Killer exhausts his state appeals

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Published - October, 13, 2006

Killer exhausts his state appeals

Paul Flemming
News Journal capital bureau
TALLAHASSEE

-- The Florida Supreme Court on Thursday rejected Arthur Rutherford's appeals to reverse his death sentence, exhausting his remedies in state court.

Rutherford is scheduled to be executed Wednesday for the 1985 murder of Stella Salamon in her Milton home.With five justices concurring, the state's highest court denied Rutherford's attempt to have his conviction and sentence overturned.

Justice Harry Lee Anstead concurred in part with the court's ruling, and dissented in part

Justice Kenneth Bell, formerly of Pensacola, recused himself. The reason for Bell's recusal wasn't reported.

"The Florida Supreme Court has ruled, and they're not going to do anything for Mr. Rutherford," said Martin McClain, one of Rutherford's attorneys.

He said any further appeals would now move to federal court.

"We've got to sit down and look at the opinion ... and figure out what is the best manner and method" for further appeals, McClain said.

Rutherford's attorneys argued that a recent report by the American Bar Association showed Florida's death sentence system was arbitrary and capricious.Rutherford also presented affidavits from people with new testimony that offered the possibility that Rutherford was not guilty of Salamon's murder.

Anstead, in his dissent, said the claim of new evidence deserved a full hearing."Even without this evidence a jury voted for death by the narrowest of margins, seven-to-five, just one vote short of a recommendation for life," Anstead wrote.

The majority said the affidavits were not compelling."We agree with the circuit court that the ... affidavit, when considered cumulatively with all the other evidence, is not such that it would probably produce an acquittal on retrial," the court said.

Chief Justice Fred Lewis and Justices Charles Wells, Barbara Pariente, Peggy Quince and Raoul Canterro agreed in the majority decision.