Wednesday, October 18, 2006



CASE NO. SC06-2023

JAMES R. McDONOUGH, Respondent.


Rutherford filed a petition seeking to invoke this Court=s all writs jurisdiction and a
motion for stay of execution. Rutherford asserts that Aa new lethal injection procedure was
promulgated and adopted on August 16, 2006" and Respondents have Ahidden@ this fact.
This Court does not have subject matter jurisdiction over the petition. The Aall writs
necessary@ provision of Florida=s constitution, Article V, section 3(b)(7), provides:
May issue writs of prohibition to courts and all writs necessary to the
complete exercise of its jurisdiction.

In Stallworth v. Moore, 827 So.2d 974, 976-977 (Fla. 2002), this Court held that this Court's
Aall-writs@ jurisdiction does not authorize it to review a district court's per curiam denial of
relief issued without opinion or explanation. This Court discussed its Aall-writs@ jurisdiction.
Relying on St. Paul Title Insurance Corp. v. Davis, 392 So.2d 1304, 1304-1305 (Fla.
1980), this Court explained that the all writs provision of section 3(b)(7) does not confer
added appellate jurisdiction on this Court, and this Court's all writs power cannot be used
as an independent basis of jurisdiction.@ The Stallworth Court then dismissed the Aall writs@

This Court's all writs power cannot be used as an independent basis of jurisdiction
which is what Rutherford is seeking to do. The fact that this is a capital case does not
automatically confer subject matter jurisdiction in this Court. Trepal v. State, 754 So.2d 702
(Fla. 2000)(noting this Court does not have common law certiorari jurisdiction). The
petition should be dismissed for lack of appellate jurisdiction.

Rutherford=s reliance on Jones v. Butterworth, 691 So.2d 481 (Fla. 1997), is
misplaced. In Jones, a death row inmate brought a petition seeking to invoke Supreme
Court's all writs jurisdiction, challenging the electric chair as cruel and unusual punishment.
This Court relinquished jurisdiction over petition to trial court to conduct an evidentiary
hearing regarding the fact that flames had erupted on two occasions during use of chair.
However, this Court in Jones did not discuss its subject matter jurisdiction. While a petition
for all writs was used in Jones, there was holding and no discussion of the jurisdictional

The petition should be dismissed for lack of appellate jurisdiction.
Florida=s lethal injection protocols have not been changed.

Initially, to the extent
Rutherford asserts that the protocols for Florida=s lethal injection have changed, the
Department of Corrections (DOC) has not changed the protocols set forth in Sims v. State,
753 So.2d 66 (Fla. 2000), and Bryan v. State, 753 So.2d 1244, 1251-1253 (Fla. 2000)
(describing Florida=s lethal injection protocols literally syringe by syringe). Attached hereto
are the redacted January 28, 2000 Execution Day Procedures which are distributed to
witnesses during each execution, and the August 16, 2006, Execution by Lethal Injection
Procedures that provide a written overview of the entire process commencing from the
signing of a warrant through the post-execution procedures, which includes a checklist of
the process.

Included in both documents is the protocols of what transpires, to-wit: that lethal
chemicals will be administered to carry out a lawful execution. The description in the
Execution By Lethal Injection

Procedures provides that the same drug cocktail used and
described in the Sims decision will be used in every case. Sims, 753 So.2d at n17:
n17 The witnesses included: James Crosby, Warden of the Florida State
Prison; William Mathews, a physician's assistant with the DOC; and Michael
Moore, Secretary of the DOC. Collectively, they provided the execution-day

On the morning of the execution, the inmate will receive a
physical examination, be given a Valium if necessary to calm anxiety, and
will receive his or her last meal. Next, the inmate will be taken to the
execution room where he will be strapped to a gurney and placed on a heart
monitor. The inmate will then be injected with two IV's containing saline
solution. He will then be escorted into the execution chamber where the
witnesses will be able to view the execution. While the inmate is being
prepared, a pharmacist will prepare the lethal substances. In all, a total of
eight syringes will be used, each of which will be injected in a consecutive
order into the IV tube attached to the inmate. The first two syringes will
contain "no less than" two grams of sodium pentothal, an ultra-short-acting
barbiturate which renders the inmate unconscious. The third syringe will
contain a saline solution to act as a flushing agent. The fourth and fifth
syringes will contain no less than fifty milligrams of pancuronium bromide,
which paralyzes the muscles. The sixth syringe will contain saline, again as a
flushing agent. Finally, the seventh and eighth syringes will contain no less
than one-hundred-fifty milliequivalents of potassium chloride, which stops the
heart from beating. Each syringe will be numbered to ensure that they are
injected into the IV tube in the proper order. A physician will stand behind the
executioner while the chemicals are being injected. The physician's
assistance will also observe the execution and will certify the inmate's death
upon completion of the execution. Moore testified that these procedures
were created with the purpose of "accomplishing our mission with humane
dignity [while] carrying out the court's sentence."
On the issue of dosage, a defense expert admitted that only one milligram
per kilogram of body weight is necessary to induce unconsciousness, and
that a barbiturate coma is induced at five milligrams per kilogram of body
weight. Thus, two grams of sodium pentothal (i.e., 2000 milligrams) is a
lethal dose and certain to cause rapid loss of consciousness (i.e., within 30
seconds of injection). The expert further stated that muscle paralysis occurs
at .1 milligram of pancuronium bromide per kilogram of body weight. Thus,
fifty milligrams of pancuronium bromide far exceeds the amount necessary to
achieve complete muscle paralysis. Finally, the expert admitted that 150 to
250 milliequivalents of potassium chloride would cause the heart to stop if
injected quickly into the inmate and that an IV push would qualify as

