IN THE SUPREME COURT OF FLORIDA

NO. SC69825

_________________________________________________________

ARTHUR DENNIS RUTHERFORD,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

__________________________________________________________

___________________________________________

INITIAL BRIEF

___________________________________________

LINDA MCDERMOTT

Fla. Bar No. 0102857

MARTIN J. MCCLAIN

Fla. Bar No. 0754773

McClain & McDermott, P.A.

Wilton Manors, FL 33334

(850) 322-2172

Counsel for Mr. Rutherford

i

PRELIMINARY STATEMENT

This proceeding involves the appeal of an order summarily

denying Mr. Rutherford’s successive Rule 3.850 motion. The

following symbols will be used to designate references to the

record in this appeal:

“R.” – record on direct appeal to this Court;

“Supp-R.” - supplemental record on direct appeal to this

Court;

“PC-R.” - record on appeal from the denial of

postconviction relief following a limited

evidentiary hearing;

“App.” -appendix to Mr. Rutherford’s 3.850 motion in the

present proceedings.

All other references are self-explanatory or otherwise

explained herewith.

REQUEST FOR ORAL ARGUMENT

Mr. Rutherford is presently under a death warrant with an

execution scheduled for January 31, 2006, at 6:00 p.m. This

Court has not hesitated to allow oral argument in other warrant

cases in a similar procedural posture. A full opportunity to air

the issues through oral argument would be more than appropriate

in this case, given the seriousness of the claims involved, as

well as Mr. Rutherford’s pending execution date. Mr. Rutherford,

through counsel, urges that the Court permit oral argument.

