Arthur Rutherford

Healing

2008-07-05T07:59:00.001-07:00

"The death penalty is about revenge and hate, and revenge and hate is why my daughter and those 167 other people are dead today."

Bud Welch, father of Julie Marie Welch,
victim in the Oklahoma City bombing

"I have come to believe that the death penalty is not what will help me heal. Responding to one killing with another killing does not honor my daughter, nor does it help create the kind of society I want to live in, where human life and human rights are valued. I know that an execution creates another grieving family, and causing pain to another family does not lessen my own pain."

MVFHR board member, Vicki Schieber, testifying to the Subcommittee on the Constitution,
Civil Rights and Property Rights; Committee on the Judiciary; US Senate, February 2006

Florida Support - Individuals who care

2006-10-19T05:00:00.000-07:00

To Arthur with love ..

Justice Anstead, Florida Supreme Court dissent - Arthur Rutherford

2006-10-19T04:52:00.000-07:00

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

ANSTEAD, J., concurring specially.

I concur in the majority's denial of relief because I, too, am bound by the rulings of this Court rejecting similar challenges to the State's procedures for execution by lethal injection in Hill and Rutherford as cited by the majority.

I am troubled, however, by the fact that the State has not at all times made its execution procedures and protocols a matter of public record, and by the fact that since our initial decision in Sims approving the use of lethal injection based substantially on theory, there has been no public evidentiary hearing focused on the purpose and effectiveness of the State's procedures, and on what actually takes place during the course of an execution by lethal injection.

Now that this method of execution has been in place for a number of years we would all benefit by such a hearing.

Killer of Australian widow executed

2006-10-18T17:05:00.000-07:00

By Michael Peltier in Florida

PRISON officials have executed a 57-year-old former handyman by lethal injection for the 1985 murder of an Australian-born woman in Florida's rural Panhandle.

Prison officials at Florida State Prison near Starke pronounced Arthur Rutherford dead at 6.13pm EDT after giving him a deadly cocktail of chemicals that paralysed his lungs and stopped his heart.

Rutherford became the 62nd prisoner executed in Florida since the death penalty was reinstated in 1976. He is the 19th inmate to be executed during the tenure of Governor Jeb Bush, the younger brother of US President George W. Bush.

Rutherford was convicted in August 1986 for the death of Australian-born Stella Salamon, 63, for whom he did odd jobs.

She was found drowned in her bath after being badly beaten and strangled. The jury, on a 7-5 vote, recommended he be put to death.

Rutherford had been due to die in January and had been strapped to a gurney in the death chamber at Florida State Prison, but he was spared by a last-minute stay from the United States Supreme Court.

The stay was prompted by a legal challenge claiming the anesthesia administered during legal injection might not be adequate to prevent an inmate from experiencing extreme pain.

The high court sent the case back for further review and in September the 11th Circuit Court of Appeals rejected the anesthesia challenge without taking more evidence.

Executions using lethal injection have been postponed in at least five states pending further review of execution procedures, and Rutherford's execution came despite a flurry of appeals before the Florida and US Supreme courts.

Significant events in case of Arthur Rutherford

2006-10-18T17:02:00.000-07:00

Significant events in case of Arthur Rutherford

Associated Press

Following are significant events in the death case against Arthur Rutherford, whose execution was scheduled Wednesday:

Aug. 22, 1985: Body of 63-year-old Stella Salamon found submerged in bathtub in Milton home. She had a broken arm, bruises on her face and arms and severe head wounds. Medical examiner said she died from drowning or asphyxiation.

Aug. 23: Arthur Rutherford arrested after getting assistance from friend to cash as $2,000 check on Salamon's account. Rutherford had done some carpentry work for Salamon. His finger and palm prints were found in bathroom where Salamon was killed.

Sept. 11: Rutherford indicted on charges of first-degree murder and robbery with a firearm.

Jan. 31, 1986: Rutherford found guilty of all charges.

Feb. 1: Jury recommends death sentence by an 8 to 4 majority.

April 2: Judge grants mistrial due to discovery violations by the state.

Oct. 2: On retrial, Rutherford was found guilty on all charges. The jury, on a 7 to 5 vote, recommends death penalty.

Dec. 9: Rutherford sentenced to death for murder count and 30 years on armed robbery.

June 16, 1989: Florida Supreme Court affirms conviction and sentence.

Oct. 30: U.S. Supreme Court denies appeal.

Dec. 17, 1998: Florida Supreme Court denies appeal.

Nov. 29, 2005: Gov. Jeb Bush signs death warrant.

Jan. 30, 2006: U.S. Supreme Court stays Rutherford execution minutes before his scheduled death.

Sept. 22: Bush reinstates death warrant and schedules execution for Oct. 18.

Oct. 5: Appeal returned by the U.S. Supreme Court dismissed by appeals court in Atlanta.

Oct. 6: State court rejects Rutherford's appeal.

Oct. 12: Florida Supreme Court rejects Rutherford's appeal.

Oct. 17: Florida Supreme Court and 11th U.S. Circuit Court of Appeals deny appeals.

Oct. 18: U.S. Supreme Court denied two petitions and two motions for a stay of execution.

Rutherford executed for killing woman 21 years ago

2006-10-18T17:00:00.000-07:00

STARKE, Fla. (AP) — Convicted killer Arthur Rutherford was executed by lethal injection this evening for the 1985 murder of a Milton woman.

The governor's office said the 57-year-old Vietnam veteran and handyman was declared dead at 6:13 p.m.

Rutherford was executed after the U.S. Supreme Court denied his challenges over the state's lethal injection procedure and other issues.

He was condemned for the 1985, attack on 63-year-old Stella Salamon, a widow whose naked body was found submerged in the bathtub of her Panhandle home.

Rutherford was executed after the Supreme Court turned down four separate efforts by him today to halt his execution. Justice John Paul Stevens, alone among his colleagues, voted to grant a stay of execution.

Rutherford had last visits this morning with more than a dozen relatives, including his father, children, grandchildren, sisters and brothers. He ate a final meal of fried green tomatoes, fried eggplant, fried catfish, hush puppies and sweet tea.

Prayer for Arthur

2006-10-18T15:36:00.000-07:00

Go your way to the land of the Ancestors,
where they wait for you with open arms,
there on the edge between this world and the next.
See; there they stand.
Ancestral spirits, welcome this oneto the place where we all must go.
- Ceisiwr Serith

Arthur be at peace~
Blessed Be. Carie

Rutherford executed for killing woman

2006-10-18T15:34:00.000-07:00

ASSOCIATED PRESS

Convicted killer Arthur Rutherford was executed today by lethal injection for the 1985 murder of a Milton woman.

Rutherford, a 57-year-old Vietnam veteran and handyman, was pronounced dead at 6:13 p.m., the governor's office said.

He was executed after the U.S. Supreme Court denied his challenges over the state's lethal injection procedure and other issues.

He was condemned for the Aug. 22, 1985, attack on 63-year-old Stella Salamon, a widow whose naked body was found submerged in the bathtub of her Panhandle home.

11 circuit order denying stay - Arthur Rutherford

2006-10-18T12:06:00.000-07:00

http://www.arthurrutherford.us/legal/11circuitorder.htm

FILED

U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 17, 2006
THOMAS K. KAHN
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________
No. 06-10783
________________
ARTHUR D. RUTHERFORD,
Plaintiff-Appellant,
versus
JAMES MCDONOUGH,
CHARLIE CRIST,
Defendants-Appellees.
-------------------------
On Appeal from the United States District Court for the
Northern District of Florida
------------------------
(October 17, 2006)
ON PETITION FOR REHEARING
BEFORE: CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:
We have before us Rutherford’s petition for a rehearing, which was filed
late this afternoon. It asks us to grant rehearing and change our previous decision
in this case, Rutherford v. McDonough, ___ F.3d ___, 2006 WL 2830968 (11th
2
Cir. Oct. 5, 2006) (Rutherford II), because of amendments he believes were made
to Florida’s lethal injection protocol August 16, 2006 but which Rutherford did
not become aware of until very recently.

Our October 5, 2006 decision in this case affirmed the district court’s
January 28, 2006 judgment dismissing Rutherford’s 42 U.S.C. § 1983 complaint,
which “challenge[d] the three-drug protocol Florida had been using since 2000 to
carry out executions by lethal injection.” Rutherford II, 2006 WL 2830968, at *1.

The basis for dismissal which we affirmed was that Rutherford had unnecessarily
delayed in bringing the claim—“[h]e deliberately waited until the last few days
before his execution to file what he could have filed many months, if not years,
earlier.” Id. at *2; Rutherford v. Crosby, 438 F.3d 1087, 1102–03 (11th Cir.
2006) (Rutherford I) (reproducing district court order), vacated sub nom.,
Rutherford v. McDonough, ___ U.S. ___, 126 S. Ct. 2915 (2006).

Rutherford says that six-and-one-half months after entry of the district
court’s judgment dismissing his complaint, which is the judgment we have
affirmed in Rutherford II, the State of Florida revised its lethal injection protocols.
In his rehearing petition, Rutherford describes the August 16, 2006 changes in
those protocols as follows:
3
The new procedures include a requirement that the
execution team receive training, that execution
simulations be conducted on a quarterly basis, that a
lethal injection checklist be completed after each
execution documenting what occurred (or did not occur)
and that the checklist will be signed by the warden under
oath, 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
Florida Supreme Court opinion indicated that 2 grams of
sodium pentothal were to be used, while the new
procedures seems [sic] to indicate 5 grams will be used).

The new procedures include provision for a “cut-down”;
no mention of a “cut-down” appears in the old,
superseded protocol.
Petition for Rehearing at 8 n.4.

The State of Florida is adamant that there have
been no changes to its lethal injection protocol. We need not resolve this dispute.
We will assume for present purposes only that the changes Rutherford contends
were made on August 16, 2006 were made and that they are as he describes them.

Rutherford also argues that the Department of Corrections, which made the
alleged changes, and the lawyers representing the State throughout this proceeding
have hidden the fact that changes were made. Apparently, the purpose of this
argument is to absolve Rutherford and his attorneys of any blame for not bringing
the alleged change in procedures to the attention of this and other courts before
now.

We do not blame them in any way for the timing of this petition for
rehearing, but that is an entirely different thing from saying that it has merit.
4
The changes that Rutherford says were made hurt, instead of help, the case
that he brought in the district court and argued in this Court. Throughout these
proceedings he has made a number of arguments, but all of them turn on the
factual premise that the State of Florida uses too little sodium pentothal in carrying
out lethal injections.

That is what Rutherford claimed in his complaint.

Complaint at ¶16 (“because Florida’s practices are substantially similar to those of
the lethal-injection jurisdictions which conducted autopsies and toxicology
reports, which kept records of them, and which disclosed them to the Lancet
scholars, there is at least the same risk (43%) as in those jurisdictions that Mr.
Rutherford will not be anesthetized at the time of his death”); id. at Attach. A
(Declaration of Dr. David A. Lubarsky) at ¶ 16 (“Based on our research, the
[Lancet] article concludes that toxicology reports from the four lethal injection
jurisdictions which provided them showed that postmortem concentrations of
thiopental (sodium pentothal) in the blood of persons who had been executed were
lower than that required for surgery in 43 of 49 cases reported (88%), and 21
(43%) inmates had concentrations consistent with awareness.”); id. at Attach. B
(Leonidas G. Koniaris et al., Inadequate anaesthesia in lethal injection for
execution, 365 The Lancet 1412, 1412 (2005) (“The assumption that 2 g.
thiopental assures anaesthesia is overly simplistic, however.”)).
5
That is also how the district court interpreted Rutherford’s claim.
Rutherford I, 438 F.3d at 1102 (reproducing district court order) (describing “[t]he
factual basis of Petitioner’s claim [as being] that the doses of the anesthetic
sodium pentothal may be insufficient thus permitting those injected to experience
the feelings of being suffocated and having a heart attack, but unable to express
their pain by virtue of being paralyzed by pancuronium” (parentheses omitted)).

It
is how Rutherford characterized his claim to us. Appellant’s July 20, 2006 Supp.
Br. at 2 (describing his challenge as based on The Lancet article which he
summarized as evidence that executed inmates “had an inadequate amount of
sodium pentothal in their bloodstream to provide anesthesia.”). And it is how we
interpreted his claim. Rutherford II, 2006 WL 2830968, at *7 (describing The
Lancet article as the factual basis for Rutherford’s claim).
The alleged revisions in the drug protocols, as Rutherford
concedes,
apparently double the amount of sodium pentothal used. Petition for Rehearing at
8 n.4 (“the Florida Supreme Court opinion indicated that 2 grams of sodium
pentothal were to be used, while the new procedures seems [sic] to indicate 5
grams will be used”). That makes it less likely, not more likely, that the pain
Rutherford claimed might result from using too little of the drug will result.
There
is no basis in law or logic for precluding the State from addressing the problem
6
that Rutherford claimed its previous procedures had created. He has no vested
interest in any problem with the procedures.

Rutherford also argues that we ought to change our prior decision because
the attorneys for the State have misled the state and federal courts that have
considered his claim. The misrepresentations, he says, are that the method Florida
uses to execute by lethal injection had not been changed.

All of the
representations by Florida’s attorneys that Rutherford recites, however, were made
well before August 16, 2006, the date he says that the procedures were changed.
Even if the procedures were changed on that date, the statements before that date
that the procedures had not been changed were true when made. They were not
misrepresentations.

All that we have before us, and all that we decide, is whether rehearing
should be granted to modify our prior decision which affirmed the district court’s
dismissal on equitable grounds of Rutherford’s complaint, the gist of which was
that the amount of sodium pentothal used was inadequate to prevent unnecessary
pain and suffering. We conclude that rehearing should not be granted.

PETITION FOR REHEARING DENIED.
7
WILSON, Circuit Judge, concurring:

My consideration of Rutherford's claims are fully stated in my dissent to our
prior opinion affirming the denial of Rutherford's 28 U.S.C. § 1983 complaint.
Rutherford v. McDonough, No. 06-10783, 2006 U.S. App. LEXIS 24860 (11th
Cir. Oct. 5, 2006). I concur in the denial of Rutherford's petition for rehearing
because it fails to raise a matter that specifically affects the conclusion in the
opinion that Rutherford's complaint was dilatory.

Florida Supreme Court order denying relief - Arthur Rutherford

2006-10-18T12:03:00.000-07:00

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

Supreme Court of Florida

TUESDAY, OCTOBER 17, 2006

CASE NO.: SC06-2023

ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR.,
ETC., ET AL
___________________________________________________________________
Petitioner(s) Respondent(s)

Arthur Rutherford, who is under a pending death warrant, has filed a Petition
Seeking to Invoke this Court's All Writs Jurisdiction and a Motion for Stay of
Execution, which is scheduled for October 18, 2006. Rutherford's petition concerns
the Department of Corrections' denial of a public records request for current lethal
injection procedures, followed by the circuit court's denial of a motion to compel
production. The State has filed a response to which it has attached the Department's
procedures governing execution by lethal injection, effective August 16, 2006. We
permitted Rutherford to file a reply.

We deny relief. Our review of the current lethal injection procedures, attached
to the State's response, reveals nothing that would cause this Court to revisit our
previous conclusions "that procedures for administering the lethal injection as attested
do not violate the Eighth Amendment's prohibition on cruel and unusual punishment."
Rutherford v. State, 926 So. 2d 1100, 1113 (Fla. 2006) (quoting Hill v. State, 921 So.
2d 579, 583 (Fla. 2006), and Sims v. State, 753 So. 2d 657, 668 (Fla. 2000)).
CASE NO. SC6-2023
PAGE 2

Accordingly, Rutherford's petition and motion for a stay of execution are
hereby denied. No motion for rehearing will be allowed.
It is so ordered.

LEWIS, C.J., and WELLS, PARIENTE, QUINCE and CANTERO, JJ., concur.

ANSTEAD, J., concurs specially with an opinion.
BELL, J., recused.
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Served:
CAROLYN M. SNURKOWSKI
LINDA MCDERMOTT
MARTIN J. MCCLAIN
HON. JOHN ELLIS "JEB" BUSH, GOVERNOR
ROSA H. CARSON
CHARMAINE M. MILLSAPS
CASE NO. SC06-2023
PAGE 3

ANSTEAD, J., concurring specially.

I concur in the majority's denial of relief because I, too, am bound by the
rulings of this Court rejecting similar challenges to the State's procedures for execution
by lethal injection in Hill and Rutherford as cited by the majority.

I am troubled,
however, by the fact that the State has not at all times made its execution procedures
and protocols a matter of public record, and by the fact that since our initial decision
in Sims approving the use of lethal injection based substantially on theory, there has
been no public evidentiary hearing focused on the purpose and effectiveness of the
State's procedures, and on what actually takes place during the course of an execution
by lethal injection.

Now that this method of execution has been in place for a number
of years we would all benefit by such a hearing.

REPLY TO RESPONSE TO PETITION FOR ALL WRITS - Arthur Rutherford

2006-10-18T08:19:00.000-07:00

http://www.arthurrutherford.us/legal/Replyallwrit.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.

REPLY TO RESPONSE TO PETITION FOR ALL WRITS

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
1
ARGUMENT IN REPLY

Respondents have had sixty (60) days to prepare for today -
to plan their defense for when their secret was exposed.1

Mr.
Rutherford’s counsel has had 3.5 hours to review the new lethal
injections procedures and present a response to the Respondents’
argument, while preparing pleadings for other courts in which
litigation is pending.

Though counsel’s time has been short,
though he has been denied the opportunity to consult with
experts, though he has been denied the access to other public
records regarding the promulgation of the new lethal injection
procedures, though he has been denied discovery and the
opportunity to depose those who promulgated the new lethal
injection procedures and ascertain the standard why, where, when,
who and how questions, there are certain glaring, obvious, and
substantial changes in the protocol.2

1In Jones v. Butterworth, 691 So. 2d 481 (Fla. 1997), this
Court exercised jurisdiction. In order to exercise jurisdiction,
this Court of necessity found it had jurisdiction - otherwise the
opinion and the resulting proceedings would be a nullity.
Respondents’ argument in this regard is not well taken.

2The new protocol requires the warden to “select two (2)
executioners who are fully capable of performing the designated
functions to carry out the execution.” The old protocol did not
provide the warden with this discretion. This change causes many
questions and concerns: What capabilities need an executioner
possess? Does a “capable” individual possess any medical
training?

The new protocol also requires the warden to administer a
presumptive drug test and alcohol test to the executioners. The
old protocol did not include this test. And, if one or both of
the executioners is disqualified, the warden “will continue to
select and test as many additional executioners as is necessary
2
The new protocol requires that a “designated member of the
execution team will purchase, and at all times ensure a
sufficient supply of, the chemicals to be used in the lethal
injection process. The designated team member will ensure that
the lethal injection chemicals have not reached or surpassed
their expiration dates. The lethal chemicals will be stored
securely at all times . . . ”. The old protocol did not provide
for maintenance or storage of the chemicals.3

The new protocol requires that after the physical
examination of the condemned, “[i]f the team member(s) reports an
issue that could potentially interfere with the proper
administration of the lethal injection process, the warden will
consult with any or all of the members of the execution team and
to ensure the presence of two qualified executioners”. The old
protocol did not provide the warden with this discretion.

The new protocol requires that “simulations of the execution
process” be performed on a quarterly basis. The old protocol did
not provide for any simulations.

The new protocol requires that the warden to ensure “that
all members of the execution team and other involved staff have
been adequately trained. . . ”. The old protocol did not provide
the warden with this discretion or responsibility. This change
causes many questions and concerns: What training is performed?
Are there guidelines for the training? What happens, i.e., is
disclosed or prepared if training procedures do not proceed as
planned?

The new protocol calls for the use of a checklist. The old
protocol did not provide for the use of checklist. Where is the
checklist from the execution of Clarence Hill?

3This change causes many questions and concerns: How will the
chemicals be stored so that they are secure? What qualifications
does the execution member have to determine whether the chemicals
have surpassed their expiration dates?
3
resolve the issue.” The old protocol did not provide for a
determination of issues that could interfere with the lethal
injection procedure and for a process to resolve those issues.4

The new protocol calls for two hours prior to the execution
to “prepare the lethal injection chemicals. The old protocol did
not provide for preparation of the chemicals.5 The new protocol
calls for “A designated member of the execution team” to “explain
the lethal injection procedure to the inmate and offer any
medical assistance or care deemed appropriate.

The old protocol
4This change causes many questions and concerns: What type of
issues could interfere with the proper administration of the
lethal injection process? Will the condemned and/or his attorney
be notified? What resolutions will be considered in regard to
the problems? Will the condemned and/or his attorney be
notified?

5This change causes many questions and concerns: Does it matter
that the chemicals are prepared two hours prior to the execution?
Who mixes the chemicals? What is his/her training?
4
did not provide for any medical assistance.6 The new protocol
calls for a central venous line to be placed with or without a
venous cut-down if peropheral venous access cannot be achieved.
The old protocol did not provide for a cut-down.7

6This change causes many questions and concerns: What type of
medical assistance is contemplated? Does this individual have
the required medical training and ability to administer the
medical care?

7This change causes many questions and concerns: Who will do
the cut-down? How will it be done? When will it be done?
5

The new protocol calls for the administration of 2 syringes,
each with 2.5 grams of sodium pentothal.

The old protocol
contained no discussion regarding the drugs or the amounts to be
administered.8 The new protocol calls for the administration of
100 mg of pancuronium bromide. The old protocol did not provide
for this amount of pancuronium bromide.9 Nor did the testimony
elicited in the Sims hearing.

The new protocol calls for the
administration of 2 syringes of potassium chloride, each of
120mEq. The old protocol did not provide for this amount of
potassium chloride. Nor did the testimony elicited in the Sims
hearing. Contrary to what the State has represented the amounts
of the three drug protocol have changed.10

Respondents protestation that the newly adopted lethal
injections procedure is really not new or different smacks of the
child with cookie crumbs around his mouth who indignantly asserts
that he did eat the cookies missing from the cookie jar. If it
is not a substantial revision, why was it not disclosed. If
8The drugs and their amounts was discussed in the testimony
during the Sims evidentiary hearing and this Court indicated its
understanding was the amount of sodium pentathol to be
administered was 2 grams. The change in the doseage causes many
questions and concerns: Is this enough sodium pentothal?

9This change causes many questions and concerns: Why use
pancuronium bromide at all?

10These are not the only changes from the old protocol to the
new protocol, but, due to the limited time in which file his
reply, Mr. Rutherford has done his best to demonstrate that there
are significant differences between the old and new protocols.
6
Respondents truly believed that it was the same old procedure,
why did they not hand out copies on August 16th to one and all.

