Supreme Court Examining Rolling's Execution Appeal

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Supreme Court Examining Rolling's Execution Appea


TALLAHASSEE, FL (AP) -- A critical American Bar Association report contains nothing that would cause Florida's death penalty system to be declared unconstitutional, the Florida Supreme Court said Thursday in rejecting an appeal by a condemned killer set for execution next week.

The ruling upheld the conviction and death sentence of Arthur Rutherford, 57, a Milton handyman and Vietnam veteran, for the 1985 murder of a woman in Santa Rosa County. Rutherford is to be executed on Oct. 18.

Serial killer Danny Rolling, 52, who is scheduled for execution Oct. 25 for murdering five Gainesville college students, made a similar argument in an appeal still pending before the high court.

In papers filed Thursday Rolling also claimed Florida's lethal injection procedure is unconstitutional because it causes extremepain, an argument previously made by Rutherford and Clarence Hill, who was executed Sept. 20 for killing a Pensacola police officer.

The justices ruled 6-0 that the ABA report released last month cannot be considered new evidence."The ABA report is a compilation of previously available information," the justices wrote in an unsigned opinion.

They added that even if they did consider the report it contains nothing that would cause them to recede from "decisions upholding the facial constitutionality of the death penalty.

"The report faults Florida for allowing juries to recommend death sentences by simple majority rather than unanimous votes and questions the quality of legal representation the state provides for defendants.

It notes Florida has released more people from death row than any other state.

The high court split 5-1 in rejecting a second Rutherford claim that other new evidence would show someone else killed 63-year-old Stella Salamon at her Milton home.

The victim, who had hired Rutherford to do some home repairs, was choked and drowned in a bathtub.

Justice Harry Lee Anstead dissented, writing that he would have ordered an evidentiary hearing on that claim.

Justice Kenneth Bell did not participate. He once was a trial judge in Santa Rosa but did not preside over Rutherford's case.

Rutherford's lawyer, Linda McDermott, did not immediately return a call seeking comment.

Rolling's lawyer, Baya Harrison, contends Circuit Judge Stan Morris erred Monday when he rejected Rolling's claim the ABA report should serve as a reason to halt his execution until problems with the state's death penalty procedures are corrected.

"The report points out that the problems in Florida are systemic, not just specific to any single issue or defendant," Harrison wrote.
He added that Morris did not review the report in that context but only as it pertained to Rolling nor did he make a finding whether Florida's death penalty is constitutional except to say it previously has been upheld.

Assistant Deputy Attorney General Carolyn Snurkowski responded that the ABA report is not new evidence, the same reasoning the Supreme Court cited in Rutherford's case.

Hill and Rutherford previously won execution delays by appealing Florida's lethal injection procedure in federal court.

The U.S. Supreme Court in January stayed Hill's execution after he already had been strapped to a gurney and his arms hooked to IV tubes in the death chamber.

The federal justices then unanimously ruled that he and Rutherford had a right to challenge the deadly three-chemical cocktail.Federal trial and appellate courts, though, refused to hear those challenges, ruling they should have been filed earlier.

The U.S. Supreme Court then declined to intervene again in Hill's case and he was executed without the merits of the issue ever being heard.

Rolling has raised the same argument in his state appeal, contending that sodium pentothal, a pain killer, wears off before the inmate suffers a heart attack induced by potassium chloride.The third drug, pancuronium bromide, paralyzes the inmate so he shows no outward sign of the pain he is suffering, the argument goes.