State response to stay motion - Arthur Rutherford

http://www.arthurrutherford.us/legal/Stateresponsetostay.htm

IN THE FLORIDA SUPREME COURT

CASE NO. SC06-2023

ARTHUR DENNIS RUTHERFORD, Petitioner
v.
JAMES R. McDONOUGH, Respondent.

RESPONSE TO MOTION TO STAY

Rutherford filed a motion to stay his execution based on
alleged changes in Florida’s lethal injection procedures.
Florida’s lethal injection protocols have not been changed.

The
syringe by syringe description of the lethal injection
procedures in Bryan is still the protocol. Bryan v. State, 753
So.2d 1244, 1251-1253 (Fla. 2000)(describing Florida’s lethal
injection protocols literally syringe by syringe). Adding a
checklist is not changing the protocols.

Rutherford quotes from
the prior warrant litigation hearing on the public records
requests, where both the attorney for DOC and undersigned
counsel stated that the protocols have not changed from the
time of Sims, which was true at the time and is still true. The
amounts, order and type of drugs have remained the same since
2000.

This Court can simply compare the description of the
lethal injection procedures in Bryan with the attached
“Execution by lethal injection procedures”, to establish for
itself that there have been no substantive changes to Florida’s
lethal injection protocols. See Appendix B (“Execution by lethal
injection procedures”, effective for executions after August 16,
2006)(parts 10(b)(1)-10(b)(4))(pages 3-4).

Yes, a checklist has
been added and the current written procedures contain a more
detailed description of the surrounding procedures but the drug
protocols have not changed. The motion for stay should be
denied.

Cf. In re Hill, 437 F.3d 1080, 1083 (11th Cir. 2006)(concluded
that the Court lacked jurisdiction to entertain the application
for a stay of execution under the All Writs Act, § 1651(a),
because that act is limited to entering such orders as are
necessary to aid it in the exercise of already existing subject
matter jurisdiction but where no jurisdiction exists, there is
no all writ power to enter a stay).
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CONCLUSION

The State respectfully requests that this Honorable Court
deny the motion for stay of execution.
Respectfully submitted,
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
____________________________
CHARMAINE M. MILLSAPS
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0989134
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL
TALLAHASSEE, FL 32399-1050
(850) 414-3300
COUNSEL FOR RESPONDENT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
RESPONSE TO MOTION FOR STAY has been furnished by electronic mail
Linda McDermott, Esq. at lindammcdermott@msn.com 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, 2006.
________________________________
Charmaine M. Millsaps
Attorney for the State of Florida
CERTIFICATE OF FONT AND TYPE SIZE
Counsel certifies that this brief was typed using Courier
New 12.
________________________________
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Charmaine M. Millsaps
Attorney for the State of Florida