The new lethal injection procedure is but the tip of the ice
berg, that which we see above the waterline. What we don’t yet
know is that which is still submerged - the real story, why, what
where, when how, and who. And because we do not know the rest of
the story, we don’t know what else

Respondents are withholding
that may demonstrate that there is or has been a problem with
Florida’s method of execution.

There are many unanswered
questions:

Why were the changes made?
What information was relied upon in making the changes?
Why was this informationhidden from Mr. Rutherford and his counsel?

CONCLUSION

Mr. Rutherford respectfully requests the relief stated in
his petition.
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
7
8
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

Appendix to State`s response - Arthur Rutherford

2006-10-18T07:11:00.000-07:00

Appendix to State`s response to motions can be read here in PDF :

http://www.arthurrutherford.us/legal/Filed_10-17-2006_StateResponseAppendix.pdf

Florida Supreme Court order on motion to be heard

2006-10-18T07:08:00.000-07:00

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

Supreme Court of Florida

TUESDAY, OCTOBER 17, 2006

CASE NO.: SC06-2023

ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR.,
ETC., ET AL
___________________________________________________________________
Petitioner(s) Respondent(s)
Petitioner's Motion for Opportunity to be Heard is granted and petitioner is
allowed to file by 4:30 p.m., on October 17, 2006, a reply not to exceed five pages in
length.

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CAROLYN M. SNURKOWSKI
LINDA MCDERMOTT
MARTIN J. MCCLAIN
CHARMAINE M. MILLSAPS

MOTION FOR OPPORTUNITY TO BE HEARD - Arthur Rutherford

2006-10-18T07:01:00.000-07:00

http://www.arthurrutherford.us/legal/Motiontobeheard.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,
Respondents.

MOTION FOR OPPORTUNITY TO BE HEARD

COMES NOW, A.D. RUTHERFORD, Petitioner, by and through
undersigned counsel and moves this Court to allow him the
opportunity to be heard and as grounds therefore asserts:
1. Mr. Rutherford is presently scheduled to be executed on
October 18, 2006, at 6:00 p.m.

2. On October 17, 2006, Mr. Rutherford filed a Petition
Seeking to Invoke this Court’s All Writs Jurisdiction based on
Mr. Rutherford’s recently learning that on August 16, 2006, the
Department of Corrections promulgated a new lethal injection
protocol in order to establish new procedures for all subsequent
executions.

3. A few hours later, this Court entered an order
requiring Respondent’s to respond by 1:00 p.m., but precluding
Mr. Rutherford from filing a reply.

4. Shortly before 1:00 p.m., undersigned received the
1A cursory review of the two protocols makes clear that
there have been significant changes, contrary to the State’s
argument.
2
State’s response which attached the lethal injection protocol
which was adopted on August 16, 2006. Prior to today, the State
had refused to provide Mr. Rutherford with the new protocol,
despite his requests and despite pending litigation before the
various state, federal and the United States Supreme Court.

5. Mr. Rutherford respectfully requests that this Court
allow him the opportunity to be heard as to the State’s arguments
that this Court does not have subject matter jurisdiction to hear
his claim and that protocol enacted August 16, 2006, is not new.1

6. At its core, due process means that a party has an
opportunity to be heard. In light of the State’s disclosure this
morning, Mr. Rutherford must be allowed to be heard.

WHEREFORE, Petitioner, A.D. Rutherford, by and through
undersigned counsel, respectfully requests that this Court allow
Mr. Rutherford the opportunity to file a reply to the
Respondent’s arguments.

I HEREBY CERTIFY that a true and correct copy of the
foregoing motion has been furnished via electronic mail, to
Carolyn Snurkowski, Deputy Attorney General, Office of the
Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-
1050, and Charmaine Millsaps, Assistant Attorney General, Office
of the Attorney General, The Capitol, PL-01, Tallahassee, Florida
3
32399-1050, on this 17th day of October, 2006.
/s/ Linda McDermott
LINDA MCDERMOTT
Fla. Bar No. 0102857
/s/ Martin McClain
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

STATE RESPONSE TO PETITION FOR ALL WRITS - Arthur Rutherford

2006-10-18T06:50:00.000-07:00

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

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC06-2023

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

RESPONSE TO PETITION FOR ALL WRITS

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@
2
petition.

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
issue.

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
3
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
procedures.

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
4
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
"quickly."

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
5
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
3.852(i).

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.
See: Judge O.H. Eaton, Jr., FEATURE: DISCOVERY OF PUBLIC RECORDS IN CAPITAL
CASES, 76 Fla. Bar J. 24, (April, 2002).

The appropriate rule, governing cases where a warrant has been signed, is rule
6
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.

CONCLUSION

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

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
7
COUNSEL FOR RESPONDENT
8
CERTIFICATE OF SERVICE
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 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.
________________________________
Charmaine M. Millsaps
Attorney for the State of Florida

Petition for all writ - Arthur Rutherford

2006-10-18T06:33:00.000-07:00

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

State response to stay motion - Arthur Rutherford

2006-10-18T06:25:00.000-07:00

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).
3
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.
________________________________
4
Charmaine M. Millsaps
Attorney for the State of Florida

FSC orders State to respond to stay application

2006-10-18T06:21:00.000-07:00

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

Supreme Court of Florida

TUESDAY, OCTOBER 17, 2006

CASE NO.: SC06-2023

ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR.,
ETC., ET AL
___________________________________________________________________
Petitioner(s) Respondent(s)

Petitioner has filed a petition seeking to invoke this court's all writs jurisdiction
and motion for stay of execution.

Respondent shall file a response by 1:00 p.m.,
October 17, 2006, to the above-referenced petition and motion including whether this
Court has subject matter jurisdiction over the petition and whether the lethal injection
procedures have in fact been changed.

No reply will be entertained by this Court.

A True Copy
Test:
kb
Served:
CAROLYN M. SNURKOWSKI
LINDA MCDERMOTT
MARTIN J. MCCLAIN
CHARMAINE M. MILLSAPS

Motion to stay execution - Arthur Rutherford

2006-10-18T05:49:00.000-07:00

http://www.arthurrutherford.us/legal/Motiontostayexecution.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,
Respondents.
/
MOTION FOR STAY OF EXECUTION

COMES NOW, A.D. RUTHERFORD, Petitioner, by and through undersigned
counsel and moves this Court to issue a stay of execution and as grounds therefore
asserts:

1. Mr. Rutherford is presently scheduled to be executed on October 18,
2006, at 6:00 p.m.

2. Simultaneously with this motion, Mr. Rutherford has filed a Petition
Seeking to Invoke this Court=s All Writs Jurisdiction based on Mr. Rutherford=s recently
learning that on August 16, 2006, the Department of Corrections promulgated a new
lethal injection protocol in order to establish new procedures for all subsequent
executions.

3. This Court has granted stay of executions when situations have warranted
it. See King v. Moore, 824 So. 2d 127 (Fla. 2002); Bottoson v. Moore, 824 So. 2d 115
(Fla. 2002); Provenzano v. State, 750 So. 2d 597, 603 (Fla. 1999); Roberts v. State,
2
678 So. 2d 1232, 1236 (Fla. 1996); Spaziano v. State, 660 So. 2d 1363, 1370 (Fla.
1995).

4. The last minute nature of the request is due to the actions of
Respondents, not Mr. Rutherford.

WHEREFORE, Petitioner, A.D. Rutherford, by and through undersigned counsel,
respectfully requests that this Court enter a stay of execution.

I HEREBY CERTIFY that a true and correct copy of the foregoing motion has
been furnished by hand delivery, to Carolyn Snurkowski, Deputy Attorney General,
Office of the Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-1050,
and Charmaine Millsaps, Assistant Attorney General, Office of the Attorney General,
The Capitol, PL-01, Tallahassee, Florida 32399-1050, on this 17th day of October,
2006.
______________________
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

Court rejects challenge to death penalty

2006-10-18T05:37:00.000-07:00

By NATHAN CRABBE

Sun staff writer

The Florida Supreme Court on Tuesday rejected claims that newly released information on the death penalty should delay an execution scheduled for today.

Now attorneys for condemned killer Arthur Rutherford will turn to the federal courts in a last-ditch effort to stop the execution.

The case could provide an indication whether Gainesville serial killer Danny Rolling's execution goes forward as planned next week.

Rutherford is scheduled to be executed at 6 p.m. today at Florida State Prison in Raiford. His attorney, Linda McDermott, said a document released this week reveals the state made secret changes to the lethal injection process.

"At a minimum, we need to have the opportunity to review this," she said.

The new details are part of a document adopted by the Florida Department of Corrections in August, which had previously not been made public. The document for the first time outlines the exact amount of drugs used in executions and provides more information about the procedure than previously revealed.

Corrections Secretary James McDonough intended the document to provide transparency in the execution process. The document doesn't make any major changes to the process other than requiring drug tests of executioners, said Robby Cunningham, department spokesman.

"It really just spelled out the process that already existed," he said.

The Florida Supreme Court agreed, rejected Rutherford's petition by a 6-0 margin. The seventh justice, Justice Kenneth Bell, recused himself from the case.

"Our review of the current lethal injection procedures ... reveals nothing that would cause this court to revisit our previous conclusions that procedures for administering the lethal injection as attested do not violate the Eighth Amendment's prohibition on cruel and unusual punishment," the court wrote in its opinion.

Rutherford's attorneys will now turn to the 11th Circuit Court of Appeals and the U.S. Supreme Court to try to stop the execution. A ruling in his favor could also delay the scheduled Oct. 25 execution of Danny Rolling, who murdered five Gainesville college students in 1990.

Rolling's attorney, Baya Harrison, said he'll push the same issues in that case."We're going to piggyback on anything that the Rutherford legal team does," he said.

Attorneys across the country in recent months have claimed the lethal injection process is flawed and could cause extreme pain. Many have cited a study by University of Miami medical school physicians, which found that post-death blood concentrations of anesthetic were lower than required for surgery in 43 of 49 executed inmates in other states.

David Lubrasky, chairman of the school's anesthesiology department and study co-author, said the new document shows that massive amounts of drugs are being used in Florida executions. But he said that doesn't mean the drugs are being administrated by trained medical professionals.

"In my hands, I could kill you with them," he said. "In the hands of someone who didn't know what they were doing, it could be a different story."

Rutherford, 57, was sentenced to death for the 1985 drowning of a 63-year-old Milton woman in her bathtub. He had been scheduled to be executed in January, following condemned cop killer Clarence Hill.

The U.S. Supreme Court halted both executions, later ruling Hill could use federal civil rights law to claim lethal injection was cruel and unusual punishment. But the court last month allowed Hill to be executed before those claims could be heard.Attorney Todd Doss of Lake City, who represented Hill, filed a request Friday for information on the lethal injection procedure. He received the document Monday outlining the procedure.

He said the state had an ethical duty to release the information before Hill's execution.

"To say you're doing justice while hiding something like this is a farce," he said.Carolyn Snurkowski, assistant deputy attorney general for the state, said major aspects of the lethal injection procedure haven't changed. She said the types of drugs and order in which they are administered have stayed the same since the state instituted lethal injection for the death penalty in 2000.

"There's nothing new in there," she said.

In its filing to the Florida Supreme Court, Rutherford's attorneys say several changes to the procedure are substantial. They include a requirement that a member of the execution team buys and maintains the lethal drugs, more detailed descriptions about the amount of chemicals used in executions and an alternate procedure if a vein can't be located.

While the court rejected the petition, Justice Harry Lee Anstead said in a separate opinion that he was troubled by the fact that the state hadn't made its execution procedure public and no hearings have been held on what takes places during an execution."

Now that this method of execution has been in place for a number of years we would all benefit by such a hearing," he wrote.

Docket No. 06A382 USSC - Arthur Rutherford

2006-10-18T04:11:00.000-07:00

http://www.supremecourtus.gov/docket/06a382.htm

No. 06A382
Title:
Arthur D. Rutherford, Applicant
v.
Florida
Docketed:
Lower Ct:
Supreme Court of Florida
Case Nos.:
(06-1931, 06-1946)
~~~Date~~~
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Oct 16 2006
Application (06A382) for a stay of execution, submitted to Justice Thomas.
~~Name~~~~~~~~~~~~~~~~~~~~~
~~~~~~~Address~~~~~~~~~~~~~~~~~~
~~Phone~~~
Attorneys for Petitioner:
Linda McDermott
141 N.E. 30th Street
(850) 322-2172
Wilton Manors, FL 33334
Party name: Arthur D. Rutherford

Attorneys for Respondent:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: Florida

Docket No. 06-7133 - USSC - Arthur Rutherford

2006-10-18T04:08:00.000-07:00

http://www.supremecourtus.gov/docket/06-7133.htm

No. 06-7133
*** CAPITAL CASE ***
Title:
Arthur D. Rutherford, Petitioner
v.
Florida
Docketed:
October 16, 2006
Lower Ct:
Supreme Court of Florida
Case Nos.:
(SC06-1931, SC06-1946)
Decision Date:
October 12, 2006
~~~Date~~~
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Oct 16 2006
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due November 15, 2006)
Oct 16 2006
Application (06A382) for a stay of execution, submitted to Justice Thomas.
Oct 16 2006
Brief of respondent Florida in opposition filed.
~~Name~~~~~~~~~~~~~~~~~~~~~
~~~~~~~Address~~~~~~~~~~~~~~~~~~
~~Phone~~~
Attorneys for Petitioner:
Linda McDermott
141 N.E. 30th Street
(850) 322-2172
Wilton Manors, FL 33334
Party name: Arthur D. Rutherford

Attorneys for Respondent:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: Florida

Florida Supreme Court docket - Case Number: SC06-2023 - Arthur Rutherford

2006-10-18T03:48:00.000-07:00

http://jweb.flcourts.org/pls/docket/ds_docket?p_caseyear=2006&p_casenumber=2023

Florida Supreme Court Docket
Case Docket
Case Number: SC06-2023 - Active

ARTHUR DENNIS RUTHERFORD vs. CHARLES J. CRIST, JR., ETC., ET AL
-->
Date Docketed
Description
Date Due
Filed By
Notes
10/17/2006
PETITION-ALL WRITS

PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
(O&6)
10/17/2006
No Fee Required

10/17/2006
MOTION-STAY (EXECUTION)

PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
(O&6)
10/17/2006
ORDER-RESPONSE/REPLY REQUESTED (SPEC ISSUE)

Petitioner has filed a petition seeking to invoke this court's all writs jurisdiction and motion for stay of execution. Respondent shall file a response by 1:00 p.m., October 17, 2006, to the above-referenced petition and motion including whether this Court has subject matter jurisdiction over the petition and whether the lethal injection procedures have in fact been changed. No reply will be entertained by this Court.
10/17/2006
RESPONSE

RS Hon. Charles J. Crist, Jr. BY: RS Charmaine M. Millsaps 0989134
( FILED BY 1:00) ORIGINAL & 7 & E-MAIL
10/17/2006
ORDER-REPLY TO RESPONSE FILING GR

Petitioner's Motion for Opportunity to be Heard is granted and petitioner is allowed to file by 4:30 p.m., on October 17, 2006, a reply not to exceed five pages in length.
10/17/2006
REPLY TO RESPONSE DUE
10/17/2006
PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
(TO BE FILED BY 4:30)
10/17/2006
MOTION-OTHER SUBSTANTIVE

PT Arthur Dennis Rutherford 105314 BY: PT Linda Mcdermott 0102857
FILED AS "MOTION FOR OPPORTUNITY TO BE HEARD"
-->

Inmate requests stay from Fla. Supreme Court

2006-10-17T15:37:00.000-07:00

TALLAHASSEE -- Arthur Rutherford's attorneys claim the state of Florida in August changed its procedures for lethal injection and lied about it since then.

Rutherford, whose execution is set for Wednesday, asks the Florida Supreme Court to stay his execution in filings made this afternoon.Attorneys for the state were required to reply to the filings this afternoon.

In the state's response, they deny that Florida's lethal-injection protocols have changed.A memorandum included in the filing says it describes lethal injection procedures "effective for executions after August 16, 2006."

Martin McClain, one of Rutherford's attorneys, was angry this afternoon and shouted responses to questions about his appeal and the state's response.

"This is scary stuff. This is stuff that's going on at the national level -- turn everything into a state secret, and then say just trust us you don't need to know," McClain said. "It's really outrageous."

The state's response in court says nothing has changed in the way inmates are executed.

"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," the state's filing said. "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."

McClain said learning of the August memo the day before his client's execution was unacceptable.

"They have known since August 16th. We find out less than 36 hours before our client is executed," McClain said. "There's no time, they've deprived us of the opportunity to look at this. It's clearly a part of their strategy."

Last week, Rutherford's attorneys had made a public records request of the Department of Corrections and been denied.

The attorney representing the state did not immediately return phone calls. The state's response denied that anything had changed and said Rutherford was prohibited from making the appeal because he'd asked too late for the stay.

McClain was incensed by what he described as the state's actions.

"It's the most outrageous thing I can possibly imagine. If I, as a defense attorney, did something like this, they'd have my bar card," McClain said.

Florida's lethal injection methods have been the subject of much litigation, as have other states' protocols where courts have halted death sentences to review the procedures. In Florida, state and federal courts have approved the method used here, first approved in January 2000. That initial court review of lethal injection, and the details it revealed, have been the standard for subsequent legal challenges.

But filings made by the state provide greater detail than what has been public previously. Florida uses a three-drug combination to execute prisoners, including sodium pentothal, which is administered first. In previous court filings, the amount administered has been described as "no less than" 2 grams.

In the memo filed by the state Tuesday, the Aug. 16 procedure describes two syringes to be used during lethal injections that contain 2.5 grams of sodium pentothal each, for a total 5 grams of the anesthesia.

Rutherford, 57, is sentenced to death for the 1985 murder of Stella Salamon of Milton.

New Rutherford appeal claims execution procedure has changed

2006-10-17T15:29:00.000-07:00

RON WORDAssociated Press

JACKSONVILLE, Florida - A new appeal filed Tuesday by condemned killer Arthur Rutherford asked the Florida Supreme Court to stay his scheduled execution Wednesday because it claims the state has changed its execution procedures.

Rutherford, 57, is scheduled to die at 6 p.m. Wednesday for the Aug. 22, 1985, attack on 63-year-old Stella Salamon, whose naked body was found submerged in the bathtub of her Milton home. Salamon had a broken arm, bruises on her face and arms, and three severe head wounds. The medical examiner said Salamon died from drowning or asphyxiation.

At issue is a nine-page document, dated Aug. 16, and released in a court filing Tuesday by the Florida Department of Corrections, which outlines execution procedures.

Robby Cunningham, a DOC spokesman, said the document is not a change, but spells out procedures that have been in place since Florida switched from the electric chair to lethal injection in 2000.

"We have not changed any protocols," said Robby Cunningham, a spokesman for the Department of Corrections. He said the procedures have not changed since they were first used in 2000 when the state switched from the electric chair to lethal injection.

"Florida's lethal injection protocols have not changed," Charmaine Millsaps, an attorney for the state, wrote in a court filing.

She argues that the execution chemicals are the same as described in a court case when the state was implementing its lethal injection procedure.

The appeal, filed by attorneys Linda McDermott and Martin McClain, claims new "lethal injection procedures were adopted in secret on Aug. 16."

The new document, ordered by Corrections Secretary James McDonough, was designed to provide transparency in the execution process. The document, released in prior executions was heavily redacted, with much of it blacked out, Cunningham said.

Among the new details are how executioners are hired, the drug and alcohol testing of members of the execution team, detailed descriptions of the order and the amount of chemicals injected, a cut down procedure if a vein cannot be located and a check list for the execution team.

Rutherford had been scheduled to die in late January, but the U.S. Supreme Court stopped his execution just minutes before he was to be injected with lethal chemicals. The case was delayed while the high court took up Clarence Hill's appeal. He was convicted in the death of a Pensacola police officer. Hill and Rutherford sought permission to challenge that the chemicals used in Florida's execution process caused extreme pain.

Hill was executed Sept. 20 and never got a hearing on the chemical issue and neither had Rutherford.

The updated procedure is dated one day before Hill's death warrant was reactivated on Aug. 17.

"It's outrageous," McClain said. "They executed Mr. Hill and did not tell his attorney."

"We are going to tell the 11th Circuit and U.S. Supreme Court, they were lied to," McClain said, noting that state attorneys had told the high court that Florida had no plans to change its procedure.

D. Todd Doss, who represented Hill, discounted assertion that the new document was the same procedure, said, "There's some strange logic here. It's beyond bizarre."

Doss noted his client lost in the high court by a 5-4 vote. If had known about the new procedure, he might have been able to save Hill's life.

"To say it hasn't changed is pretty disingenuous," Doss said.

In addition to the new filing before the state high court, Rutherford's attorneys have two appeals pending before the U.S. Supreme Court. One argues that the state's system of applying the death sentence is arbitrary and is unconstitutional. Another appeal asks the court to send his appeal challenging Florida's three-chemical cocktail used in executions back to the federal district court to be heard, said Carolyn Snurkowski, a death penalty attorney in Attorney General Charlie Crist's Office.

Salamon, a widow from Australia, had hired Rutherford to do a series of odd jobs, including replacing her sliding glass patio doors. She expressed concern about him to her friends.

Police found Rutherford's fingerprints and palm prints in the bathroom where Salamon was killed.

At his trial, two witnesses, Elizabeth Ward and her mother, Mary Heaton, testified that Rutherford asked for their help in cashing a $2,000 check from Salamon's bank account. Rutherford forged Salamon's name on the check and took Heaton to a bank, where she cashed the check.

Regina Grayson, 32, one of Rutherford's five children, said family members have been spending time with her father. "He was a wonderful daddy. He still is."

"I don't see how taking him away is going to solve anything. We waited 21 years hoping that this wouldn't happen. At the end of 21 years, we are going to lose him," she said in a telephone interview from her Milton home.

"We always have hope," she said.

Convict Is Vietnam Veteran

2006-10-17T09:13:00.000-07:00

http://www.news4jax.com/news/10095349/detail.html

State Set To Execute Killer In 1985 Murder
Convict Is Vietnam Veteran

POSTED: 11:01 am EDT October 17, 2006

JACKSONVILLE, Fla. -- The state is preparing to execute Vietnam veteran Arthur Rutherford for the 1985 murder of a woman in her Milton home as his attorneys turn to the courts to try to spare him.

Rutherford is expected to be executed Wednesday at 6 p.m.
The U.S. Supreme Court blocked Rutherford's death earlier this year after he claimed the state's lethal injection procedure is cruel and unusual punishment. The stay was later lifted.

Rutherford was convicted of the 1985 robbing and killing Stella Salamon where the handyman had installed sliding glass doors.

The woman was severely beaten and drowned or asphyxiated. Her body was found in a bathtub.