ii

TABLE OF CONTENTS

PRELIMINARY STATEMENT...........................................i

REQUEST FOR ORAL ARGUMENT.......................................i

TABLE OF CONTENTS..............................................ii

TABLE OF AUTHORITIES............................................v

STATEMENT OF THE CASE...........................................1

STATEMENT OF THE FACTS..........................................4

SUMMARY OF THE ARGUMENT........................................11

STANDARD OF REVIEW.............................................13

ARGUMENT I

THE LOWER COURT ERRED IN DENYING MR. RUTHERFORD AN

EVIDENTIARY HEARING ON HIS CLAIM OF NEWLY DISCOVERED

PLED IN THE ALTERNATIVE THAT THE STATE WITHHELD FAVORABLE

EVIDENCE IN VIOLATION OF BRADY V. MARYLAND BECAUSE THE

FILES AND RECORDS DO NOT SHOW THAT HE WAS CONCLUSIVELY

ENTITLED TO NO RELIEF. THE NEW INFORMATION TO WHICH THE

STATE HAS CONCEDED THAT MR. RUTHERFORD EXERCISED DUE

DILIGENCE IN DISCOVERING IN DECEMBER OF 2005 WOULD

PROBABLY HAVE PRODUCED AN ACQUITTAL OR A SENTENCE LESS

THAN DEATH AND CERTAINLY UNDERMINES CONFIDENCE IN THE

RELIABILITY OF THE ADVERSARIAL TESTING CONDUCTED IN

ITS ABSENCE. ADDITIONALLY THE LOWER COURT ERRED IN

FAILING TO ALLOW MR. RUTHERFORD TO FULLY DEVELOP HIS

CLAIM THROUGH DISCOVERY........................................14

I. THE LOWER COURT’S FAILURE TO HOLD AN EVIDENTIARY

HEARING CONSTITUTES REVERSIBLE ERROR......................14

B. The Standard for Receiving an Evidentiary

Hearing..............................................18

C. The Lower Court’s Analysis Demonstrates that

the Court Did Not Take Mr. Rutherford’s Allegations

as True and Did Not Determine that the “Motion

and the Files and Records Conclusively Show that

iii

Mr. Rutherford is Entitled to No Relief”.............20

1. Mr. Rutherford’s allegations were not

taken as true...................................20

2. The Motion and the Files and Records Do Not

Conclusively Show that Mr. Rutherford

is Entitled to No Relief........................27

II. MR. RUTHERFORD’S NEWLY DISCOVERED EVIDENCE OF

INNOCENCE AND BRADY WOULD PROBABLY PRODUCE AN

ACQUITTAL OR A SENTENCE LESS THAN DEATH...................34

A. Diligence............................................35

B. The Newly Discovered Evidence Would Probably

Produce an Acquittal or a Sentence Less

Than Death...........................................35

1. The Newly Discovered Evidence Would Probably

Produce an Acquittal on Retrial.................36

2. The Newly Discovered Evidence Would

Probably Produce a Sentence Less than

Death on Retrial................................42

3. The lower court failed to consider Mr.

Rutherford’s claim cumulatively.................49

III. THE LOWER COURT ERRED IN FAILING TO ALLOW

MR. RUTHERFORD TO FULLY DEVELOP HIS CLAIM THROUGH

DISCOVERY.................................................49

A. The Lower Court Erred in Denying Mr. Rutherford

Discovery............................................49

B. The Lower Court Erred in Denying Mr. Rutherford

Access to Mary Heaton’s Psychological Records........56

ARGUMENT II

THE LOWER COURT ERRED IN DENYING AN EVIDENTIARY HEARING

ON MR. RUTHERFORD’S CLAIM THAT THE EXISTING PROCEDURE

THAT THE STATE OF FLORIDA UTILIZES FOR LETHAL INJECTION

VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AS IT CONSTITUTES CRUEL AND UNUSUAL

PUNISHMENT. ADDITIONALLY, THE LOWER COURT ERRED IN

iv

DENYING DEFENDANT’S MOTIONS FOR SEROLOGICAL SAMPLES,

A. Lethal Injection.....................................58

B. Motion for Independent Testing.......................68

C. Motion for Discovery.................................69

ARGUMENT III

THE LOWER COURT ERRED IN DENYING AN EVIDENTIARY HEARING

ON MR. RUTHERFORD’S CLAIM THAT THE ADMINISTRATION OF

PANCURONIUM BROMIDE VIOLATES MR. RUTHERFORD’S FIRST

AMENDMENT RIGHT TO FREE SPEECH.................................72

ARGUMENT IV

THE LOWER COURT ERRED IN DENYING MR. RUTHERFORD’S

REQUEST FOR PUBLIC RECORDS PURSUANT TO CHAPTER 119,

FLORIDA STATUTES, THE EIGHTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION, AND ARTICLE I,

§§ 9 AND 17 OF THE FLORIDA CONSTITUTION........................77

ARGUMENT V

THE LOWER COURT ERRED IN DENYING MR. RUTHERFORD’S CLAIM

THAT HIS CONVICTION AND SENTENCE OF DEATH VIOLATE THE

EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION...................................................84

