Upcoming execution would further fray battle

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Upcoming execution would further fray battle

Lethal injection opponents focus

By Paul Flemmingnews-press.com capital bureau

Originally posted on October 14, 2006

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TALLAHASSEE

— Arthur Rutherford is scheduled to be executed Wednesday, fulfillment of his death sentence for the 1985 first-degree murder of Stella Salamon in her Milton home.

The execution would also mark the end of death penalty opponents’ hopes that his case might serve as part of a successful legal challenge to Florida’s lethal injection procedure.

Though the U.S. Supreme Court in January granted a stay to Rutherford — a week after the court had done the same thing for condemned killer Clarence Hill — the courtroom battle has not stopped Florida executions.

The federal appeals court in both Hill and Rutherford’s cases rejected the petitions sent back down to them by the highest court.Hill was executed last month.

Now Rutherford — and a week later Danny Rolling, sentenced to death for the murders of five University of Florida students — are scheduled to continue Florida’s fifth highest in the nation execution count.

Last week, Florida’s Catholic bishops called for Gov. Jeb Bush to grant both Rutherford and Rolling clemency.

But Bush says it is his official responsibility to fulfill the death sentences handed down by Florida juries.“I appreciate (the bishops’) position,” Bush said last week. “I know that they’re sincere about their opposition to the death penalty.

First of all, I have a duty. It doesn’t matter what my personal views are or what their views are. It’s the law of the land.

I’ve reconciled my own core beliefs with the implementation of the death penalty.

”Rutherford and Rolling would be the 62nd and 63rd Florida prisoners executed since the death penalty was reinstated, and the 19th and 20th prisoners executed on death warrants signed by Bush.

They both are set to die by lethal injection — as have the last 17 inmates executed in Florida — using the same method established by the state in 2000.

That method, similar to the one used by 37 of the 38 states that have the death penalty, has been successfully challenged in other federal court jurisdictions and led to moratoriums on executions in California and Missouri.

It hasn’t happened in Florida.

“The court does seem to be saying that Florida’s lethal injection statute has been reviewed and is acceptable,” said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.

Linda McDermott, one of Rutherford’s attorneys, said she would file an appeal Monday in federal court, continuing arguments for a stay rejected on Thursday by the Florida Supreme Court.

The 11th Circuit Court of Appeals earlier this month rejected his claims that the state’s lethal injection procedure could be unconstitutionally cruel punishment.Dieter said the U.S. Supreme Court’s 5-4 rejection of another stay of Hill’s execution in September means that margin could shift if one justice decides that a different case represents a chance for the highest court to settle the lethal injection issue.

“These cases come around, they come around, get denied and get denied — some time it’s going to be enough to get just one justice to say it’s now time to take this case,” Dieter said.

Death penalty proponents and those close to Salamon say Rutherford’s should not be that case.

Beverly Elkins says Rutherford, 57, should pay for his crime. Elkins found her then 63-year-old friend and neighbor Salamon back in 1985, beaten, strangled and drowned in the bathtub of her own home.

Rutherford’s two trials and ongoing legal challenges, along with his delayed execution in January, have frustrated Elkins.“It just brings back all the bad memories every time it comes up,” Elkins said. “It would just be nice to get it over with and have some sort of closure. It’s like going through it all over again.”

Advocacy groups that favor the death penalty also want to stop the drawn out litigation.

Kent Scheidegger, legal director for the California-based Criminal Justice Legal Foundation, said that Hill and Rutherford’s cases have thus far worked to reduce future litigation delays, the opposite of what death penalty opponents hoped for in January when the U.S. Supreme Court agreed to hear Hill’s case.

“The 11th Circuit precedents in Hill and Rutherford are quite useful for prosecutors elsewhere,” Scheidegger said. “If another inmate in another part of the country brings an 11th-hour claim against a (lethal-injection) protocol, those decisions can be used to deny them.”Still, Scheidegger said a definitive case taken up by the U.S. Supreme Court to set a single legal standard for lethal injection procedures would shorten Death Row appeals.“I think it needs to be resolved. We shouldn’t be having this additional round of litigation in cases that have already gone on too long,” he said.

Rutherford’s attorney said the different conclusions by different federal jurisdictions is part of the arbitrariness that she argues makes the death penalty unconstitutional.

“It’s kind of just showing how it depends on what judge you’ve got. It depends on what day it is,” McDermott said. “

At every turn you see this arbitrariness. You don’t see consistency. Other (defendants) seem to be given a pretty good opportunity to investigate and litigate their claims.”