Four witnesses testified that Rutherford either told them that he was planning to kill her or admitted it afterward.

Previous Story:
January 31, 2006: Supreme Court Halts Second Florida Execution In Seven Days

No. 06-7028 - USSC - Arthur Rutherford

2006-10-17T05:27:00.000-07:00

http://www.supremecourtus.gov/docket/06-7028.HTM

No. 06-7028
*** CAPITAL CASE ***
Title:
Arthur D. Rutherford, Petitioner
v.
James R. McDonough, Secretary, Florida Department of Corrections, et al.
Docketed:
October 11, 2006
Lower Ct:
United States Court of Appeals for the Eleventh Circuit
Case Nos.:
(06-10783)
Decision Date:
October 5, 2006
~~~Date~~~
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Oct 11 2006
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due November 13, 2006)
Oct 11 2006
Application (06A361) for a stay of execution, submitted to Justice Thomas.
Oct 13 2006
Brief of respondent James R. McDonough, Secretary, Florida Department of Corrections, et al. in opposition filed.
Oct 13 2006
Brief of respondent James McDonough, Secretary, Department of Corrections, et al. in opposition to application for stay of execution filed.
~~Name~~~~~~~~~~~~~~~~~~~~~
~~~~~~~Address~~~~~~~~~~~~~~~~~~
~~Phone~~~
Attorneys for Petitioner:
Linda McDermott
141 N.E. 30th Street
(850) 322-2172
Wilton Manors, FL 33334
Party name: Arthur D. Rutherford

Attorneys for Respondents:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: James R. McDonough, Secretary, Florida Department of Corrections, et al.

06-10783 - USSC - Arthur Rutherford

2006-10-17T05:20:00.000-07:00

http://www.supremecourtus.gov/docket/06a361.htm

Case Nos.:
(06-10783)
~~~Date~~~
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Oct 11 2006
Application (06A361) for a stay of execution, submitted to Justice Thomas.
Oct 13 2006
Brief of respondent James McDonough, Secretary, Department of Corrections, et al. in opposition to application for stay of execution filed.
~~Name~~~~~~~~~~~~~~~~~~~~~
~~~~~~~Address~~~~~~~~~~~~~~~~~~
~~Phone~~~
Attorneys for Petitioner:
Linda McDermott
141 N.E. 30th Street
(850) 322-2172
Wilton Manors, FL 33334
Party name: Arthur D. Rutherford

Attorneys for Respondents:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: James McDonough, Secretary, Department of Corrections, et al.

No. 06-6815 - USSC - Arthur Rutherford

2006-10-17T05:15:00.000-07:00

http://www.supremecourtus.gov/docket/06-6815.HTM

No. 06-6815
*** CAPITAL CASE ***
Title:
In Re Arthur Rutherford, Petitioner
v.
Docketed:
September 27, 2006
~~~Date~~~
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Sep 27 2006
Petition for a writ of mandamus and motion for leave to proceed in forma pauperis filed. (Response due October 27, 2006)
~~Name~~~~~~~~~~~~~~~~~~~~~
~~~~~~~Address~~~~~~~~~~~~~~~~~~
~~Phone~~~
Attorneys for Petitioner:
Linda McDermott
141 N.E. 30th Street
(850) 322-2172
Wilton Manors, FL 33334

Inmate cancels interview on eve of his execution

2006-10-17T05:00:00.000-07:00

http://www.tallahassee.com/apps/pbcs.dll/article?AID=/20061017/CAPITOLNEWS/610170322

Originally published October 17, 2006

Inmate cancels interview on eve of his execution

By Paul Flemming

FLORIDA CAPITAL BUREAU

Condemned murderer Arthur Rutherford has canceled an interview he'd initially scheduled for today before his Wednesday execution.

Also on Monday, his lawyers filed a petition to the U.S. Supreme Court, asking it to consider arguments rejected by the Florida Supreme Court last week. Rutherford has another appeal pending before the highest court, asking it to send an earlier appeal - the one that got him a stay of execution back in January - back down to federal district court to be heard.

Condemned killer cancels interviews, lawyers file petition

2006-10-16T22:59:00.000-07:00

http://www.news-press.com/apps/pbcs.dll/article?AID=/20061017/NEWS01/610170372/1075

Condemned killer cancels interviews, lawyers file petition

By Paul Flemming
news-press.com capital bureau

Originally posted on October 17, 2006

TALLAHASSEE — Condemned murderer Arthur Rutherford has canceled an interview he'd initially scheduled for today before his Wednesday execution.

Also on Monday, his lawyers filed a petition to the U.S. Supreme Court, asking it to consider arguments rejected by the Florida Supreme Court last week.

Rutherford has another appeal pending before the highest court, asking it to send an earlier appeal — the one that got him a stay of execution back in January — back down to federal district court to be heard.Linda McDermott, one of Rutherford's attorneys, sent a letter to Florida Department of Corrections officials saying that, after consulting with her client, he wanted to cancel the interview with reporters scheduled for today.

"It sounds to me like there was some misunderstanding," McDermott said. Rutherford "indicated that he did not want to meet with the press (today). I know he's got family visits all day (today). He kind of wants to focus on that."Rutherford is set to be executed for the 1985 murder of Stella Salamon in her Milton home.

The 63-year-old woman was beaten, strangled and drowned. Rutherford was found guilty in two jury trials. He has maintained his innocence.

Carolyn Snurkowski, assistant deputy attorney general for the state, said the state's response to Rutherford's appeal likely would be filed Monday evening.With Rutherford's latest appeal, Snurkowski said the state's arguments would be bolstered by the opinion of the Florida Supreme Court that rejected Rutherford's petition.

Rutherford argued that the state's system of applying the death sentence is arbitrary, and thus unconstitutional. He also offers affidavits from second-hand sources that a woman who testified in Rutherford's trials has admitted to committing the crime.

Snurkowski said the state would argue that the petitions contain no new information that wasn't available to the defense earlier, and thus are barred as a basis for appeal. She said she does not expect a response from the U.S. Supreme Court on either still-pending appeal until Wednesday.

In January, Rutherford was strapped onto a gurney with intravenous tubes inserted and ready to deliver the drugs that would have killed him. Then, the U.S. Supreme Court granted him a stay of execution that spared his life. That appeal was denied earlier this month by the federal 11th Circuit Court of Appeals in Atlanta.

Hearing needed - Rutherford is innocent.

2006-10-16T08:30:00.000-07:00

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

The lower court ignored the significance as
to a confession to yet another individual, independent of her confessions to
Gilkerson and Pouncey.60

Not only does Adkison add one more witness to Heaton=s
guilt, but also all of the information obtained by Mr. Rutherford corroborates the
other information and the information from trial that Heaton cashed the victim=s
check, obtained $2000.00 and then proceeded to start spending a large quantity of
the money.

Given an evidentiary hearing, Mr. Rutherford would show that Adkison, Gilkerson
and Pouncey have no connection to each other and no motive to lie about Heaton=s
confessions and violent tendencies.
Likewise, Eddie Bivin=s testimony would show that
even Heaton=s own family has reason to suspect that she is guilty of the crimes and Mr.
Rutherford is innocent.

Information from Marie Pouncey - Arthur Rutherford

2006-10-16T08:21:00.000-07:00

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

Also, postconviction counsel located Marie Pouncey, a woman who resided with
Heaton in 1995 (Att. M to Jan. 6, 2006, Motion for Rehearing).

Ms. Pouncey recalled
how Heaton slapped her elderly father, spoke to Ms. Pouncey`s young son about a
murder and told Pouncey that she knew how to kill [her] and get away with it.@ (Id.).

Information from Eddie Bivin - Arthur Rutherford

2006-10-16T08:18:00.000-07:00

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

Based upon Gilkerson=s information, postconviction counsel sought to locate and
interview others who knew Heaton.

Indeed, in December, Eddie Bivin, Elizabeth
Ward=s current husband, attested that a few years ago he overheard a conversation
between several of Heaton=s family members (Att. L to Jan. 6, 2006, Motion for
Rehearing).

During the conversation, one of Heaton=s sister=s stated: AYou know, Mary
Francis may have been the one that killed that lady and not the man they said did it.@
(Id.).

The affadavit of Alan Gilkerson - Arthur Rutherford

2006-10-16T08:14:00.000-07:00

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

After Mr. Rutherford=s death warrant was signed on November 29, 2005,
postconviction counsel learned of an individual, named Alan Gilkerson. In an affidavit,
Gilkerson stated:

5. At some point, I was made aware of Elizabeth and Mary Frances=
involvement in a homicide and subsequent trial of A.D. Rutherford.

Specifically,
when I asked Elizabeth why her aunt was so mentally unbalanced I was told that
Mary had not been the same since the time surrounding the murder and trial.

In the early 1990s, the three of us lived together in a trailer. One
evening, Mary and I were alone at the trailer and I asked why she seemed so
Acrazy.@ I had witnessed her talking to herself many times in the past.

She told
me that she once killed an old lady with a hammer and made it look like A.D.
Rutherford committed the crime. She told me that she got him good and that
A.D. took the rap.

Mary Heaton told me her motive for murdering the old lady
was to get her money.

A product of an arbitrary and capricious system - Arthur Rutherford

2006-10-16T08:05:00.000-07:00

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

The report indicates that there are a number of the areas in which Florida`s
death penalty system falls short in the effort to afford every capital defendant fair and
accurate procedures@. ABA Report on Florida at iii.

In the report, recommendations
were made to assist Florida in fixing a broken system. But, the report cautions that the
apparent harms in the system Aare cumulative@ and must be considered in such a way;
problems in one area can undermine sound procedures in others.@ Id. at iii-iv.

A review
of the areas identified in the report as falling short makes apparent that in Florida=s
death penalty scheme is deficient for the many of the same reasons the schemes at
issue in Furman were found to be unconstitutional.

For example, the various opinions written in Furman noted the same evidence
of arbitrary factors unrelated to the crime or the defendant=s character that were at work
in the sentencing process that is set forth in the ABA Report on Florida. Furman, 408
U.S. at 256 n. 21 (whether counsel timely objected to error was on occasion a decisive,
albeit arbitrary factor in whether a death sentence was imposed); Id. at 290 (the manner
in which retroactivity rules operate injected arbitrariness); Id. at 293, 309-10, 313 (the
number of executions in comparison to the number of murders suggested a lottery); Id.
at 364-66 (evidence that racial prejudices and/or classism and/or sexism infected
sentencing decisions); Id. at 366-67 (likelihood that an innocent may be executed
suggested arbitrariness); Id. at 368 n. 158 (the failure to apply scientific developments
in criminal cases fast enough to enhance reliability of outcome of process created
arbitrary results).

Based on the information contained in the report, it is clear that death sentences,
like Mr. Rutherfords, are a product of an arbitrary and capricious system. `

Who is executed in Florida is determined by a myriad of factors unrelated to the facts of the
crime or the character of the defendant.

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

2006-10-16T04:52:00.000-07:00

From the blog Law, Sentencing and Policy :

http://sentencing.typepad.com/sentencing_law_and_policy/2006/10/eleventh_circui.html

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

Eleventh Circuit shuts down another lethal injection litigant
Regulating executions in California
Uncovering lethal injection realities

Rutherford to give interview before execution

2006-10-16T04:43:00.000-07:00

http://www.tallahassee.com/apps/pbcs.dll/article?AID=/20061016/CAPITOLNEWS06/61016002

Originally published October 16, 2006

Rutherford to give interview before execution

By Paul Flemming

Florida Capital Bureau

Condemned murderer Arthur Rutherford is scheduled to be executed Wednesday at 6 p.m. Before then, he has something to say. On Tuesday afternoon, Rutherford is scheduled to hold a group interview with reporters.

Condemned Fla. killer to meet reporters

2006-10-16T04:33:00.000-07:00

http://www.floridatoday.com/apps/pbcs.dll/article?AID=/20061016/BREAKINGNEWS/61016003/1086

Condemned Fla. killer to meet reporters

BY PAUL FLEMMING

FLORIDA TODAY

TALLAHASSEE -- Condemned murderer Arthur Rutherford is scheduled to be executed Wednesday at 6 p.m.

Before then, he has something to say.

On Tuesday afternoon, Rutherford is scheduled to hold a group interview with reporters.

Rutherford is set to be executed for the 1985 murder of Stella Salamon in her Milton home. The 63-year-old woman was beaten, strangled and drowned. Rutherford was found guilty in two jury trials.

He has maintained his innocence.

The Department of Corrections said its procedures for Death Row inmates allow condemned prisoners a final interview with either a single reporter or a group of reporters at the Florida State Prison outside off Starke.

Rutherford will meet with up to five reporters, those on the witness list for his execution the next day.

Attorney Linda McDermott said she had discussed the interview with Rutherford, but attorney-client confidentiality precluded her from saying what those discussions were about. McDermott said last week that she intended to file appeals in federal court today.

Last Thursday, the Florida Supreme Court rejected Rutherford's latest appeals, exhausting his legal options in state court.Rutherford's daughter, Regina Grayson, said she had not discussed with her father what he intended to say. She saw her father twice last week and is scheduled for another visit on Tuesday. On Wednesday, Grayson and other family members will be allowed a one-hour visit where contact is allowed, Grayson said.

In January, Rutherford was strapped onto a gurney with intravenous tubes inserted and ready to deliver the drugs that would have killed him. Then, the U.S. Supreme Court granted him a stay of execution that spared his life. That appeal was denied earlier this month by the federal 11th Circuit Court of Appeals in Atlanta.

Paul Flemming is a reporter for Gannett News Service in Tallahassee.

Uncovering lethal injection realities

2006-10-15T23:26:00.000-07:00

From the blog Law, sentencing and policy :

http://sentencing.typepad.com:80/sentencing_law_and_policy/2006/10/uncovering_leth.html

Uncovering lethal injection realities

Sarah Tofte, a researcher at Human Rights Watch and co-author of this recent HRW report on lethal injections in the US, has this notable commentary reacting to the evidence developed int he recent hearing concerning California's lethal injection practices.

Here is how it starts:

As a student of lethal injections in the United States, I assumed nothing any state official might say about such executions could shock me. But I underestimated California's officials. Evidence uncovered during Michael Morales' constitutional challenge to the state's executions ... reveals an astonishing history of negligence, incompetence, and irresponsibility.

Some recent related posts:

Regulating executions in California

A lethal hearing (in the wrong place?)

My lethal injection piece on SSRN

Missouri still struggling with its execution protocol

A bit of lethal injection history

How could (and should) Congress clean up the lethal injection mess?

Old school execution

Lethal injection litigation creates de facto moratorium in Ohio and...

Stay of execution unlikely

2006-10-15T23:19:00.000-07:00

http://www.floridatoday.com/apps/pbcs.dll/article?AID=/20061016/NEWS01/610160322/1006

Stay of execution unlikely

Hopes wane for successful lethal injection appeal

BY PAUL FLEMMING FLORIDA TODAY

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 STATE OF FLORIDA`S FAILURE TO REVIEW FREESTANDING CLAIMS OF ACTUAL INNOCENCE VIOLATES THE EIGHTH AMENDMENT.

2006-10-15T07:38:00.000-07:00

http://www.arthurrutherford.us/legal/rutherfordfurman3850.htm

THE STATE OF FLORIDA`S FAILURE TO REVIEW FREESTANDING CLAIMS OF ACTUAL INNOCENCE VIOLATES THE EIGHTH AMENDMENT.

1. All other factual allegations contained in this motion and the appendix hereto are fully incorporated herein by specific reference.

2. Recently, in House v. Bell, 126 S.Ct. 2064 (2006), the United States Supreme Court again considered the significance of actual innocence claims brought by capital postconviction defendants.

The Supreme Court reviewed Mr. House=s evidence of innocence in the federal habeas context and found that he had shown that in light of the evidence presented Aany reasonable juror would have [had] reasonable doubt@. Id at 2077.

In the federal habeas context, meeting the actual innocence burden of proof provided Mr. House with the opportunity to pursue Ahabeas corpus relief based on constitutional claims that are procedurally barred under state law.@ Id. at 2068.

3. Additionally, the House Court examined evidence of innocence similar to the evidence of innocence previously pleaded by Mr. Rutherford.

In House, the Supreme Court reviewed Atroubling evidence@ of another suspect. Id. at 2083

As in Mr. Rutherford=s case A[t]he confession evidence here involves an alleged spontaneous statement recounted by [one] eyewitness[] with no evident motive to lie.

For this reason it has more probative value than, for example, incriminating testimony from inmates, suspects, or friends or relations of the accused.@ Id. at 2085.

Heaton=s confession, especially in light of her possession of the victim=s check shortly after the crime was committed would have Areinforced other doubts as to [Mr. Rutherford=s guilt.@ Id.

4. The State of Florida leads the country in death row exonerations. ABA Report on Florida at 8. However, despite this troubling statistic Florida does not recognize actual innocence as a claim for relief. In addition, innocence, or lingering doubt is not a factor for a jury to consider in determining punishment. ABA Report on Florida at 311 (Athe Florida Supreme Court has consistently rejected >residual= or >lingering doubt= as a non-statutory mitigating circumstance@).

And, in Florida, under the current governor, actual innocence or lingering doubt, is not a factor to be considered in the clemency process. See Claim II, supra. Thus, in the State of Florida actual innocence means nothing after a jury has rendered a guilty verdict. This predicament demonstrates the unreliability and failure of the death penalty scheme in Florida.

5. This Court must establish an actual innocence exception and allow Mr. Rutherford to fully present his evidence of innocence. Relief is proper.

Juan Melendez in Norway TV meeting Vebjorn Sand, Elvira Nicolajsen and Bjorn Eidsvaag

2006-10-15T07:17:00.000-07:00

Juan Melendez in Skavlan - Norway TV Friday Show meeting Norways known painter Vebjorn Sand, who has an exhibition in New York now and singer Elvira Nicolajsen and Bjørn Eidsvaag

The song their newest song NÅDE - MERCY for Juan and he smiled ...

You can see them all here :

http://www1.nrk.no/nett-tv/klipp/196517

Norway will follow up the Florida death penalty situation and the Florida innnocence issues

now.

The chance of Florida executing Arthur Rutherford - the wrong killer - is imminent

Juan Melendez in Norway

2006-10-15T04:10:00.000-07:00

Juan Melendez is in Norway TV educating norwegians about Florida death row

The arbitrariness of Florida`s death penalty is shocking Scandinavia.

You can see the program here :

http://www1.nrk.no/nett-tv/indeks/75184

The Exonerated

2006-10-15T03:35:00.000-07:00

http://www.arthurrutherford.us/legal/rutherfordfurman3850.htm

The Exonerated

In Florida, since 1972, twenty-two (22) people have been exonerated and another individual has been exonerated posthumously, while sixty-one (61) people have been executed. ABA Report on Florida at iv, 8 (A[T]he proportion exonerated exceeds thirty percent of the number executed.@).

Since the reinstatement of the death penalty in 1972, Florida has led the nation in death row exonerations.@ Id. at 45. As noted by Justice Souter in his dissenting opinion in Kansas v. Marsh, 126 S.Ct. at 2544-45, when Illinois had 13 exonerations between 1977 and 2000, a moratorium was imposed and investigation launched.

During the investigation, 4 more individuals were determined to be innocent.

As a result, the Illinois capital sentencing scheme was reformed and all death sentences imposed under the old scheme were vacated. Yet, as the ABA Report on Florida notes, Florida has had more capital exonerations than Illinois.

The staggering rate of exonerations certainly suggest that Florida=s death penalty system is just as broken as Illinois= was B that politics, race, prosecutorial misconduct and deficient lawyering afflict the system.

Yet in Florida, unlike in Illinois, there has been no moratorium. There has been no investigation. There has been no reform.

There has been no effort to learn what defects and flaws have allowed innocent men to not just get convicted, not just have the convictions and sentences affirmed on direct appeal, but to have those convictions on at least one occasion (Juan Melendez) be all the way through a first round and second round of state postconviction proceedings before prevailing in a his third motion for postconviction relief and being released from death row after 17 years.

Surely what happened to Mr. Melendez was cruel and unusual in the same way that being struck by lightning is cruel and unusual@ Furman 408 U.S. at 309 (Stewart, J., concurring). The number of exonerations in the State of Florida alone demonstrates a broken system that violates the Furman promise. But equally symptomatic of a broken system is the lack of curiosity or concern that innocent men have been sent to death row.

Not only did Mr. Melendez serve 17 years there, Rudolph Holton served 16 years before his release, and Frank Lee Smith served 15 years before dying of cancer a few months before DNA evidence established his innocence.

Florida wrongful convictions - Marty McClain and Juan Melendez

2006-10-15T03:24:00.000-07:00

http://www.arthurrutherford.us/legal/rutherfordfurman3850.htm

The arbitrariness in the treatment of evidence of actual innocence.

Florida`s decision to ignore the need for an actual innocence exception which allows an individual to defeat procedural bars and to demonstrate innocence has created a system that tolerates and accepts the risk of executing an innocent individual. Though it has made an exception for new evidence in the form of the results of DNA testing, Florida has refused to apply the rationale for such an exception to its procedural bars (i.e. innocent people should not be locked up in prisons) across the board to all evidence of innocence. As a result, Florida`s capital sentencing scheme violates the principles enunciated in Furman.

FLORIDA`S CLEMENCY PROCESS IS ARBITRARY AND CAPRICIOUS AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

2006-10-15T02:55:00.000-07:00

http://www.arthurrutherford.us/legal/rutherfordfurman3850.htm

FLORIDA`S CLEMENCY PROCESS IS ARBITRARY AND CAPRICIOUS AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

1. All other factual allegations contained in this motion and the appendix hereto are fully incorporated herein by specific reference.

2. Mr. Rutherford has a continuing interest in his life until his death sentence is carried out, as guaranteed by the Due Process clause of the Fourteenth Amendment to the United States Constitution. See Ohio Adult Parole Authority, et al. v. Woodard, 523 U.S.272, 288 (1998)(Justices O=Connor, Souter, Ginsburg and Breyer concurring)(AA prisoner under a death sentence remains a living person and consequently has an interest in his life@).

This constitutionally- protected interest remains with him throughout the appellate processes, including during clemency proceedings:

Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.
Woodard, 523 U.S. at 289 (emphasis added).

The denial of Mr. Rutherford`s clemency petition was arbitrary and the process he received was not due.

3. Indeed, on September 17, 2006, five (5) days before the Governor Bush re-scheduled Mr. Rutherford`s execution, the American Bar Association=s Death Penalty Moratorium Implementation Project and the Florida Death Penalty Assessment Team published its comprehensive report of Florida`s death penalty system. See Appendix B.

