocol calls for the administration of
100 mg of pancuronium bromide. The old protocol did not provide
for this amount of pancuronium bromide.9 Nor did the testimony
elicited in the Sims hearing.
The new protocol calls for the
administration of 2 syringes of potassium chloride, each of
120mEq. The old protocol did not provide for this amount of
potassium chloride. Nor did the testimony elicited in the Sims
hearing. Contrary to what the State has represented the amounts
of the three drug protocol have changed.10
Respondents protestation that the newly adopted lethal
injections procedure is really not new or different smacks of the
child with cookie crumbs around his mouth who indignantly asserts
that he did eat the cookies missing from the cookie jar. If it
is not a substantial revision, why was it not disclosed. If
8The drugs and their amounts was discussed in the testimony
during the Sims evidentiary hearing and this Court indicated its
understanding was the amount of sodium pentathol to be
administered was 2 grams. The change in the doseage causes many
questions and concerns: Is this enough sodium pentothal?
9This change causes many questions and concerns: Why use
pancuronium bromide at all?
10These are not the only changes from the old protocol to the
new protocol, but, due to the limited time in which file his
reply, Mr. Rutherford has done his best to demonstrate that there
are significant differences between the old and new protocols.
6
Respondents truly believed that it was the same old procedure,
why did they not hand out copies on August 16th to one and all.
The new lethal injection procedure is but the tip of the ice
berg, that which we see above the waterline. What we don’t yet
know is that which is still submerged - the real story, why, what
where, when how, and who. And because we do not know the rest of
the story, we don’t know what else
Respondents are withholding
that may demonstrate that there is or has been a problem with
Florida’s method of execution.
There are many unanswered
questions:
Why were the changes made?
What information was relied upon in making the changes?
Why was this informationhidden from Mr. Rutherford and his counsel?
CONCLUSION
Mr. Rutherford respectfully requests the relief stated in
his petition.
Respectfully submitted,
______________________
LINDA MCDERMOTT
Fla. Bar No. 0102857
_______________________
MARTIN J. MCCLAIN
Fla. Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
7
8
I HEREBY CERTIFY that a true copy of the foregoing Petition
Seeking to Invoke this Court’s All Writs Jurisdiction has been
furnished by United States Mail, first class postage prepaid, to
Carolyn Snurkowski, Deputy Attorney General, Office of the
Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-
1050; Charmaine Millsaps, Assistant Attorney General, Office of
the Attorney General, The Capitol, PL-01, Tallahassee, Florida
32399-1050, on October 17, 2006.
LINDA MCDERMOTT
Fla. Bar No. 0102857
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing petition has been
reproduced in a 12 point Courier type, a font which is not
proportionately spaced.
LINDA MCDERMOTT
Fla. Bar No. 0102857
Appendix to State`s response - Arthur Rutherford
Appendix to State`s response to motions can be read here in PDF :
http://www.arthurrutherford.us/legal/Filed_10-17-2006_StateResponseAppendix.pdf
http://www.arthurrutherford.us/legal/Filed_10-17-2006_StateResponseAppendix.pdf
Florida Supreme Court order on motion to be heard
http://www.arthurrutherford.us/legal/Ordermotiontobeheard.htm
Supreme Court of Florida
TUESDAY, OCTOBER 17, 2006
CASE NO.: SC06-2023
ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR.,
ETC., ET AL
___________________________________________________________________
Petitioner(s) Respondent(s)
Petitioner's Motion for Opportunity to be Heard is granted and petitioner is
allowed to file by 4:30 p.m., on October 17, 2006, a reply not to exceed five pages in
length.
A True Copy
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Served:
CAROLYN M. SNURKOWSKI
LINDA MCDERMOTT
MARTIN J. MCCLAIN
CHARMAINE M. MILLSAPS
Supreme Court of Florida
TUESDAY, OCTOBER 17, 2006
CASE NO.: SC06-2023
ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR.,
ETC., ET AL
___________________________________________________________________
Petitioner(s) Respondent(s)
Petitioner's Motion for Opportunity to be Heard is granted and petitioner is
allowed to file by 4:30 p.m., on October 17, 2006, a reply not to exceed five pages in
length.
A True Copy
Test:
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Served:
CAROLYN M. SNURKOWSKI
LINDA MCDERMOTT
MARTIN J. MCCLAIN
CHARMAINE M. MILLSAPS
MOTION FOR OPPORTUNITY TO BE HEARD - Arthur Rutherford
http://www.arthurrutherford.us/legal/Motiontobeheard.htm
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
CHARLES J. CRIST, Attorney General of Florida,
JEB BUSH, Governor of Florida,
JAMES R. MCDONOUGH, Secretary, Florida Department of Corrections,
Respondents.
MOTION FOR OPPORTUNITY TO BE HEARD
COMES NOW, A.D. RUTHERFORD, Petitioner, by and through
undersigned counsel and moves this Court to allow him the
opportunity to be heard and as grounds therefore asserts:
1. Mr. Rutherford is presently scheduled to be executed on
October 18, 2006, at 6:00 p.m.
2. On October 17, 2006, Mr. Rutherford filed a Petition
Seeking to Invoke this Court’s All Writs Jurisdiction based on
Mr. Rutherford’s recently learning that on August 16, 2006, the
Department of Corrections promulgated a new lethal injection
protocol in order to establish new procedures for all subsequent
executions.
3. A few hours later, this Court entered an order
requiring Respondent’s to respond by 1:00 p.m., but precluding
Mr. Rutherford from filing a reply.
4. Shortly before 1:00 p.m., undersigned received the
1A cursory review of the two protocols makes clear that
there have been significant changes, contrary to the State’s
argument.
2
State’s response which attached the lethal injection protocol
which was adopted on August 16, 2006. Prior to today, the State
had refused to provide Mr. Rutherford with the new protocol,
despite his requests and despite pending litigation before the
various state, federal and the United States Supreme Court.
5. Mr. Rutherford respectfully requests that this Court
allow him the opportunity to be heard as to the State’s arguments
that this Court does not have subject matter jurisdiction to hear
his claim and that protocol enacted August 16, 2006, is not new.1
6. At its core, due process means that a party has an
opportunity to be heard. In light of the State’s disclosure this
morning, Mr. Rutherford must be allowed to be heard.
WHEREFORE, Petitioner, A.D. Rutherford, by and through
undersigned counsel, respectfully requests that this Court allow
Mr. Rutherford the opportunity to file a reply to the
Respondent’s arguments.
I HEREBY CERTIFY that a true and correct copy of the
foregoing motion has been furnished via electronic mail, to
Carolyn Snurkowski, Deputy Attorney General, Office of the
Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-
1050, and Charmaine Millsaps, Assistant Attorney General, Office
of the Attorney General, The Capitol, PL-01, Tallahassee, Florida
3
32399-1050, on this 17th day of October, 2006.
/s/ Linda McDermott
LINDA MCDERMOTT
Fla. Bar No. 0102857
/s/ Martin McClain
MARTIN J. MCCLAIN
Fla. Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
CHARLES J. CRIST, Attorney General of Florida,
JEB BUSH, Governor of Florida,
JAMES R. MCDONOUGH, Secretary, Florida Department of Corrections,
Respondents.
MOTION FOR OPPORTUNITY TO BE HEARD
COMES NOW, A.D. RUTHERFORD, Petitioner, by and through
undersigned counsel and moves this Court to allow him the
opportunity to be heard and as grounds therefore asserts:
1. Mr. Rutherford is presently scheduled to be executed on
October 18, 2006, at 6:00 p.m.
2. On October 17, 2006, Mr. Rutherford filed a Petition
Seeking to Invoke this Court’s All Writs Jurisdiction based on
Mr. Rutherford’s recently learning that on August 16, 2006, the
Department of Corrections promulgated a new lethal injection
protocol in order to establish new procedures for all subsequent
executions.
3. A few hours later, this Court entered an order
requiring Respondent’s to respond by 1:00 p.m., but precluding
Mr. Rutherford from filing a reply.
4. Shortly before 1:00 p.m., undersigned received the
1A cursory review of the two protocols makes clear that
there have been significant changes, contrary to the State’s
argument.
2
State’s response which attached the lethal injection protocol
which was adopted on August 16, 2006. Prior to today, the State
had refused to provide Mr. Rutherford with the new protocol,
despite his requests and despite pending litigation before the
various state, federal and the United States Supreme Court.
5. Mr. Rutherford respectfully requests that this Court
allow him the opportunity to be heard as to the State’s arguments
that this Court does not have subject matter jurisdiction to hear
his claim and that protocol enacted August 16, 2006, is not new.1
6. At its core, due process means that a party has an
opportunity to be heard. In light of the State’s disclosure this
morning, Mr. Rutherford must be allowed to be heard.
WHEREFORE, Petitioner, A.D. Rutherford, by and through
undersigned counsel, respectfully requests that this Court allow
Mr. Rutherford the opportunity to file a reply to the
Respondent’s arguments.
I HEREBY CERTIFY that a true and correct copy of the
foregoing motion has been furnished via electronic mail, to
Carolyn Snurkowski, Deputy Attorney General, Office of the
Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-
1050, and Charmaine Millsaps, Assistant Attorney General, Office
of the Attorney General, The Capitol, PL-01, Tallahassee, Florida
3
32399-1050, on this 17th day of October, 2006.
/s/ Linda McDermott
LINDA MCDERMOTT
Fla. Bar No. 0102857
/s/ Martin McClain
MARTIN J. MCCLAIN
Fla. Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
STATE RESPONSE TO PETITION FOR ALL WRITS - Arthur Rutherford
http://www.arthurrutherford.us/legal/Stateresponse.htm
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD, Petitioner
v.
JAMES R. McDONOUGH, Respondent.
RESPONSE TO PETITION FOR ALL WRITS
Rutherford filed a petition seeking to invoke this Court=s all writs jurisdiction and a
motion for stay of execution. Rutherford asserts that Aa new lethal injection procedure was
promulgated and adopted on August 16, 2006" and Respondents have Ahidden@ this fact.
This Court does not have subject matter jurisdiction over the petition. The Aall writs
necessary@ provision of Florida=s constitution, Article V, section 3(b)(7), provides:
May issue writs of prohibition to courts and all writs necessary to the
complete exercise of its jurisdiction.
In Stallworth v. Moore, 827 So.2d 974, 976-977 (Fla. 2002), this Court held that this Court's
Aall-writs@ jurisdiction does not authorize it to review a district court's per curiam denial of
relief issued without opinion or explanation. This Court discussed its Aall-writs@ jurisdiction.
Relying on St. Paul Title Insurance Corp. v. Davis, 392 So.2d 1304, 1304-1305 (Fla.
1980), this Court explained that the all writs provision of section 3(b)(7) does not confer
added appellate jurisdiction on this Court, and this Court's all writs power cannot be used
as an independent basis of jurisdiction.@ The Stallworth Court then dismissed the Aall writs@
2
petition.
This Court's all writs power cannot be used as an independent basis of jurisdiction
which is what Rutherford is seeking to do. The fact that this is a capital case does not
automatically confer subject matter jurisdiction in this Court. Trepal v. State, 754 So.2d 702
(Fla. 2000)(noting this Court does not have common law certiorari jurisdiction). The
petition should be dismissed for lack of appellate jurisdiction.
Rutherford=s reliance on Jones v. Butterworth, 691 So.2d 481 (Fla. 1997), is
misplaced. In Jones, a death row inmate brought a petition seeking to invoke Supreme
Court's all writs jurisdiction, challenging the electric chair as cruel and unusual punishment.
This Court relinquished jurisdiction over petition to trial court to conduct an evidentiary
hearing regarding the fact that flames had erupted on two occasions during use of chair.
However, this Court in Jones did not discuss its subject matter jurisdiction. While a petition
for all writs was used in Jones, there was holding and no discussion of the jurisdictional
issue.
The petition should be dismissed for lack of appellate jurisdiction.
Florida=s lethal injection protocols have not been changed.
Initially, to the extent
Rutherford asserts that the protocols for Florida=s lethal injection have changed, the
Department of Corrections (DOC) has not changed the protocols set forth in Sims v. State,
753 So.2d 66 (Fla. 2000), and Bryan v. State, 753 So.2d 1244, 1251-1253 (Fla. 2000)
(describing Florida=s lethal injection protocols literally syringe by syringe). Attached hereto
are the redacted January 28, 2000 Execution Day Procedures which are distributed to
witnesses during each execution, and the August 16, 2006, Execution by Lethal Injection
Procedures that provide a written overview of the entire process commencing from the
3
signing of a warrant through the post-execution procedures, which includes a checklist of
the process.
Included in both documents is the protocols of what transpires, to-wit: that lethal
chemicals will be administered to carry out a lawful execution. The description in the
Execution By Lethal Injection
Procedures provides that the same drug cocktail used and
described in the Sims decision will be used in every case. Sims, 753 So.2d at n17:
n17 The witnesses included: James Crosby, Warden of the Florida State
Prison; William Mathews, a physician's assistant with the DOC; and Michael
Moore, Secretary of the DOC. Collectively, they provided the execution-day
procedures.
On the morning of the execution, the inmate will receive a
physical examination, be given a Valium if necessary to calm anxiety, and
will receive his or her last meal. Next, the inmate will be taken to the
execution room where he will be strapped to a gurney and placed on a heart
monitor. The inmate will then be injected with two IV's containing saline
solution. He will then be escorted into the execution chamber where the
witnesses will be able to view the execution. While the inmate is being
prepared, a pharmacist will prepare the lethal substances. In all, a total of
eight syringes will be used, each of which will be injected in a consecutive
order into the IV tube attached to the inmate. The first two syringes will
contain "no less than" two grams of sodium pentothal, an ultra-short-acting
barbiturate which renders the inmate unconscious. The third syringe will
contain a saline solution to act as a flushing agent. The fourth and fifth
syringes will contain no less than fifty milligrams of pancuronium bromide,
which paralyzes the muscles. The sixth syringe will contain saline, again as a
flushing agent. Finally, the seventh and eighth syringes will contain no less
than one-hundred-fifty milliequivalents of potassium chloride, which stops the
heart from beating. Each syringe will be numbered to ensure that they are
injected into the IV tube in the proper order. A physician will stand behind the
executioner while the chemicals are being injected. The physician's
assistance will also observe the execution and will certify the inmate's death
upon completion of the execution. Moore testified that these procedures
were created with the purpose of "accomplishing our mission with humane
dignity [while] carrying out the court's sentence."
On the issue of dosage, a defense expert admitted that only one milligram
per kilogram of body weight is necessary to induce unconsciousness, and
that a barbiturate coma is induced at five milligrams per kilogram of body
4
weight. Thus, two grams of sodium pentothal (i.e., 2000 milligrams) is a
lethal dose and certain to cause rapid loss of consciousness (i.e., within 30
seconds of injection). The expert further stated that muscle paralysis occurs
at .1 milligram of pancuronium bromide per kilogram of body weight. Thus,
fifty milligrams of pancuronium bromide far exceeds the amount necessary to
achieve complete muscle paralysis. Finally, the expert admitted that 150 to
250 milliequivalents of potassium chloride would cause the heart to stop if
injected quickly into the inmate and that an IV push would qualify as
"quickly."
