Rutherford files appeal, asks verdict be set aside - Arthur Rutherford

http://www.tallahassee.com/apps/pbcs.dll/article?AID=/20060928/CAPITOLNEWS06/60928013

Originally published September 28, 2006


Rutherford files appeal, asks verdict be set aside

By Paul Flemming Capitol News


Condemned killer A.D. Rutherford has filed an appeal in Santa Rosa County Circuit Court asking that his conviction be set aside because Florida's death sentence process is not fair and consistent.

Rutherford's lawyers argue, among other things, that Florida's death penalty is arbitrary and capricious, and thus unconstitutional, on the basis of a recent report that was sharply critical of the state's judicial process.

Rutherford, who's execution is set for Oct. 18, is sentenced to death for the 1985 death of Stella Salamon, a 63-year-old widow murdered in her Milton home.

The appeal relies on a report by the American Bar Association that Florida's system has serious flaws.

"The information, analysis and ultimate conclusions contained in the ABA report make clear: Florida's death penalty system is so seriously flawed and broken that it does not meet the constitutional requisite of being fair, reliable or accurate," Rutherford's motion states.

The state has not yet responded to the motion, but Assistant Attorney General Charmaine Millsaps said she would argue that the appeal doesn't meet required criteria."It's not really new evidence of his innocence," Millsaps said of the ABA report.

Martin McClain, Rutherford's lawyer, said that among the bar association's findings was that Florida had the most death-row exonerations, 22, of any state, and yet has not taken any action to investigate why that is so.

"Florida . . . has just shrugged off the exonerations," McClain said.

In January, Rutherford was within an hour of being executed when the U.S. Supreme Court issued a stay. The highest court in June sent his case back down to lower courts to reconsider his appeal that the state's lethal-injection method was cruel and unusual punishment.

Rutherford has that pending appeal in federal court.

The 11th Circuit Court of Appeals in Atlanta has taken arguments in the case but not yet issued a ruling.

McClain said he has argued that the case should be sent down to federal district court to consider.

A hearing to set a schedule for briefs in the latest appeal is set for Friday in Santa Rosa County Circuit Court.