The report made clear that clemency is a critical stage of the death penalty scheme. It is the only stage at which factors like lingering doubt of innocence, remorse, rehabilitation, racial and geographic influences and factors that the legal system does not correct can be considered.

The state assessment team issuing the report found that the State of Florida`s clemency process was severely lacking:

Given the ambiguities and confidentiality surrounding Florida`s clemency decision-making process and that fact that clemency has not been granted to a death-sentenced inmate since 1983, it is difficult to conclude that Florida`s clemency process is adequate.@ ABA Report on Florida at vii.

4. Florida`s clemency process is entirely arbitrary because there are no rules or guidelines Adelineating the factors that the Board should consider, but not to be limited to@ for consideration of clemency. In fact, Mr. Rutherfords own case demonstrates the arbitrariness of Florida`s clemency process.

5. On November 29, 2005, Governor Bush signed Mr. Rutherford=s warrant and scheduled his execution for January 31, 2006, at 6:00 p.m.

On January 25, 2006, 2006, Regina Grayson, the oldest daughter of Mr. Rutherford personally delivered a petition for executive clemency to Governor Bush`s office. See Affidavit of Regina Grayson, September 25, 2006 (hereinafter Grayson Aff.), Appendix D.

Through the petition Ms. Grayson asked for mercy for her father and pointed to several reasons upon which to grant clemency. See Clemency Petition, Appendix E.

Those reasons included her fathers heroic service as a United States Marine during the Viet Nam conflict and the impact his service had on his mental and emotional stability; Mr. Rutherford`s dedication to his family, particularly his children; the jury`s narrow 7 - 5 recommendation for the death penalty; and the doubt about her father`s guilt. Id.

Many of the reasons presented were never considered by the jury that narrowly recommended that Mr. Rutherford be sentenced to death.

And, since clemency is a way to achieve justice in a case where the courts have been unable to or have not achieved it, Ms. Grayson presented a compelling case for clemency.

6. Mr. Rutherford was deprived of due process in the clemency process and the decision to deny him clemency was the equivalent of flipping a coin.

The same day that Ms. Grayson delivered the clemency petition to the Governor Bush`s office, Bush spokesman Russell Schweiss said the governors clemency lawyer Aha[d] not yet reviewed the petition but that such cases normally must be filed by convicts themselves or their lawyers, not relatives. He said the issues appear more appropriate for a court of appeal.@ Bill Kaczor, Associated Press, Rutherford`s Daughter Asks Clemency from Bush, Cabinet, January 25, 2006.`

7. After much prodding of the governor`s office personnel, Ms. Grayson was told that she could speak to the governor`s Assistant General Counsel, Victoria Brennan, concerning the petition.

Like, the governor`s spokesperson, Ms. Brennan, believed that it was not [Ms. Grayson=s] place@ to ask for clemency for her father. Grayson Aff. And, Ms. Brennan also felt that the issues Ms. Grayson spoke to her about Mr. Rutherford did not matter@ in the clemency process. Id.

Mr. Rutherford`s petition was apparently given little, if any, consideration.

8. Ms. Grayson=s experience in attempting to persuade the governor and his cabinet to grant clemency proves that the process is arbitrary. No rules have been set forth about who is the proper party to request clemency, what factors matter@ in the clemency process and there is apparently a fundamental misunderstanding in Governor Bush`s office as to the purpose of the clemency process.

9. The misunderstanding of the clemency process is demonstrated by Governor Bush`s General Counsel, Raquel A. Rodriguez, who was asked to comment on the clemency section contained in the ABA Report on Florida.

Ms. Rodriguez did not agree that having specific rules and considerations for the clemency process were appropriate as the report recommends. ABA Report on Florida Appendix 1. Ms. Rodriguez set forth her belief that the clemency process should not be designed to re-litigate the question of guilt@ and or to review what courts had determined to be Aharmless errors@ Id.

Likewise, Ms. Rodriguez dismissed factors such as a petitioner`s mental health issues, age of a defendant and racial disparity as being relevant factors in the clemency process, in part because they are matters currently required by law to be addressed at various stages of a murder prosecution.@ Id.

However, the factors Ms. Rodriguez dismisses are exactly the types of factors that should be considered and have been considered in granting clemency in the State of Florida. See ABA Report on Florida at 255-6 (outlining the factors considered in granting clemency in the six (6) death-sentenced petitioner`s who received clemency since 1972

B lingering doubt; mental capacity; the disproportionality of the petitioner=s sentence); see also Herrera v. Collins, 506 U.S. 390, 411-12 (1993)

(AClemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.@)(footnotes omitted).

In fact, in Herrera, the United States Supreme Court made clear: AExecutive clemency has provided the "fail safe" in our criminal justice system. It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.

But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence.@ Id at 415.

10. The Florida Death Penalty Assessment Team has indicated that A[t]he clemency process can only fulfill its critical function when the exercise of the clemency power is governed by fundamental principles of justice, fairness, and mercy, and not by political considerations.@

Furthermore, A[t]he clemency process should provide a safeguard for claims that have not been considered on the merits, including claims of innocence and claims of constitutional deficiencies.@

The arbitrariness of Florida`s clemency process is demonstrated by the lack of any specific factors to be considered and in Mr. Rutherford`s case, Ms. Brennan`s opinion that the issues raised on his behalf did not Amatter@, i.e., that the decision-maker did not take into account all factors@. Id. at 254.

11. Mr. Rutherford did not receive due process in his recent clemency proceeding because the process was completely undefined and the information he presented (see Appendix E), was simply dismissed.

The denial of clemency for Mr. Rutherford was the equivalent of flipping a coin.

Relief is proper.

Worse Than We Thought - Arthur Rutherford

2006-10-15T02:47:00.000-07:00

http://hrw.org/english/docs/2006/10/13/usdom14388_txt.htm

Worse Than We Thought

As a student of lethal injections in the United States, I assumed nothing any state official might say about such executions could shock me. But I underestimated California’s officials. Evidence uncovered during Michael Morales’ constitutional challenge to the state’s executions—hearings in Morales’ case were held in late September in San Jose—reveals an astonishing history of negligence, incompetence, and irresponsibility.

Lethal injections look peaceful and painless—which is why California and all but one of the other death penalty states adopted them to replace the more gruesome spectacles of execution by hanging, firing squad, lethal gas, or electrocution.

The condemned prisoner is strapped to a gurney and injected with a massive dose of the anesthetic sodium pentothal, which should render him unconscious and stop his breathing.

Next he is injected with pancuronium bromide, a drug that paralyzes voluntary muscles, including the lungs and diaphragm.

Finally, he is injected with potassium chloride, which should bring swift cardiac arrest.

California copied this bizarre and dangerous drug protocol from the national leader in executions, Texas, which itself had simply taken the idea from an Oklahoma medical examiner with no pharmacology experience who concocted the protocol in 1977.

When the Morales court earlier this year ordered California to review the protocol because of evidence that it may put prisoners at risk of unnecessary pain, California officials chose not to undertake a careful inquiry.

Instead, they held a short meeting during which the state’s lawyers rejected the suggestion by one doctor in the group of an alternative single drug protocol that would carry much less risk of suffering by the prisoner.

When the drugs in the three-drug lethal injection protocol are administered properly, the prisoner should be motionless— as well as unable to feel pain—within a minute or two.

But a California doctor has testified that during four executions he observed prisoners’ chests moving up and down long after the drugs were administered. Execution logs from six recent executions also reveal body movements inconsistent with the proper administration of the lethal injection drugs, particularly the anesthetic.

If the prisoners were not sufficiently anesthetized, they may have felt themselves suffocating from the pancuronium bromide, or they may have felt their veins burning up as the potassium chloride coursed its way to their heart.

Indeed, potassium chloride is so painful that U.S. veterinarian guidelines prohibit its use on domestic animals unless a veterinarian first ensures that they are deeply unconscious.

But California does not require anyone to stay at the prisoner’s side to make sure he is in fact deeply anesthetized and unconscious before the second and third drugs are administered.

Has California taken care to ensure the drugs are properly administered? Hardly.

Members of execution teams have revealed they never practiced mixing the sodium pentothal before executions.

The testimony of four members of one team reveals each had a different understanding of the quantity of the anesthetic that should be used and the number of syringes needed to administer it.

Worse, guidelines for how to mix the drug for intravenous administration are not even included in the written protocol—they are posted on the wall of the room where the executioners work—a darkened room lit only by one dim red bulb.

During the hearings we learned that a nurse in charge of preparing the anesthetic for lethal injections decided that she had no need to study how to do it since she would not be doing it every day. Execution teams conduct rehearsals of the lethal injection procedure, but they do not rehearse responses to problems that might arise.

The team member responsible for training said that since it was not possible to anticipate all the potential problems, they didn’t practice what to do for any.

When a member of Stanley Williams’ execution team noticed that the intravenous tube was not connected properly and the drug was not being administered as it should, he never bothered to tell the execution team leader or the warden about this problem.

Indeed, although the warden is responsible for stopping an execution if he notices anything going wrong, the observation room has been so crowded during some executions that the warden could not even see clearly into the execution chamber.

As more court documents in the Morales case are made public, this sorry litany of negligence, botches and bungling will no doubt grow longer.

Executions are inherently cruel and inconsistent with fundamental human rights. But if California is going to have the death penalty, it must ensure that executions are conducted in as pain free a manner as possible.

The Morales hearings reveal that those put in charge of executing California’s prisoners have either never understood what they were supposed to do or never tried.

Sarah Tofte is a researcher at Human Rights Watch and is co-author of the 2006 Human Rights Watch report, “So Long as They Die: Lethal Injections in the United States”

Killer's fight for life wanes

2006-10-15T02:42:00.000-07:00

http://www.pensacolanewsjournal.com/apps/pbcs.dll/article?AID=/20061015/NEWS01/610150325/1006

Published - October, 15, 2006

Killer's fight for life wanes

Execution may stall legal challenges

Paul Flemming

So Long as They Die - Arthur Rutherford

2006-10-15T02:35:00.000-07:00

http://hrw.org:80/reports/2006/us0406/

So Long as They Die

Lethal Injections in the United States

Related Material

U.S.: States Negligent in Use of Lethal Injections

Press Release, April 24, 2006

Download Summary and Recommendations pdf file(10 pages, 210 Kb)

Download PDF file of this report(426 Kb, 67 pages)

Download PDF of report with cover(662 Kb, 69 pages)

Purchase a printed version of this report

More on Human Rights Watch's work on the Death Penalty

More on Human Rights Watch's work on the United States

Summary

Recommendations

To State and Federal Corrections Agencies

To State Legislators and the U.S. Congress

I. Development of Lethal Injection Protocols

Oklahoma Texas Tennessee Lethal Injection Machines Public Access to Lethal Injection Protocols

II. Lethal Injection Drugs

Potassium Chloride Pancuronium Bromide Sodium Thiopental The Failure to Review Protocols

III. Lethal Injection Procedures

Qualifications of Execution Team Checking the IV Equipment Level of Anesthesia Not Monitored

IV. Physician Participation in Executions and Medical Ethics

V. Case Study: Morales v. Hickman

VI. Botched Executions

VII. International Human Rights and U.S. Constitutional Law

International Human Rights Law U.S. Constitutional Law

Appendix A: State Execution Methods

Acknowledgements

April 2006 Volume 18, No. 1(G)

Justice Anstead dissent - Arthur Rutherford

2006-10-15T02:29:00.000-07:00

http://www.arthurrutherford.us/legal/FSCopinionOct12-2006.htm

ANSTEAD, J., concurring in part and dissenting in part.

I concur in the majority opinion in all respects save one, the requirement of
an evidentiary hearing in order to properly evaluate the newly discovered evidence
of Mary Heaton’s role in the murder for which Rutherford is to be executed.

We must remember that it is not only Rutherford’s guilt but also the death
penalty imposed that may be affected by this new evidence. Even without this
evidence a jury voted for death by the narrowest of margins, seven-to-five, just one
vote short of a recommendation for life.

With that background it is essential that the credibility and reliability of this new evidence be evaluated in the crucible of an evidentiary hearing where testimony must be presented under oath and the State given a full opportunity for cross-examination

In turn, and because of the trial court’s first hand ability to evaluate the evidence presented, our confidence in the outcome will be qualitatively increased.

The trial jury’s narrow vote demands no less.

Clemency

2006-10-15T02:25:00.000-07:00

Clemency

54. Clemency is a critical stage of the death penalty scheme. It is the only stage at which factors like lingering doubt of innocence, remorse, rehabilitation, racial and geographic influences and factors that the legal system does not correct can be considered. See Herrera v. Collins, 506 U.S. 390, 412 (1993).

However, the assessment team found Florida=s clemency process to be severely lacking: AGiven the ambiguities and confidentiality surrounding Florida=s clemency decision-making process and that fact that clemency has not been granted to a death-sentenced inmate since 1983, it is difficult to conclude that Florida=s clemency process is adequate.@ ABA Report on Florida at vii. See Furman, 408 U.S. at 253 (Douglas, J., concurring) (AUnder these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.@).

55. The clemency process is entirely arbitrary because there are no rules or guidelines delineating the factors that the Board should consider, but not to be limited to@ for consideration of clemency.

For all practical purposes, the clemency process seems to be dead. It does not appear that any serious consideration is given. It certainly does not function in the manner that is suggested it should in Herrera.

The clemency process is part and parcel of Florida=s death penalty scheme. All it provides is more arbitrariness.

Killer's execution is set for Wednesday

2006-10-15T02:18:00.000-07:00

http://www.tallahassee.com/apps/pbcs.dll/article?AID=/20061015/CAPITOLNEWS/610150331

Originally published October 15, 2006

Killer's execution is set for Wednesday

By Paul Flemming
FLORIDA CAPITAL BUREAU

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 also would 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.

Gov. Jeb Bush, prosecutors, victims' advocates and a close friend of Salamon's say it is past time to carry out the punishment for a crime that is more than two decades old.
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 execution count, which is the fifth highest in the nation.

Rutherford's family, too, acknowledges the diminished chances of another stay. Regina Grayson, one of Rutherford's daughters, visited with him last week on Tuesday and Friday along with one of her sisters and her brother.

''There's hope until he's not here anymore. I don't understand how my daddy's death is going to benefit anyone,'' said Grayson, of Milton. ''It's difficult. We had hope (in January). Now that Hill's been killed, it's not looking so good.''

Last week, Florida's Catholic bishops called for 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 - sometime it's going to be enough to get just one justice to say it's now time to take this case'' and resolve lethal-injection questions, 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.''
Grayson and her siblings will be back at the Florida State Prison on Tuesday for a six-hour visit with their father and again on Wednesday for an hour-long visit where they'll be able to touch.
''I just wish the people that are so ready to kill somebody, I wish they would stop and think,'' Grayson said. ''It's punishment enough for my dad to be in prison.''

Timeline

Aug. 22, 1985 -- Stella Salamon, a 63-year-old widow, is murdered in her Milton home. She was beaten, strangled, and drowned in her bathtub.

Jan. 31, 1986 -- A Santa Rosa County jury finds Rutherford guilty of first-degree murder and robbery with a deadly weapon.

Feb. 1, 1986 -- Rutherford is sentenced to death on an 8-4 jury recommendation.
April 2, 1986 -- A mistrial is declared.

Oct. 2, 1986 -- A Walton County jury finds Rutherford guilty on all charges.

Dec. 9, 1986 -- Rutherford is sentenced to death on a 7-5 jury recommendation.

Nov. 29, 2005 -- Gov. Jeb Bush signs Rutherford's death warrant.

Jan. 31, 2006 -- Rutherford's execution is stayed by the U.S. Supreme Court minutes before his scheduled death.

Sept. 22 -- Bush renews Rutherford's death warrant.

Sept. 26 -- Rutherford files appeal with Santa Rosa County Circuit Court.

Oct. 5 -- Appeal returned by the U.S. Supreme Court dismissed by the 11th Circuit Court of Appeals.

Oct. 6 -- State Circuit Court rejected Rutherford's appeals, now before the Florida Supreme Court.

Oct. 18 -- Rutherford's scheduled execution.

Death row statistics

There are 378 inmates on Florida's death row.

Florida administers execution by electric chair or lethal injection. Lethal injection became an option for death row inmates in 2000.

The first inmate to die by lethal injection was Terry Sims on Feb. 23, 2000.

The executioner is an anonymous private citizen who is paid $150 cash per execution.
A death row cell is 6 x 9 x 9.5 feet high.

One death row inmate, Glen Ocha, was executed in 2005.

12.83 years is the average length of stay for current death row population.
44.4 years is the average age of inmates on death row.

On March 30, 1998, Judias "Judy" Buenoano became the first woman to die in Florida's electric chair.

11.92 years is the average length of stay on Death Row prior to execution.

30.78 years is the average age at the time of offense.

43.91 years is the average age at time of execution.

Two oldest death row inmates:

John Vining, born March 13, 1931, sentenced from Orange County in 1990.

William Cruse Jr., born Nov. 21, 1927, sentenced from Brevard County in 1989.

Two youngest male death row inmates: Randy Schoenwetter, born Oct. 27, 1981 and sentenced from Brevard County in 2004.

Thomas E. Bevel, born June 20, 1981 and sentenced from Duval County in 2005.

Oldest inmate executed: Charlie Grifford, 72, executed on Feb. 21, 1951.

Youngest inmates executed (both 16 years old): Willie Clay, sentenced from Duval County, executed Dec. 29, 1941 and James Davis, sentenced from Alachua County, executed Oct. 9, 1944.

John Spenkelink was the first inmate to be executed in Florida after reinstatement of the death penalty in 1976. He was executed on May 25, 1979.

Inmate on death row the longest: Gary E. Alvord, received on death row April 11, 1974; date of offense was June 17, 1973. Alvord was sentenced from Hillsborough County.
Source: Florida Department of Corrections

The break-down

Death-row inmates by race and gender:

White Males: 233
Black Males: 133
Other Males: 12
Total: 378

The affidavit of Brian Adkinson - Arthur Rutherford

2006-10-14T06:18:00.000-07:00

1. My name is Brian Adkison.

I currently reside at the Walton
County Jail in DeFuniak Springs, Florida. I have known Elizabeth
Bevin for years, and we were neighbors in a trailer park in Crestview,
Florida in the late 1990s.

2. During the time that Elizabeth Bevin was my neighbor, I visited
her home on many occasions. I remember her aunt Mary staying with
her from time to time. Mary was always taking pills, rocking, and
talking. She often said, “Don’t mess with me because I’ve killed
people before.” She mentioned killing a lady in Milton by beating her
to death, with some sort of tool.

3. When Mary would start talking about this, Liz would tell her to
shut up and quit running her mouth. Liz did not want her talking
about this to me. But, one time when Liz wasn’t around to stop her,
Mary told me some details about the lady she’d beaten to death and
how it happened.

She told me that she beat the old lady to death when
trying to rob the lady of money and medication. Mary said something
about how she had been at the old lady’s house before, so she knew
what she had. There had been a plan to get the stuff. But when it
went down, I guess it went wrong.

I remember very clearly Mary
saying to me: “I beat her to death so she couldn’t talk.” You don’t
forget when someone tells you something like that.

Upcoming execution would further fray battle

2006-10-14T06:04:00.000-07:00

http://www.news-press.com/apps/pbcs.dll/article?AID=/20061014/NEWS01/61014004/1075

Upcoming execution would further fray battle

Lethal injection opponents focus

By Paul Flemmingnews-press.com capital bureau

Originally posted on October 14, 2006

Latest headlines by topic:
Death Penalty
Roman Catholic Church
Religion• US News
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Jeb Bush

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.”

Death penalty no antidote to violence, Fla. bishops state, urging gov to stay executions - Arthur Rutherford

2006-10-13T10:54:00.000-07:00

http://www.catholic.org/national/national_story.php?id=21593

October 12, 2006

Florida Death penalty no antidote to violence,

Fla. bishops state, urging gov to stay executions

Catholic Online
TALLAHASSEE, Fla. (Catholic Online)

– The death penalty does not provide anantidote to violence, but only serves to coarsen society, the Catholicbishops said.

In an Oct. 11 statement, the state’s 10 bishops urged Florida Gov. Jeb Bushto stay two executions scheduled for later in the month, noting that capitalpunishment is not justified when society can be kept safe from perpetratorsof heinous crimes by sentences of life imprisonment without the chance forparole.

Bush signed death warrants for convicted killers Arthur Dennis Rutherfordand Danny Rolling. Rutherford is scheduled to be executed Oct. 18 for the August 1985 murder of63-year-old Stella Salamon in Santa Rosa County, Fla.

Rolling, scheduled forexecution on Oct. 25, was convicted of killing five Florida college students– Sonja Larson, 18, of Deerfield Beach; Christina Powell, 17, ofJacksonville; Christa Hoyt, 19, of Archer; Tracy Paules, 23, of Miami; and,Manuel Taboada, 23, of Miami – at the start of the 1990 fall semester inGainesville, Fla.

“We, the bishops of Florida, are saddened at the prospect of two executionsscheduled for October,” the statement said. “In this day of heightened moral awareness, with increasing concerns about execution of the innocent and growing doubts about the fairness andeffectiveness of the death penalty, we plead with the state and our governorto realize that the antidote to violence is not more violence and that wecannot teach that killing is wrong by killing those who have killed others,”the Florida bishops said.

The bishops noted that the crimes for which the two men are to be executedwere “brutal … horrifying and appalling.” These crimes “were unjustifiable attacks on human life,” the bishops said,condemning them “in the strongest terms possible.” They added that their “hearts ache for the victims and their families.”

Yet, the Florida bishops stressed that the belief that justice can only beserved by “taking a murderer’s life” must be resisted. “Society must be protected from criminals,” they said, “but we need not goto the extent of executing them.” “The cycle of violence must end,” the bishops said. “Life imprisonmentwithout parole allows for justice without the legitimized killing by thestate which coarsens us all.”

They urged Bush to listen to those calling for a moratorium on executions inthe state and an examination of how the state’s death-penalty system isadministered.

The statement was signed by Archbishop John C. Favalora of Miami, Bishop John J. Nevins of Venice, Bishop John H. Ricard of Pensacola/Tallahassee,Bishop Robert N. Lynch of St. Petersburg, Bishop Victor Galeone of St.Augustine, Bishop Gerald M. Barbarito of Palm Beach, Bishop Thomas G. Wenskiof Orlando, Coadjutor Bishop Frank J. Dewane of Venice, Auxiliary BishopFelipe J. Estévez of Miami and Auxiliary Bishop John G. Noonan of Miami.

