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