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.