---Source : Catholic Online http://www.catholic.org/national/national_story.php?id=21593

Bishops ask Bush to halt 2 executions

2006-10-13T05:15:00.000-07:00

Bishops ask Bush to halt 2 executions

http://www.floridatoday.com:80/apps/pbcs.dll/article?AID=/20061013/BREAKINGNEWS/61013006/1086

BY PAUL FLEMMING
FLORIDA TODAY

TALLAHASSEE -- Florida's Catholic bishops have called on Gov. Jeb Bush to stop the scheduled executions of two prisoners in the next two weeks.

Ten bishops signed an open letter to the governor asking that he commute the death sentences of Arthur Rutherford and Danny Rolling.

On Thursday, the Florida Supreme Court rejected Rutherford's appeals for a new trial, clearing the way for his Oct. 18 execution. Rolling, scheduled to be executed by lethal injection on Oct. 25, still has appeals pending before the state's highest court.But the Catholic bishops asked Bush to stop the executions he has ordered.

"We implore the Governor to listen to the growing chorus of voices calling for a moratorium on executions in Florida and a careful examination of the State's death penalty system," the bishops wrote.

Some or all of the bishops have made similar calls in the past.

Bush, himself a Catholic, has said in the past that it is his duty as governor to carry out the sentences of the state's judicial system. He also has said he supports the death penalty as appropriate punishment for heinous crimes.

The bishops said they recognized the horror of the crimes, but still could not support executions."The brutal crimes for which these inmates are to be executed were horrifying and appalling," the bishops' letter said. "Our hearts ache for the victims and their families, and we have enormous sympathy for them. These were unjustifiable attacks on human life, and we unequivocally condemn and renounce these crimes in the strongest terms possible."

Rutherford is the convicted killer of 63-yar-old Stella Salamon, a Milton woman who was murdered in her home in 1985.

Rolling is sentenced to death for the murders of five University of Florida students in 1990.

The letter was signed by Archbishop John Favalora; Bishops John Nevins, John Ricard, Robert Lynch, Victor Galeone, Gerald Barbarito and Thomas Wenski; Coadjutor Bishop Frank Dewane, Auxiliary Bishop Felipe Estevez and Auxiliary Bishop John G. Noonan.

Rutherford and Rolling would be the 62nd and 63rd inmates executed in Florida since the death penalty was reinstated in 1976. Clarence Hill was executed last month.

Paul Flemming is a reporter for Gannett News Service in Tallahassee.

latest USSC docket - Arthur Rutherford

2006-10-13T05:09:00.000-07:00

http://www.supremecourtus.gov/orders/courtorders/061906pzor.pdf

1
(ORDER LIST: 547 U.S.)
MONDAY, JUNE 19, 2006
CERTIORARI -- SUMMARY DISPOSITION
05-8895 RUTHERFORD, ARTHUR D. V. McDONOUGH, INT. SEC., FL DOC
The motion of petitioner for leave to proceed in forma
pauperis and the petition for a writ of certiorari are granted.
The judgment is vacated and the case is remanded to the United
States Court of Appeals for the Eleventh Circuit for further
consideration in light of Hill v. McDonough, 547 U.S. ___
(2006).

11 circuit cases for Arthur Rutherford

2006-10-13T04:54:00.000-07:00

United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street,
NW Atlanta,
GA 30303
(404) 335-6100

Cases for Arthur D. Rutherford
DocketNumber
Short Style
Party Type
Date WithdrawnFrom Case
06-10784*
In Re: Arthur Dennis Rutherford
Appellant

06-10783*
Arthur D. Rutherford v. James McDonough
Appellant

03-13188*
Arthur D. Rutherford v. James Crosby
Appellant

* This case is not available online. Please contact the Clerk's Office for information.

Bishops Plead for Death Row Duo

2006-10-13T03:47:00.000-07:00

http://www.totalcatholic.com/universe/index.php?news_id=1744&start=0&category_id=&parent_id=0&arcyear=&arcmonth=

Bishops Plead for Death Row Duo

Posted on October 13, 2006

By The Universe:

Two prisoners awaiting execution in Florida have received support from the Catholic Church after local bishops appealed to Governor Jeb Bush to pardon them.

The bishops acknowledged the crimes committed by Arthur Dennis Rutherford and Danny Rolling, and acknowledged the suffering they had caused, but added: "We must resist the natural inclination to think that only by taking a murderer's life can justice be served."

"We implore the governor to listen to the growing chorus of voices calling for a moratorium on executions in Florida and a careful examination of the state's death penalty system," the letter stated."

The antidote to violence is not more violence, we cannot teach that killing is wrong by killing those who have killed others.

"Society must be protected from criminals, but we need not go to the extent of executing them. The cycle of violence must end."

Arthur Rutherford is scheduled to be executed on October 18, and Rolling a week later on October 25.

Supreme Court Examining Rolling's Execution Appeal

2006-10-13T03:41:00.000-07:00

http://www.firstcoastnews.com/news/florida/news-article.aspx?storyid=66928

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.

State Supreme Court rejects death-row appeal - Arthur Rutherford

2006-10-13T03:38:00.000-07:00

http://www.tallahassee.com/apps/pbcs.dll/article?AID=/20061013/CAPITOLNEWS/610130341/1010

Killer exhausts his state appeals

2006-10-13T03:29:00.000-07:00

http://www.pensacolanewsjournal.com/apps/pbcs.dll/article?AID=/20061013/NEWS01/610130335/1006

Published - October, 13, 2006

Killer exhausts his state appeals

Paul Flemming
News Journal capital bureau
TALLAHASSEE

-- The Florida Supreme Court on Thursday rejected Arthur Rutherford's appeals to reverse his death sentence, exhausting his remedies in state court.

Rutherford is scheduled to be executed Wednesday for the 1985 murder of Stella Salamon in her Milton home.With five justices concurring, the state's highest court denied Rutherford's attempt to have his conviction and sentence overturned.

Justice Harry Lee Anstead concurred in part with the court's ruling, and dissented in part

Justice Kenneth Bell, formerly of Pensacola, recused himself. The reason for Bell's recusal wasn't reported.

"The Florida Supreme Court has ruled, and they're not going to do anything for Mr. Rutherford," said Martin McClain, one of Rutherford's attorneys.

He said any further appeals would now move to federal court.

"We've got to sit down and look at the opinion ... and figure out what is the best manner and method" for further appeals, McClain said.

Rutherford's attorneys argued that a recent report by the American Bar Association showed Florida's death sentence system was arbitrary and capricious.Rutherford also presented affidavits from people with new testimony that offered the possibility that Rutherford was not guilty of Salamon's murder.

Anstead, in his dissent, said the claim of new evidence deserved a full hearing."Even without this evidence a jury voted for death by the narrowest of margins, seven-to-five, just one vote short of a recommendation for life," Anstead wrote.

The majority said the affidavits were not compelling."We agree with the circuit court that the ... affidavit, when considered cumulatively with all the other evidence, is not such that it would probably produce an acquittal on retrial," the court said.

Chief Justice Fred Lewis and Justices Charles Wells, Barbara Pariente, Peggy Quince and Raoul Canterro agreed in the majority decision.

Opinion from Florida Supreme Court October 12, 2006 - Arthur Rutherford

2006-10-13T03:22:00.000-07:00

http://www.arthurrutherford.us/legal/FSCopinionOct12-2006.htm

Supreme Court of Florida
____________
No. SC06-1931
____________
ARTHUR DENNIS RUTHERFORD,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC06-1946
____________
ARTHUR DENNIS RUTHERFORD,
Petitioner,
vs.
JAMES R. MCDONOUGH, etc.,
Respondent.
[October 12, 2006]
PER CURIAM.

THE STATE OF FLORIDA`S FAILURE TO REVIEW FREESTANDING CLAIMS OF ACTUAL INNOCENCE VIOLATES THE EIGHTH AMENDMENT. - Arthur Rutherford

2006-10-12T08:55:00.000-07:00

THE STATE OF FLORIDA`S FAILURE TO REVIEW FREESTANDING CLAIMS OF ACTUAL INNOCENCE VIOLATES THE EIGHTH AMENDMENT.

1. All other factual allegations contained in this motion and the appendix hereto are fully incorporated herein by specific reference.

2. Recently, in House v. Bell, 126 S.Ct. 2064 (2006), the United States Supreme Court again considered the significance of actual innocence claims brought by capital postconviction defendants.

The Supreme Court reviewed Mr. House=s evidence of innocence in the federal habeas context and found that he had shown that in light of the evidence presented Aany reasonable juror would have [had] reasonable doubt@. Id at 2077.

In the federal habeas context, meeting the actual innocence burden of proof provided Mr. House with the opportunity to pursue Ahabeas corpus relief based on constitutional claims that are procedurally barred under state law.@ Id. at 2068.

3. Additionally, the House Court examined evidence of innocence similar to the evidence of innocence previously pleaded by Mr. Rutherford. In House, the Supreme Court reviewed Atroubling evidence@ of another suspect. Id. at 2083. As in Mr. Rutherford=s case A[t]he confession evidence here involves an alleged spontaneous statement recounted by [one] eyewitness[] with no evident motive to lie.

For this reason it has more probative value than, for example, incriminating testimony from inmates, suspects, or friends or relations of the accused.@ Id. at 2085. Heaton=s confession, especially in light of her possession of the victim=s check shortly after the crime was committed would have Areinforced Aother doubts as to [Mr. Rutherford=s guilt.@ Id.

4. The State of Florida leads the country in death row exonerations. ABA Report on Florida at 8. However, despite this troubling statistic Florida does not recognize actual innocence as a claim for relief. In addition, innocence, or lingering doubt is not a factor for a jury to consider in determining punishment. ABA Report on Florida at 311 (Athe Florida Supreme Court has consistently rejected >residual= or >lingering doubt= as a non-statutory mitigating circumstance@).

And, in Florida, under the current governor, actual innocence or lingering doubt, is not a factor to be considered in the clemency process. See Claim II, supra. Thus, in the State of Florida actual innocence means nothing after a jury has rendered a guilty verdict. This predicament demonstrates the unreliability and failure of the death penalty scheme in Florida.

5. This Court must establish an actual innocence exception and allow Mr. Rutherford to fully present his evidence of innocence. Relief is proper.

Death penalty system broken in Florida and other Southern states

2006-10-12T08:33:00.000-07:00

http://southernstudies.org/facingsouth/2006/10/death-penalty-system-broken-in-florida.asp

Thursday, October 12, 2006

Death penalty system broken in Florida and other Southern states

A recent American Bar Association report on Florida's death penalty prompted Florida newspaper editorials this week.

Attorney Mark R. Schlakman, program director for Florida State University's Center for the Advancement of Human Rights and a participant in the ABA Florida Death Penalty Assessment Team, writes in the Tallahassee Democrat:

The challenge for politicians and other key actors, especially given the media attention that notorious cases typically generate, is to separate their own personal support for or opposition to capital punishment and public outrage over such cases and recognize that Florida's death-penalty process is fraught with problems.

A report released recently by the American Bar Association's Florida Death Penalty Assessment Team documents many of the issues and problems that must be addressed to minimize the risk that the state might execute an innocent person.

Karen J. Mathis, president of the American Bar Association, writes in the Orlando Sentinel:

In assessing Florida's system, the team measured state law, procedure and practices against protocols developed by the ABA to evaluate death-penalty jurisprudence. Its findings are troubling. It found the state did not comply with 23 protocols, partially complied with 36, and fully complied with only eight.
The team was unable to assess compliance with 25 protocols because the records do not exist or were not easily obtainable.
The team's specific concerns reveal a system in which people charged in death-penalty cases do not receive qualified or adequately compensated lawyers; juries can recommend death sentences with only a simple majority in agreement; perpetrators of capital crimes against white people are executed far more frequently than perpetrators of capital crimes against minorities; and clemency decisions are veiled in secrecy.
Knowing these problems makes Florida's 22 death-penalty exonerations less surprising but no less shocking.
The team is not alone in voicing many of these concerns. Two sitting Florida Supreme Court justices have decried the poor qualifications of lawyers registered to handle post-conviction death penalty cases.

In 2000, the Governor's Task Force on Capital Cases recommended reforms to eliminate potential or actual racial bias in Florida's capital-punishment system, and in 1991 the Florida Supreme Court Commission on Racial and Ethnic Bias concluded that the death penalty is "not colorblind." In a decision in 2005, the Florida Supreme Court called on the Legislature to pass a law requiring jury unanimity in sentencing recommendations; legislation to this effect was introduced but failed to pass.

Mr. Schlakman and Ms. Mathis note the troubling fact that 22 death row inmates have been exonerated since the death penalty was reinstated in 1973 - more than any other state in the nation.

The ABA report notes that "During that same time, Florida executed sixty death-row inmates. Therefore, the proportion exonerated exceeds thirty percent of the number executed." While it doesn't advocate a moratorium or take any position for or against the death penalty, the ABA's research found a number of serious deficiencies as noted by Ms. Mathis.

Here is a brief summary of their extensive report:

Florida Leads the Nation in Death-Row Exonerations: Combined, these death-row exonerees served approximately 150 years in prison before being released.

Inadequate Compensation for Conflict Trial Counsel in Death Penalty Cases: The statutory fee cap [..] and the failure to regularly provide for partial payments have the potential to dissuade the most experienced and qualified attorneys from taking capital cases and may preclude those attorneys who do take these cases from having the funds necessary to present a vigorous defense.

Lack of Qualified and Properly Monitored Capital Collateral Registry Counsel: Registry attorneys, who are being appointed with greater frequency to capital collateral cases since the closure of the Capital Collateral Regional Counsel Office in the Northern Region of Florida, need only minimal trial and appellate experience to qualify for appointment and are not adequately monitored.

Inadequate Compensation for Capital Collateral Registry Attorneys: In at least some instances, registry attorneys handling capital collateral cases are not fully compensated at a rate that is commensurate with the provision of high quality legal representation.

Significant Capital Juror Confusion: Death sentences resulting from juror confusion or mistake are not tolerable, but research establishes that many Florida capital jurors do not understand their role and responsibilities when deciding whether to impose a death sentence.

Lack of Unanimity in Jury’s Sentencing Decision in Capital Cases: The Florida Supreme Court recently noted that “Florida is now the only state in the country that allows a jury to find that aggravators exist and to recommend a sentence of death by a mere majority vote.”

Additionally, a recent study found that Florida’s practice of permitting capital sentencing recommendations by a majority vote reduces the jury’s deliberation time and thus may diminish the thoroughness of the deliberations.

The Practice of Judicial Override: Between 1972 and 1999, 166 of the 857 first-time death sentences imposed (or 19.4 percent) involved a judicial override of a jury’s recommendation of life imprisonment or life imprisonment without the possibility of parole. [..] Florida law still authorizes the practice.

Lack of Transparency in the Clemency Process: Full and proper use of the clemency process is essential to guaranteeing fairness in the administration of the death penalty.

Given the ambiguities and confidentiality surrounding Florida’s clemency decision-making process and the fact that clemency has not been granted to a death-sentenced inmate since 1983, it is difficult to conclude that Florida’s clemency process is adequate.

Racial Disparities in Florida’s Capital Sentencing: [A] criminal defendant in a capital case is, other things being equal, 3.4 times more likely to receive the death penalty if the victim is white than if the victim is African-American.Geographic Disparities in Florida’s Capital Sentencing:

The cause of these geographic disparities is unclear, but one possible variable is the charging decision. Research in other states indicates that charging practices vary from prosecutor to prosecutor and few of the prosecutor offices in Florida that we contacted have written polices governing the charging decision.

Research also suggests that some capital charging decisions in Florida are influenced by racial factors.

Death Sentences Imposed on People with Severe Mental Disability: The State of Florida has a significant number of people with severe mental disabilities on death row, some of whom were disabled at the time of the offense and others of whom became seriously ill after conviction and sentence.

Florida is not alone among Southern states with broken death penalty systems. The ABA's study of the death penalty in Alabama and Georgia reveals similar problems. In Georgia, the ABA found inadequate funding for defense counsel, lack of defense counsel for state habeas proceedings, racial disparities in capital sentencing, inappropriate burden of proof for mentally retarded defendants, inadequate jury instructions on mitigation, and inadequate proportionality reviews.

In Alabama, the ABA found inadequate counsel at every stage of the capital process, no law requiring access to DNA evidence for people convicted of capital crimes, no laws prohibiting execution of mentally retarded defendants, judicial override of jury death penalty recommendations, inadequate proportionality review, and failure to maintain adequate data and records of death penalty cases for review and oversight.

The United States remains in the exclusive club of countries that impose the death penalty, with other such illustrious fellow members as Vietnam, Saudi Arabia, Sudan, Afghanistan, and Iraq. While joining Canada and Mexico in abolishing the death penalty might seem like an easy solution, lack of fairness and equality, racial disparity, and other problems found by the ABA's research would remain for defendants facing life without parole.

On the other hand, the innocent and wrongly convicted would still be alive to pursue justice once America addresses the root causes of failure in our judicial system.Unfortunately, this will never be a campaign issue. No politician in the U.S. wants to be seen as soft on crime.

Further, Americans overwhelmingly approve of the death penalty by a margin of 65% to 32%, although there has been some progress since 1996 when 77% approved.

This suggests that a political solution is not in America's foreseeable future.

The heavy lifting will have to be done by organizations such as the ABA and human/civil rights advocates if we ever hope to shift public opinion towards favoring equal justice for all.

Procedural Default - Florida death penalty

2006-10-12T07:45:00.000-07:00

Procedural Default

53. Further, the Florida Supreme Court frequently relies upon procedural defaults to create procedural bars that preclude consideration of meritorious issues that go to the reliability of the conviction and sentence of death. See Swafford v. State, 828 So. 2d 966, 977-78 (Fla. 2002); Jones v. State, 709 so. 2d 512, 519-20, 525 (Fla. 1998).

Certainly, the refusal to consider issues that go towards the reliability of the conviction and/or the sentence of death increase the risk that the innocent or the legally undeserving will be executed.

It decreases a Ameaningful basis for distinguishing the few cases in which [death] is imposed from the many cases in which it is not@ Furman, at 313 (White, J., concurring).

The ABA assessment team recommended in its report that AState courts should permit second and successive post-conviction proceedings in capital cases where counsels= omissions or intervening court decisions resulted in possibly meritorious claims not previously being raised, factually or legally developed, or accepted as legally valid.@ ABA Report on Florida at 241.

As it is, the Florida death penalty scheme violates Furman.

Fix Florida's death penalty to assure justice done

2006-10-12T07:38:00.000-07:00

http://www.orlandosentinel.com/news/opinion/orl-death1006oct10,0,4612825.story?coll=orl-opinion-headlines

Fix Florida's death penalty to assure justice done

Karen J. Mathis Special to the Sentinel

Posted October 10, 2006

Since 1973 Florida has freed more people from death row who were wrongly sentenced to death than any other state in the nation -- 22 people who lost years of their lives before justice was done.

They were the lucky ones who ultimately were exonerated. We do not know if other people wrongly remain on death row or have been executed due to flaws in Florida's death-penalty system, but thanks to a recent report from a team of respected lawyers in Florida we do know how to reform the system to make it fair and accurate in the future.

The death penalty is an emotional and difficult issue. As a society, we sympathize with victims of capital crimes and their loved ones, whose suffering deepens while the death-penalty process plays out.

We also realize that if a state has the extraordinary power to take human life, it must do everything in its power to provide fair and accurate justice. Convicting the wrong person does not provide justice.

It is a tragic mistake that only compounds a heinous crime.Is a system that wrongly sent 22 people to death row sound?

The Florida Death Penalty Assessment Team, working under the auspices of the American Bar Association Death Penalty Moratorium Implementation Project, identified serious problems that implicate the fairness and accuracy of Florida's death-penalty system. The team also recommended ways to fix them.

The governor, Legislature and courts should implement these recommendations.

In assessing Florida's system, the team measured state law, procedure and practices against protocols developed by the ABA to evaluate death-penalty jurisprudence. I

ts findings are troubling. It found the state did not comply with 23 protocols, partially complied with 36, and fully complied with only eight.

The team was unable to assess compliance with 25 protocols because the records do not exist or were not easily obtainable.

The team's specific concerns reveal a system in which people charged in death-penalty cases do not receive qualified or adequately compensated lawyers; juries can recommend death sentences with only a simple majority in agreement; perpetrators of capital crimes against white people are executed far more frequently than perpetrators of capital crimes against minorities; and clemency decisions are veiled in secrecy.

Knowing these problems makes Florida's 22 death-penalty exonerations less surprising but no less shocking.The team is not alone in voicing many of these concerns. Two sitting Florida Supreme Court justices have decried the poor qualifications of lawyers registered to handle post-conviction death penalty cases.

In 2000, the Governor's Task Force on Capital Cases recommended reforms to eliminate potential or actual racial bias in Florida's capital-punishment system, and in 1991 the Florida Supreme Court Commission on Racial and Ethnic Bias concluded that the death penalty is "not colorblind."

In a decision in 2005, the Florida Supreme Court called on the Legislature to pass a law requiring jury unanimity in sentencing recommendations; legislation to this effect was introduced but failed to pass.

To help address these problems and make Florida's death-penalty system fairer and more accurate, the team offers sensible proposals. These recommendations include the creation of two independent commissions: one to establish the cause of wrongful convictions in capital cases and propose ways to prevent them in the future, and another to review claims of factual innocence in capital cases that, if sustained, would be reviewed by a panel of judges.

They also include enhancing state qualification and compensation standards for lawyers handling post-conviction death-penalty cases, requiring that jury sentencing decisions in death-penalty cases be unanimous, changing the rules governing the relevance of mental disability in capital cases, and performing a study of racial disparities in Florida's death-penalty system.No human system can be perfect, but Florida can make its death-penalty system fairer and more accurate by implementing the team's recommendations.

Correcting the system's flaws hurts no one and will make the system stronger. Doing nothing puts people's lives at risk.

Punishing the guilty is only one side of the equation. The other is protecting the innocent.

Only when Florida does both will true justice be done.

Karen J. Mathis is president of the American Bar Association.
She wrote this commentary for the Orlando Sentinel

Florida's Death Penalty Flawed

2006-10-12T07:33:00.000-07:00

http://www.courant.com/news/opinion/editorials/hc-florida.artoct11,0,1175462.story?coll=hc-headlines-editorials

EDITORIALS

Florida's Death Penalty Flawed

October 11, 2006

An American Bar Association report concludes that Florida sends more innocent inmates to death row than any other state, primarily executes those convicted of killing whites, and underfunds public defenders who handle death row cases.

Yet despite such worrisome conclusions, the Sunshine State remains determined to preserve its style of capital punishment.

The study by a team of lawyers and judges commissioned under the ABA's Death Penalty Moratorium Project found that none of the 60 inmates executed in Florida since it reinstated the death penalty in 1979 were white defendants who had killed African Americans.