Second, there is nothing in the August 16, 2006, procedures which alters in any way
the drugs used or how the drugs will be administered to a defendant. Nor, contrary to
Rutherford=s bold assertion, has anything DOC said in the legal pleadings filed in this case
been false or a repeated misrepresentation.

Nor has either the parties or the Courts been misled. In fact, the protocols used to
carry out the lethal injection process is identical to that which has occurred in the last 17
executions. Since the reactivation of Rutherford=s death warrant on September 22, 2006,
collateral counsel, on October 12, 2006, requested public records from the Department of
Corrections (hereinafter DOC), pursuant to 3.852(i)(2), of the Acurrent lethal injection
protocol, including all revisions thereto, if any@. At no time during this period did Rutherford
specifically request any information regarding the Hill execution on September 20, 2006.

Any public records requests pursuant to Rule 3.852(i) which provides a procedure to
ensure that capital defendants had an opportunity to obtain Aneeded public records@ upon a
Aproper showing being made to the trial court@, is unavailing to Rutherford because he
failed to make the requisite showing that any additional public records request will generate
either relevant information to the subject matter of a postconviction proceeding or are
reasonably calculated to lead to the discovery of admissible evidence. Sims v. State, 753
So.2d 66, (Fla. 2000). Moreover as noted in Tompkins v. State, 872 So.2d 239, 244 (Fla.
2003), a defendant is not required to wait until the death warrant is signed to make an
additional public records request, provided he makes the required showing under rule

In the instant case, Rutherford has again waited until days before his scheduled
execution to assert additional public records1 just like he did in January 2006, when he
made a similar, if not identical, attempt to circumvent R. 3.852(h)(3). Rutherford v. State,
926 So.2d 1100, 1115 (Fla. 2006).

1 On October 12, 2006, Rutherford=s attorney Ms. McDermott also sent a letter to
DOC requesting access ro records and information pursuant to Chapter 119 Fla. Stat.
seeking Acopies of all the current lethal injection protocols, including all revisions thereto, if
any.@ Additionally Ms. McDermott telephonically requested her Chapter 119 request on
October 13, 2006.
In response, DOC directed Ms. McDermott to Fla. Stat. 27.7081 and
Rule 3.852 which provide the sole basis for obtaining public records in capital litigation.
CASES, 76 Fla. Bar J. 24, (April, 2002).

The appropriate rule, governing cases where a warrant has been signed, is rule
3.852 (h)(3). Indeed, Rutherford=s last public record request was untimely. The warrant
was reactivated on September 22, 2006, and according to the rule, counsel had 10 days or
until October 2, 2006 to request public records. The request is dated October 12, 2006
and was emailed to undersigned counsel on October 13, 2006. The request was too late.

Rutherford v. State, 926 So.2d at 1117 (concluding that ARutherford's requests are not
authorized under rule 3.852(h)(3), which is designed to allow an update of records
previously requested, because he has failed to demonstrate that he previously requested
records from these agencies concerning lethal injection in Florida@ and noting Athe records
sought from these agencies are not related to a colorable claim for postconviction relief
because the scientific evidence Rutherford relies on does not require this Court to
reconsider our holding that Florida's lethal injection procedure does not violate the Eighth
Amendment.@). Rutherford has made no such assertion here. Rutherford=s efforts here
are to secure a stay because he did not receive a checklist from Hill=s execution, which as
noted previously concerns matters which he never sought.


The State respectfully requests that this Honorable Court
deny the petition for all writs jurisdiction.

Respectfully submitted,
TALLAHASSEE, FL 32399-1050
(850) 414-3300
I HEREBY CERTIFY that a true and correct copy of the foregoing
RESPONSE TO PETITION FOR ALL WRITS has been furnished by electronic mail Linda
McDermott, Esq. at with a follow up hard copy by U.S. mail to
Linda McDermott, 141 N.E. 30th Street, Wilton Manors, FL 32334 17th day of October,
Charmaine M. Millsaps
Attorney for the State of Florida
Counsel certifies that this brief was typed using Courier New 12.
Charmaine M. Millsaps
Attorney for the State of Florida

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