Second, there is nothing in the August 16, 2006, procedures which alters in any way
the drugs used or how the drugs will be administered to a defendant. Nor, contrary to
Rutherford=s bold assertion, has anything DOC said in the legal pleadings filed in this case
been false or a repeated misrepresentation.
Nor has either the parties or the Courts been misled. In fact, the protocols used to
carry out the lethal injection process is identical to that which has occurred in the last 17
executions. Since the reactivation of Rutherford=s death warrant on September 22, 2006,
collateral counsel, on October 12, 2006, requested public records from the Department of
Corrections (hereinafter DOC), pursuant to 3.852(i)(2), of the Acurrent lethal injection
protocol, including all revisions thereto, if any@. At no time during this period did Rutherford
specifically request any information regarding the Hill execution on September 20, 2006.
Any public records requests pursuant to Rule 3.852(i) which provides a procedure to
ensure that capital defendants had an opportunity to obtain Aneeded public records@ upon a
Aproper showing being made to the trial court@, is unavailing to Rutherford because he
5
failed to make the requisite showing that any additional public records request will generate
either relevant information to the subject matter of a postconviction proceeding or are
reasonably calculated to lead to the discovery of admissible evidence. Sims v. State, 753
So.2d 66, (Fla. 2000). Moreover as noted in Tompkins v. State, 872 So.2d 239, 244 (Fla.
2003), a defendant is not required to wait until the death warrant is signed to make an
additional public records request, provided he makes the required showing under rule
3.852(i).
In the instant case, Rutherford has again waited until days before his scheduled
execution to assert additional public records1 just like he did in January 2006, when he
made a similar, if not identical, attempt to circumvent R. 3.852(h)(3). Rutherford v. State,
926 So.2d 1100, 1115 (Fla. 2006).
1 On October 12, 2006, Rutherford=s attorney Ms. McDermott also sent a letter to
DOC requesting access ro records and information pursuant to Chapter 119 Fla. Stat.
seeking Acopies of all the current lethal injection protocols, including all revisions thereto, if
any.@ Additionally Ms. McDermott telephonically requested her Chapter 119 request on
October 13, 2006.
In response, DOC directed Ms. McDermott to Fla. Stat. 27.7081 and
Rule 3.852 which provide the sole basis for obtaining public records in capital litigation.
See: Judge O.H. Eaton, Jr., FEATURE: DISCOVERY OF PUBLIC RECORDS IN CAPITAL
CASES, 76 Fla. Bar J. 24, (April, 2002).
The appropriate rule, governing cases where a warrant has been signed, is rule
6
3.852 (h)(3). Indeed, Rutherford=s last public record request was untimely. The warrant
was reactivated on September 22, 2006, and according to the rule, counsel had 10 days or
until October 2, 2006 to request public records. The request is dated October 12, 2006
and was emailed to undersigned counsel on October 13, 2006. The request was too late.
Rutherford v. State, 926 So.2d at 1117 (concluding that ARutherford's requests are not
authorized under rule 3.852(h)(3), which is designed to allow an update of records
previously requested, because he has failed to demonstrate that he previously requested
records from these agencies concerning lethal injection in Florida@ and noting Athe records
sought from these agencies are not related to a colorable claim for postconviction relief
because the scientific evidence Rutherford relies on does not require this Court to
reconsider our holding that Florida's lethal injection procedure does not violate the Eighth
Amendment.@). Rutherford has made no such assertion here. Rutherford=s efforts here
are to secure a stay because he did not receive a checklist from Hill=s execution, which as
noted previously concerns matters which he never sought.
CONCLUSION
The State respectfully requests that this Honorable Court
deny the petition for all writs jurisdiction.
Respectfully submitted,
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
____________________________
CHARMAINE M. MILLSAPS
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0989134
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL
TALLAHASSEE, FL 32399-1050
(850) 414-3300
7
COUNSEL FOR RESPONDENT
8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
RESPONSE TO PETITION FOR ALL WRITS has been furnished by electronic mail Linda
McDermott, Esq. at lindammcdermott@msn.com with a follow up hard copy by U.S. mail to
Linda McDermott, 141 N.E. 30th Street, Wilton Manors, FL 32334 17th day of October,
2006.
_
_______________________________
Charmaine M. Millsaps
Attorney for the State of Florida
CERTIFICATE OF FONT AND TYPE SIZE
Counsel certifies that this brief was typed using Courier New 12.
________________________________
Charmaine M. Millsaps
Attorney for the State of Florida
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD, Petitioner
v.
JAMES R. McDONOUGH, Respondent.
RESPONSE TO PETITION FOR ALL WRITS
Rutherford filed a petition seeking to invoke this Court=s all writs jurisdiction and a
motion for stay of execution. Rutherford asserts that Aa new lethal injection procedure was
promulgated and adopted on August 16, 2006" and Respondents have Ahidden@ this fact.
This Court does not have subject matter jurisdiction over the petition. The Aall writs
necessary@ provision of Florida=s constitution, Article V, section 3(b)(7), provides:
May issue writs of prohibition to courts and all writs necessary to the
complete exercise of its jurisdiction.
In Stallworth v. Moore, 827 So.2d 974, 976-977 (Fla. 2002), this Court held that this Court's
Aall-writs@ jurisdiction does not authorize it to review a district court's per curiam denial of
relief issued without opinion or explanation. This Court discussed its Aall-writs@ jurisdiction.
Relying on St. Paul Title Insurance Corp. v. Davis, 392 So.2d 1304, 1304-1305 (Fla.
1980), this Court explained that the all writs provision of section 3(b)(7) does not confer
added appellate jurisdiction on this Court, and this Court's all writs power cannot be used
as an independent basis of jurisdiction.@ The Stallworth Court then dismissed the Aall writs@
2
petition.
This Court's all writs power cannot be used as an independent basis of jurisdiction
which is what Rutherford is seeking to do. The fact that this is a capital case does not
automatically confer subject matter jurisdiction in this Court. Trepal v. State, 754 So.2d 702
(Fla. 2000)(noting this Court does not have common law certiorari jurisdiction). The
petition should be dismissed for lack of appellate jurisdiction.
Rutherford=s reliance on Jones v. Butterworth, 691 So.2d 481 (Fla. 1997), is
misplaced. In Jones, a death row inmate brought a petition seeking to invoke Supreme
Court's all writs jurisdiction, challenging the electric chair as cruel and unusual punishment.
This Court relinquished jurisdiction over petition to trial court to conduct an evidentiary
hearing regarding the fact that flames had erupted on two occasions during use of chair.
However, this Court in Jones did not discuss its subject matter jurisdiction. While a petition
for all writs was used in Jones, there was holding and no discussion of the jurisdictional
issue.
The petition should be dismissed for lack of appellate jurisdiction.
Florida=s lethal injection protocols have not been changed.
Initially, to the extent
Rutherford asserts that the protocols for Florida=s lethal injection have changed, the
Department of Corrections (DOC) has not changed the protocols set forth in Sims v. State,
753 So.2d 66 (Fla. 2000), and Bryan v. State, 753 So.2d 1244, 1251-1253 (Fla. 2000)
(describing Florida=s lethal injection protocols literally syringe by syringe). Attached hereto
are the redacted January 28, 2000 Execution Day Procedures which are distributed to
witnesses during each execution, and the August 16, 2006, Execution by Lethal Injection
Procedures that provide a written overview of the entire process commencing from the
3
signing of a warrant through the post-execution procedures, which includes a checklist of
the process.
Included in both documents is the protocols of what transpires, to-wit: that lethal
chemicals will be administered to carry out a lawful execution. The description in the
Execution By Lethal Injection
Procedures provides that the same drug cocktail used and
described in the Sims decision will be used in every case. Sims, 753 So.2d at n17:
n17 The witnesses included: James Crosby, Warden of the Florida State
Prison; William Mathews, a physician's assistant with the DOC; and Michael
Moore, Secretary of the DOC. Collectively, they provided the execution-day
procedures.
On the morning of the execution, the inmate will receive a
physical examination, be given a Valium if necessary to calm anxiety, and
will receive his or her last meal. Next, the inmate will be taken to the
execution room where he will be strapped to a gurney and placed on a heart
monitor. The inmate will then be injected with two IV's containing saline
solution. He will then be escorted into the execution chamber where the
witnesses will be able to view the execution. While the inmate is being
prepared, a pharmacist will prepare the lethal substances. In all, a total of
eight syringes will be used, each of which will be injected in a consecutive
order into the IV tube attached to the inmate. The first two syringes will
contain "no less than" two grams of sodium pentothal, an ultra-short-acting
barbiturate which renders the inmate unconscious. The third syringe will
contain a saline solution to act as a flushing agent. The fourth and fifth
syringes will contain no less than fifty milligrams of pancuronium bromide,
which paralyzes the muscles. The sixth syringe will contain saline, again as a
flushing agent. Finally, the seventh and eighth syringes will contain no less
than one-hundred-fifty milliequivalents of potassium chloride, which stops the
heart from beating. Each syringe will be numbered to ensure that they are
injected into the IV tube in the proper order. A physician will stand behind the
executioner while the chemicals are being injected. The physician's
assistance will also observe the execution and will certify the inmate's death
upon completion of the execution. Moore testified that these procedures
were created with the purpose of "accomplishing our mission with humane
dignity [while] carrying out the court's sentence."
On the issue of dosage, a defense expert admitted that only one milligram
per kilogram of body weight is necessary to induce unconsciousness, and
that a barbiturate coma is induced at five milligrams per kilogram of body
4
weight. Thus, two grams of sodium pentothal (i.e., 2000 milligrams) is a
lethal dose and certain to cause rapid loss of consciousness (i.e., within 30
seconds of injection). The expert further stated that muscle paralysis occurs
at .1 milligram of pancuronium bromide per kilogram of body weight. Thus,
fifty milligrams of pancuronium bromide far exceeds the amount necessary to
achieve complete muscle paralysis. Finally, the expert admitted that 150 to
250 milliequivalents of potassium chloride would cause the heart to stop if
injected quickly into the inmate and that an IV push would qualify as
"quickly."
Second, there is nothing in the August 16, 2006, procedures which alters in any way
the drugs used or how the drugs will be administered to a defendant. Nor, contrary to
Rutherford=s bold assertion, has anything DOC said in the legal pleadings filed in this case
been false or a repeated misrepresentation.
Nor has either the parties or the Courts been misled. In fact, the protocols used to
carry out the lethal injection process is identical to that which has occurred in the last 17
executions. Since the reactivation of Rutherford=s death warrant on September 22, 2006,
collateral counsel, on October 12, 2006, requested public records from the Department of
Corrections (hereinafter DOC), pursuant to 3.852(i)(2), of the Acurrent lethal injection
protocol, including all revisions thereto, if any@. At no time during this period did Rutherford
specifically request any information regarding the Hill execution on September 20, 2006.
Any public records requests pursuant to Rule 3.852(i) which provides a procedure to
ensure that capital defendants had an opportunity to obtain Aneeded public records@ upon a
Aproper showing being made to the trial court@, is unavailing to Rutherford because he
5
failed to make the requisite showing that any additional public records request will generate
either relevant information to the subject matter of a postconviction proceeding or are
reasonably calculated to lead to the discovery of admissible evidence. Sims v. State, 753
So.2d 66, (Fla. 2000). Moreover as noted in Tompkins v. State, 872 So.2d 239, 244 (Fla.
2003), a defendant is not required to wait until the death warrant is signed to make an
additional public records request, provided he makes the required showing under rule
3.852(i).
In the instant case, Rutherford has again waited until days before his scheduled
execution to assert additional public records1 just like he did in January 2006, when he
made a similar, if not identical, attempt to circumvent R. 3.852(h)(3). Rutherford v. State,
926 So.2d 1100, 1115 (Fla. 2006).
1 On October 12, 2006, Rutherford=s attorney Ms. McDermott also sent a letter to
DOC requesting access ro records and information pursuant to Chapter 119 Fla. Stat.
seeking Acopies of all the current lethal injection protocols, including all revisions thereto, if
any.@ Additionally Ms. McDermott telephonically requested her Chapter 119 request on
October 13, 2006.
In response, DOC directed Ms. McDermott to Fla. Stat. 27.7081 and
Rule 3.852 which provide the sole basis for obtaining public records in capital litigation.
See: Judge O.H. Eaton, Jr., FEATURE: DISCOVERY OF PUBLIC RECORDS IN CAPITAL
CASES, 76 Fla. Bar J. 24, (April, 2002).
The appropriate rule, governing cases where a warrant has been signed, is rule
6
3.852 (h)(3). Indeed, Rutherford=s last public record request was untimely. The warrant
was reactivated on September 22, 2006, and according to the rule, counsel had 10 days or
until October 2, 2006 to request public records. The request is dated October 12, 2006
and was emailed to undersigned counsel on October 13, 2006. The request was too late.
Rutherford v. State, 926 So.2d at 1117 (concluding that ARutherford's requests are not
authorized under rule 3.852(h)(3), which is designed to allow an update of records
previously requested, because he has failed to demonstrate that he previously requested
records from these agencies concerning lethal injection in Florida@ and noting Athe records
sought from these agencies are not related to a colorable claim for postconviction relief
because the scientific evidence Rutherford relies on does not require this Court to
reconsider our holding that Florida's lethal injection procedure does not violate the Eighth
Amendment.@). Rutherford has made no such assertion here. Rutherford=s efforts here
are to secure a stay because he did not receive a checklist from Hill=s execution, which as
noted previously concerns matters which he never sought.
CONCLUSION
The State respectfully requests that this Honorable Court
deny the petition for all writs jurisdiction.
Respectfully submitted,
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
____________________________
CHARMAINE M. MILLSAPS
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0989134
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL
TALLAHASSEE, FL 32399-1050
(850) 414-3300
7
COUNSEL FOR RESPONDENT
8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
RESPONSE TO PETITION FOR ALL WRITS has been furnished by electronic mail Linda
McDermott, Esq. at lindammcdermott@msn.com with a follow up hard copy by U.S. mail to
Linda McDermott, 141 N.E. 30th Street, Wilton Manors, FL 32334 17th day of October,
2006.
_
_______________________________
Charmaine M. Millsaps
Attorney for the State of Florida
CERTIFICATE OF FONT AND TYPE SIZE
Counsel certifies that this brief was typed using Courier New 12.
________________________________
Charmaine M. Millsaps
Attorney for the State of Florida
Petition for all writ - Arthur Rutherford
http://www.arthurrutherford.us/legal/Petitionallwrits.htm
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
CHARLES J. CRIST, Attorney General of Florida,
JEB BUSH, Governor of Florida, JAMES R. MCDONOUGH,
Secretary, Florida Department of Corrections,
Respondent.