CONCLUSION.....................................................87

CERTIFICATE OF SERVICE.........................................88

CERTIFICATION OF FONT..........................................88

v

TABLE OF AUTHORITIES

CASES

Banks v. Dretke

540 U.S. 668 (2004).......................................32

Beardslee v. Woodford

Brady v. Maryland

373 U.S. 83 (1963)........................................32

Bryan v. State

753 So. 2d 1244 Fla. 2000)................................78

Cardona v. State

826 So.2d 968 (Fla. 2002).................................33

DeJonge v. Oregon

299 U.S. 353 (1937).......................................75

Edwards v. South Carolina

372 U.S. 229 (1963).......................................75

Elledge v. State

911 So.2d 57 (Fla. 2005)..................................65

Enmund v. Florida

458 U.S. 782 (1982)...................................42, 43

Estelle v. Gamble

429 U.S. 97 (1976)........................................67

Garcia v. State

622 So. 2d 1325 (Fla. 1993)...............................44

Gaskin v. State

737 So. 2d 509 (Fla. 1999)................................74

Glock v. Moore

776 So. 2d 243 (Fla. 2001)................................80

Gregg v. Georgia

428 U.S. 153 (1976).......................................67

Hallman v. State

371 So. 2d 482 (Fla. 1979)................................11

vi

Herrera v. Collins

506 U.S. 390 (1993).......................................84

Hoffman v. State

800 So.2d 174 (Fla. 2001).................................33

Jackson v. State

575 So. 2d 181 (Fla. 1991)................................44

Johnson v. Singletary

647 So. 2d 106 (Fla. 1994)............................19, 29

Johnson v. State

904 So.2d 400 (Fla. 2005).................................65

Jones v. State

591 So. 2d 911 (Fla. 1991)........11, 20, 24, 30, 34, 35, 38

Jones v. State

709 So. 2d 512 (Fla. 1998)................................35

Knight v. State

Palm Beach County Case No. 97-05175.......................66

Kyles v. Whitley

514 U.S. 419, 437 (1995)..............................32, 33

Lemon v. State

498 So. 2d 923 (Fla. 1986)........................19, 68, 74

Lightbourne v. State

549 So. 2d 1364 (Fla. 1989)...........................13, 20

Lightbourne v. State

742 So. 2d 238 (Fla. 1999)............................19, 29

Louisiana ex. rel. Francis v. Resweber

329 U.S. 459 (1947).......................................67

Melendez v. State

718 So. 2d 746 (Fla. 1998)................................19

Mills v. State

786 So. 2d 547 (Fla 2001).................................35

Mordenti v. State

894 So. 2d 161 (Fla. 2004)............................33, 49

vii

Oregon v. Guzek

___ U.S. ___ (2005)......................................45

Parker v. State

904 So.2d 370 (Fla. 2005).................................65

Peede v. State

748 So. 2d 253 (Fla. 1999)................................74

Pell v. Procunier

417 U.S. 817 (1974).......................................76

Provenzano v. Moore

744 So. 2d 413 (Fla. 1999)................................81

Rhodes v. Chapman

452 U.S. 337 (1981).......................................67

Roberts v. State

678 So. 2d 1232 (Fla. 1996).......................13, 19, 29

Rutherford v. Crosby

Rutherford v. Crosby

125 S.Ct. 1847 (2005)......................................3

Rutherford v. Florida

110 S.Ct. 353 (1989).......................................2

Rutherford v. Moore

774 So. 2d 637 (Fla. 2000).................................2

Rutherford v. State

545 So. 2d 853 (Fla. 1989).................................1

Rutherford v. State

727 So. 2d 216 (Fla. 1999).................................2

Rutherford v. State

Case No. SC03-243 (Fla. 2004)..............................3

Rutherford v. State

Case No. SC05-376 (Fla. 2005)..............................3

Schlup v. Delo

513 U.S. 298 (1995)...................................84, 86

viii

Scott v. State

657 So. 2d 1129(Fla. 1995)....................13, 19, 29, 43

State v. Gunsby

670 So. 2d 920 (Fla. 1996)............................33, 49

State v. Mills

788 So. 2d 249, 250 (Fla. 2001)...............19, 29, 43, 44

Sims v. State

754 So. 2d 657 (Fla. 2000)................58, 62, 68, 78, 80

Strickler v. Greene

527 U.S. 263 (1999).......................................33

Suggs v. State

2005 WL 3071927 (Fla. November 17, 2005)..................65

Swafford v. State

679 So. 2d 736 (Fla. 1996)............................19, 29

Thornburgh v. Abbott

490 U.S. 401 (1989).......................................75

Tison v. Arizona

481 U.S. 137 (1987).......................................42

Turner v. Saffley

482 U.S. 78 (1987)........................................75

Weems v. United States

217 U.S. 349 (1909).......................................67

Young v. State

739 So. 2d 559............................................33

TREATISES

Koniaris L.G., Zimmers T.A., Lubarski D.A., Sheldon J.P.,

Inadequate anaesthesia in lethal injection for execution,

Vol 365, THE LANCET 1412-14 (April 16, 2005)...................61

1

STATEMENT OF THE CASE

The Circuit Court of the First Judicial Circuit, Santa Rosa

County, entered the judgments of conviction and sentence under

consideration.