Moreover, a high number of death row prisoners have been released because forensic evidence proved them innocent or raised sufficient doubt about their guilt.Authors of the study blamed Florida's horrendous record in part on a state law that requires a simple majority vote by a jury to impose the death penalty.

Past efforts to compel unanimous decisions have failed.

Unfazed by the study, Republican State Attorney General Charlie Crist has urged the Legislature to leave the law alone, using the weak argument that capital punishment deters crime and makes society safer.

Florida's approach to the death penalty is an abnormality even in the United States, the only Western industrial country that still subscribes to capital punishment. Most other states have exercised restraint, leading to a gradual decline in executions.

Connecticut has staged only one execution since 1960.

Capital punishment doesn't work as a deterrent, is unequally applied and should be abolished.

Barring that, Florida authorities should at least get in line with the majority of states that require unanimous jury votes in death penalty cases. Statistics cry out for such a change.

Report details Florida's death penalty system beset by problems

2006-10-12T07:28:00.000-07:00

http://www.belleville.com/mld/belleville/news/nation/15536875.htm

Posted on Sat, Sep. 16, 2006

Report details Florida's death penalty system beset by problems
By Linda Kleindienst

South Florida Sun-Sentinel
(MCT)

TALLAHASSEE, Fla. - Florida's death penalty system is plagued with problems of fairness, accuracy and racial disparity in sentencing, according to a new report by a group of Florida lawyers and jurists.

Working under the auspices of the American Bar Association's Death Penalty Moratorium Implementation Project, the group studied the state's capital punishment system for more than 18 months before releasing their recommendations Saturday.

The report criticized the state for: the number of innocent inmates sent to await execution; a racial disparity that shows those convicted of killing a white victim are far more likely to get a death sentence; the lack of oversight and funding for attorneys who handle Death Row appeals; and a death sentencing process that requires majority, not unanimous, jury agreement.
"Florida has released more people from Death Row than any other state, which suggests the system has serious problems," said Christopher Slobogin, a University of Florida law professor who chaired the eight-member group.

"It is small comfort that no one recently executed in Florida has been proven innocent, since some of them were not able to present all the proof they had and efforts at exoneration usually end once the person is dead."

Funding for the study came from the ABA and the European Union. Members of the team included a circuit judge, a state attorney, a former Florida Supreme Court justice and a former public defender, many of them death penalty supporters.

The report identified 11 problem areas in the state system, including the high number of inmates found innocent and released from Death Row, 22 since 1973 - more than any state in the nation. Combined, those exonerated spent about 150 years in prison before being released.
"There is much work to be done to insure that innocent people are not put to death," said Mark Schlakman, program director for the Center for the Advancement of Human Rights at Florida State University and a member of the study group.

As of Friday, there were 377 inmates on Florida's Death Row.

Some of the exonerated inmates were cleared by new DNA testing.

"There is a difficult balance between swiftness and fairness, but the governor has been a great proponent of extending the time on DNA testing. He also signed into law a measure that did away with the deadline altogether," said Alia Faraj, spokeswoman director for Gov. Jeb Bush.
After reviewing previous death penalty studies, including one done by the Florida Supreme Court, the report noted that those convicted of killing white victims are far more likely to receive a death sentence and be executed than those convicted of killing non-white victims. Since 1979, when Florida reinstated the death penalty, none of the 60 executed have been white defendants who killed African-American victims.

While U.S. Supreme Court decisions in recent years have stressed the importance of unanimous jury decisions to impose the death penalty, Florida's law requires only a simple majority. Last year, state Supreme Court Justice Raoul Cantero urged the Legislature to make the change, suggesting that Florida's death penalty law could be open to attack. But the Legislature this year refused to budge.

The bill to require unanimity was filed by state Rep. Jack Seiler, D-Wilton Manors, but was stymied by election year politics.

"We need to realize that the more efficient our death penalty system is, the more accurate it is, the better off we all are as a society," said Seiler, who supports the death penalty.
Attorney General Charlie Crist, the Republican candidate for governor, has urged the Legislature not to make any changes, suggesting it might weaken the state's law. He has called the current system constitutional and appropriate to punish the guilty "as well as deter potential future murderers."

It takes a unanimous jury vote to convict a person of first degree murder, but Crist said the same is not required in the sentencing phase because Florida's juries only make recommendations on life or death, they do not impose the sentence.

"Florida law requires that the jury and judge hear and consider all factors that might make a convicted murderer a candidate for life in prison instead of receiving the death penalty," Crist wrote legislative leaders late last year. "Therefore, the jury's recommendation is an informed action representing the collective wisdom of 12 everyday Florida citizens."

The team that wrote the report measured Florida law, procedure and practices against protocols developed by the ABA to evaluate fairness and accuracy in the imposition of the death penalty. While the ABA has recommended a moratorium on executions until all states have eliminated flaws in their system, the Florida report takes no position on a moratorium.

The group has recommended the state establish commissions to investigate wrongful convictions and to review claims of factual innocence while also suggesting the state adopt new standards for the qualifications of and payment for death row appeals attorneys, create new rules on the relevance of mental disability and make the clemency process more transparent.
"Our justice system seeks to provide a fair way of making accurate decisions about innocence and guilt," said ABA President Karen J. Mathis. "In death penalty cases, where people's lives are on the line, it is particularly important that we do all we can to ensure that the system is fair."

Retroactivity

2006-10-12T05:12:00.000-07:00

7. Retroactivity

50. Problems with the appellate review process show in other ways, some previously noted.

For example, the United States Supreme Court has explained that its decisions finding ineffective assistance in Rompilla v. Beard, Wiggins v.Smith, and Williams v. Taylor, were all dictated by its decision in Strickland and therefore each of those decisions, while issuing between 2000 and 2005, actually date back to Strickland, and reflect what the decision in Strickland the very day it was issued in 1984. Between 1984 and 2000, the Florida Supreme Court addressed ineffective assistance of counsel claims under Strickland in virtually every capital post conviction case that it heard.

It is clear from analyzing those opinions that the Florida Supreme Court did not read Strickland the way it was read and applied in Rompilla, Wiggins, and Taylor.

Yet, the Florida Supreme Court has refused to re-examine its decisions predicated upon its understanding of the meaning of Strickland which was at least arguably in error under Rompilla, Wiggins, or Williams.

Thus, individuals on Florida=s death row who have meritorious claims under any one of these three decisions and who presented those claims to the Florida Supreme Court before the issuance of these three opinions since the year 2000, will not get the benefit of those three decisions. In essence, the Florida Supreme Court has stripped those death row inmates of their Sixth Amendment rights as defined by the United States Supreme Court.

Since the very purpose of Strickland (and of Rompilla, and of Wiggins, and of Williams) was to insure that a constitutionally adequate adversarial testing occurred and that it produced a constitutionally reliable result, the Florida Supreme Court=s action defeats that purpose. It again injects arbitrariness into Florida=s death penalty system.

51. Another example of arbitrariness injected into the capital process by the Florida Supreme Court=s erratic action in applying decisions retroactively can be seen in the manner in which it has handled the fallout from its decision in Delgado v. State, 776 So. 2d 233 (Fla. 2000).

There, Mr. Delgado had been convicted of first degree murder on the basis that the homicide occurred in the course of a burglary in 1990. On appeal, the issue concerned whether Mr. Delgado, who had entered the victims= home with consent, committed a burglary by Aremaining in@ the residence.

The Florida Supreme Court concluded that the Aremaining in@ language only applied where the remaining in@ was done surreptitiously.

In reaching this conclusion, the Florida Supreme Court overturned a number of prior decisions, including Jimenez v. State, 703 So. 2d 437, 441 (Fla. 1997)(AJimenez argues that the burglary was not proven because there was no proof of forced entry, or that Minas refused entry, or that she demanded that he leave the apartment.@).

The alleged burglary in Mr. Jimenez=s case happened in 1992 and involving the same criminal statute at issue in Delgado.

Yet, the Florida Supreme Court refused to apply its construction of legislative intent as to the meaning of a criminal statute that it applied to a 1990 crime, to a criminal case occurring in 1992 involving the same statute. Subsequently, the Florida Supreme Court gave the benefit of the Delgado construction to a defendant who was charged with a 1980 burglary in which a homicide occurred. Fitzpatrick v. State, 859 So. 2d 486 (Fla. 2003), and give the benefit of the Delgado construction to a defendant who was charged with a 1994 burglary in which a homicide occurred. Raleigh v. State, 932 So. 2d 1054 (Fla. 2006).

52. Because of the manner in which the Florida Supreme Court used retroactivity rules to preclude consideration of meritorious claims, the ABA assessment team recommended in its report that the Florida state courts Ashould give full retroactive effect to United States Supreme Court decisions in all proceedings, including second and successive post-conviction proceedings, and should consider in such proceedings the decisions of federal appeals and district courts.@ ABA Report on Florida at 241.

Certainly, the manner in which the retroactivity rules operate currently has as at least as much to do with who gets executed and who does not, than the facts of the crime and the character of the defendant does.

The manner in which the Florida Supreme Court applies its retroactivity rules is arbitrary and violates Furman.

FSC order to habeas petition briefing - Arthur Rutherford

2006-10-12T02:22:00.000-07:00

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

Supreme Court of Florida

TUESDAY, OCTOBER 10, 2006

CASE NO.: SC06-1946

AUTHUR DENNIS RUTHERFORD vs. JAMES R. MCDONOUGH,
ETC.
___________________________________________________________________

Petitioner has filed a petition for writ of habeas corpus and petition seeking to
invoke this court's all writs jurisdiction. This Court, on its own motion, accepts
respondent's response filed October 9, 2006. Petitioner is allowed to and including
October 10, 2006, by 2:00 p.m., in which to file a reply not to exceed five pages in
length.
A True Copy
Test:
kb
Served:
LINDA MCDERMOTT
MARTIN J. MCCLAIN
CHARMAINE M. MILLSAPS

REPLY TO RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS - Arthur Rutherford

2006-10-12T02:20:00.000-07:00

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

IN THE SUPREME COURT OF FLORIDA
NO. SC06-1946
________________________________________________________
ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
JAMES R. McDONOUGH,
Secretary, Florida Department of Corrections,
Respondent.
_________________________________________________________
_____________________________________________
REPLY TO RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS
_____________________________________________
LINDA McDERMOTT
Florida Bar No. 0102857
MARTIN J. McCLAIN
Florida Bar No. 0754773
McClain & McDermott, P.A.
141 N.E. 30th Street
Wilton Manors, FL 33334
(850) 322-2172
COUNSEL FOR PETITIONER
1
ARGUMENT IN REPLY

The State`s response to habeas petition - Arthur Rutherford

2006-10-12T02:05:00.000-07:00

Can be read here :

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

in PDF :

http://www.arthurrutherford.us/legal/Filed_10-09-2006_StateResponse.pdf

IN THE SUPREME COURT OF FLORIDA - Arthur Rutherford

2006-10-12T02:03:00.000-07:00

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

IN THE SUPREME COURT OF FLORIDA
CASE NO. _________
______________________________________________________
ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
JAMES McDONOUGH,
Secretary, Florida Department of Corrections,
Respondent.
______________________________________________________
______________________________________________
PETITION FOR WRIT OF HABEAS CORPUS AND
PETITION SEEKING TO INVOKE THIS COURT'S ALL
WRITS JURISDICTION
______________________________________________
LINDA McDERMOTT
Florida Bar No. 0102857
MARTIN J. McCLAIN
Florida Bar No. 0754773
McClain & McDermott, P.A.
141 N.E. 30th Street
Wilton Manors, FL 33334
Telephone: (850) 322-2172
FAX: (954) 564-5412
COUNSEL FOR PETITIONER

Prosecutorial Misconduct

2006-10-12T01:52:00.000-07:00

Prosecutorial Misconduct

41. The prosecutor plays a critical role in the criminal justice system.@ ABA Report on Florida at 107. And, even more so in a capital case, where the prosecutor had Aenormous discretion@ in determining whether to seek the death penalty. Id.

Yet, the Florida Supreme Court regularly orders new trials in capital cases because of prosecutorial misconduct. Floyd v. State, 902 So. 2d 775 (Fla. 2005); Mordenti v. State,894 So. 2d 161 (Fla. 2004); Cardona v. State, 826 So.2d 968 (Fla. 2002); Hoffman v. State, 800 So.2d 174 (Fla. 2001); Rogers v. State, 782 So.2d 373 (Fla. 2001); State v. Huggins, 788 So.2d 238 (Fla. 2001); State v. Gunsby, 670 so. 2d 920 (Fla. 1996); Gorham v. State, 597 So.2d 782 (Fla. 1992); Roman v. State, 528 So.2d 1169 (Fla. 1988); Arango v. State, 497 So. 2d 1161 (Fla. 1986).

On occasion, the Florida Supreme Court has found the prosecutorial misconduct was only sufficiently prejudicial at the penalty phase to warrant the grant of penalty phase relief. Young v. State, 739 So. 2d 553 (Fla. 1999); Garcia v. State, 622 So. 2d 1325 (Fla. 1993). And on a number of occasions, the Florida Supreme Court has determined that the prosecutor acted improperly, but prejudice was insufficiently established to warrant relief from either the conviction or the death sentence. Guzman v. State, 2006 Fla. LEXIS 1398 (Fla. June 29, 2006); Smith v. State, 931 So. 2d 790 (Fla. 2006); Ventura v. State, 794 So. 2d 553 (Fla. 2001); Duest v. Dugger, 555 So. 2d 849 (Fla. 1990).

42. Despite the numerous instances of prosecutorial misconduct in Florida capital cases, no investigation has been launched nor program instituted to stamp out such misconduct. Despite the frequency of prosecutorial misconduct, whether warranting or new trial, coupled with the fact that Florida leads the nation in the number death row exonerations, no alarms have gone off, no bells have rung, nothing has been done to investigate the causes for the pattern of prosecutorial misconduct and frequency of exonerations.

The State of Florida by its conduct has demonstrated that the situation is acceptable, and that the risks that an innocence man or woman will be convicted, or that guilty man or woman will receive an undeserved death sentence are okay.

43. However, the ABA=s assessment team stated that to stop prosecutorial abuses, Athere must be meaningful sanctions, both criminal and civil, against prosecutors who engage in misconduct.@ ABA Report on Florida at 108.

In fact, the United States Supreme Court has recognized 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 should be a higher ethical obligation because the prosecutor carries with him power derived from his position which must be held in check, just as each branch of government is subject to checks and balances. Florida=s willingness to tolerate prosecutorial misconduct violates the promise of Furman.

44. The ABA Report further recommends that each prosecutor=s office have written polices governing the exercise of prosecutorial discretion. Id at 125. This is necessary given Florida=s history to try to eradicate arbitrary factors from not just the trial, but in the exercise of prosecutorial discretion to seek death in the first instances. Without such policies or guidelines, Florida=s death penalty scheme Asmacks of little more than a lottery system.@ Furman, 408 U.S. at 293 (Brennan, J., concurring).

45. Time and time again, prosecutors violate the rules B the rules of discovery, the rules of evidence, the rules of due process.

The Florida Supreme Court often identifies capital cases where the prosecutor went to far, or was guilty of a discovery violation, yet, the Court refuses to grant relief because the defense failed to object and/or the error was Aharmless@ or insufficiently prejudicial.

The failure to do anything about the numerous instances of prosecutors not following the rules, or in essence excusing the misconduct because of an apparent Ano harm no foul@ rule, actually encourages prosecutors to convert the Berger limiting principle into a perversion of itself, to make it into a self-righteous justification that because winning is justice, winning is everything, and therefore, the ends justify the means.

The acceptance of prosecutorial misconduct as merely a kind of error, like a deficient jury instruction, certainly offers a ready explanation for Florida=s leadership of death row exonerations.

It also constitutes a violation of Furman that turns the capital process, not into a search for truth or for justice or for the objectively right result, but into a game of relativity, where all that matters is winning, and the rules of law become akin to the rules found inside a board game - merely a means to winning a conviction and a sentence of death.

Florida Bishops: Death Penalty Not Justified When Society Can Be Kept Safe from the Aggressor

2006-10-11T17:45:00.000-07:00

FOR IMMEDIATE RELEASE
Wednesday, October 11, 2006
Contact: Michele Taylor
(850) 205-6820
mtaylor@flacathconf.org

Governor Bush, Please Stay Two Executions Scheduled for October

Tallahassee – We, the Bishops of Florida, are saddened at the prospect of two executions scheduled for October--Arthur Dennis Rutherford on October 18; and Danny Rolling on October 25. We implore the Governor to listen to the growing chorus of voices calling for a moratorium on executions in Florida and a careful examination of the State’s death penalty system.

The brutal crimes for which these inmates are to be executed were horrifying and appalling. Our hearts ache for the victims and their families, and we have enormous sympathy for them. These were unjustifiable attacks on human life, and we unequivocally condemn and renounce these crimes in the strongest terms possible. We cannot fully appreciate the struggle and recurring pain for the families, and more must be done by our churches and communities to give them comfort and care in their grief. At the same time, we must resist the natural inclination to think that only by taking a murderer’s life can justice be served.

In this day of heightened moral awareness, with increasing concerns about execution of the innocent and growing doubts about the fairness and effectiveness of the death penalty, we plead with the State and our Governor to realize that the antidote to violence is not more violence and that we cannot teach that killing is wrong by killing those who have killed others. It is said that ”justice delayed is justice denied,” but Florida law providing for life imprisonment without parole allows for justice without the legitimized killing by the State which coarsens us all.

Society must be protected from criminals, but we need not go to the extent of executing them. The cycle of violence must end. "As I live, says the Lord God, I swear I take no pleasure in the death of the wicked man, but rather that he may be converted and live." (Cf. Ezekiel 33:11)

We are a government of, for and by the people. Let those speak loudly who agree that these executions are not taking place in our names. We appeal to Governor Bush, please stay these executions.

Archbishop John C. FavaloraArchdiocese of Miami
Bishop John J. NevinsDiocese of Venice
Bishop John H. Ricard, SSJDiocese of Pensacola/Tallahassee
Bishop Robert N. LynchDiocese of St. Petersburg
Bishop Victor GaleoneDiocese of St. Augustine
Bishop Gerald M. Barbarito, JCLDiocese of Palm Beach
Bishop Thomas G. WenskiDiocese of Orlando
Coadjutor Bishop Frank J. DewaneDiocese of Venice
Auxiliary Bishop Felipe J. EstévezArchdiocese of Miami
Auxiliary Bishop John G. NoonanArchdiocese of Miami

# # #

The Florida Catholic Conference is an agency of the Catholic Bishops of Florida. It speaks for the Church in matters of public policy, serves as liaison to government and the legislature, and coordinates communications and activities between the Church and secular agencies. The Bishops of the seven (Arch)dioceses in Florida constitute its Board of Directors.

http://www.flacathconf.org/Issuesinfo/Pdf/TeachingonDeathPenalty.pdf

The State Answerbrief October 9, 2006 - Arthur Rutherford

2006-10-11T13:06:00.000-07:00

The State answerbrief is here

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

In PDF :

http://www.arthurrutherford.us/legal/Filed_10-09-2006_StateAnswerBrief.pdf

Initial brief October 9, 2006 - Arthur Rutherford

2006-10-09T13:40:00.000-07:00

The initial brief dated October 9, 2006 has been filed

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

In PDF :

http://www.arthurrutherford.us/legal/Filed_10-09-2006_RutherfordBrief.pdf

Initial brief in Rutherford is due 2 PM today

2006-10-09T09:20:00.000-07:00

10/06/2006
INITIAL BRIEF-MERITS DUE
10/09/2006
AA Arthur Dennis Rutherford 105314 BY: AA Linda Mcdermott 0102857
FILED BY 2:00 P.M.

http://jweb.flcourts.org/pls/docket/ds_docket?p_caseyear=2006&p_casenumber=1931

Geographic Disparities.

2006-10-09T02:23:00.000-07:00

Geographic Disparities.

40. Likewise, geographic disparities contribute to the arbitrariness of Florida=s death penalty scheme.

In 2000, 20 percent of the death sentences imposed that year came from the panhandle, while in 2001, 30 percent of the death sentences imposed that year came from the panhandle. ABA Report on Florida at 9.

Thus, death sentences are significantly influenced by the county where a crime occurred. Geographic disparities clearly show that a factor unrelated to the circumstances of the crime or the character of the defendant are at work in the decision to seek and impose a death sentence.

In a state such as Florida, where race, ethnicity, religious affiliation, cultural background, age and political philosophies differ so drastically from county to county, the geographic disparity breaches the Furman promise that death sentences not be premised upon arbitrary factors.

13 Freed From Death Row Blast Wis. Death Penalty Referendum

2006-10-09T02:17:00.000-07:00

http://www.channel3000.com/news/10020422/detail.html

13 Freed From Death Row Blast Wis. Death Penalty Referendum

POSTED: 6:06 pm CDT October 6, 2006

UPDATED: 8:49 pm CDT October 6, 2006

MADISON, Wis. -- Thirteen former death row inmates spoke Friday against a proposal to reinstate the death penalty.

A nonbinding question on the Nov. 7 ballot seeks support for ending the nation's longest standing ban on the death penalty.

The former inmates, their families and friends joined the Witness to Innocence project, an anti-death penalty group at Grace Episcopal Church in Madison.

Juan Melendez said some innocent people are sure to be executed if it is reinstated. He said he prayed for a miracle while he was on Florida's death row -- hoping to be cleared of a 1983 murder he didn't commit.

His conviction was overturned 17 years later when it was revealed that police had withheld another man's confession.

Wisconsin is one of only 12 states without the death penalty. Former Florida death row inmate Freddie Pitts called the death penalty nothing but legalized revenge.

"But the fact of the matter is it doesn't change anything. Wisconsin's got to be aware of one thing. You can release a person from prison when proven innocent. You can't release him from the grave," said Pitts, who spent nine years on Florida death row.

State lawmakers said they have built safeguards into the legislation. It calls for the death penalty only in cases of first-degree intentional homicide backed up by DNA evidence.

"For those states that have the death penalty, when's the last time you heard of a death penalty sentence being carried out lately? They're used very, very, very minimally and only in the most horrendous cases," said Sen. Alan Lasee, a Republican from DePere.

The group said that even though the referendum is nonbinding, it will open the door for broad death penalty legislation.

A WISC-TV poll showed support for the death penalty statewide, despite opposition in the Madison area.

Of the 600 likely voters surveyed, 54 percent said they favor bringing back the death penalty in Wisconsin, 39 percent oppose it and 7 percent are undecided.

The survey was conducted by Research 2000 and paid for by WISC-TV. It was conducted from Oct. 2 to Oct. 4.

Racial and geographic disparities still plague Florida`s death penalty scheme as noted in the ABA Report.

