"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
Saturday, July 05, 2008
Thursday, October 19, 2006
Justice Anstead, Florida Supreme Court dissent - Arthur Rutherford
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.
Wednesday, October 18, 2006
Killer of Australian widow executed
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.
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
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.
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
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.
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
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
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
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.
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
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.
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
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.
A True Copy
Test:
kb
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.
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.
A True Copy
Test:
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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
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
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
Appendix to State`s response to motions can be read here in PDF :
http://www.arthurrutherford.us/legal/Filed_10-17-2006_StateResponseAppendix.pdf
http://www.arthurrutherford.us/legal/Filed_10-17-2006_StateResponseAppendix.pdf
Florida Supreme Court order on motion to be heard
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.
A True Copy
Test:
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Served:
CAROLYN M. SNURKOWSKI
LINDA MCDERMOTT
MARTIN J. MCCLAIN
CHARMAINE M. MILLSAPS
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.
A True Copy
Test:
kb
Served:
CAROLYN M. SNURKOWSKI
LINDA MCDERMOTT
MARTIN J. MCCLAIN
CHARMAINE M. MILLSAPS
MOTION FOR OPPORTUNITY TO BE HEARD - Arthur Rutherford
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
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
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
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
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