Mr. Rutherford was indicted by a grand jury for first degree

murder and robbery on September 1, 1985. Mr. Rutherford entered

a plea of not guilty. On January 28, 1986, Mr. Rutherford’s

trial commenced before the Honorable George E. Lowrey. On

January 31, 1986, the jury found Mr. Rutherford guilty as

charged, and on February 1, 1986, the jury recommended the death

penalty.

Pursuant to a defense motion for mistrial, the circuit court

found that the State had committed a material, substantial,

knowing and willful discovery violation at trial and ordered a

re-trial on all issues. Venue was transferred for the re-trial

to Walton County, Florida, before the Honorable Clyde B. Wells.

On September 29, 1986, Mr. Rutherford’s re-trial commenced.

He was convicted on October 2, 1986. The penalty phase was

conducted on October 2, 1986, and the jury recommended a death

sentence by a vote of seven (7) to five (5). Mr. Rutherford was

sentenced on December 9, 1986, and the judge’s sentencing order

was entered on December 17, 1986.

Mr. Rutherford appealed his convictions and sentences, which

were affirmed. Rutherford v. State, 545 So. 2d 853 (Fla. 1989).

2

On November 3, 1989, certiorari was denied by the United States

Supreme Court. Rutherford v. Florida, 110 S.Ct. 353 (1989).

Mr. Rutherford timely filed a motion for postconviction

relief under Florida Rule of Criminal Procedure 3.850 on August

1, 1991. An amended motion was filed on October 16, 1992. The

circuit court entered an order denying relief on some claims and

ordering an evidentiary hearing on Mr. Rutherford’s penalty phase

ineffective assistance of counsel claim.

At the evidentiary hearing, Mr. Rutherford presented

testimony and exhibits regarding trial counsel’s preparation for

the penalty phase and regarding mental health and other

mitigation available at the time of trial. Following the

evidentiary hearing, the circuit court denied relief on all

claims. This Court affirmed the denial of postconviction relief.

Rutherford v. State, 727 So. 2d 216 (Fla. 1999).

Mr. Rutherford filed a petition for a writ of state habeas

corpus on December 21, 1999. This Court denied Mr. Rutherford’s

petition on October 12, 2000. Rutherford v. Moore, 774 So. 2d 637

(Fla. 2000).

On March 30, 2001, Mr. Rutherford filed a Petition for Writ

of Habeas Corpus in federal court. On August 29, 2002, the

district court denied relief on all claims. The Eleventh Circuit

On April 18, 2005, certiorari was denied by the United States

3

Supreme Court. Rutherford v. Crosby, 125 S.Ct. 1847 (2005).

In September of 2002, Mr. Rutherford filed a successive

postconviction motion in the circuit court based on Ring v.

Arizona, 122 S.Ct. 2428 (2002). Following the denial of relief

by the circuit court, this Court affirmed on May 25, 2004.

Rutherford v. State, Case No. SC03-243 (Fla. 2004), rehearing

denied July 23, 2004.

On March 4, 2005, Mr. Rutherford filed a petition for a writ

of state habeas corpus based on Crawford v. Washington, 124 S.Ct.

1354 (2004). This Court denied Mr. Rutherford’s petition on July

8, 2005. Rutherford v. State, Case No. SC05-376 (Fla. 2005).

On November 28, 2005, Mr. Rutherford filed a petition for a

writ of state habeas corpus based on the recent United States

Supreme Court decision, Deck v. Missouri, 125 S. Ct. 2007 (2005).

This Court denied Mr. Rutherford’s petition on January 5, 2006.

On November 29, 2005, Governor Jeb Bush signed a death

warrant setting an execution date of January 31, 2006 at 6:00

p.m. Mr. Rutherford filed a successive 3.850 motion on December

21, 2005. He subsequently filed an amendment, with the lower

court’s permission, on December 24, 2005. Following a Huff

hearing on December 28, 2005, the lower court, on January 5,

2006, denied Mr. Rutherford an evidentiary hearing on his claims

which the lower court denied on January 6, 2006.

4

schedule, Mr. Rutherford herein timely files his Initial Brief.