PETITION SEEKING TO INVOKE THIS COURT=S ALL WRITS JURISDICTION
LINDA McDERMOTT
Florida Bar No. 0102857
McClain & McDermott, P.A.
141 N.E. 30th Street
Wilton Manors, FL 33334
(850) 322-2172
MARTIN J. MCCLAIN
Florida Bar No. 0754773
McClain & McDermott
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
INTRODUCTION
The United States Supreme Court has held that a prosecutor is:
the representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done.
Berger v. United States, 295 U.S. 78, 88 (1935). Thus, there is a higher ethical
obligation upon a sovereignty and upon his legal representative - an obligation that
transcends merely winning. Here, this bedrock principle has been violated where
Respondents and their representatives have hidden the fact that a new lethal injection
procedure was promulgated and adopted on August 16, 2006, thereby superseding the
protocol this Court approved in Sims v. State, 754 So. 2d 657 (Fla. 2000), following an
evidentiary hearing at which witnesses were called to go through the protocol and
explain it.
The new, August 16th lethal injection procedures were adopted in secret, and
Mr. Rutherford and his counsel have been denied access to the new procedures, as
well as the reasons for the change and the process by which the new procedures were
created.
On August 16, 2006, the Department of Corrections promulgated a new lethal
injection protocol in order to establish new procedures for all subsequent executions.
On August 17, 2006, the Governor reinstated a death warrant against Clarence Hill.1 At
no time prior to his September 20, 2006, execution did the Respondents disclose to Mr.
Hill or his counsel that the lethal injection procedures adopted on January 28, 2000,
1The time of the reinstatement of Hill=s death warrant one day after new lethal
procedures were adopted speaks volumes.
2
and approved in Sims v. State, 754 So. 2d 657, 666-68 (Fla. 2000), had been
superseded and replaced by a new protocol, even though the State relied upon its
claim that the procedures approved in Sims had not been changed in seeking the
dismissal of the federal lawsuit.2
2Just as the timing of the reinstatement of death warrant speaks volumes, so to does
the decision not disclose the fact that new lethal injection procedures had been adopted
even though litigation was occurring in federal court regarding Athe Florida lethal
injection protocols@ that had been approved in Sims. Hill v. McDonough, ___ F.3d ___,
No. 06-14927, 2006 WL 2641659 at *2 (11th Cir. September 15, 2006). Certainly, one
would have expected Respondents to disclose to the federal courts the fact that the
procedures at issue in Sims had been superseded.
3
On September 22, 2006, the Governor reinstated a death warrant against Mr.
Rutherford, the Petitioner in the above-entitled matter. Mr. Rutherford=s execution was
scheduled for Wednesday, October 18, 2006.
At no time have the Respondents
disclosed to Mr. Rutherford or his undersigned counsel that the lethal injection
procedures adopted on January 28, 2000, have been superseded.3
In fact when Mr.
Rutherford=s counsel made a public records request for Acopies of the current lethal
injection protocol, including all revisions thereto, if any@, the Department of Corrections
refused to provide the current lethal injection procedures saying, A[y]ou are not
permitted to make a public records request on behalf of your client . . . . Therefore, the
Department will not provide the records pursuant to the submitted request.@4 See
3A death warrant has also been signed against Danny Rollings, scheduling his
execution for October 25, 2006.
From a review of the pleadings from his appeal
currently pending before this Court, it appears that Respondents did not provide Mr.
Rollings or his counsel with any records concerning the newly adopted lethal injection
procedures.
4The Department of Corrections relied upon previous public records requests to
justify not disclosing the new lethal injection procedure which did not exist at the time of
the previous public records requests. Surely, Rule 3.852 was not adopted as sword to
4
Attachments A and B.
be used by the Department of Corrections to hide new public records from legitimate
inquiry.
The fact that the Department has used it in the fashion in this case,
demonstrates bad faith. Particularly, given the fact Respondents had repeatedly made
representations to Mr. Rutherford, to Mr. Hill, and all the courts who have heard their
appeals during the past year that the protocol at issue in Sims had not been modified in
any way and accordingly the decision in Sims precluded any inquiry now.
At this time, the Respondents have not provided either Mr. Rutherford or his
undersigned counsel with the newly adopted lethal injection procedures or any
materials concerning the reason for their adoption, nor has the Lethal Injection
Procedures Checklist (now required to be completed in every execution) from Mr. Hill=s
execution been disclosed.
Since there has been absolutely no disclosure in this regard,
neither Mr. Rutherford nor his counsel have been provided any information regarding
why the previous protocol has been superseded. Mr. Rutherford has been deprived of
reasonable notice and an opportunity to be heard. Respondents= actions have
prevented Mr. Rutherford from having an opportunity to investigate, prepare and
present any constitutional challenge to the new procedures.
5
Not just Mr. Rutherford has been misled, so too the courts of this State and the
federal courts have been deceived.5
A stay of execution is warranted in order to permit,
Mr. Rutherford reasonable notice of the lethal injection procedures and an opportunity
to investigate, prepare and present any constitutional challenge he may have to the
new procedures.
To assist Mr. Rutherford in this regard, not only should a stay of
execution issue, but an order directing Respondents to provide all documents related to
the undisclosed August 16th lethal injection procedures, and directing that Mr.
Rutherford be able to depose witnesses in order to obtain full discovery. This Court
should not countenance Respondents= deception.
JURISDICTION
5AWhen police or prosecutors conceal significant exculpatory or impeaching material
in the State=s possession, it is ordinarily incumbent on the State to set the record
straight.@ Banks v. Dretke, 124 S. Ct. 1256, 1263 (2004). Thus, a rule Adeclaring
>prosecutor may hide, defendant must seek,= is not tenable in a system constitutionally
bound to accord defendants due process.@ Id. at 1275.
This Court=s all writs jurisdiction has been previously recognized as a proper
means of raising a challenge to a method of execution. Jones v. Butterworth, 691 So.
2d 481 (Fla. 1997). A petition to invoke this Court=s all writs jurisdiction is an original
proceeding in this Court governed by Fla. R. App. P. 9.100. This Court has original
jurisdiction under Fla. R. App. P. 9.030(a)(3) and Article V, ' 3(b)(9), Fla. Const.
REQUEST FOR ORAL ARGUMENT
6
Mr. Rutherford requests oral argument on this petition.
STATEMENT OF THE CASE AND FACTS
On September 1, 1985, Mr. Rutherford was indicted by a Santa Rosa County
grand jury for first degree murder and robbery. At his first trial, Mr. Rutherford was
convicted and received a death recommendation. On the basis of a discovery violation,
a mistrial was declared, and a new trial ordered. At the re-trial, Mr. Rutherford was
again convicted. The judge followed the jury=s 7 to 5 death recommendation.
Mr. Rutherford=s convictions and death sentence were affirmed on direct appeal
and throughout all state post-conviction proceedings, and federal habeas proceedings.
See Rutherford v. State, 545 So. 2d 853 (Fla. 1989), cert. denied, 110 S.Ct. 353 (1989);
Rutherford v. State, 727 So. 2d 216 (Fla. 1999); Rutherford v. Moore, 774 So. 2d 637
(Fla. 2000); Rutherford v. Crosby, 385 F. 3d 1300 (11th cir. 2004), cert. denied, 125
S.Ct. 1847 (2005); Rutherford v. State, Case No. SC03-243 (Fla. 2004), rehearing
denied July 23, 2004; Rutherford v. State, Case No. SC05-376 (Fla. 2005); Rutherford
v. Crosby, Case No. SC05-2139 (2006).
On November 29, 2005, Governor Jeb Bush signed a death warrant setting a
January 31, 2006, execution date. Thereafter, Mr. Rutherford again filed for state postconviction
relief.
In his motion, Mr. Rutherford challenged Florida=s procedures for
lethal injection under the Eighth Amendment.
At the Huff hearing held on December
28, 2005, counsel for the Department of Corrections stated:
MS. DEBELIUS: I have been authorized to state here as an Officer of the
Court that these procedures have not changed at the Florida Department of
Corrections. We had those procedures approved in the decision of Sims, and it
would -- and having those procedures approved we certainly would not want to
7
deviate and change from something that had been approved by the Florida
Supreme Court.
So I can give you my assertion as an Officer of the Court that the
procedures have not changed. Thank you.
(Emphasis added).
The Assistant Attorney General arguing on behalf of the State in
opposing an evidentiary hearing and in favor of a summary denial, asserted: AAnd as
Ms. Debelius has indicated nothing about the DOC protocol has changed from the
time of Sims.@ (Emphasis added).
After hearing these representation, the circuit court summarily denied.6 And this
Court affirmed on appeal, relying upon the decision in Sims v. State as approving the
written protocol adopted by the Department of Corrections and explained by DOC
personnel during an evidentiary hearing conducted in that case.
Rutherford v. State,
6In response to a discovery request made by Mr. Rutherford in January of 2006, the
Department of corrections responded: ASince there has been no change in any of the
procedures or protocols for the administration of lethal injection approved by the
Florida Supreme Court in Sims and Bryan and since the identities of the execution team
must remain confidential, there is no basis for granting Defendant=s requests.@ Jan. 6,
2006, DOC Response to Discovery Request (emphasis added).
8
926 So. 2d 1100, 1113 (Fla. 2006), cert. denied, 126 S.Ct. 1191.7
7In Sims v. State, 754 So. 2d at 668, this Court said: AFrom our review of the record,
we find that the DOC has established procedures to be followed in administering the
lethal injection and we rely on the accuracy of the testimony by the DOC personnel who
explained such procedures at the hearing below. Thus, we conclude that the
procedures for administering the lethal injection as attested do not violate the Eighth
Amendment's prohibition against cruel and unusual punishment.@ However, the
procedures at issue in Sims have now been superseded.
As Mr. Rutherford=s execution date neared, another Florida death row inmate,
Clarence Hill, faced execution. On January 20, 2006, four days before his scheduled
execution, Clarence Hill brought a federal action under 42 U.S.C. ' 1983 to enjoin the
State of Florida from executing him with the existing three-drug lethal injection
procedure. Hill brought his action despite binding precedent from the Eleventh Circuit
in Robinson v. Crosby, 358 F.3d 1281, 1284 (11th Cir. 2004), holding Athat the district
court correctly dismissed Robinson=s ' 1983 complaint for lack of jurisdiction@ as a
challenge to lethal injection because it is the A>functional equivalent= of a successive
habeas petition.@ After Mr. Hill=s ' 1983 complaint was dismissed on jurisdictional
grounds and the dismissal affirmed by the Eleventh Circuit on appeal, the United States
Supreme Court stayed Mr. Hill=s execution and granted certiorari review on January 25,
2006. Hill v. Crosby, 126 S.Ct. 1189 (2006)(mem.)
.
In light of the Supreme Court=s action in Hill, two days later, on January 27, 2006,
Mr. Rutherford filed a ' 1983 in the United States District Court for the Northern District
9
of Florida in which he challenged the manner in which the Florida intended to carry out
his execution as being in violation of his right to be free from cruel and unusual
punishment under the Eighth and Fourteenth Amendments to the United States
Constitution.
On January 28, 2006, the district court dismissed Mr. Rutherford=s complaint.@
Rutherford v. Crosby, 2006 U.S. Dist. LEXIS 3815, *9 (N.D. Fla. 2006). On January 29,
2006, Mr. Rutherford appealed to the Eleventh Circuit and asked that his execution be
stayed in pending the resolution of Hill v. Crosby by this Court. The next day, a divided
Eleventh Circuit denied Mr. Rutherford=s stay request, and affirmed the district court=s
dismissal of Mr. Rutherford=s complaint. Rutherford v. Crosby,438 F.3d 1087 (11th Cir.
2006).
On January 31, 2006, Mr. Rutherford filed a petition for certiorari review and an
application for stay in the United States Supreme Court. Thereupon, the Supreme
Court granted a stay pending the disposition of the petition for a writ of certiorari.
Rutherford v. Crosby, 126 S.Ct. 1191 (2006).
On June 12, 2006, the Supreme Court issued its decision in Hill v. McDonough,
126 S.Ct. 2096 (2006), reversing the Eleventh Circuit and concluding that the district
court did have jurisdiction to entertain the ' 1983 complaint. Thereafter, on June 19,
2006, the Supreme Court granted Mr. Rutherford=s petition, vacated the Eleventh
Circuit=s judgment in his case, and remanded the matter for further consideration in light
of the opinion in Hill v. McDonough. Rutherford v. McDonough, 126 S.Ct. 2915 (2006).
On June 30, 2006, the Eleventh Circuit assumed jurisdiction over the matter and
10
issued an order directing the parties to file letter briefs Adiscussing what this Court
should do in this appeal in light of the Supreme Court=s decision in Hill v. McDonough,
547 S.Ct. ___ (June 12, 2006).@ Rutherford v. McDonough, Case No. 06-10783-P (11th
Cir. June 30, 2006). Briefing by the parties was completed on August 29, 2006. At no
time in the course of the briefing did Respondents reveal that the protocol at issue in
Sims had been superseded on August 16, 2006.
On September 20, 2006, Mr. Hill was executed by the State of Florida. Two
days later, the Governor re-scheduled Mr. Rutherford=s execution date for October 18,
2006. On October 5, 2006, a divided Eleventh Circuit issued an order again affirming
on the district court=s dismissal of Mr. Rutherford=s complaint. Rutherford v.
McDonough, 126 S.Ct. 2915 (2006). At no time during the briefing or the pendency of
the proceeding in the Eleventh Circuit did Respondents disclose that the Sims protocol
was superseded by new lethal injection procedures adopted on
August 16, 2006.
Meanwhile on September 27, 2006, Mr. Rutherford filed a successive 3.850
motion in which he argued that Florida=s death penalty was unconstitutional under
Furman v. Georgia. On October 2, 2006, Mr. Rutherford also filed a Motion to Correct
an Illegal Sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), in which
he also argued that Florida=s death penalty was unconstitutional under Furman v.
Georgia.
On October 4, 2006, by written order, the lower court dismissed Mr. Rutherford=s
3.800(a) motion. On October 6, 2006, the lower court summarily denied Mr.
11
Rutherford=s successive Rule 3.850 motion and the amendment thereto. Mr.
Rutherford appealed to this Court.
On October 9, 2006, Mr. Rutherford also filed an
original petition in this Court seeking a writ of habeas corpus. In this petition, Mr.
Rutherford argued that Florida=s death penalty was unconstitutional under Furman v.
Georgia. This Court denied Mr. Rutherford=s appeal and his petition for habeas relief
on October 12, 2006. Rutherford v. State, 2006 Fla. LEXIS 2370 (October 12, 2006).
On October 13, 2006, Mr. Rutherford made a public records request on the Mr.
McDonough, the Secretary of the Department of Corrections.
Mr. Rutherford
specifically requested: Acopies of the current lethal injection protocol, including all
revisions thereto, if any.@ Attachment A. On October 13, 2006, Mr. Rutherford=s
counsel received a denial of his request stating, A[y]ou are not permitted to make a
public records request on behalf of your client . . . . Therefore, the Department will not
provide the records pursuant to the submitted request.@8 Attachment B.