2006-10-09T01:54:00.000-07:00

Racial and geographic disparities still plague Florida=s death penalty scheme as noted in the ABA Report.

a. Racial Disparities.

38. The ABA Report relied on three previous studies concerning race and the death penalty as well as an analysis of current statistical discrepancies concerning race and the death penalty. In 1991, the Florida Supreme Court=s Racial and Ethnic Bias Commission found that Athe application of the death penalty is not colorblind.@ ABA Report on Florida at vii-viii.

In 1991, a criminal defendant in a capital case was 3.4 times more likely to receive the death penalty if the victim is white that if the victim is African American. Id. 7-8. This statistic has not changed.

A[A]s of December 10, 1999, of the 386 inmates on Florida=s death row, >only five were whites condemned for killing blacks. Six were condemned for the serial killings of whites and blacks. And three other whites were sentenced to death for killing Hispanics.=

Additionally, since Florida reinstated the death penalty there have been no executions of white defendants for killing African American victims.@ Id. at viii.

39. The statistics relied on in the ABA Report on Florida make clear that race is a factor in Florida=s death penalty scheme.

Such a factor causes the death penalty to be arbitrary and capricious. Furman, 408 U.S. at 364-66 (Eighth Amendment violated where racial prejudices and/or classism and/or sexism infected sentencing decisions).

Even after Governor Bush commissioned a study of race and its impact on the justice system in 2000, and those involved recommended an additional study, no steps have been taken find a remedy for the injection of a improper factor into the sentencing process.

ABA Report on Florida at xi. The State of Florida=s knowledge of the disparities of race on its death penalty scheme and disregard of the impacts of such a factor demonstrates an impermissible acceptance of a capital system that permits the death penalty to be . . . wantonly and . . . freakishly imposed@ on a Acapriciously selected random handful" of individuals. Furman, 408 U.S. at 310.

Florida must revise death penalty process

2006-10-09T01:46:00.000-07:00

Originally published October 9, 2006

Florida must revise death penalty process

http://www.tallahassee.com/apps/pbcs.dll/article?AID=/20061009/OPINION05/610090303/1006/OPINION

By Mark R. Schlakman MY VIEW

As the campaign season shifts into high gear, statewide officeholders, members of the Florida Legislature and candidates who are running for these posts must resist the temptation to engage in death-penalty demagoguery. However, this temptation may prove to be overwhelming for some given that two death warrants are pending; both are scheduled to be carried out later this month.

One death warrant has Danny Rolling's name on it. Rolling, as many may recall, is the infamous perpetrator of the brutal murders of five college students in Gainesville in 1990 who pleaded guilty and was sentenced to death in 1994 for committing these heinous crimes.

The challenge for politicians and other key actors, especially given the media attention that notorious cases typically generate, is to separate their own personal support for or opposition to capital punishment and public outrage over such cases and recognize that Florida's death-penalty process is fraught with problems.

A report released recently by the American Bar Association's Florida Death Penalty Assessment Team documents many of the issues and problems that must be addressed to minimize the risk that the state might execute an innocent person. Clearly, guilt was not at issue in the Rolling case.

It is important to note that this report neither supports nor opposes the death penalty; nor does it call for a moratorium on executions. The ABA endeavored to ensure that the eight-member Florida team was diverse and balanced to reflect prosecutorial, defense, judicial and academic perspectives along with other related subject matter expertise.

The report's recommendations are intended to improve fairness and accuracy in our criminal-justice system. Moreover, if implemented properly, it follows that some of these recommendations might also have the practical effect of reducing the time that it takes many death-penalty cases to move through the criminal-justice system and the appeals process.

The alarming backdrop is that, since 1973, Florida has exonerated more death-sentenced inmates than any other state. Tragically, one inmate was exonerated after he died of cancer on Death Row. A related cause for concern is the troubling observation by Justice Raoul Cantero, who was appointed to the Florida Supreme Court by Gov. Jeb Bush, that some legal representation provided by private registry lawyers in capital-case proceedings was among the worst lawyering that he had ever seen.

Yet another cause for concern relates back to a 1991 finding by the Florida Supreme Court's Racial and Ethnic Bias Commission that a criminal defendant was much more likely to receive a death sentence when the victim was white than when the victim was African American.

In 2000, while stopping short of acknowledging that such bias undermined the criminal-justice system, the Governor's Task Force on Capital Cases made various recommendations that called for further review; however, many of those recommendations were never implemented.

Beyond concerns regarding racial and ethnic bias, there is also cause for concern regarding socioeconomic and geographic bias, the latter attributable in part to the fact that uniform protocols have not yet been adopted that would provide guidance to Florida's 20 elected state attorneys when deciding whether to seek the death penalty in any given case.

Therefore, when prosecutors from different judicial circuits assess substantially similar criminal cases, it is conceivable that prosecutors from judicial circuit A might decide to seek the death penalty while prosecutors from judicial circuit B might opt for life without parole, heightening concerns over whether the death penalty is applied consistently throughout the state.

One of the report's recommendations embraces a recent Florida Supreme Court opinion that called upon the Legislature to revisit the state's death-penalty statute and require unanimity in capital-case penalty-phase proceedings. The court observed that Florida is the only remaining state of the 38 death-penalty states in America today "that allows a jury to decide that aggravators exist and to recommend a sentence of death by a mere majority vote."

Despite the court's strongly worded opinion, the 2006 Legislature was unresponsive to the court's call for action.

Interestingly, it was widely reported that Attorney General Charlie Crist opposed this change. However, Gov. Bush was quoted recently as saying that the measure is "definitely worth consideration" and cautioned legislators not to ignore the court.

Each of the three branches of our state government has major responsibilities and significant roles to play. Problems in one area can adversely affect what might otherwise be adequate procedures in another.

Florida residents expect a system of justice that engenders confidence based upon fairness and accuracy. It is in the best interests of every Floridian for the state to invest the necessary resources and to take long-overdue steps to ensure that the death penalty is administered fairly.

Attorney Mark R. Schlakman is a program director for Florida State University's Center for the Advancement of Human Rights and was one of eight individuals invited to participate on the ABA's Florida Death Penalty Assessment Team.

Contact him at mschlakman@admin.fsu.edu.

The letter from Governor Bush to Warden Bryant - Arthur Rutherford

2006-10-08T06:56:00.000-07:00

The letter from Governor Jeb Bush to Warden Randall Bryant, Florida State Prison to set execution date

http://www.floridacapitalcases.state.fl.us/Rutherford19.pdf

Briefs due to Florida Supreme Court - Arthur Rutherford

2006-10-08T06:41:00.000-07:00

http://jweb.flcourts.org/pls/docket/ds_docket?p_caseyear=2006&p_casenumber=1931

Briefs due to Florida Supreme Court :

10/06/2006
RECORD/TRANSCRIPT DUE
10/09/2006
Hon. Mary Johnson, Clerk SANTA R BY: Hon. Mary Johnson, Clerk SANTA R
FILED BY 2:00 P.M.
10/06/2006
INITIAL BRIEF-MERITS DUE
10/09/2006
AA Arthur Dennis Rutherford 105314 BY: AA Linda Mcdermott 0102857
FILED BY 2:00 P.M.
10/06/2006
ANSWER BRIEF-MERITS DUE
10/09/2006
AE State Of Florida STATE BY: AE Charmaine M. Millsaps 0989134
FILED BY 2:00 P.M.

Notice of appeal filed to Florida Supreme Court - Arthur Rutherford

2006-10-08T06:37:00.000-07:00

Notice of appeal filed to Florida Supreme Court

http://www.arthurrutherford.us/legal/Filed_10-06-2006_NoticeOfAppeal.pdf

Postconviction representation - Florida Death Penalty

2006-10-08T02:59:00.000-07:00

b. Postconviction representation

23. An even more substantive failure to deliver on the Furman promise arises in the context of Florida=s capital postconviction representation.

The quality of Florida=s capital postconviction representation system has steadily declined over the past ten years when the federal funding for resource centers was eliminated.

The past ten years have demonstrated a consistent pattern of turmoil and chaos in the representation of capital postconviction defendants.

The state-funded agency responsible for representing postconviction defendants was overwhelmed with cases, absorbing those cases that the federally funded organization had represented, and a large number of cases in the mid-90s when death sentences spiked and rule changes caused initial motions to be filed much quicker than in previous years.

That the location of the agency was split into three regional offices but still managed under the auspices of a single agency.

The agency was then officially separated into three regional offices with the creation of the Registry system to handle conflict and overflow cases.

A few years later, the Florida Legislature eliminated one of the regional offices and sent Registry sixty-plus cases.

Under the current system, at that part of the capital process at which errors are sought to be caught and corrected, qualifications to be appointed to a capital postconviction case are minimal, oversight is non-existent, and funding is inadequate. Id. at v. Compensation is capped.

Though the Florida Supreme Court has recognized that the cap may be breached in extraordinary circumstances, the fact that the determination of whether the cap was properly breached is made after the fact. Fla. Dept.of Financial Services v. Freeman, 921 So. 2d 598 (Fla. 2006).

Certainly, requiring attorneys who find that the requisite work exceeds the statutory cap to litigate their compensation after the fact has a chilling effect.

Within the Registry system, statutorily funding is only available for 840 attorney hours for attorneys representing capital postconviction defendants on the registry when research suggests that 3,300 attorney hours are required to represent a capital postconviction defendant. ABA Report on Florida at v. This is not the only monetary limitation, funds for investigative, expert, travel and other costs is limited. Moreover, there is no provision for compensation for successor proceedings.

24. While Registry counsel are restricted in funding, the Capital Collateral Counsel (CCC) offices are not. Thus, CCC attorneys can exceed the 840 hours without the consequence of non-payment. CCC attorneys can hire experts, pay investigators and incur other costs associated with litigating a capital postconviction case without consequence of non-payment.

There is no valid basis for distinction between death row defendants represented by Registry counsel and death row defendants represented by CCC attorneys.

Undoubtedly, this disparity in funding will impact the representation and arbitrarily effect the ultimate success of capital postconviction defendants in challenging their convictions and death sentences.

25. In 1988, the Florida Supreme Court recognized that the creation of CCR extend to all Florida capital defendants the right to have effective representation in all collateral proceedings in both state and federal court. Spalding v. Dugger, 526 So. 2d 71, 72 (Fla. 1988) (Aeach defendant under sentence of death is entitled, as a statutory right, to effective legal representation by the capital collateral representative in all collateral relief proceedings.

This statutory right was established to alleviate problems in obtaining counsel to represent Florida's death-sentenced prisoners in collateral relief proceedings.@). Having recognized the statutorily created right, the Florida Supreme Court has generally found that no remedy exists for a breach of the statutorily created right to effective collateral counsel. Lambrix v. State, 698 So. 2d 247, 248 (Fla. 1996) (Aclaims of ineffective assistance of postconviction counsel do not present a valid basis for relief@).

The Florida Supreme Court did recognize an exception to the Lambrix rule where state-provided collateral counsel due to neglect failed to file a timely notice of appeal. Porter v. State, 788 So. 2d 917 (Fla. 2001).

Otherwise, state-provided collateral counsel=s failure to exercise diligence in investigating and timely presenting evidence of innocence or of a constitutional deprivation operates as a bar to a court=s consideration of the resulting claims for relief. See Swafford v. State, 828 So. 2d 966, 977-78 (Fla. 2002).

26. Because, beyond the narrow circumstance identified in Porter v. State, a capital defendant has no remedy when state-provided counsel either through negligence or a lack of diligence fails to provide effective representation, Florida=s capital sentencing process fails to live up to the Furman promise.

As noted in the ABA Report, the performance of Registry counsel has been openly criticized, even by members of the Florida Supreme Court:

This lack of appellate experience may account for the questionable performance of some registry attorneys. For example, a number of registry attorneys have missed state post-conviction and federal habeas corpus filing deadlines possibly precluding their clients from having their claims heard.

Specifically, registry attorneys in at least twelve separate cases filed their clients= state post-conviction motions or federal habeas corpus petitions between two months to three years after the applicable filing deadline.

Performance like this has led two Florida Supreme Court Justices to publicly comment on the quality, or lack thereof, of registry attorneys. Justice Cantero stated that the representation provided by some registry attorneys is A[s]ome of the worst lawyering@ he has ever seen. Specifically, Asome of the registry counsel have little or no experience in death penalty cases.

They have not raised the right issues . . . [and] [s]ometimes they raise too many issues and still haven=t raised the right ones.@ Chief Justice Barbara Pariente reiterated the concerns of Justice Cantero by stating that A[a]s for registry counsel, we have observed deficiencies and we would definitely endorse the need for increased standards for registry counsel, as well as a continuing system of screening and monitoring to ensure minimal levels of competence.@

The questionable performance of these attorneys, as well as the lack of requisite qualifications, is particularly troublesome in light of the fact that death-sentenced inmates do not have a state of federal constitutional right to assert a claim of ineffective assistance of post-conviction counsel.

The performance of these attorneys has also led many legal experts as well as some Democratic and Republican Legislators to criticize the closure of CCRC-North Office in 2003. In fact, many legal experts, including Justice Cantero and the Executive Director of the Commission on Capital Cases, have cautioned against proposals to eliminate the two other CCRC Offices.

ABA Report on Florida at 183-84. Thus, it is well recognized by state officials in the legislative and judicial branches of government that a number of the post-conviction attorneys provided by the State are incompetent, i.e. some of the worst lawyering ever seen.

Yet, the capital defendants provided some of the worst lawyering ever seen must accept the incompetent representation without recourse.

27. An amicus brief filed in the United States Supreme Court that is noted and relied upon in the ABA Report, catalogues instances where Registry counsel simply do not know or understand capital postconviction law, and thereby waive the capital defendants= rights and avenues to obtain relief without their consent or knowledge. See ACLU=s Amicus Brief in Lawrence v. Florida, Appendix C.

28. A system that knowingly provides capital defendants with some of the worst lawyers@ that a Justice of the Florida Supreme Court has ever seen, and strips the capital defendant of the right to complain and seek redress, simply does not comport with the Furman promise that states with capital sentencing schemes must affirmatively take steps to eliminate the risk that an execution will be as random as a bolt of lightning.

Undeniably with 22 exonerations, Florida=s trial system warrants a constitutional safety net.@ Jones v. State, 709 So. 2d. at 535-36 (Shaw, J., dissenting).

Yet, it is well-recognized within the State of Florida, as the ABA Report documents, that the Asafety net@ has been stripped away.

Those capital postconviction defendants who receive some of the worst lawyering@ that a Florida Supreme Court justice has ever seen and who may have meritorious claims for relief and who in fact may be innocence, have been arbitrarily denied any real chance of obtaining relief by Florida=s knowing willingness to provide incompetent counsel.

The situation smacks of little more than a lottery system.@ Furman, 408 U.S. at 293 (Brennan, J., concurring).

The outcome of the post conviction process, directly linked to whether state-appointed counsel is incompetent, is a purely arbitrary.

Trial level representation. - Florida Death Penalty

2006-10-08T02:55:00.000-07:00

a. Trial level representation.

22. The team found that there was inadequate compensation for trial counsel in death penalty proceedings. ABA Report on Florida at iv.

In addition, the administration of the funding and timing of counsel=s ability to seek payment severely hamper obtaining qualified counsel who has adequate funding for a death penalty case.

Of course, Florida is obligated to provide effective representation at the trial under the Sixth Amendment. Strickland v. Washington, 466 U.S. 668 (1984).

As explained in Strickland, the purpose of this constitutional obligation is insure that the trial is an adequate adversarial testing that produces a reliable result.

Recently, the United States Supreme Court not only recognized that the ABA had promulgated a set of guidelines devoted to setting forth the obligations of defense counsel in capital cases, but found that those guidelines served as a benchmark in further the goal of obtaining a constitutionally adequate adversarial testing. Rompilla v. Beard, 545 U.S. 374 (2005).

With those guidelines in mind, the team recommended that steps be taken to insure the appointment of Aqualified and properly compensated counsel.@ Id. at 174.

The team also recommended that this guarantee include A[a]t least two attorneys@ with access to investigators and mitigation specialists.

One member of the defense team should be trained in mental health screening. Id. at 175-76.

These and the other recommendations made in the ABA Report reflect that Florida has not lived up to its obligation to minimize, if not remove, arbitrary factors from the capital sentencing process.

Representation - Florida Death Penalty

2006-10-08T02:49:00.000-07:00

2. Representation

21. The Florida Death Penalty Assessment Team identified several problems concerning the representation of indigent capital defendants that leads to the arbitrary imposition of the death penalty and the problems effect all levels of representation. Indeed, the team considered defense counsel=s competence to be perhaps the most critical factor determining whether a capital offender/defendant will receive the death penalty. ABA Report on Florida at 135. See Furman, 408 U.S. at 256 n. 21 (whether counsel timely objected to error was on occasion a decisive arbitrary factor in whether a death sentence was imposed).

11 circuit opinion October 5, 2006 - Arthur Rutherford

2006-10-08T02:40:00.000-07:00

11 circuit opinion October 5, 2006

http://www.arthurrutherford.us/legal/11circuitopinionoct2006.htm

In PDF :

http://www.arthurrutherford.us/legal/200610783Op2.pdf

Take High Ground on Death Penalty

2006-10-07T11:19:00.000-07:00

Published - Saturday, October 07, 2006

By MATTHEW R. DUNNIGAN
Rome, Italy

While it is unfortunate that the United States has failed to negotiate with Iran regarding uranium enrichment, it is also unfortunate that the U.S. is on the same moral level as Iran regarding capital punishment. To ask and receive a moral good from another party requires that the asking party be on a higher moral level.

If the referendum to reinstate the death penalty should pass in the November elections, in whose authority will the governor then execute?

In America there is separation of church and state. In 1999 while in St. Louis, the late Pope John Paul II stated that "a sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil."

God never infringes upon our wills, and because of this, we are free. But for all of our actions, or inactions, we will have to give an account. If the governor executes in the name of the state, be very careful, because the governor will then be infringing upon God’s will. God is Lord of both life and death.

Furthermore the catechism of the Catholic Church states that if the guilty party can be incarcerated to protect society, the capital punishment of the offender is not justifiable.
Attention, Wisconsin, the cardinal who was president of the papal commission that wrote the catechism is now Pope Benedict XVI.

Badgers, teach your children, and teach them well. Teach them right from wrong, and may they choose right over wrong. But if they should fail, teach them that to err is human and to forgive is divine. Teach your children that two wrongs do not make a right. Teach your children to choose life over death, and that the violence of capital punishment only begets more violence.
Society will never learn to respect human life when the state hypocritically kills those who have killed.

God protect all the children from this wicked, presumptuous, self-righteous and perverse generation that thinks it will be doing right when in reality it will be doing wrong by executing.

Justice Wilson, 11 circuit dissent in Rutherford Oct 5, 2006

2006-10-07T08:37:00.000-07:00

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

WILSON, Circuit Judge, dissenting:

It is now clear that Rutherford is entitled to challenge the method by which
Florida seeks to execute him by presenting his claim under 28 U.S.C. § 1983. See
Hill v. McDonough, 547 U.S. ____, 126 S. Ct. 2096, 2101–04, 165 L. Ed. 2d 44
(2006).

The Supreme Court remanded Rutherford’s case back to us for
reconsideration in light of its decision in Hill. Rutherford v. McDonough, 126 S.
Ct. 2915, 165 L. Ed. 2d 914 (2006) (mem.). Pursuant to the remand, the majority
agrees with the district court’s alternative ruling that Rutherford’s § 1983 claim
should not be heard because he should have brought it earlier.

I disagree.

I continue to believe, as I noted in my earlier dissent, that the district court abused
its discretion by concluding that even if Rutherford’s § 1983 claim were
cognizable, his delay in bringing the claim precluded equitable relief.

Rutherford v. Crosby, 438 F.3d 1087, 1097–98 (11th Cir. 2006) (Wilson, J., dissenting)
(hereinafter Rutherford I). Because the factual basis for Rutherford’s claim only
recently came to light and because the legal basis for his claim was not in place
until six days before his scheduled execution, he did not unnecessarily delay in

The majority asserts that Rutherford was aware of the factual grounds for his claim as 1
early as 2000 when the state of Florida instituted lethal injection as a method of execution. That
year, the Florida Supreme Court evaluated the constitutionality of Florida’s lethal injection
protocols. See Sims v. State, 754 So. 2d 657 (Fla. 2000).

The petitioner in Sims, however,
centered his argument on the pain and suffering that could occur if execution procedures were
not followed. Id. at 668. In this case, Rutherford alleges that even if carried out as planned, the
execution methods constitute cruel and unusual punishment.

Rutherford bases his claim on
recent research published in a medical journal detailing the effects of the chemicals in lethal
injection. See Leonidas G. Koniaris, et al., Inadequate Anaesthesia in Lethal Injection for
Execution, 365 THE LANCET 1412 (Apr. 16, 2005). This research indicates that inmates may feel the suffering of suffocation, the burning through the veins, and the pain of a heart attack due to
inadequate anaesthesia. Id.

Though the factual basis for Rutherford’s claim may have been
known to him in April of 2005, the legal basis for his claim was not available until January 2006.
20
bringing his § 1983 action. 1

The district court’s determination that Rutherford unreasonably delayed the
filing of his claim was, in essence, an alternative basis for dismissing his case.

There was no semblance of a proper discussion or balancing of the equities of
Rutherford’s claim. The court did not apply the appropriate standard for a stay or
injunction under § 1983.

Conspicuously absent from the district court’s order is
any discussion of the following four factors: (1) whether there is a substantial
likelihood of success on the merits; (2) whether the requested action is necessary
to prevent irreparable injury; (3) whether the threatened injury outweighs the harm
the stay or injunction would inflict upon the non-movant; and (4) whether the
requested action would serve the public interest. See Seigel v. Lepore, 234 F.3d
1163, 1176 (11th Cir. 2000) (per curiam).

The district court obviously did not feel
the need to consider these four factors because it believed that Rutherford’s “claim
21
and request for relief [wa]s the functional equivalent of a successive habeas corpus
petition.” Rutherford I, 438 F.3d at 1102 (reprinting district court order as
appendix). We have learned from Hill that that belief was incorrect. 126 S. Ct. at
2101–04.

Without weighing the four factors, the district court erroneously concluded
that Rutherford unnecessarily delayed in bringing his claim, and thus deemed a
stay inappropriate. A “strong equitable presumption against the grant of a stay” is
appropriate only when “a claim could have been brought at such a time as to allow
consideration of the merits without the requiring of a stay.” Nelson v. Campbell,
541 U.S. 637, 650, 124 S. Ct. 2117, 2126, 158 L. Ed. 2d 924 (2004).