STATEMENT OF THE FACTS

On August 22, 1985, at approximately 1:15 - 1:30 p.m., Mary

Francis Heaton entered the Santa Rosa State Bank with a check

made out to her on the account of Stella Salamon (R. 437). Jamie

Peleggi, the bank teller, testified that she assisted Heaton that

day. When Heaton entered the bank, Peleggi could not process the

check because the signature from Ms. Salamon was missing (R.

437). Heaton left the bank (R. 439).

Heaton returned to the bank with a signed check for $2000.00

(R. 440). The bank record indicated that the check was processed

at 2:02 p.m. (R. 440). Peleggi gave Heaton $2000.00 (R. 441). As

far as Peleggi could tell, Heaton “was by herself” (R. 441).

Also, on August 22, 1985, Heaton purchased an automobile

from Harvey Smith (R. 443). Before arriving at the auto

dealership, Heaton called and told Smith “that she had gotten her

income tax check” (R. 444). She later arrived at the dealership

and paid $350.00 in cash for an automobile (R. 444).

By the time of Mr. Rutherford’s capital trial, Heaton had

been committed to a mental institution (R. 411). However, Heaton

testified on behalf of the State at Mr. Rutherford’s trial.

5

During cross examination, she explained that she suffered from

psychiatric problems and had a nervous breakdown, stroke and

brain damage (R. 412). Due to her mental problems, Heaton

admitted that she had difficulty “distinguishing between what is

fantasy and what is fact.” (R. 412). She also admitted that she

was having this trouble on August 22, 1985. Heaton testified

that she could “remember some things” from that time period, but

“some things [she] couldn’t” (R. 412).

According to Heaton’s trial testimony, Mr. Rutherford

arrived at her home between 11:30 a.m and 12:00 p.m. on August

22, 1985, looking for her father in order to sell him some glass

doors (R. 400). While there, he asked if she knew how to fill

out a check (R. 400). She told him that she did not (R. 401).

Mr. Rutherford requested that she ask her niece, Elizabeth Ward,

to come out to his van and Heaton complied (R. 401). Ward soon

returned to the house and told Heaton that Mr. Rutherford

requested to see Heaton (R. 402). Heaton testified that she then

accompanied Mr. Rutherford to the Santa Rosa State Bank where he

asked her to cash a check (R. 403). When Heaton was unable to

cash the check, she and Mr. Rutherford left the bank and he drove

into the woods (R. 405). Mr. Rutherford exited the van with a

check stub, blue billfold, pen and credit card wrapped in a blue

pull-over shirt and “throwed” it away (R. 406). They then

returned to the bank where Mr. Rutherford produced a signed check

the assistant state attorney who prosecuted him, his trial

defense team and mental health experts. Indeed, Mr. Rutherford

rejected a plea offer that would have ensured that he did not

receive the death penalty because he refused to plead to crimes

that he did not commit.

6

(R. 408). Heaton then returned to the bank and cashed the check

using her driver’s license (R. 408). Mr. Rutherford paid Heaton

$500.00 and dropped her back at her home at 2:00 p.m. (R. 410).

Heaton’s testimony conflicted on key points with her own

previous statements to law enforcement and her previous testimony

during pretrial depositions. In fact when confronted with her

conflicting statements to the police, Heaton said that she had

lied to law enforcement when asked about who signed the check (R.

420).

Her trial testimony also conflicted with the testimony of

Ward and other witnesses. For example, the time frames she

provided conflicted with testimony heard from Ward and Peleggi.

The circumstances of filling out the check conflicted with Ward’s

account.

Heaton’s trial testimony also conflicted with Mr.

Rutherford’s testimony. During his testimony, Mr. Rutherford

explained that he did not commit the crimes with which he was

charged. He provided detailed testimony regarding his

After Mr. Rutherford’s death warrant was signed on November

could not have previously located Gilkerson and that due

diligence had been exercised.