Mr. Rutherford filed a motion in circuit court seeking an order directing the
production of the requested records. On October 16, 2006, the circuit court denied the
request.
8Certainly, the inescapable conclusion from the intentional withholding of the new
lethal injection procedures is that Respondents knew that Mr. Rutherford would have a
facially sufficient Eighth Amendment claim that would warrant an evidentiary hearing,
and by not disclosing the new procedure they sought to deny Mr. Rutherford the
opportunity to be heard.
12
CLAIMS FOR RELIEF
CLAIM I
MR. RUTHERFORD HAS BEEN DEPRIVED OF HIS DUE PROCESS
RIGHTS TO NOTICE AND OPPORTUNITY TO BE HEARD, AND TO
THE DISCLOSURE IN POST CONVICTION PROCEEDINGS OF
INFORMATION IN THE STATE=S POSSESSION THAT COULD BE
USED TO DEVELOP A CLAIM OF A DEPRIVATION OF A
CONSTITUTION RIGHT.
During the recent oral argument in the United States Supreme Court in Hill v.
McDonough certain representations were made by Carolyn Snurkowski, Deputy
Attorney General, regarding Florida=s lethal injection procedures:
[MS. SNURKOWSKI:]
But to - - address some of the issues that were currently brought before
the Court today with regard to the ability of the defendant to come forward and
discern what exactly was the method by which Florida was intending to execute
him, the record bears out that, in fact, the Sims case was in the public domain
and, in fact, is the method by which Florida does execute individuals.
There was - -
JUSTICE GINSBURG:
But there=s no statute and there=s no regulation that requires Florida to do
that.
MS. SNURKOWSKI:
The statute itself merely says that lethal injection is the method by which
Florida is to execute individuals.
The Department of Corrections, through rulemaking process internally,
provides protocols for the execution day and other protocols with regard to the
execution team performing its function on that given day and - - and hours
leading up to that. And that has not been changed not modified, nor has it
been challenged - -
JUSTICE GINSBURG:
But there is no statute, no regulation. That means the executive can do
what it will. There=s nothing that binds them to the way it was done in the Sims=
case.
MS. SNURKOWSKI:
13
That is correct, to the extent that there=s no statutory provision or
regulatory rule because, in fact, under Florida - - the Florida legislature has
exempted rulemaking of the Department of Corrections with regard to
executions.
JUSTICE GINSBERG:
And I suppose that=s - - that=s the complaint. If there were a procedure in
place, we could address it. If Florida reserves to itself the ability to change at
any time, well, that=s - - we want to be told what it will be in our particular
case so we have a target that we can aim at.
MS. SNURKOWSKI:
And I understand that, but the State would contend that there have 16
executions since the time that Sims has occurred and all those executions have
been performed exactly as the manner in which Sims has occurred, and that
there has not been any challenge to a deviance from that, and in fact, the Florida
Supreme Court has ratified again in this case, when Mr. Hill brought his Eighth
Amendment claim, that Sims was the method of execution in Florida, I
think we have a very reasoned determination that, in fact, the method of
execution, as it has been proposed in Sims, is currently the method of
execution that we utilize.
Hill v. McDonough, 126 S.Ct. 2096 (2006), Oral Argument transcript at 26-28 (emphasis
added).
Whether Ms. Snurkowski=s words were true when she spoke them in April of this
year, undersigned counsel does not know. However, undersigned counsel does know
now that the protocol at issue in Sims has in fact been superseded. As of August 16,
2006, new procedures went into effect.9
As a result, the representations made during
9Counsel=s understanding is that the new lethal injection procedures are
substantially different from those set forth in the protocol at issue in Sims. The new
procedures include a requirement that the execution team receive training, that
execution simulations be conducted on a regular basis, that a lethal injection checklist
be completed after each execution documenting what occurred (or did not occur), that
the amount of the drugs being used is no longer the amount this Court discussed most
recently in Hill v. State, 921 So. 2d 579, 583 n. 3 (Fla. 2006). The new procedures
authorize a Acut-down.@
14
the Hill oral argument are not true now. And Respondents withheld that fact from Mr.
Hill prior to his execution, and have refused to provide Mr. Rutherford with the new
lethal injection procedures, let alone any of public records regarding when, how, or why
the Sims protocol was superseded or what the process was in promulgating the new
procedure.
Mr. Rutherford, as well as the courts, has been affirmatively misled in his case.
At the Huff hearing held on December 28, 2005, counsel for the Department of
Corrections stated:
MS. DEBELIUS: I have been authorized to state here as an Officer of the Court
that these procedures have not changed at the Florida Department of
Corrections. We had those procedures approved in the decision of Sims, and it
would -- and having those procedures approved we certainly would not want to
deviate and change from something that had been approved by the Florida
Supreme Court.
So I can give you my assertion as an Officer of the Court that the
procedures have not changed. Thank you.
(Emphasis added). The Assistant Attorney General arguing on behalf of the State in
opposing an evidentiary hearing and in favor of a summary denial, asserted: AAnd as
Ms. Debelius has indicated nothing about the DOC protocol has changed from the
time of Sims.@ (Emphasis added). After hearing these representations, the circuit
court summarily denied.10
Despite the numerous and repeated representations made by representatives for
10In response to a discovery request made by Mr. Rutherford in January of 2006, the
Department of corrections responded: ASince there has been no change in any of the
procedures or protocols for the administration of lethal injection approved by the Florida
Supreme Court in Sims and Bryan and since the identities of the execution team must
remain confidential, there is no basis for granting Defendant=s requests.@ Jan. 6, 2006,
DOC Response to Discovery Request (emphasis added).
15
the Respondents Athat the procedures have not changed@, that Anothing about the DOC
protocol has changed from the time of Sims@, the procedures were changed in secret.
Without advising Mr. Rutherford or the courts, the Sims protocol was superseded on
August 16th when new lethal injection procedures were adopted.
Because Respondents have repeatedly advised Mr. Rutherford that Anothing
about the DOC protocol has changed from the time of Sims@ and because Respondents
have repeatedly argued to the courts hearing Mr. Rutherford=s case that Athe
procedures have not changed@, Mr. Rutherford has been deprived of his due process
rights - the right to notice and an opportunity to be heard, and the right to information
which may useful in establishing a constitutional deprivation.
First, this Court has held that the State and its representatives are under a
continuing obligation during post conviction proceedings to disclose favorable evidence
to the defendant. Johnson v. Butterworth, 713 So. 2d 985, 987 (Fla. 1998). Here, the
various attorneys representing the State had repeatedly argued that no changes had
been made to the protocol at issue in Sims.
This assertion was the lynchpin of the
State=s argument that any challenge to the protocol was foreclosed by this Court=s
decision in Sims. However, the assertion that there has been no change in the protocol
is false. The basis on which Mr. Rutherford=s claim was denied does not exist. And
Respondents have never corrected the repeated misrepresentation. However, A[w]hen
police or prosecutors conceal significant exculpatory or impeaching material in the
State=s possession, it is ordinarily incumbent on the State to set the record straight.@
Banks v. Dretke, 124 S. Ct. 1256, 1263 (2004).
Thus, a rule Adeclaring >prosecutor may
16
hide, defendant must seek,= is not tenable in a system constitutionally bound to accord
defendants due process.@ Id. at 1275. Yet, this is exactly what the State=s
representatives have done here.
Moreover, the false, or at least uncorrected, arguments have misled both Mr.
Rutherford and the courts. Because Respondents concealed the lethal injection
procedures adopted on August 16th, Mr. Rutherford has been denied the opportunity to
present these new procedures to the experts in order to investigate, prepare and
present Mr. Rutherford=s Eighth Amendment challenge to the new procedures. Roberts
v. State, 840 So. 2d 962, 971 (Fla. 2002)(due process violated where post conviction
defendant denied the opportunity to present relevant evidence); Ramirez v. State, 651
So. 2d 1164 (Fla. 1995)(reversing conviction because defendant=s due process rights
were violated when he was deprived the opportunity to rebut State=s scientific
evidence).
At a minimum, Mr. Rutherford is entitled to have the Department of Corrections
provide him with the August 16th lethal injection procedures. He is entitled to a copy of
the checklist from the Hill execution. He is entitled to all public records regarding the
process through which the new lethal procedure was adopted.
This would included the
records showing how and why the decision was made to establish the new lethal
injection procedure. This would include the records showing who developed the new
procedure and what information was considered. This would include the records
regarding decision or debates about what to include or not to include in the new lethal
injection procedures. This would include the records regarding who received copies of
the proposed lethal injection procedure and why it was determined that the new lethal
17
injection procedure would not be disclosed to the condemned or to the courts. Further,
given the circumstances created by the withholding of the new lethal injection
procedure, discovery depositions should be permitted.
This Court must grant a stay of execution in order to provide Mr. Rutherford that
which he was denied by Respondents, notice of the new lethal injection procedures and
a reasonable opportunity to investigate, prepare and present any Eighth Amendment
challenge he may have to the procedure.
The last minute nature of the request is due to the actions of Respondents in
hiding the pertinent information. This Court should not countenance Respondents=
deceit in this matter.
18
CONCLUSION
For all of the reasons discussed herein, Mr. Rutherford respectfully urges the
Court to exercise its all writs jurisdiction to grant a stay of execution and to order that
Respondents provide him with the new lethal injection procedures, all related public
records, and the opportunity to engage in discovery, so that Mr. Rutherford will have
notice and a reasonable opportunity to be heard, i.e. investigate, prepare and present
any Eighth Amendment claim he may have as a result of the new lethal injection
procedures.
Respectfully submitted,
______________________
LINDA MCDERMOTT
Fla. Bar No. 0102857
_______________________
MARTIN J. MCCLAIN
Fla. Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
19
I HEREBY CERTIFY that a true copy of the foregoing Petition Seeking to Invoke
this Court=s All Writs Jurisdiction has been furnished by United States Mail, first class
postage prepaid, to
Carolyn Snurkowski, Deputy Attorney General, Office of the Attorney General, The
Capitol, PL-01, Tallahassee, Florida 32399-1050; Charmaine Millsaps, Assistant
Attorney General, Office of the Attorney General, The Capitol, PL-01, Tallahassee,
Florida 32399-1050, on October 17, 2006.
LINDA MCDERMOTT
Fla. Bar No. 0102857
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing petition has been reproduced in a 12 point
Courier type, a font which is not proportionately spaced.
LINDA MCDERMOTT
Fla. Bar No. 0102857
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
CHARLES J. CRIST, Attorney General of Florida,
JEB BUSH, Governor of Florida, JAMES R. MCDONOUGH,
Secretary, Florida Department of Corrections,
Respondent.
PETITION SEEKING TO INVOKE THIS COURT=S ALL WRITS JURISDICTION
LINDA McDERMOTT
Florida Bar No. 0102857
McClain & McDermott, P.A.
141 N.E. 30th Street
Wilton Manors, FL 33334
(850) 322-2172
MARTIN J. MCCLAIN
Florida Bar No. 0754773
McClain & McDermott
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
INTRODUCTION
The United States Supreme Court has held that a prosecutor is:
the representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done.
Berger v. United States, 295 U.S. 78, 88 (1935). Thus, there is a higher ethical
obligation upon a sovereignty and upon his legal representative - an obligation that
transcends merely winning. Here, this bedrock principle has been violated where
Respondents and their representatives have hidden the fact that a new lethal injection
procedure was promulgated and adopted on August 16, 2006, thereby superseding the
protocol this Court approved in Sims v. State, 754 So. 2d 657 (Fla. 2000), following an
evidentiary hearing at which witnesses were called to go through the protocol and
explain it.
The new, August 16th lethal injection procedures were adopted in secret, and
Mr. Rutherford and his counsel have been denied access to the new procedures, as
well as the reasons for the change and the process by which the new procedures were
created.
On August 16, 2006, the Department of Corrections promulgated a new lethal
injection protocol in order to establish new procedures for all subsequent executions.
On August 17, 2006, the Governor reinstated a death warrant against Clarence Hill.1 At
no time prior to his September 20, 2006, execution did the Respondents disclose to Mr.
Hill or his counsel that the lethal injection procedures adopted on January 28, 2000,
1The time of the reinstatement of Hill=s death warrant one day after new lethal
procedures were adopted speaks volumes.
2
and approved in Sims v. State, 754 So. 2d 657, 666-68 (Fla. 2000), had been
superseded and replaced by a new protocol, even though the State relied upon its
claim that the procedures approved in Sims had not been changed in seeking the
dismissal of the federal lawsuit.2
2Just as the timing of the reinstatement of death warrant speaks volumes, so to does
the decision not disclose the fact that new lethal injection procedures had been adopted
even though litigation was occurring in federal court regarding Athe Florida lethal
injection protocols@ that had been approved in Sims. Hill v. McDonough, ___ F.3d ___,
No. 06-14927, 2006 WL 2641659 at *2 (11th Cir. September 15, 2006). Certainly, one
would have expected Respondents to disclose to the federal courts the fact that the
procedures at issue in Sims had been superseded.
3
On September 22, 2006, the Governor reinstated a death warrant against Mr.
Rutherford, the Petitioner in the above-entitled matter. Mr. Rutherford=s execution was
scheduled for Wednesday, October 18, 2006.
At no time have the Respondents
disclosed to Mr. Rutherford or his undersigned counsel that the lethal injection
procedures adopted on January 28, 2000, have been superseded.3
In fact when Mr.
Rutherford=s counsel made a public records request for Acopies of the current lethal
injection protocol, including all revisions thereto, if any@, the Department of Corrections
refused to provide the current lethal injection procedures saying, A[y]ou are not
permitted to make a public records request on behalf of your client . . . . Therefore, the
Department will not provide the records pursuant to the submitted request.@4 See
3A death warrant has also been signed against Danny Rollings, scheduling his
execution for October 25, 2006.
From a review of the pleadings from his appeal
currently pending before this Court, it appears that Respondents did not provide Mr.
Rollings or his counsel with any records concerning the newly adopted lethal injection
procedures.
4The Department of Corrections relied upon previous public records requests to
justify not disclosing the new lethal injection procedure which did not exist at the time of
the previous public records requests. Surely, Rule 3.852 was not adopted as sword to
4
Attachments A and B.
be used by the Department of Corrections to hide new public records from legitimate
inquiry.
The fact that the Department has used it in the fashion in this case,
demonstrates bad faith. Particularly, given the fact Respondents had repeatedly made
representations to Mr. Rutherford, to Mr. Hill, and all the courts who have heard their
appeals during the past year that the protocol at issue in Sims had not been modified in
any way and accordingly the decision in Sims precluded any inquiry now.
At this time, the Respondents have not provided either Mr. Rutherford or his
undersigned counsel with the newly adopted lethal injection procedures or any
materials concerning the reason for their adoption, nor has the Lethal Injection
Procedures Checklist (now required to be completed in every execution) from Mr. Hill=s
execution been disclosed.