Here, there
would have been little point in Rutherford bringing his claim any earlier than he
did. Prior to the Supreme Court’s decision in Hill, our precedent in Robinson v.
Crosby, 358 F.3d 1281 (11th Cir. 2004), would have required a district court to
treat Rutherford’s § 1983 claim as a successive habeas corpus petition. See id. at
1284.

Thus, based on our prior precedent which has now been overruled, the
district court would have been correct to summarily dismiss it for lack of
jurisdiction. See id. It was not until the Supreme Court’s grant of certiorari in Hill
that Rutherford had reason to believe that his claim would be heard. Rutherford
filed his § 1983 claim on January 27, 2006, two days after the Supreme Court
22
granted certiorari in Hill. I see nothing in the record to suggest, as the majority
opines, that Rutherford “deliberately waited” to file his claim days before his
scheduled execution.

Thus, the district court abused its discretion in applying a
“strong equitable presumption” against a stay. Furthermore, the district court’s
order only analyzed this issue as an afterthought on the premise that the court’s
first ground would be upheld.

The majority affirms the district court’s dismissal of Rutherford’s § 1983
action in an effort to “protect states from dilatory or speculative suits.” Hill, 126
S. Ct. at 2104. The majority concludes that a remand is unnecessary because the
district court already determined that Rutherford’s suit was dilatory.

I do not read
Hill as giving license to the lower federal courts “to overlook all other
considerations that are called for in equity, which, after all, should be a recourse to
principles of justice and fairness to correct or supplement the law as applied to
particular circumstances.” Brown v. Livingston, 457 F.3d 390, 392 (5th Cir. 2006)
(Dennis, J., dissenting). Rather, “equity in cases of this nature requires courts to
consider the particular circumstances of each case and to examine them for
whether or not the challenge has been brought dilatorily or for improper purposes .
. . , and, if not, whether it should be allowed to proceed.” Id.

The district court
did not consider Rutherford’s particular circumstances.
23
The majority also argues that its decision to affirm is compelled by the
result in the Hill case on remand. Hill v. McDonough, No. 06-14927, 2006 WL
2641659, (11th Cir. Sept. 15, 2006). Hill filed his § 1983 claim four days before
his execution with full knowledge that under this Circuit’s precedent, his claim
would be dismissed as a successive habeas petition. See Robinson, 358 F.3d at
1284.

In fact, the district court dismissed Hill’s claim outright for lack of
jurisdiction, holding that Hill’s action was the functional equivalent of a
successive petition for a writ of habeas corpus filed without leave and, thus, ran
afoul of 28 U.S.C. § 2244(b). Hill v. Crosby, No. 4:06-CV-032-SPM, 2006 WL
167585, at *2–3 (N.D. Fla. Jan. 21, 2006).

Following our precedent in Robinson,
358 F.3d 128, and In re Provenzano, 215 F.3d 1233 (11th Cir. 2000), we
summarily affirmed the district court and denied Hill’s application for a stay of his
execution pending appeal. Hill v. Crosby, 437 F.3d 1084, 1085 (11th Cir. 2006)
(per curiam). Against the odds, the U.S. Supreme Court granted certiorari in Hill’s
case. Hill v. Crosby, 546 U.S. __, 126 S. Ct. 1189, 1190, 163 L. Ed. 2d 1144
(2006) (mem.).

Hill’s case is materially different from Rutherford’s.

Hill filed a highly
speculative suit as a last ditch effort to stall his execution. Nothing in our circuit
precedent, or Supreme Court precedent, provided a basis for a § 1983 challenge to
24
Hill’s method of execution.

On the other hand, when Rutherford filed his § 1983
claim, the legal landscape had fundamentally changed. A grant of certiorari by the
Supreme Court, obviously, does not change our Circuit law, but it does call that
law into question.

Only after the Supreme Court’s grant of certiorari in Hill,
which presented the same issues Rutherford faced, did Rutherford have reason to
believe that his claim would be heard. The majority suggests that it “cannot be the
law” that Rutherford could benefit from precedent established by Hill’s efforts.
Again, I disagree.

Litigants benefit from the efforts of prior litigants who shape
the law every day. That is precisely why the Supreme Court remanded this case
back to us for reconsideration – because Hill forged new precedent.

Nothing in the record suggests that Rutherford filed his claim solely in an
attempt to delay his impending execution. In fact, the record compels the opposite
conclusion. Since Rutherford filed his § 1983 claim, he has vigorously pursued
that claim and urged the courts at all stages to give him an evidentiary hearing on
the merits.

For example, Rutherford urged us to remand his case to the district
court post-Hill for further proceedings on the merits despite the fact that no death
warrant was pending and his execution was not imminent. Furthermore, once his
second death warrant had been signed and his execution date set, he petitioned the
U.S. Supreme Court for a writ of mandamus in an effort to compel us to remand
25
his case to the district court for a hearing.

These circumstances contradict the
majority’s assertion that his § 1983 claim is merely as a delay tactic and instead
demonstrate that Rutherford has sought and continues to seek a full and fair
hearing on the merits of his constitutional challenge to Florida’s lethal injection
protocol.

I am simply not persuaded by the view of the majority that Rutherford’s
sole intent is to buy more time on death row, rather than to force the State to
execute him in compliance with the Constitution.

Certainly, the State and its victims have an “important interest in the timely
enforcement of a sentence,” but this interest must be balanced against the
constitutional right of a death row inmate to be executed in a manner consistent
with the requirements of the Constitution.

Recent developments in medical
research have called into question the degree of pain and suffering caused by the
method of lethal injection some states, including Florida, use. See Leonidas G.
Koniaris et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365
THE LANCET 1412 (Apr. 16, 2005). To date, most lower courts have avoided
squarely addressing whether execution by this three-drug protocol violates the
Eighth Amendment, thus preventing review by the United States Supreme Court.
See, e.g., Hill, 2006 WL 2641659; Robinson, 358 F.3d 1281; Brown v. Crawford,
408 F.3d 1027 (8th Cir. 2005) (per curiam); Bieghler v. State, 839 N.E.2d 691

A court in the Northern District of California is currently hearing expert testimony 2
regarding a challenge to California’s lethal injection protocols, which are materially similar to
Florida’s procedures. Morales v. Woodford, No. C-06-219-JF-RS (N.D. Cal. 2006).

Rutherford
deserves the same opportunity.

Consequently, I would grant Rutherford’s Application for a Stay
of Execution, permitting him to return to the district court for a hearing on the merits of his §
1983 claim.
26
(Ind. 2005). But see Walker v. Johnson, No. 1:05-CV-934 CMH TRJ, 2006 WL
2619857 (E.D. Va. Sept. 11, 2006) (dismissing inmate’s § 1983 claim which relied
on risks of deviation from execution protocol).

Rutherford does not challenge the validity of his sentence, rather the method
in which the State seeks to carry it out. Rutherford’s challenge, even if successful,
does not foreclose his execution. He will be put to death for his crime.

But,
because Rutherford presents a legitimate claim that the lethal injection protocol
that awaits him may constitute cruel and unusual punishment, which the Eighth
Amendment forbids, and because the district court failed to engage in a full and
proper analysis of the equities in Rutherford’s case, I would reverse the district
court’s decision and remand for a hearing on the merits of his § 1983 claim.2

Another Constitutionally Questionable Execution in Florida

2006-10-07T04:45:00.000-07:00

From the BLOG "Decision of the Day" :

http://appellatedecisions.blogspot.com/2006/10/another-constitutionally-questionable.html

Thursday

Another Constitutionally Questionable Execution in Florida

Rutherford v. McDonough, 06-10783 (11th Cir., Oct. 5, 2006)

Following on the heels of the execution of Clarence Hill (my coverage here), the Eleventh Circuit rejects a similar § 1983 challenge brought by another death row inmate who is facing the needle.

With his execution imminent, convicted murderer Arthur Rutherford filed suit challenging the constitutionality of Florida's lethal injection procedure shortly after the Supreme Court granted certiorari in Hill’s case.

As with Hill, the district court and Eleventh Circuit denied Rutherford’s claims.

But when the Supreme Court decided that Hill’s challenge could proceed under § 1983, it remanded Rutherford’s case as well.

In a divided opinion, the Court decides that Rutherford will suffer the same fate as Hill: execution, without any hearing on the merits of whether Florida’s lethal injection procedure amounts to cruel and unusual punishment.

The majority concludes that Rutherford waited too long to bring his challenge.

Perhaps emboldened by the Supreme Court’s refusal to stay Hill’s execution a second time, Judge Carnes tosses in a lot of choice words about the importance of prompt executions and a few choice words about Rutherford’s attorney.

Judge Wilson dissents, explaining that Rutherford’s timing in bringing his § 1983 claim is understandable, given the Supreme Court’s decision to hear Hill’s case. He further argues that executing people in compliance with the Constitution is more important than executing people quickly.

// posted by Robert Loblaw @ Thursday, October 05, 2006

Links to this post:

More Eleventh Circuit lethal injection action
Lethal injection remains in the news. Hearings in California and elsewhere are ongoing. The eleventh Circuit refuses to take part in the ongoing dilemma. In Arthur Rutherford v. McDonough a split panel denies relief. ...
posted by karl @ 6:50 AM

Resources Regarding Challenges to Lethal Injection

2006-10-07T04:43:00.000-07:00

Resources Regarding Challenges to Lethal Injection

http://www.law.berkeley.edu/clinics/dpclinic/resources.html

More Eleventh Circuit lethal injection action

2006-10-07T04:36:00.000-07:00

From attorney Karl Keys BLOG :

Friday, October 06, 2006

More Eleventh Circuit lethal injection action

http://www.capitaldefenseweekly.com/2006/10/more-eleventh-circuit-lethal-injection.html

Lethal injection remains in the news.

Hearings in California and elsewhere are ongoing.

The eleventh Circuit refuses to take part in the ongoing dilemma. In Arthur Rutherford v. McDonough a split panel denies relief.

Decision of the Day notes:

With his execution imminent, convicted murderer Arthur Rutherford filed suit challenging the constitutionality of Florida's lethal injection procedure shortly after the Supreme Court granted certiorari in Hill'’s case.

As with Hill, the district court and Eleventh Circuit denied Rutherford'’s claims. But when the Supreme Court decided that Hill'’s challenge could proceed under § 1983, it remanded RutherfordÂ’s case as well.

In a divided opinion, the Court decides that Rutherford will suffer the same fate as Hill: execution, without any hearing on the merits of whether Florida's lethal injection procedure amounts to cruel and unusual punishment.

The majority concludes that Rutherford waited too long to bring his challenge.

Perhaps emboldened by the Supreme Court's refusal to stay Hill'’s execution a second time, Judge Carnes tosses in a lot of choice words about the importance of prompt executions and a few choice words about Rutherford's attorney.

Judge Wilson dissents, explaining that Rutherford's timing in bringing his § 1983 claim is understandable, given the Supreme Court'’s decision to hear Hill'’s case. He further argues that executing people in compliance with the Constitution is more important than executing people quickly.

The tension remain finality and ripeness remains and the split in the lower courts continue. Whether this or another case will finally get cert to resolve the split on the competing doctrines remains to be seen.

[The Clarence Hill stay application is here. The petition for certiorari can be found here.]

11 circuit opinion in Arthur Rutherford October 5, 2006

2006-10-07T04:17:00.000-07:00

Arthur D. Rutherford v. James McDonough
06-10783
06-00050 CV-MCR
10-05-2006
REM
view

http://www.ca11.uscourts.gov/opinions/ops/200610783Op2.pdf

The Chaos Behind California Executions

2006-10-07T04:07:00.000-07:00

The Chaos Behind California Executions

http://www.latimes.com/news/local/la-me-execution2oct02,0,3422925.story?page=2&coll=la-home-headlines

Trial testimony paints lethal injection methods as haphazard, with little medical oversight

By Maura Dolan and Henry Weinstein,
Times Staff Writers

October 2, 2006

SAN JOSE — "Operational Procedure No. 770," the state's name for execution by lethal injection, is performed in a dark, cramped room by men and women who know little, if anything, about the deadly drugs they inject under extreme stress.Thousands of pages of depositions and four days of testimony last week in a federal courtroom here provided the most intimate portrait yet of a state's lethal injection methods.

Witnesses depicted executions by lethal injection — long considered a more humane alternative to the gas chamber or the electric chair — as almost haphazard events, and medical experts on both sides could not rule out the possibility that one or more inmates had been conscious and experienced an excruciating sensation of drowning or strangulation before death.

Describing the pressure executioners feel and the surreal atmosphere in which they work, one executioner explained: "There's no other place in the world that you're asked to start an IV for that purpose."

U.S. District Court Judge Jeremy Fogel, who presided over the trial here, is now reviewing the testimony and records to determine if the state can continue to perform lethal injection executions or if it should revise procedures to ensure the condemned don't suffer cruel and unusual punishment in violation of the Constitution.

The litigation was brought by Michael Morales, condemned for the 1981 murder of Terri Winchell, 17, a high school student from Lodi. Morales, like inmates in several other states who have also challenged lethal injection, claims prisoners may not be anesthetized properly before receiving a muscle-paralyzing drug that would mask any suffering before a third, heart-stopping chemical kills them.

His witnesses insisted that trained medical personnel are needed to ensure a humane execution.The testimony of dueling doctors and pharmacologists underscored the incongruity of using a medical procedure to produce a decidedly nonmedical result.Witnesses for both sides stumbled when discussing the condemned, frequently referring to an inmate as "the patient."

Lawyers for the state defended the work of the executioners, stressing it was much less complicated than medicine. An execution, after all, is supposed to be punishment, the attorneys reminded the court.

When anesthesia is administered in a hospital setting, "you have two objectives — one to render the patient unconscious, and two, to make sure you don't kill him," said senior Assistant Atty. Gen. Dane Gillette, the lead lawyer for the state.

"That is not at all the objective of a lethal injection execution."All California executions take place at San Quentin prison north of San Francisco. The condemned is strapped on a gurney in a small, mint-green room that for decades served as the gas chamber. After the IVs are set up, the chamber's heavy, solid steel door is shut and locked, and the inmate is left alone. A prison employee leans into the door to seal it, an apparent holdover from the days when the prison had to ensure toxic gas would not escape.

The execution team retires to an adjacent room, where members insert the execution drugs by syringe into IV lines that run through the wall and into the inmate's arms. That anteroom is often packed with state officials, prosecutors and other government visitors. There were "so many people in that room you didn't even know who they were" and why they were there, Dr. Donald Calvo, a prison doctor, testified in a deposition.

Former San Quentin Warden Steven W. Ornoski said that during one execution, "I don't believe I could move from my spot much, if any." He once had to tell someone to leave. It was a doctor.

A nurse working in the jammed room said she had to pass syringes to an outstretched hand whose owner she could not see. The same nurse said she did not know the origins of a document with instructions for the drugs. She had simply found it "in the gas chamber."To prevent the executioners from being seen or identified by witnesses, their room is illuminated only by a red light.

A doctor who filled out execution records said the room was so dark he had to use a flashlight to see what he was writing.The IV bags hang from ducts so high that it would be impossible to determine if everything was working properly, testified Dr. Mark Heath, a Columbia University anesthesiologist and expert witness for Morales.

A member of the execution team said in a deposition that she believed "the janitor" helped set the bags.The executioners are chosen from among a group of volunteer prison workers.

Though several have had medical training as registered nurses, background screening appears to have been minimal.

A prison employee was chosen as team leader even though he had missed months of work and had been under care for post-traumatic stress caused, he said in his deposition, by "my years of working in the prison system." That executioner, who was taking antidepressants, also had been disciplined for a drunk driving conviction.

The Chaos Behind California Executions
October 2 2006

Testimony suggested lax oversight of the drugs issued at San Quentin for executions. A witness testified that bottles of the barbiturate anesthetic taken for practice sessions were not opened, but there was no evidence they were returned.Fogel wanted to know whether the anesthetic could be used as a recreational drug. Witnesses for the state and Morales disagreed.

Lawyers testified about witnessing executions, one in California and the others in North Carolina, which has a lethal injection procedure similar to California's.

Heather Jarvis recalled watching North Carolina capital prisoner Edward Hartman, 38, wheeled into the execution chamber on a gurney, covered from neck to toe by a white sheet."I saw Eddie's eyes close, and I thought to myself, 'Here we go. This is it.'

Almost immediately his eyes opened again, not fully, more than halfway up but not completely. His eyes remained open for the entire execution." She said his throat began to throb and pulsate like a lizard's, and his chest heaved and strained so violently she thought he would fall off the gurney."Then he became still, and his eyes finally did close."

After reviewing evidence about lethal injection, Fogel earlier this year ordered California to either have a doctor present at executions or instead give the inmate only a massive, fatal dose of anesthesia without the other drugs.

The state chose to go with the doctor option, hiring two anesthesiologists but assuring them they would be mere observers.Dr. Robert Singler, a Napa anesthesiologist, reluctantly agreed to join the team at the request of a friend, Darc Keller, who works for the Department of Corrections and Rehabilitation.

Singler testified in court that he believed the state's methods would ensure a humane execution.

The other doctor, identified as "Anesthesiologist 2," was to play a lesser role. He said in a deposition he agreed to be present only after he was assured he would have "nothing" to do. "What do you mean by 'nothing'?" he said he asked. "You would have no responsibilities," he quoted Keller as saying.

Anesthesiologist 2 said he even received permission from the warden to stand in a room off the anteroom during the execution so he would not have to watch it.On the night Morales was to die, the two anesthesiologists learned that an appeals court had ruled they would have to intervene if problems arose during the execution.

Both Singler and Anesthesiologist 2 refused, saying they were bound by the physician's obligation to do no harm.

Morales, who had been stripped of his possessions and moved to a special cell, learned several hours later that his appointment for Operational Procedure No. 770 had been postponed.

maura.dolan@latimes.com

henry.weinstein@latimes.com

Judge Considering Constitutionality of Lethal Injection Posing Tough Questions

2006-10-07T03:43:00.000-07:00

Judge Considering Constitutionality of Lethal Injection Posing Tough Questions

http://www.latimes.com/news/local/la-me-lethal6oct06,1,5855714.story?coll=la-headlines-california

Prosecutors and defense attorneys are wary after being asked to suggest ways the manner of execution can be improved.

By Henry Weinstein, Times Staff WriterOctober 6, 2006

A federal judge considering the constitutionality of the way California kills condemned inmates has asked prosecutors and defense lawyers a series of questions — including how the lethal injection procedures could be improved — that pose difficulties for both sides, experts say.Searching for a better execution method is laudable, but lawyers should not be asked to come up with ways to kill an inmate, said Fordham University law professor Deborah Denno, an expert on methods of punishment.

"The lethal injection procedure should not constitute a patchwork quilt of written ideas gathered together by different parties with wide-ranging interests in response to a judge's questions," Denno said.

Lawyers for condemned inmate Michael Morales and the California attorney general's office, which is seeking to uphold the current lethal injection protocol, must respond by Oct. 27.U.S. District Judge Jeremy Fogel in San Jose said his questions "should not be read as indicating in any way how" he intended to rule, but both proponents and opponents of capital punishment said the questions certainly sound as if he is contemplating a decision that would require changes in the state's procedures.

"It looks like he is interested in having" corrections officials "tweak the procedure some more," said Kent Scheidegger, an attorney with the Criminal Justice Legal Foundation in Sacramento, which frequently files friend-of-the-court briefs seeking to uphold death sentences.

State officials modified the procedure this year after Morales' execution was postponed because of the legal challenge.Fogel's questions grew out of a four-day hearing last week.

Executions in California have been put on hold while he considers Morales' lawsuit, which asserts that the state's lethal injection procedure creates an unnecessary risk that an inmate will suffer excessive pain during an execution, in violation of the constitutional bar against cruel and unusual punishment.

Among the things Fogel asked is what steps state corrections officials "can and should … take" to "improve their actual implementation" of the three-drug procedure used to execute prisoners in California.Morales' lawsuit contends that inmates are insufficiently anesthetized by the first drug — sodium thiopental — and that the second drug — pancuronium bromide, which paralyzes the condemned inmate, who is strapped to a gurney — prevents the prisoner from screaming while he experiences excruciating pain from the third drug — potassium chloride — which causes cardiac arrest.

Fogel said he also wanted input on the qualifications of execution team members and on the physical aspects of the execution chamber, including the amount of space, sight lines and other things. Assuming that the state continues to use three drugs, the judge asked, what steps should corrections personnel take to monitor inmates' levels of unconsciousness before and after injection of the drugs, including whether heart and brain monitors would improve the reliability of the execution procedures.

He also asked whether medical professionals should be involved in executions, and if so, what types. No doctors now take part, except to pronounce the inmate dead.Also, the judge wants the two sides to tell him their views on "the advantages and disadvantages" of using a longer-acting barbiturate as part of a three-drug combination or of using a single drug, such as sodium thiopental or pentobarbital.

Fogel's questions show what a complicated issue he is grappling with and pose challenges for both sides, said Elisabeth Semel, who runs the death penalty clinic at UC Berkeley's Boalt Hall School of Law. "If it was clear to the judge that the state method was just fine, why would he ask all these questions?"

henry.weinstein@latimes.com

Eleventh Circuit shuts down another lethal injection litigant

2006-10-07T02:46:00.000-07:00

http://sentencing.typepad.com/sentencing_law_and_policy/2006/10/eleventh_circui.html

From the BLOG Sentencing, Law and Policy

Eleventh Circuit shuts down another lethal injection litigant

Late yesterday, the Eleventh Circuit in Rutherford v. McDonough, No. 06-10783 (11th Cir. Oct. 5, 2006) (available here) turned away another capital defendant's effort to assail Florida's lethal injection protocol through a § 1983 suit.

A split panel Rutherford essentially follows the lead of a prior panel's work in Hill (discussed here and here) in ruling that the death row defendant's § 1983 suit was brought too late.

Judge Wilson writes a lengthy dissent, which concludes with this footnote:

A court in the Northern District of California is currently hearing expert testimony regarding a challenge to California's lethal injection protocols, which are materially similar to Florida's procedures. Morales v. Woodford, No. C-06-219-JF-RS (N.D. Cal. 2006). Rutherford deserves the same opportunity.

Consequently, I would grant Rutherford's Application for a Stay of Execution, permitting him to return to the district court for a hearing on the merits of his § 1983 claim.

Some recent related posts:

Regulating executions in California
A lethal hearing (in the wrong place?)
My lethal injection piece on SSRN
Lots and lots of lethal headlines
Supreme Court denies stay in Hill
Up and down the Hill again

UPDATE: This Los Angeles Times article discusses the California lethal injection litigation noted by Judge Wilson.

Here is the lead:
A federal judge considering the constitutionality of the way California kills condemned inmates has asked prosecutors and defense lawyers a series of questions — including how the lethal injection procedures could be improved — that pose difficulties for both sides, experts say.