7

29, 2005, postconviction counsel learned of an individual, named

Alan Gilkerson, and sought to speak with him about the

Gilkerson revealed that he knew Elizabeth Ward, A.K.A. Elizabeth

Watson, as he and Watson had a son together. (Appendix I, filed

with Mr. Rutherford’s successive Rule 3.850 motion, December 21,

2005)(hereinafter App. I). Indeed, Gilkerson and Watson had

previously resided together. (App. I). Gilkerson also knew

Watson’s aunt, Mary Heaton, because she also resided with them.

(App. I). And, surprisingly, Gilkerson was also familiar with

Mr. Rutherford. Gilkerson recalled that when he shared a

residence with Heaton and Ward, Heaton had told him that she had

“once killed an old lady with a hammer and made it look like A.D.

Rutherford committed the crime.” (App. I). 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.

6. 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

“crazy.” 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

witness with information obtained from another source. When the

witness is so confronted and changes his or her story that is

generally regarded not just that the witness has prevaricated,

but also is hiding greater criminal responsibility.

8

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.

(App. I).

Upon learning of Heaton’s statement to Gilkerson,

postconviction counsel sought to locate and confront Heaton with

between Heaton and Michael Glantz, a representative from Mr.

Rutherford’s defense team. When Glantz confronted Heaton with

her confession, she confirmed to Glantz that she knew Alan

Gilkerson and that she had previously resided with him. However,

she denied having told him that she killed the victim. (Appendix

K, attached to Mr. Rutherford’s Notice of Supplemental Proof and

Request for Leave to Amend Motion to Vacate Conviction and

Sentences, December 23, 2005)(hereinafter App. K). Despite

denying that she had told Gilkerson that she had committed the

murder, she did substantially change her story. Heaton told

Glantz that she had known the victim; in fact, she knew the

victim better than Mr. Rutherford. (App. K). Heaton told Glantz

that she introduced Mr. Rutherford to the victim. Contrary to

her trial testimony, Heaton told Glantz that she was present when

the victim was killed, but that she observed Mr. Rutherford

that Mr. Rutherford came to her house looking for her father, and

then subsequently asked her to cash a check (R. 400).

vacate on December 21, 2005, which included a claim of newly

discovered evidence based upon the information obtained from Alan

Gilkerson. He amended the motion, without objection from the

State, on December 24, 2005, and added allegations of newly

discovered evidence and Brady based upon the statements Heaton

made to Glantz.

9

strike the fatal blow. (App. K). As to the victim, Heaton stated

very emphatically that she “saw her die”. (App. K). Even though

Heaton did not testify at trial that she observed the victim die,

Heaton advised Glantz on December 22, 2005, that she had

previously provided this information and had told the police that

Finally, when Glantz confronted Heaton about her involvement

in the victim’s murder she stated, more than once: “Now listen,

that lady, she’s dead. I saw her die and there ain’t nothing you

or nobody can do for her. So I try to forget it.” (See App. K).

Mr. Rutherford pleaded a newly discovered evidence of

Huff hearing was held on December 28, 2005, at which time the

parties addressed Mr. Rutherford’s claims and addressed the need

for an evidentiary hearing. The State informed the lower court

that the State was not contesting Mr. Rutherford’s diligence in

locating the new information. However, it nonetheless argued

that an evidentiary hearing on Mr. Rutherford’s claims was

paginated and no record on appeal has yet to be received.

10

unnecessary. (Transcript of December 28, 2005, Huff

Following the hearing, Mr. Rutherford submitted additional

proof in support of his claims: Eddie Bivin, Elizabeth Ward’s

current husband, attested that a few years ago he overheard a

conversation between several of Heaton’s family members.

(Appendix L attached to Mr. Rutherford’s Motion for Rehearing,

January 6, 2006)(hereinafter App. L). During the conversation,

one of Heaton’s sister’s stated: “You know, Mary Francis may have

been the one that killed that lady and not the man they said did

it.” (App. L).

Also, postconviction counsel located Marie Pouncey, a woman

who resided with Heaton in 1995. (Appendix M attached to Mr.

Rutherford’s Motion for Rehearing, January 6, 2006)(hereinafter

App. M). 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.”

(App. M.).