Since there has been absolutely no disclosure in this regard,
neither Mr. Rutherford nor his counsel have been provided any information regarding
why the previous protocol has been superseded. Mr. Rutherford has been deprived of
reasonable notice and an opportunity to be heard. Respondents= actions have
prevented Mr. Rutherford from having an opportunity to investigate, prepare and
present any constitutional challenge to the new procedures.
5
Not just Mr. Rutherford has been misled, so too the courts of this State and the
federal courts have been deceived.5
A stay of execution is warranted in order to permit,
Mr. Rutherford reasonable notice of the lethal injection procedures and an opportunity
to investigate, prepare and present any constitutional challenge he may have to the
new procedures.
To assist Mr. Rutherford in this regard, not only should a stay of
execution issue, but an order directing Respondents to provide all documents related to
the undisclosed August 16th lethal injection procedures, and directing that Mr.
Rutherford be able to depose witnesses in order to obtain full discovery. This Court
should not countenance Respondents= deception.
JURISDICTION
5AWhen police or prosecutors conceal significant exculpatory or impeaching material
in the State=s possession, it is ordinarily incumbent on the State to set the record
straight.@ Banks v. Dretke, 124 S. Ct. 1256, 1263 (2004). Thus, a rule Adeclaring
>prosecutor may hide, defendant must seek,= is not tenable in a system constitutionally
bound to accord defendants due process.@ Id. at 1275.
This Court=s all writs jurisdiction has been previously recognized as a proper
means of raising a challenge to a method of execution. Jones v. Butterworth, 691 So.
2d 481 (Fla. 1997). A petition to invoke this Court=s all writs jurisdiction is an original
proceeding in this Court governed by Fla. R. App. P. 9.100. This Court has original
jurisdiction under Fla. R. App. P. 9.030(a)(3) and Article V, ' 3(b)(9), Fla. Const.
REQUEST FOR ORAL ARGUMENT
6
Mr. Rutherford requests oral argument on this petition.
STATEMENT OF THE CASE AND FACTS
On September 1, 1985, Mr. Rutherford was indicted by a Santa Rosa County
grand jury for first degree murder and robbery. At his first trial, Mr. Rutherford was
convicted and received a death recommendation. On the basis of a discovery violation,
a mistrial was declared, and a new trial ordered. At the re-trial, Mr. Rutherford was
again convicted. The judge followed the jury=s 7 to 5 death recommendation.
Mr. Rutherford=s convictions and death sentence were affirmed on direct appeal
and throughout all state post-conviction proceedings, and federal habeas proceedings.
See Rutherford v. State, 545 So. 2d 853 (Fla. 1989), cert. denied, 110 S.Ct. 353 (1989);
Rutherford v. State, 727 So. 2d 216 (Fla. 1999); Rutherford v. Moore, 774 So. 2d 637
(Fla. 2000); Rutherford v. Crosby, 385 F. 3d 1300 (11th cir. 2004), cert. denied, 125
S.Ct. 1847 (2005); Rutherford v. State, Case No. SC03-243 (Fla. 2004), rehearing
denied July 23, 2004; Rutherford v. State, Case No. SC05-376 (Fla. 2005); Rutherford
v. Crosby, Case No. SC05-2139 (2006).
On November 29, 2005, Governor Jeb Bush signed a death warrant setting a
January 31, 2006, execution date. Thereafter, Mr. Rutherford again filed for state postconviction
relief.
In his motion, Mr. Rutherford challenged Florida=s procedures for
lethal injection under the Eighth Amendment.
At the Huff hearing held on December
28, 2005, counsel for the Department of Corrections stated:
MS. DEBELIUS: I have been authorized to state here as an Officer of the
Court that these procedures have not changed at the Florida Department of
Corrections. We had those procedures approved in the decision of Sims, and it
would -- and having those procedures approved we certainly would not want to
7
deviate and change from something that had been approved by the Florida
Supreme Court.
So I can give you my assertion as an Officer of the Court that the
procedures have not changed. Thank you.
(Emphasis added).
The Assistant Attorney General arguing on behalf of the State in
opposing an evidentiary hearing and in favor of a summary denial, asserted: AAnd as
Ms. Debelius has indicated nothing about the DOC protocol has changed from the
time of Sims.@ (Emphasis added).
After hearing these representation, the circuit court summarily denied.6 And this
Court affirmed on appeal, relying upon the decision in Sims v. State as approving the
written protocol adopted by the Department of Corrections and explained by DOC
personnel during an evidentiary hearing conducted in that case.
Rutherford v. State,
6In response to a discovery request made by Mr. Rutherford in January of 2006, the
Department of corrections responded: ASince there has been no change in any of the
procedures or protocols for the administration of lethal injection approved by the
Florida Supreme Court in Sims and Bryan and since the identities of the execution team
must remain confidential, there is no basis for granting Defendant=s requests.@ Jan. 6,
2006, DOC Response to Discovery Request (emphasis added).
8
926 So. 2d 1100, 1113 (Fla. 2006), cert. denied, 126 S.Ct. 1191.7
7In Sims v. State, 754 So. 2d at 668, this Court said: AFrom our review of the record,
we find that the DOC has established procedures to be followed in administering the
lethal injection and we rely on the accuracy of the testimony by the DOC personnel who
explained such procedures at the hearing below. Thus, we conclude that the
procedures for administering the lethal injection as attested do not violate the Eighth
Amendment's prohibition against cruel and unusual punishment.@ However, the
procedures at issue in Sims have now been superseded.
As Mr. Rutherford=s execution date neared, another Florida death row inmate,
Clarence Hill, faced execution. On January 20, 2006, four days before his scheduled
execution, Clarence Hill brought a federal action under 42 U.S.C. ' 1983 to enjoin the
State of Florida from executing him with the existing three-drug lethal injection
procedure. Hill brought his action despite binding precedent from the Eleventh Circuit
in Robinson v. Crosby, 358 F.3d 1281, 1284 (11th Cir. 2004), holding Athat the district
court correctly dismissed Robinson=s ' 1983 complaint for lack of jurisdiction@ as a
challenge to lethal injection because it is the A>functional equivalent= of a successive
habeas petition.@ After Mr. Hill=s ' 1983 complaint was dismissed on jurisdictional
grounds and the dismissal affirmed by the Eleventh Circuit on appeal, the United States
Supreme Court stayed Mr. Hill=s execution and granted certiorari review on January 25,
2006. Hill v. Crosby, 126 S.Ct. 1189 (2006)(mem.)
.
In light of the Supreme Court=s action in Hill, two days later, on January 27, 2006,
Mr. Rutherford filed a ' 1983 in the United States District Court for the Northern District
9
of Florida in which he challenged the manner in which the Florida intended to carry out
his execution as being in violation of his right to be free from cruel and unusual
punishment under the Eighth and Fourteenth Amendments to the United States
Constitution.
On January 28, 2006, the district court dismissed Mr. Rutherford=s complaint.@
Rutherford v. Crosby, 2006 U.S. Dist. LEXIS 3815, *9 (N.D. Fla. 2006). On January 29,
2006, Mr. Rutherford appealed to the Eleventh Circuit and asked that his execution be
stayed in pending the resolution of Hill v. Crosby by this Court. The next day, a divided
Eleventh Circuit denied Mr. Rutherford=s stay request, and affirmed the district court=s
dismissal of Mr. Rutherford=s complaint. Rutherford v. Crosby,438 F.3d 1087 (11th Cir.
2006).
On January 31, 2006, Mr. Rutherford filed a petition for certiorari review and an
application for stay in the United States Supreme Court. Thereupon, the Supreme
Court granted a stay pending the disposition of the petition for a writ of certiorari.
Rutherford v. Crosby, 126 S.Ct. 1191 (2006).
On June 12, 2006, the Supreme Court issued its decision in Hill v. McDonough,
126 S.Ct. 2096 (2006), reversing the Eleventh Circuit and concluding that the district
court did have jurisdiction to entertain the ' 1983 complaint. Thereafter, on June 19,
2006, the Supreme Court granted Mr. Rutherford=s petition, vacated the Eleventh
Circuit=s judgment in his case, and remanded the matter for further consideration in light
of the opinion in Hill v. McDonough. Rutherford v. McDonough, 126 S.Ct. 2915 (2006).
On June 30, 2006, the Eleventh Circuit assumed jurisdiction over the matter and
10
issued an order directing the parties to file letter briefs Adiscussing what this Court
should do in this appeal in light of the Supreme Court=s decision in Hill v. McDonough,
547 S.Ct. ___ (June 12, 2006).@ Rutherford v. McDonough, Case No. 06-10783-P (11th
Cir. June 30, 2006). Briefing by the parties was completed on August 29, 2006. At no
time in the course of the briefing did Respondents reveal that the protocol at issue in
Sims had been superseded on August 16, 2006.
On September 20, 2006, Mr. Hill was executed by the State of Florida. Two
days later, the Governor re-scheduled Mr. Rutherford=s execution date for October 18,
2006. On October 5, 2006, a divided Eleventh Circuit issued an order again affirming
on the district court=s dismissal of Mr. Rutherford=s complaint. Rutherford v.
McDonough, 126 S.Ct. 2915 (2006). At no time during the briefing or the pendency of
the proceeding in the Eleventh Circuit did Respondents disclose that the Sims protocol
was superseded by new lethal injection procedures adopted on
August 16, 2006.
Meanwhile on September 27, 2006, Mr. Rutherford filed a successive 3.850
motion in which he argued that Florida=s death penalty was unconstitutional under
Furman v. Georgia. On October 2, 2006, Mr. Rutherford also filed a Motion to Correct
an Illegal Sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), in which
he also argued that Florida=s death penalty was unconstitutional under Furman v.
Georgia.
On October 4, 2006, by written order, the lower court dismissed Mr. Rutherford=s
3.800(a) motion. On October 6, 2006, the lower court summarily denied Mr.
11
Rutherford=s successive Rule 3.850 motion and the amendment thereto. Mr.
Rutherford appealed to this Court.
On October 9, 2006, Mr. Rutherford also filed an
original petition in this Court seeking a writ of habeas corpus. In this petition, Mr.
Rutherford argued that Florida=s death penalty was unconstitutional under Furman v.
Georgia. This Court denied Mr. Rutherford=s appeal and his petition for habeas relief
on October 12, 2006. Rutherford v. State, 2006 Fla. LEXIS 2370 (October 12, 2006).
On October 13, 2006, Mr. Rutherford made a public records request on the Mr.
McDonough, the Secretary of the Department of Corrections.
Mr. Rutherford
specifically requested: Acopies of the current lethal injection protocol, including all
revisions thereto, if any.@ Attachment A. On October 13, 2006, Mr. Rutherford=s
counsel received a denial of his request stating, A[y]ou are not permitted to make a
public records request on behalf of your client . . . . Therefore, the Department will not
provide the records pursuant to the submitted request.@8 Attachment B.
Mr. Rutherford filed a motion in circuit court seeking an order directing the
production of the requested records. On October 16, 2006, the circuit court denied the
request.
8Certainly, the inescapable conclusion from the intentional withholding of the new
lethal injection procedures is that Respondents knew that Mr. Rutherford would have a
facially sufficient Eighth Amendment claim that would warrant an evidentiary hearing,
and by not disclosing the new procedure they sought to deny Mr. Rutherford the
opportunity to be heard.
12
CLAIMS FOR RELIEF
CLAIM I
MR. RUTHERFORD HAS BEEN DEPRIVED OF HIS DUE PROCESS
RIGHTS TO NOTICE AND OPPORTUNITY TO BE HEARD, AND TO
THE DISCLOSURE IN POST CONVICTION PROCEEDINGS OF
INFORMATION IN THE STATE=S POSSESSION THAT COULD BE
USED TO DEVELOP A CLAIM OF A DEPRIVATION OF A
CONSTITUTION RIGHT.
During the recent oral argument in the United States Supreme Court in Hill v.
McDonough certain representations were made by Carolyn Snurkowski, Deputy
Attorney General, regarding Florida=s lethal injection procedures:
[MS. SNURKOWSKI:]
But to - - address some of the issues that were currently brought before
the Court today with regard to the ability of the defendant to come forward and
discern what exactly was the method by which Florida was intending to execute
him, the record bears out that, in fact, the Sims case was in the public domain
and, in fact, is the method by which Florida does execute individuals.
There was - -
JUSTICE GINSBURG:
But there=s no statute and there=s no regulation that requires Florida to do
that.
MS. SNURKOWSKI:
The statute itself merely says that lethal injection is the method by which
Florida is to execute individuals.
The Department of Corrections, through rulemaking process internally,
provides protocols for the execution day and other protocols with regard to the
execution team performing its function on that given day and - - and hours
leading up to that. And that has not been changed not modified, nor has it
been challenged - -
JUSTICE GINSBURG:
But there is no statute, no regulation. That means the executive can do
what it will. There=s nothing that binds them to the way it was done in the Sims=
case.
MS. SNURKOWSKI:
13
That is correct, to the extent that there=s no statutory provision or
regulatory rule because, in fact, under Florida - - the Florida legislature has
exempted rulemaking of the Department of Corrections with regard to
executions.
JUSTICE GINSBERG:
And I suppose that=s - - that=s the complaint. If there were a procedure in
place, we could address it. If Florida reserves to itself the ability to change at
any time, well, that=s - - we want to be told what it will be in our particular
case so we have a target that we can aim at.
MS. SNURKOWSKI:
And I understand that, but the State would contend that there have 16
executions since the time that Sims has occurred and all those executions have
been performed exactly as the manner in which Sims has occurred, and that
there has not been any challenge to a deviance from that, and in fact, the Florida
Supreme Court has ratified again in this case, when Mr. Hill brought his Eighth
Amendment claim, that Sims was the method of execution in Florida, I
think we have a very reasoned determination that, in fact, the method of
execution, as it has been proposed in Sims, is currently the method of
execution that we utilize.
Hill v. McDonough, 126 S.Ct. 2096 (2006), Oral Argument transcript at 26-28 (emphasis
added).
Whether Ms. Snurkowski=s words were true when she spoke them in April of this
year, undersigned counsel does not know. However, undersigned counsel does know
now that the protocol at issue in Sims has in fact been superseded. As of August 16,
2006, new procedures went into effect.9
As a result, the representations made during
9Counsel=s understanding is that the new lethal injection procedures are
substantially different from those set forth in the protocol at issue in Sims. The new
procedures include a requirement that the execution team receive training, that
execution simulations be conducted on a regular basis, that a lethal injection checklist
be completed after each execution documenting what occurred (or did not occur), that
the amount of the drugs being used is no longer the amount this Court discussed most
recently in Hill v. State, 921 So. 2d 579, 583 n. 3 (Fla. 2006). The new procedures
authorize a Acut-down.@
14
the Hill oral argument are not true now. And Respondents withheld that fact from Mr.
