Sunday, October 15, 2006



1. All other factual allegations contained in this motion and the appendix hereto are fully incorporated herein by specific reference.

2. Mr. Rutherford has a continuing interest in his life until his death sentence is carried out, as guaranteed by the Due Process clause of the Fourteenth Amendment to the United States Constitution. See Ohio Adult Parole Authority, et al. v. Woodard, 523 U.S.272, 288 (1998)(Justices O=Connor, Souter, Ginsburg and Breyer concurring)(AA prisoner under a death sentence remains a living person and consequently has an interest in his life@).

This constitutionally- protected interest remains with him throughout the appellate processes, including during clemency proceedings:

Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.
Woodard, 523 U.S. at 289 (emphasis added).

The denial of Mr. Rutherford`s clemency petition was arbitrary and the process he received was not due.

3. Indeed, on September 17, 2006, five (5) days before the Governor Bush re-scheduled Mr. Rutherford`s execution, the American Bar Association=s Death Penalty Moratorium Implementation Project and the Florida Death Penalty Assessment Team published its comprehensive report of Florida`s death penalty system. See Appendix B.

The report made clear that clemency is a critical stage of the death penalty scheme. It is the only stage at which factors like lingering doubt of innocence, remorse, rehabilitation, racial and geographic influences and factors that the legal system does not correct can be considered.

The state assessment team issuing the report found that the State of Florida`s clemency process was severely lacking:

Given the ambiguities and confidentiality surrounding Florida`s clemency decision-making process and that fact that clemency has not been granted to a death-sentenced inmate since 1983, it is difficult to conclude that Florida`s clemency process is adequate.@ ABA Report on Florida at vii.

4. Florida`s clemency process is entirely arbitrary because there are no rules or guidelines Adelineating the factors that the Board should consider, but not to be limited to@ for consideration of clemency. In fact, Mr. Rutherfords own case demonstrates the arbitrariness of Florida`s clemency process.

5. On November 29, 2005, Governor Bush signed Mr. Rutherford=s warrant and scheduled his execution for January 31, 2006, at 6:00 p.m.

On January 25, 2006, 2006, Regina Grayson, the oldest daughter of Mr. Rutherford personally delivered a petition for executive clemency to Governor Bush`s office. See Affidavit of Regina Grayson, September 25, 2006 (hereinafter Grayson Aff.), Appendix D.

Through the petition Ms. Grayson asked for mercy for her father and pointed to several reasons upon which to grant clemency. See Clemency Petition, Appendix E.

Those reasons included her fathers heroic service as a United States Marine during the Viet Nam conflict and the impact his service had on his mental and emotional stability; Mr. Rutherford`s dedication to his family, particularly his children; the jury`s narrow 7 - 5 recommendation for the death penalty; and the doubt about her father`s guilt. Id.

Many of the reasons presented were never considered by the jury that narrowly recommended that Mr. Rutherford be sentenced to death.

And, since clemency is a way to achieve justice in a case where the courts have been unable to or have not achieved it, Ms. Grayson presented a compelling case for clemency.

6. Mr. Rutherford was deprived of due process in the clemency process and the decision to deny him clemency was the equivalent of flipping a coin.

The same day that Ms. Grayson delivered the clemency petition to the Governor Bush`s office, Bush spokesman Russell Schweiss said the governors clemency lawyer Aha[d] not yet reviewed the petition but that such cases normally must be filed by convicts themselves or their lawyers, not relatives. He said the issues appear more appropriate for a court of appeal.@ Bill Kaczor, Associated Press, Rutherford`s Daughter Asks Clemency from Bush, Cabinet, January 25, 2006.`

7. After much prodding of the governor`s office personnel, Ms. Grayson was told that she could speak to the governor`s Assistant General Counsel, Victoria Brennan, concerning the petition.

Like, the governor`s spokesperson, Ms. Brennan, believed that it was not [Ms. Grayson=s] place@ to ask for clemency for her father. Grayson Aff. And, Ms. Brennan also felt that the issues Ms. Grayson spoke to her about Mr. Rutherford did not matter@ in the clemency process. Id.

Mr. Rutherford`s petition was apparently given little, if any, consideration.

8. Ms. Grayson=s experience in attempting to persuade the governor and his cabinet to grant clemency proves that the process is arbitrary. No rules have been set forth about who is the proper party to request clemency, what factors matter@ in the clemency process and there is apparently a fundamental misunderstanding in Governor Bush`s office as to the purpose of the clemency process.

9. The misunderstanding of the clemency process is demonstrated by Governor Bush`s General Counsel, Raquel A. Rodriguez, who was asked to comment on the clemency section contained in the ABA Report on Florida.

Ms. Rodriguez did not agree that having specific rules and considerations for the clemency process were appropriate as the report recommends. ABA Report on Florida Appendix 1. Ms. Rodriguez set forth her belief that the clemency process should not be designed to re-litigate the question of guilt@ and or to review what courts had determined to be Aharmless errors@ Id.

Likewise, Ms. Rodriguez dismissed factors such as a petitioner`s mental health issues, age of a defendant and racial disparity as being relevant factors in the clemency process, in part because they are matters currently required by law to be addressed at various stages of a murder prosecution.@ Id.

However, the factors Ms. Rodriguez dismisses are exactly the types of factors that should be considered and have been considered in granting clemency in the State of Florida. See ABA Report on Florida at 255-6 (outlining the factors considered in granting clemency in the six (6) death-sentenced petitioner`s who received clemency since 1972

B lingering doubt; mental capacity; the disproportionality of the petitioner=s sentence); see also Herrera v. Collins, 506 U.S. 390, 411-12 (1993)

(AClemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.@)(footnotes omitted).

In fact, in Herrera, the United States Supreme Court made clear: AExecutive clemency has provided the "fail safe" in our criminal justice system. It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.

But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence.@ Id at 415.

10. The Florida Death Penalty Assessment Team has indicated that A[t]he clemency process can only fulfill its critical function when the exercise of the clemency power is governed by fundamental principles of justice, fairness, and mercy, and not by political considerations.@

Furthermore, A[t]he clemency process should provide a safeguard for claims that have not been considered on the merits, including claims of innocence and claims of constitutional deficiencies.@

The arbitrariness of Florida`s clemency process is demonstrated by the lack of any specific factors to be considered and in Mr. Rutherford`s case, Ms. Brennan`s opinion that the issues raised on his behalf did not Amatter@, i.e., that the decision-maker did not take into account all factors@. Id. at 254.

11. Mr. Rutherford did not receive due process in his recent clemency proceeding because the process was completely undefined and the information he presented (see Appendix E), was simply dismissed.

The denial of clemency for Mr. Rutherford was the equivalent of flipping a coin.

Relief is proper.

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