The lower court denied Mr. Rutherford an evidentiary hearing

on all of his claims, including his claim of newly discovered

evidence.

11

SUMMARY OF THE ARGUMENT

The lower court erred in failing to grant Mr. Rutherford an

evidentiary hearing on his factual claims. Mr. Rutherford

presented claims regarding newly discovered evidence as to Mr.

Rutherford’s innocence of the crimes for which he was charged and

convicted, newly discovered evidence of a Brady violation and

newly discovered scientific evidence which proves that the method

of execution currently being used in the State of Florida

constitutes cruel and unusual punishment.

The statement of Alan Gilkerson is newly discovered

evidence. See Hallman v. State, 371 So. 2d 482, 485 (Fla. 1979),

standard modified in Jones v. State, 591 So. 2d 911 (Fla. 1991).

The lower court erred in denying Mr. Rutherford an evidentiary

hearing and also in analysis of the claim. Gilkerson’s

information individually and in light of prior claims, would

probably have resulted in acquittal of the first degree murder

charge, either outright or through conviction of a lesser

included offense. Certainly, the new evidence would have

probably resulted in a life sentence even assuming a conviction

was obtainable. Likewise, Heaton’s latest version of events when

confronted with Gilkerson’s affidavit constitutes evidence of

either a Brady violation of newly discovered evidence within the

meaning of Jones v. State. To the extent that the State argues

that Heaton is now being truthful and that she had previously

12

advised the State that she witnessed the murder, the State failed

to disclose a prior statement inconsistent with Heaton’s trial

testimony in violation of Brady. To the extent that the State

argues that Heaton’s claim that she previously told the State

that she witnessed the murder is false, her fabrication of this

new story when confronted with Gilkerson’s affidavit constitutes,

not only significant impeachment of her trial testimony as well

as other witnesses, but also evidence that she is prevaricating

in order to hide her criminal responsibility.

The lower court also erred in denying an evidentiary hearing

on Mr. Rutherford’s claim that, based on recent scientific

evidence, the State will violate Mr. Rutherford’s right to be

free of cruel and unusual punishment secured to him by the Eighth

Amendment to the United States Constitution, by executing him

using the sequence of three chemicals, which is unnecessary as a

means of employing lethal injection, and which creates a

foreseeable risk of inflicting unnecessary and wanton infliction

of pain contrary to contemporary standards of decency.

Also, the lower court’s denial of discovery prevented Mr.

Rutherford from receiving a full and fair postconviction

proceeding.

13

STANDARD OF REVIEW

The lower court denied an evidentiary hearing, and therefore

the facts presented in this appeal must be taken as true, even in

a successor Rule 3.850 proceeding being considered during the

pendency of a death warrant. Lightbourne v. State, 549 So. 2d

1364, 1365 (Fla. 1989)(the factual allegations asserted in a

successor 3.850 motion under warrant must be accepted as true for

purposes of determining whether an evidentiary hearing was

required); Scott v. State, 657 So. 2d 1129, 1132 (Fla.

1995)(holding that lower court erred in failing to hold an

evidentiary hearing); Roberts v. State, 678 So. 2d 1232, 1235

(Fla. 1996)(remanding for evidentiary hearing because of trial

witness recanting her testimony).

14

ARGUMENT I

THE LOWER COURT ERRED IN DENYING MR. RUTHERFORD AN

EVIDENTIARY HEARING ON HIS CLAIM OF NEWLY DISCOVERED

CLAIM PLED IN THE ALTERNATIVE THAT THE STATE WITHHELD

FAVORABLE EVIDENCE IN VIOLATION OF BRADY V. MARYLAND

BECAUSE THE FILES AND RECORDS DO NOT SHOW THAT HE WAS

CONCLUSIVELY ENTITLED TO NO RELIEF. THE NEW

INFORMATION TO WHICH THE STATE HAS CONCEDED THAT MR.