Hill prior to his execution, and have refused to provide Mr. Rutherford with the new
lethal injection procedures, let alone any of public records regarding when, how, or why
the Sims protocol was superseded or what the process was in promulgating the new
procedure.
Mr. Rutherford, as well as the courts, has been affirmatively misled in his case.
At the Huff hearing held on December 28, 2005, counsel for the Department of
Corrections stated:
MS. DEBELIUS: I have been authorized to state here as an Officer of the Court
that these procedures have not changed at the Florida Department of
Corrections. We had those procedures approved in the decision of Sims, and it
would -- and having those procedures approved we certainly would not want to
deviate and change from something that had been approved by the Florida
Supreme Court.
So I can give you my assertion as an Officer of the Court that the
procedures have not changed. Thank you.
(Emphasis added). The Assistant Attorney General arguing on behalf of the State in
opposing an evidentiary hearing and in favor of a summary denial, asserted: AAnd as
Ms. Debelius has indicated nothing about the DOC protocol has changed from the
time of Sims.@ (Emphasis added). After hearing these representations, the circuit
court summarily denied.10
Despite the numerous and repeated representations made by representatives for
10In response to a discovery request made by Mr. Rutherford in January of 2006, the
Department of corrections responded: ASince there has been no change in any of the
procedures or protocols for the administration of lethal injection approved by the Florida
Supreme Court in Sims and Bryan and since the identities of the execution team must
remain confidential, there is no basis for granting Defendant=s requests.@ Jan. 6, 2006,
DOC Response to Discovery Request (emphasis added).
15
the Respondents Athat the procedures have not changed@, that Anothing about the DOC
protocol has changed from the time of Sims@, the procedures were changed in secret.
Without advising Mr. Rutherford or the courts, the Sims protocol was superseded on
August 16th when new lethal injection procedures were adopted.
Because Respondents have repeatedly advised Mr. Rutherford that Anothing
about the DOC protocol has changed from the time of Sims@ and because Respondents
have repeatedly argued to the courts hearing Mr. Rutherford=s case that Athe
procedures have not changed@, Mr. Rutherford has been deprived of his due process
rights - the right to notice and an opportunity to be heard, and the right to information
which may useful in establishing a constitutional deprivation.
First, this Court has held that the State and its representatives are under a
continuing obligation during post conviction proceedings to disclose favorable evidence
to the defendant. Johnson v. Butterworth, 713 So. 2d 985, 987 (Fla. 1998). Here, the
various attorneys representing the State had repeatedly argued that no changes had
been made to the protocol at issue in Sims.
This assertion was the lynchpin of the
State=s argument that any challenge to the protocol was foreclosed by this Court=s
decision in Sims. However, the assertion that there has been no change in the protocol
is false. The basis on which Mr. Rutherford=s claim was denied does not exist. And
Respondents have never corrected the repeated misrepresentation. However, A[w]hen
police or prosecutors conceal significant exculpatory or impeaching material in the
State=s possession, it is ordinarily incumbent on the State to set the record straight.@
Banks v. Dretke, 124 S. Ct. 1256, 1263 (2004).
Thus, a rule Adeclaring >prosecutor may
16
hide, defendant must seek,= is not tenable in a system constitutionally bound to accord
defendants due process.@ Id. at 1275. Yet, this is exactly what the State=s
representatives have done here.
Moreover, the false, or at least uncorrected, arguments have misled both Mr.
Rutherford and the courts. Because Respondents concealed the lethal injection
procedures adopted on August 16th, Mr. Rutherford has been denied the opportunity to
present these new procedures to the experts in order to investigate, prepare and
present Mr. Rutherford=s Eighth Amendment challenge to the new procedures. Roberts
v. State, 840 So. 2d 962, 971 (Fla. 2002)(due process violated where post conviction
defendant denied the opportunity to present relevant evidence); Ramirez v. State, 651
So. 2d 1164 (Fla. 1995)(reversing conviction because defendant=s due process rights
were violated when he was deprived the opportunity to rebut State=s scientific
evidence).
At a minimum, Mr. Rutherford is entitled to have the Department of Corrections
provide him with the August 16th lethal injection procedures. He is entitled to a copy of
the checklist from the Hill execution. He is entitled to all public records regarding the
process through which the new lethal procedure was adopted.
This would included the
records showing how and why the decision was made to establish the new lethal
injection procedure. This would include the records showing who developed the new
procedure and what information was considered. This would include the records
regarding decision or debates about what to include or not to include in the new lethal
injection procedures. This would include the records regarding who received copies of
the proposed lethal injection procedure and why it was determined that the new lethal
17
injection procedure would not be disclosed to the condemned or to the courts. Further,
given the circumstances created by the withholding of the new lethal injection
procedure, discovery depositions should be permitted.
This Court must grant a stay of execution in order to provide Mr. Rutherford that
which he was denied by Respondents, notice of the new lethal injection procedures and
a reasonable opportunity to investigate, prepare and present any Eighth Amendment
challenge he may have to the procedure.
The last minute nature of the request is due to the actions of Respondents in
hiding the pertinent information. This Court should not countenance Respondents=
deceit in this matter.
18
CONCLUSION
For all of the reasons discussed herein, Mr. Rutherford respectfully urges the
Court to exercise its all writs jurisdiction to grant a stay of execution and to order that
Respondents provide him with the new lethal injection procedures, all related public
records, and the opportunity to engage in discovery, so that Mr. Rutherford will have
notice and a reasonable opportunity to be heard, i.e. investigate, prepare and present
any Eighth Amendment claim he may have as a result of the new lethal injection
procedures.
Respectfully submitted,
______________________
LINDA MCDERMOTT
Fla. Bar No. 0102857
_______________________
MARTIN J. MCCLAIN
Fla. Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
19
I HEREBY CERTIFY that a true copy of the foregoing Petition Seeking to Invoke
this Court=s All Writs Jurisdiction has been furnished by United States Mail, first class
postage prepaid, to
Carolyn Snurkowski, Deputy Attorney General, Office of the Attorney General, The
Capitol, PL-01, Tallahassee, Florida 32399-1050; Charmaine Millsaps, Assistant
Attorney General, Office of the Attorney General, The Capitol, PL-01, Tallahassee,
Florida 32399-1050, on October 17, 2006.
LINDA MCDERMOTT
Fla. Bar No. 0102857
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing petition has been reproduced in a 12 point
Courier type, a font which is not proportionately spaced.
LINDA MCDERMOTT
Fla. Bar No. 0102857
State response to stay motion - Arthur Rutherford
http://www.arthurrutherford.us/legal/Stateresponsetostay.htm
IN THE FLORIDA SUPREME COURT
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD, Petitioner
v.
JAMES R. McDONOUGH, Respondent.
RESPONSE TO MOTION TO STAY
Rutherford filed a motion to stay his execution based on
alleged changes in Florida’s lethal injection procedures.
Florida’s lethal injection protocols have not been changed.
The
syringe by syringe description of the lethal injection
procedures in Bryan is still the protocol. Bryan v. State, 753
So.2d 1244, 1251-1253 (Fla. 2000)(describing Florida’s lethal
injection protocols literally syringe by syringe). Adding a
checklist is not changing the protocols.
Rutherford quotes from
the prior warrant litigation hearing on the public records
requests, where both the attorney for DOC and undersigned
counsel stated that the protocols have not changed from the
time of Sims, which was true at the time and is still true. The
amounts, order and type of drugs have remained the same since
2000.
This Court can simply compare the description of the
lethal injection procedures in Bryan with the attached
“Execution by lethal injection procedures”, to establish for
itself that there have been no substantive changes to Florida’s
lethal injection protocols. See Appendix B (“Execution by lethal
injection procedures”, effective for executions after August 16,
2006)(parts 10(b)(1)-10(b)(4))(pages 3-4).
Yes, a checklist has
been added and the current written procedures contain a more
detailed description of the surrounding procedures but the drug
protocols have not changed. The motion for stay should be
denied.
Cf. In re Hill, 437 F.3d 1080, 1083 (11th Cir. 2006)(concluded
that the Court lacked jurisdiction to entertain the application
for a stay of execution under the All Writs Act, § 1651(a),
because that act is limited to entering such orders as are
necessary to aid it in the exercise of already existing subject
matter jurisdiction but where no jurisdiction exists, there is
no all writ power to enter a stay).
3
CONCLUSION
The State respectfully requests that this Honorable Court
deny the motion for stay of execution.
Respectfully submitted,
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
____________________________
CHARMAINE M. MILLSAPS
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0989134
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL
TALLAHASSEE, FL 32399-1050
(850) 414-3300
COUNSEL FOR RESPONDENT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
RESPONSE TO MOTION FOR STAY has been furnished by electronic mail
Linda McDermott, Esq. at lindammcdermott@msn.com with a follow up
hard copy by U.S. mail to Linda McDermott, 141 N.E. 30th Street,
Wilton Manors, FL 32334 17th day of October, 2006.
________________________________
Charmaine M. Millsaps
Attorney for the State of Florida
CERTIFICATE OF FONT AND TYPE SIZE
Counsel certifies that this brief was typed using Courier
New 12.
________________________________
4
Charmaine M. Millsaps
Attorney for the State of Florida
IN THE FLORIDA SUPREME COURT
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD, Petitioner
v.
JAMES R. McDONOUGH, Respondent.
RESPONSE TO MOTION TO STAY
Rutherford filed a motion to stay his execution based on
alleged changes in Florida’s lethal injection procedures.
Florida’s lethal injection protocols have not been changed.
The
syringe by syringe description of the lethal injection
procedures in Bryan is still the protocol. Bryan v. State, 753
So.2d 1244, 1251-1253 (Fla. 2000)(describing Florida’s lethal
injection protocols literally syringe by syringe). Adding a
checklist is not changing the protocols.
Rutherford quotes from
the prior warrant litigation hearing on the public records
requests, where both the attorney for DOC and undersigned
counsel stated that the protocols have not changed from the
time of Sims, which was true at the time and is still true. The
amounts, order and type of drugs have remained the same since
2000.
This Court can simply compare the description of the
lethal injection procedures in Bryan with the attached
“Execution by lethal injection procedures”, to establish for
itself that there have been no substantive changes to Florida’s
lethal injection protocols. See Appendix B (“Execution by lethal
injection procedures”, effective for executions after August 16,
2006)(parts 10(b)(1)-10(b)(4))(pages 3-4).
Yes, a checklist has
been added and the current written procedures contain a more
detailed description of the surrounding procedures but the drug
protocols have not changed. The motion for stay should be
denied.
Cf. In re Hill, 437 F.3d 1080, 1083 (11th Cir. 2006)(concluded
that the Court lacked jurisdiction to entertain the application
for a stay of execution under the All Writs Act, § 1651(a),
because that act is limited to entering such orders as are
necessary to aid it in the exercise of already existing subject
matter jurisdiction but where no jurisdiction exists, there is
no all writ power to enter a stay).
3
CONCLUSION
The State respectfully requests that this Honorable Court
deny the motion for stay of execution.
Respectfully submitted,
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
____________________________
CHARMAINE M. MILLSAPS
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0989134
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL
TALLAHASSEE, FL 32399-1050
(850) 414-3300
COUNSEL FOR RESPONDENT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
RESPONSE TO MOTION FOR STAY has been furnished by electronic mail
Linda McDermott, Esq. at lindammcdermott@msn.com with a follow up
hard copy by U.S. mail to Linda McDermott, 141 N.E. 30th Street,
Wilton Manors, FL 32334 17th day of October, 2006.
________________________________
Charmaine M. Millsaps
Attorney for the State of Florida
CERTIFICATE OF FONT AND TYPE SIZE
Counsel certifies that this brief was typed using Courier
New 12.
________________________________
4
Charmaine M. Millsaps
Attorney for the State of Florida
FSC orders State to respond to stay application
http://www.arthurrutherford.us/legal/Orderresponse.htm
Supreme Court of Florida
TUESDAY, OCTOBER 17, 2006
CASE NO.: SC06-2023
ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR.,
ETC., ET AL
___________________________________________________________________
Petitioner(s) Respondent(s)
Petitioner has filed a petition seeking to invoke this court's all writs jurisdiction
and motion for stay of execution.
Respondent shall file a response by 1:00 p.m.,
October 17, 2006, to the above-referenced petition and motion including whether this
Court has subject matter jurisdiction over the petition and whether the lethal injection
procedures have in fact been changed.
No reply will be entertained by this Court.
A True Copy
Test:
kb
Served:
CAROLYN M. SNURKOWSKI
LINDA MCDERMOTT
MARTIN J. MCCLAIN
CHARMAINE M. MILLSAPS
Supreme Court of Florida
TUESDAY, OCTOBER 17, 2006
CASE NO.: SC06-2023
ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR.,
ETC., ET AL
___________________________________________________________________
Petitioner(s) Respondent(s)
Petitioner has filed a petition seeking to invoke this court's all writs jurisdiction
and motion for stay of execution.
Respondent shall file a response by 1:00 p.m.,
October 17, 2006, to the above-referenced petition and motion including whether this
Court has subject matter jurisdiction over the petition and whether the lethal injection
procedures have in fact been changed.
No reply will be entertained by this Court.
A True Copy
Test:
kb
Served:
CAROLYN M. SNURKOWSKI
LINDA MCDERMOTT
MARTIN J. MCCLAIN
CHARMAINE M. MILLSAPS
Motion to stay execution - Arthur Rutherford
http://www.arthurrutherford.us/legal/Motiontostayexecution.htm
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
CHARLES J. CRIST, Attorney General of Florida,
JEB BUSH, Governor of Florida,
JAMES R. MCDONOUGH, Secretary, Florida Department of Corrections,
Respondents.
/
MOTION FOR STAY OF EXECUTION
COMES NOW, A.D. RUTHERFORD, Petitioner, by and through undersigned
counsel and moves this Court to issue a stay of execution and as grounds therefore
asserts:
1. Mr. Rutherford is presently scheduled to be executed on October 18,
2006, at 6:00 p.m.
2. Simultaneously with this motion, Mr. Rutherford has filed a Petition
Seeking to Invoke this Court=s All Writs Jurisdiction based on Mr. Rutherford=s recently
learning that on August 16, 2006, the Department of Corrections promulgated a new
lethal injection protocol in order to establish new procedures for all subsequent
executions.
3. This Court has granted stay of executions when situations have warranted
it. See King v. Moore, 824 So. 2d 127 (Fla. 2002); Bottoson v. Moore, 824 So. 2d 115
(Fla. 2002); Provenzano v. State, 750 So. 2d 597, 603 (Fla. 1999); Roberts v. State,
2
678 So. 2d 1232, 1236 (Fla. 1996); Spaziano v. State, 660 So. 2d 1363, 1370 (Fla.
1995).
4. The last minute nature of the request is due to the actions of
Respondents, not Mr. Rutherford.
WHEREFORE, Petitioner, A.D. Rutherford, by and through undersigned counsel,
respectfully requests that this Court enter a stay of execution.
I HEREBY CERTIFY that a true and correct copy of the foregoing motion has
been furnished by hand delivery, to Carolyn Snurkowski, Deputy Attorney General,
Office of the Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-1050,
and Charmaine Millsaps, Assistant Attorney General, Office of the Attorney General,
The Capitol, PL-01, Tallahassee, Florida 32399-1050, on this 17th day of October,
2006.
______________________
LINDA MCDERMOTT
Fla. Bar No. 0102857
_______________________
MARTIN J. MCCLAIN
Fla. Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC06-2023
ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
CHARLES J. CRIST, Attorney General of Florida,
JEB BUSH, Governor of Florida,
JAMES R. MCDONOUGH, Secretary, Florida Department of Corrections,
Respondents.
/
MOTION FOR STAY OF EXECUTION
COMES NOW, A.D. RUTHERFORD, Petitioner, by and through undersigned
counsel and moves this Court to issue a stay of execution and as grounds therefore
asserts:
1. Mr. Rutherford is presently scheduled to be executed on October 18,
2006, at 6:00 p.m.
2. Simultaneously with this motion, Mr. Rutherford has filed a Petition
Seeking to Invoke this Court=s All Writs Jurisdiction based on Mr. Rutherford=s recently
learning that on August 16, 2006, the Department of Corrections promulgated a new
lethal injection protocol in order to establish new procedures for all subsequent
executions.
3. This Court has granted stay of executions when situations have warranted
it. See King v. Moore, 824 So. 2d 127 (Fla. 2002); Bottoson v. Moore, 824 So. 2d 115
(Fla. 2002); Provenzano v. State, 750 So. 2d 597, 603 (Fla. 1999); Roberts v. State,
2
678 So. 2d 1232, 1236 (Fla. 1996); Spaziano v. State, 660 So. 2d 1363, 1370 (Fla.
1995).
4. The last minute nature of the request is due to the actions of
Respondents, not Mr. Rutherford.
WHEREFORE, Petitioner, A.D. Rutherford, by and through undersigned counsel,
respectfully requests that this Court enter a stay of execution.
I HEREBY CERTIFY that a true and correct copy of the foregoing motion has
been furnished by hand delivery, to Carolyn Snurkowski, Deputy Attorney General,
Office of the Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-1050,
and Charmaine Millsaps, Assistant Attorney General, Office of the Attorney General,
The Capitol, PL-01, Tallahassee, Florida 32399-1050, on this 17th day of October,
2006.
______________________
LINDA MCDERMOTT
Fla. Bar No. 0102857
_______________________
MARTIN J. MCCLAIN
Fla. Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford
Court rejects challenge to death penalty
By NATHAN CRABBE
Sun staff writer
The Florida Supreme Court on Tuesday rejected claims that newly released information on the death penalty should delay an execution scheduled for today.
Now attorneys for condemned killer Arthur Rutherford will turn to the federal courts in a last-ditch effort to stop the execution.
The case could provide an indication whether Gainesville serial killer Danny Rolling's execution goes forward as planned next week.
Rutherford is scheduled to be executed at 6 p.m. today at Florida State Prison in Raiford. His attorney, Linda McDermott, said a document released this week reveals the state made secret changes to the lethal injection process.
"At a minimum, we need to have the opportunity to review this," she said.
The new details are part of a document adopted by the Florida Department of Corrections in August, which had previously not been made public. The document for the first time outlines the exact amount of drugs used in executions and provides more information about the procedure than previously revealed.
Corrections Secretary James McDonough intended the document to provide transparency in the execution process. The document doesn't make any major changes to the process other than requiring drug tests of executioners, said Robby Cunningham, department spokesman.
"It really just spelled out the process that already existed," he said.
The Florida Supreme Court agreed, rejected Rutherford's petition by a 6-0 margin. The seventh justice, Justice Kenneth Bell, recused himself from the case.
"Our review of the current lethal injection procedures ... reveals nothing that would cause this court to revisit our previous conclusions that procedures for administering the lethal injection as attested do not violate the Eighth Amendment's prohibition on cruel and unusual punishment," the court wrote in its opinion.
Rutherford's attorneys will now turn to the 11th Circuit Court of Appeals and the U.S. Supreme Court to try to stop the execution. A ruling in his favor could also delay the scheduled Oct. 25 execution of Danny Rolling, who murdered five Gainesville college students in 1990.
Rolling's attorney, Baya Harrison, said he'll push the same issues in that case."We're going to piggyback on anything that the Rutherford legal team does," he said.
Attorneys across the country in recent months have claimed the lethal injection process is flawed and could cause extreme pain. Many have cited a study by University of Miami medical school physicians, which found that post-death blood concentrations of anesthetic were lower than required for surgery in 43 of 49 executed inmates in other states.
David Lubrasky, chairman of the school's anesthesiology department and study co-author, said the new document shows that massive amounts of drugs are being used in Florida executions. But he said that doesn't mean the drugs are being administrated by trained medical professionals.
"In my hands, I could kill you with them," he said. "In the hands of someone who didn't know what they were doing, it could be a different story."
Rutherford, 57, was sentenced to death for the 1985 drowning of a 63-year-old Milton woman in her bathtub. He had been scheduled to be executed in January, following condemned cop killer Clarence Hill.
The U.S. Supreme Court halted both executions, later ruling Hill could use federal civil rights law to claim lethal injection was cruel and unusual punishment. But the court last month allowed Hill to be executed before those claims could be heard.Attorney Todd Doss of Lake City, who represented Hill, filed a request Friday for information on the lethal injection procedure. He received the document Monday outlining the procedure.
He said the state had an ethical duty to release the information before Hill's execution.
"To say you're doing justice while hiding something like this is a farce," he said.Carolyn Snurkowski, assistant deputy attorney general for the state, said major aspects of the lethal injection procedure haven't changed. She said the types of drugs and order in which they are administered have stayed the same since the state instituted lethal injection for the death penalty in 2000.
"There's nothing new in there," she said.
In its filing to the Florida Supreme Court, Rutherford's attorneys say several changes to the procedure are substantial. They include a requirement that a member of the execution team buys and maintains the lethal drugs, more detailed descriptions about the amount of chemicals used in executions and an alternate procedure if a vein can't be located.
While the court rejected the petition, Justice Harry Lee Anstead said in a separate opinion that he was troubled by the fact that the state hadn't made its execution procedure public and no hearings have been held on what takes places during an execution."
Now that this method of execution has been in place for a number of years we would all benefit by such a hearing," he wrote.
Sun staff writer
The Florida Supreme Court on Tuesday rejected claims that newly released information on the death penalty should delay an execution scheduled for today.
Now attorneys for condemned killer Arthur Rutherford will turn to the federal courts in a last-ditch effort to stop the execution.
The case could provide an indication whether Gainesville serial killer Danny Rolling's execution goes forward as planned next week.
Rutherford is scheduled to be executed at 6 p.m. today at Florida State Prison in Raiford. His attorney, Linda McDermott, said a document released this week reveals the state made secret changes to the lethal injection process.
"At a minimum, we need to have the opportunity to review this," she said.
The new details are part of a document adopted by the Florida Department of Corrections in August, which had previously not been made public. The document for the first time outlines the exact amount of drugs used in executions and provides more information about the procedure than previously revealed.
Corrections Secretary James McDonough intended the document to provide transparency in the execution process. The document doesn't make any major changes to the process other than requiring drug tests of executioners, said Robby Cunningham, department spokesman.
"It really just spelled out the process that already existed," he said.
The Florida Supreme Court agreed, rejected Rutherford's petition by a 6-0 margin. The seventh justice, Justice Kenneth Bell, recused himself from the case.
"Our review of the current lethal injection procedures ... reveals nothing that would cause this court to revisit our previous conclusions that procedures for administering the lethal injection as attested do not violate the Eighth Amendment's prohibition on cruel and unusual punishment," the court wrote in its opinion.
Rutherford's attorneys will now turn to the 11th Circuit Court of Appeals and the U.S. Supreme Court to try to stop the execution. A ruling in his favor could also delay the scheduled Oct. 25 execution of Danny Rolling, who murdered five Gainesville college students in 1990.
Rolling's attorney, Baya Harrison, said he'll push the same issues in that case."We're going to piggyback on anything that the Rutherford legal team does," he said.
Attorneys across the country in recent months have claimed the lethal injection process is flawed and could cause extreme pain. Many have cited a study by University of Miami medical school physicians, which found that post-death blood concentrations of anesthetic were lower than required for surgery in 43 of 49 executed inmates in other states.
David Lubrasky, chairman of the school's anesthesiology department and study co-author, said the new document shows that massive amounts of drugs are being used in Florida executions. But he said that doesn't mean the drugs are being administrated by trained medical professionals.
"In my hands, I could kill you with them," he said. "In the hands of someone who didn't know what they were doing, it could be a different story."
Rutherford, 57, was sentenced to death for the 1985 drowning of a 63-year-old Milton woman in her bathtub. He had been scheduled to be executed in January, following condemned cop killer Clarence Hill.
The U.S. Supreme Court halted both executions, later ruling Hill could use federal civil rights law to claim lethal injection was cruel and unusual punishment. But the court last month allowed Hill to be executed before those claims could be heard.Attorney Todd Doss of Lake City, who represented Hill, filed a request Friday for information on the lethal injection procedure. He received the document Monday outlining the procedure.
He said the state had an ethical duty to release the information before Hill's execution.
"To say you're doing justice while hiding something like this is a farce," he said.Carolyn Snurkowski, assistant deputy attorney general for the state, said major aspects of the lethal injection procedure haven't changed. She said the types of drugs and order in which they are administered have stayed the same since the state instituted lethal injection for the death penalty in 2000.
"There's nothing new in there," she said.
In its filing to the Florida Supreme Court, Rutherford's attorneys say several changes to the procedure are substantial. They include a requirement that a member of the execution team buys and maintains the lethal drugs, more detailed descriptions about the amount of chemicals used in executions and an alternate procedure if a vein can't be located.
While the court rejected the petition, Justice Harry Lee Anstead said in a separate opinion that he was troubled by the fact that the state hadn't made its execution procedure public and no hearings have been held on what takes places during an execution."
Now that this method of execution has been in place for a number of years we would all benefit by such a hearing," he wrote.
Docket No. 06A382 USSC - Arthur Rutherford
http://www.supremecourtus.gov/docket/06a382.htm
No. 06A382
Title:
Arthur D. Rutherford, Applicant
v.
Florida
Docketed:
Lower Ct:
Supreme Court of Florida
Case Nos.:
(06-1931, 06-1946)
~~~Date~~~
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Oct 16 2006
Application (06A382) for a stay of execution, submitted to Justice Thomas.
~~Name~~~~~~~~~~~~~~~~~~~~~
~~~~~~~Address~~~~~~~~~~~~~~~~~~
~~Phone~~~
Attorneys for Petitioner:
Linda McDermott
141 N.E. 30th Street
(850) 322-2172
Wilton Manors, FL 33334
Party name: Arthur D. Rutherford
Attorneys for Respondent:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: Florida
No. 06A382
Title:
Arthur D. Rutherford, Applicant
v.
Florida
Docketed:
Lower Ct:
Supreme Court of Florida
Case Nos.:
(06-1931, 06-1946)
~~~Date~~~
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Oct 16 2006
Application (06A382) for a stay of execution, submitted to Justice Thomas.
~~Name~~~~~~~~~~~~~~~~~~~~~
~~~~~~~Address~~~~~~~~~~~~~~~~~~
~~Phone~~~
Attorneys for Petitioner:
Linda McDermott
141 N.E. 30th Street
(850) 322-2172
Wilton Manors, FL 33334
Party name: Arthur D. Rutherford
Attorneys for Respondent:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: Florida
Docket No. 06-7133 - USSC - Arthur Rutherford
http://www.supremecourtus.gov/docket/06-7133.htm
No. 06-7133
*** CAPITAL CASE ***
Title:
Arthur D. Rutherford, Petitioner
v.
Florida
Docketed:
October 16, 2006
Lower Ct:
Supreme Court of Florida
Case Nos.:
(SC06-1931, SC06-1946)
Decision Date:
October 12, 2006
~~~Date~~~
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Oct 16 2006
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due November 15, 2006)
Oct 16 2006
Application (06A382) for a stay of execution, submitted to Justice Thomas.
Oct 16 2006
Brief of respondent Florida in opposition filed.
~~Name~~~~~~~~~~~~~~~~~~~~~
~~~~~~~Address~~~~~~~~~~~~~~~~~~
~~Phone~~~
Attorneys for Petitioner:
Linda McDermott
141 N.E. 30th Street
(850) 322-2172
Wilton Manors, FL 33334
Party name: Arthur D. Rutherford
Attorneys for Respondent:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: Florida
No. 06-7133
*** CAPITAL CASE ***
Title:
Arthur D. Rutherford, Petitioner
v.
Florida
Docketed:
October 16, 2006
Lower Ct:
Supreme Court of Florida
Case Nos.:
(SC06-1931, SC06-1946)
Decision Date:
October 12, 2006
~~~Date~~~
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Oct 16 2006
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due November 15, 2006)
Oct 16 2006
Application (06A382) for a stay of execution, submitted to Justice Thomas.
Oct 16 2006
Brief of respondent Florida in opposition filed.
~~Name~~~~~~~~~~~~~~~~~~~~~
~~~~~~~Address~~~~~~~~~~~~~~~~~~
~~Phone~~~
Attorneys for Petitioner:
Linda McDermott
141 N.E. 30th Street
(850) 322-2172
Wilton Manors, FL 33334
Party name: Arthur D. Rutherford
Attorneys for Respondent:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: Florida
Florida Supreme Court docket - Case Number: SC06-2023 - Arthur Rutherford
http://jweb.flcourts.org/pls/docket/ds_docket?p_caseyear=2006&p_casenumber=2023
Florida Supreme Court Docket
Case Docket
Case Number: SC06-2023 - Active
ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR., ETC., ET AL
-->
Date Docketed
Description
Date Due
Filed By
Notes
10/17/2006
PETITION-ALL WRITS
PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
(O&6)
10/17/2006
No Fee Required
10/17/2006
MOTION-STAY (EXECUTION)
PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
(O&6)
10/17/2006
ORDER-RESPONSE/REPLY REQUESTED (SPEC ISSUE)
Petitioner has filed a petition seeking to invoke this court's all writs jurisdiction and motion for stay of execution. Respondent shall file a response by 1:00 p.m., October 17, 2006, to the above-referenced petition and motion including whether this Court has subject matter jurisdiction over the petition and whether the lethal injection procedures have in fact been changed. No reply will be entertained by this Court.
10/17/2006
RESPONSE
RS Hon. Charles J. Crist, Jr. BY: RS Charmaine M. Millsaps 0989134
( FILED BY 1:00) ORIGINAL & 7 & E-MAIL
10/17/2006
ORDER-REPLY TO RESPONSE FILING GR
Petitioner's Motion for Opportunity to be Heard is granted and petitioner is allowed to file by 4:30 p.m., on October 17, 2006, a reply not to exceed five pages in length.
10/17/2006
REPLY TO RESPONSE DUE
10/17/2006
PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
(TO BE FILED BY 4:30)
10/17/2006
MOTION-OTHER SUBSTANTIVE
PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
FILED AS "MOTION FOR OPPORTUNITY TO BE HEARD"
-->
Florida Supreme Court Docket
Case Docket
Case Number: SC06-2023 - Active
ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR., ETC., ET AL
-->
Date Docketed
Description
Date Due
Filed By
Notes
10/17/2006
PETITION-ALL WRITS
PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
(O&6)
10/17/2006
No Fee Required
10/17/2006
MOTION-STAY (EXECUTION)
PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
(O&6)
10/17/2006
ORDER-RESPONSE/REPLY REQUESTED (SPEC ISSUE)
Petitioner has filed a petition seeking to invoke this court's all writs jurisdiction and motion for stay of execution. Respondent shall file a response by 1:00 p.m., October 17, 2006, to the above-referenced petition and motion including whether this Court has subject matter jurisdiction over the petition and whether the lethal injection procedures have in fact been changed. No reply will be entertained by this Court.
10/17/2006
RESPONSE
RS Hon. Charles J. Crist, Jr. BY: RS Charmaine M. Millsaps 0989134
( FILED BY 1:00) ORIGINAL & 7 & E-MAIL
10/17/2006
ORDER-REPLY TO RESPONSE FILING GR
Petitioner's Motion for Opportunity to be Heard is granted and petitioner is allowed to file by 4:30 p.m., on October 17, 2006, a reply not to exceed five pages in length.
10/17/2006
REPLY TO RESPONSE DUE
10/17/2006
PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
(TO BE FILED BY 4:30)
10/17/2006
MOTION-OTHER SUBSTANTIVE
PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
FILED AS "MOTION FOR OPPORTUNITY TO BE HEARD"
-->
Tuesday, October 17, 2006
Inmate requests stay from Fla. Supreme Court
TALLAHASSEE -- Arthur Rutherford's attorneys claim the state of Florida in August changed its procedures for lethal injection and lied about it since then.
Rutherford, whose execution is set for Wednesday, asks the Florida Supreme Court to stay his execution in filings made this afternoon.Attorneys for the state were required to reply to the filings this afternoon.
In the state's response, they deny that Florida's lethal-injection protocols have changed.A memorandum included in the filing says it describes lethal injection procedures "effective for executions after August 16, 2006."
Martin McClain, one of Rutherford's attorneys, was angry this afternoon and shouted responses to questions about his appeal and the state's response.
"This is scary stuff. This is stuff that's going on at the national level -- turn everything into a state secret, and then say just trust us you don't need to know," McClain said. "It's really outrageous."
The state's response in court says nothing has changed in the way inmates are executed.
"There is nothing in the August 16, 2006, procedures which alters in any way the drugs used or how the drugs will be administered to a defendant," the state's filing said. "Nor, contrary to Rutherford's bold assertion, has anything DOC said in the legal pleadings filed in this case been false or a repeated misrepresentation."
McClain said learning of the August memo the day before his client's execution was unacceptable.
"They have known since August 16th. We find out less than 36 hours before our client is executed," McClain said. "There's no time, they've deprived us of the opportunity to look at this. It's clearly a part of their strategy."
Last week, Rutherford's attorneys had made a public records request of the Department of Corrections and been denied.
The attorney representing the state did not immediately return phone calls. The state's response denied that anything had changed and said Rutherford was prohibited from making the appeal because he'd asked too late for the stay.
McClain was incensed by what he described as the state's actions.
"It's the most outrageous thing I can possibly imagine. If I, as a defense attorney, did something like this, they'd have my bar card," McClain said.
Florida's lethal injection methods have been the subject of much litigation, as have other states' protocols where courts have halted death sentences to review the procedures. In Florida, state and federal courts have approved the method used here, first approved in January 2000. That initial court review of lethal injection, and the details it revealed, have been the standard for subsequent legal challenges.
But filings made by the state provide greater detail than what has been public previously. Florida uses a three-drug combination to execute prisoners, including sodium pentothal, which is administered first. In previous court filings, the amount administered has been described as "no less than" 2 grams.
In the memo filed by the state Tuesday, the Aug. 16 procedure describes two syringes to be used during lethal injections that contain 2.5 grams of sodium pentothal each, for a total 5 grams of the anesthesia.
Rutherford, 57, is sentenced to death for the 1985 murder of Stella Salamon of Milton.
Rutherford, whose execution is set for Wednesday, asks the Florida Supreme Court to stay his execution in filings made this afternoon.Attorneys for the state were required to reply to the filings this afternoon.
In the state's response, they deny that Florida's lethal-injection protocols have changed.A memorandum included in the filing says it describes lethal injection procedures "effective for executions after August 16, 2006."
Martin McClain, one of Rutherford's attorneys, was angry this afternoon and shouted responses to questions about his appeal and the state's response.
"This is scary stuff. This is stuff that's going on at the national level -- turn everything into a state secret, and then say just trust us you don't need to know," McClain said. "It's really outrageous."
The state's response in court says nothing has changed in the way inmates are executed.
"There is nothing in the August 16, 2006, procedures which alters in any way the drugs used or how the drugs will be administered to a defendant," the state's filing said. "Nor, contrary to Rutherford's bold assertion, has anything DOC said in the legal pleadings filed in this case been false or a repeated misrepresentation."
McClain said learning of the August memo the day before his client's execution was unacceptable.
"They have known since August 16th. We find out less than 36 hours before our client is executed," McClain said. "There's no time, they've deprived us of the opportunity to look at this. It's clearly a part of their strategy."
Last week, Rutherford's attorneys had made a public records request of the Department of Corrections and been denied.
The attorney representing the state did not immediately return phone calls. The state's response denied that anything had changed and said Rutherford was prohibited from making the appeal because he'd asked too late for the stay.
McClain was incensed by what he described as the state's actions.
"It's the most outrageous thing I can possibly imagine. If I, as a defense attorney, did something like this, they'd have my bar card," McClain said.
Florida's lethal injection methods have been the subject of much litigation, as have other states' protocols where courts have halted death sentences to review the procedures. In Florida, state and federal courts have approved the method used here, first approved in January 2000. That initial court review of lethal injection, and the details it revealed, have been the standard for subsequent legal challenges.
But filings made by the state provide greater detail than what has been public previously. Florida uses a three-drug combination to execute prisoners, including sodium pentothal, which is administered first. In previous court filings, the amount administered has been described as "no less than" 2 grams.
In the memo filed by the state Tuesday, the Aug. 16 procedure describes two syringes to be used during lethal injections that contain 2.5 grams of sodium pentothal each, for a total 5 grams of the anesthesia.
Rutherford, 57, is sentenced to death for the 1985 murder of Stella Salamon of Milton.
New Rutherford appeal claims execution procedure has changed
RON WORDAssociated Press
JACKSONVILLE, Florida - A new appeal filed Tuesday by condemned killer Arthur Rutherford asked the Florida Supreme Court to stay his scheduled execution Wednesday because it claims the state has changed its execution procedures.
Rutherford, 57, is scheduled to die at 6 p.m. Wednesday for the Aug. 22, 1985, attack on 63-year-old Stella Salamon, whose naked body was found submerged in the bathtub of her Milton home. Salamon had a broken arm, bruises on her face and arms, and three severe head wounds. The medical examiner said Salamon died from drowning or asphyxiation.
At issue is a nine-page document, dated Aug. 16, and released in a court filing Tuesday by the Florida Department of Corrections, which outlines execution procedures.
Robby Cunningham, a DOC spokesman, said the document is not a change, but spells out procedures that have been in place since Florida switched from the electric chair to lethal injection in 2000.
"We have not changed any protocols," said Robby Cunningham, a spokesman for the Department of Corrections. He said the procedures have not changed since they were first used in 2000 when the state switched from the electric chair to lethal injection.
"Florida's lethal injection protocols have not changed," Charmaine Millsaps, an attorney for the state, wrote in a court filing.
She argues that the execution chemicals are the same as described in a court case when the state was implementing its lethal injection procedure.
The appeal, filed by attorneys Linda McDermott and Martin McClain, claims new "lethal injection procedures were adopted in secret on Aug. 16."
The new document, ordered by Corrections Secretary James McDonough, was designed to provide transparency in the execution process. The document, released in prior executions was heavily redacted, with much of it blacked out, Cunningham said.
Among the new details are how executioners are hired, the drug and alcohol testing of members of the execution team, detailed descriptions of the order and the amount of chemicals injected, a cut down procedure if a vein cannot be located and a check list for the execution team.
Rutherford had been scheduled to die in late January, but the U.S. Supreme Court stopped his execution just minutes before he was to be injected with lethal chemicals. The case was delayed while the high court took up Clarence Hill's appeal. He was convicted in the death of a Pensacola police officer. Hill and Rutherford sought permission to challenge that the chemicals used in Florida's execution process caused extreme pain.
Hill was executed Sept. 20 and never got a hearing on the chemical issue and neither had Rutherford.
The updated procedure is dated one day before Hill's death warrant was reactivated on Aug. 17.
"It's outrageous," McClain said. "They executed Mr. Hill and did not tell his attorney."
"We are going to tell the 11th Circuit and U.S. Supreme Court, they were lied to," McClain said, noting that state attorneys had told the high court that Florida had no plans to change its procedure.
D. Todd Doss, who represented Hill, discounted assertion that the new document was the same procedure, said, "There's some strange logic here. It's beyond bizarre."
Doss noted his client lost in the high court by a 5-4 vote. If had known about the new procedure, he might have been able to save Hill's life.
"To say it hasn't changed is pretty disingenuous," Doss said.
In addition to the new filing before the state high court, Rutherford's attorneys have two appeals pending before the U.S. Supreme Court. One argues that the state's system of applying the death sentence is arbitrary and is unconstitutional. Another appeal asks the court to send his appeal challenging Florida's three-chemical cocktail used in executions back to the federal district court to be heard, said Carolyn Snurkowski, a death penalty attorney in Attorney General Charlie Crist's Office.
Salamon, a widow from Australia, had hired Rutherford to do a series of odd jobs, including replacing her sliding glass patio doors. She expressed concern about him to her friends.
Police found Rutherford's fingerprints and palm prints in the bathroom where Salamon was killed.
At his trial, two witnesses, Elizabeth Ward and her mother, Mary Heaton, testified that Rutherford asked for their help in cashing a $2,000 check from Salamon's bank account. Rutherford forged Salamon's name on the check and took Heaton to a bank, where she cashed the check.
Regina Grayson, 32, one of Rutherford's five children, said family members have been spending time with her father. "He was a wonderful daddy. He still is."
"I don't see how taking him away is going to solve anything. We waited 21 years hoping that this wouldn't happen. At the end of 21 years, we are going to lose him," she said in a telephone interview from her Milton home.
"We always have hope," she said.
JACKSONVILLE, Florida - A new appeal filed Tuesday by condemned killer Arthur Rutherford asked the Florida Supreme Court to stay his scheduled execution Wednesday because it claims the state has changed its execution procedures.
Rutherford, 57, is scheduled to die at 6 p.m. Wednesday for the Aug. 22, 1985, attack on 63-year-old Stella Salamon, whose naked body was found submerged in the bathtub of her Milton home. Salamon had a broken arm, bruises on her face and arms, and three severe head wounds. The medical examiner said Salamon died from drowning or asphyxiation.
At issue is a nine-page document, dated Aug. 16, and released in a court filing Tuesday by the Florida Department of Corrections, which outlines execution procedures.
Robby Cunningham, a DOC spokesman, said the document is not a change, but spells out procedures that have been in place since Florida switched from the electric chair to lethal injection in 2000.
"We have not changed any protocols," said Robby Cunningham, a spokesman for the Department of Corrections. He said the procedures have not changed since they were first used in 2000 when the state switched from the electric chair to lethal injection.
"Florida's lethal injection protocols have not changed," Charmaine Millsaps, an attorney for the state, wrote in a court filing.
She argues that the execution chemicals are the same as described in a court case when the state was implementing its lethal injection procedure.
The appeal, filed by attorneys Linda McDermott and Martin McClain, claims new "lethal injection procedures were adopted in secret on Aug. 16."
The new document, ordered by Corrections Secretary James McDonough, was designed to provide transparency in the execution process. The document, released in prior executions was heavily redacted, with much of it blacked out, Cunningham said.
Among the new details are how executioners are hired, the drug and alcohol testing of members of the execution team, detailed descriptions of the order and the amount of chemicals injected, a cut down procedure if a vein cannot be located and a check list for the execution team.
Rutherford had been scheduled to die in late January, but the U.S. Supreme Court stopped his execution just minutes before he was to be injected with lethal chemicals. The case was delayed while the high court took up Clarence Hill's appeal. He was convicted in the death of a Pensacola police officer. Hill and Rutherford sought permission to challenge that the chemicals used in Florida's execution process caused extreme pain.
Hill was executed Sept. 20 and never got a hearing on the chemical issue and neither had Rutherford.
The updated procedure is dated one day before Hill's death warrant was reactivated on Aug. 17.
"It's outrageous," McClain said. "They executed Mr. Hill and did not tell his attorney."
"We are going to tell the 11th Circuit and U.S. Supreme Court, they were lied to," McClain said, noting that state attorneys had told the high court that Florida had no plans to change its procedure.
D. Todd Doss, who represented Hill, discounted assertion that the new document was the same procedure, said, "There's some strange logic here. It's beyond bizarre."
Doss noted his client lost in the high court by a 5-4 vote. If had known about the new procedure, he might have been able to save Hill's life.
"To say it hasn't changed is pretty disingenuous," Doss said.
In addition to the new filing before the state high court, Rutherford's attorneys have two appeals pending before the U.S. Supreme Court. One argues that the state's system of applying the death sentence is arbitrary and is unconstitutional. Another appeal asks the court to send his appeal challenging Florida's three-chemical cocktail used in executions back to the federal district court to be heard, said Carolyn Snurkowski, a death penalty attorney in Attorney General Charlie Crist's Office.
Salamon, a widow from Australia, had hired Rutherford to do a series of odd jobs, including replacing her sliding glass patio doors. She expressed concern about him to her friends.
Police found Rutherford's fingerprints and palm prints in the bathroom where Salamon was killed.
At his trial, two witnesses, Elizabeth Ward and her mother, Mary Heaton, testified that Rutherford asked for their help in cashing a $2,000 check from Salamon's bank account. Rutherford forged Salamon's name on the check and took Heaton to a bank, where she cashed the check.
Regina Grayson, 32, one of Rutherford's five children, said family members have been spending time with her father. "He was a wonderful daddy. He still is."
"I don't see how taking him away is going to solve anything. We waited 21 years hoping that this wouldn't happen. At the end of 21 years, we are going to lose him," she said in a telephone interview from her Milton home.
"We always have hope," she said.
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