RUTHERFORD EXERCISED DUE DILIGENCE IN DISCOVERING IN

DECEMBER OF 2005 WOULD PROBABLY HAVE PRODUCED AN

ACQUITTAL OR A SENTENCE LESS THAN DEATH AND CERTAINLY

UNDERMINES CONFIDENCE IN THE RELIABILITY OF THE

ADVERSARIAL TESTING CONDUCTED IN ITS ABSENCE.

ADDITIONALLY THE LOWER COURT ERRED IN FAILING TO ALLOW

MR. RUTHERFORD TO FULLY DEVELOP HIS CLAIM THROUGH

DISCOVERY.

I. THE LOWER COURT’S FAILURE TO HOLD AN EVIDENTIARY HEARING

CONSTITUTES REVERSIBLE ERROR.

A. Introduction.

In his successive Rule 3.850 motion and amendment, Mr.

Rutherford presented information to the lower court that

constitutes newly discovered evidence. The evidence consists of

a confession made by Mary Heaton that she killed Stella Salamon.

In the early 1990s, Heaton confessed that she killed Stella

Salamon to Alan Gilkerson:

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.

6. 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

“crazy.” I had witnessed her talking to herself many

due diligence as to Gilkerson. Once Mr. Rutherford learned of

the content of what Gilkerson had to say, there was considerable

follow up investigation and no time to do it. As new information

has surfaced in the follow up investigation, postconviction

counsel has sought to immediately plead it.

15

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.

(App. I)(emphasis added). Once he learned of what Gilkerson had

to say, Mr. Rutherford immediately pled Gilkerson’s affidavit in

his motion to vacate. In fact, the State has conceded that Mr.

Rutherford exercised due diligence in that regard.

Not content to merely plead Gilkerson’s affidavit,

postconviction sought to further investigate this information

confession to Mr. Gilkerson, postconviction counsel sought to

locate and confront Heaton. Heaton was located, and a meeting

was arranged between Heaton and Michael Glantz, a representative

from Mr. Rutherford’s defense team. When confronted with

Gilkerson’s affidavit, Heaton confirmed that she indeed knew Alan

Gilkerson and had previously resided with him. Though

acknowledging that she had indeed the relationship with Gilkerson

that he claimed, she did deny having told him that she killed the

victim. (App. K). But while making this denial, Heaton provided

a scenario very much at odds with her trial testimony against Mr.

is telling the truth about an event will tell the same story

every time when asked. This is because the witness is speaking

from memory of the event. However, the story of a witness who is

fabricating often contains inconsistencies because the witness is

not speaking from memory, but instead trying to recall what the

lie was that was previously made up.

commit the murder, she would have so testified at trial. It is

this astonishing change in her story that constitutes evidence

that she is lying now and was lying at trial in order to cover

her own criminal responsibility.

challenged the State to advise the Court whether Heaton was

telling the truth when she claimed to have law enforcement about

witnessing the murder. The State’s representative responded that

she did not know of such a statement. Certainly, this suggests

that the State agrees with Mr. Rutherford that Heaton is a lying,

although at the Huff hearing the State’s representative waffled:

“[Heaton] has a mental illness. She may very well have been

confused, and I don’t know what she said. So I don’t, you know,

she could be confused for all we know. This is not a matter of

her definitely lying.” (Dec. 28, 2005, hearing).

To be clear, it is Mr. Rutherford’s position that Heaton

lied at trial and that she lied to Glantz in their December 22,

16

been to her home previously (App. K). Heaton told Glantz that

she introduced Mr. Rutherford to the victim. She further

indicated that she was present when the victim was killed by Mr.

claims that she had provided this information when questioned by

law enforcement (App. K). According to Heaton, the State had in

its possession a statement from her completely contradicting the

story that she told at trial. Yet, such a statement if it exists

2005, conversation. In fact, her statements to Glantz constitute

evidence of the fact that she is lying in order to hide her

criminal liability for the murder.

17

When Heaton was confronted about her involvement in the

victim’s murder she stated, more than once: “Now listen, that

lady, she’s dead. I saw her die and there ain’t nothing you or

nobody can do for her. So I try to forget it.” (See App. K).

Clearly, Heaton wants to preclude further inquiry.

On December 28, 2005, a Huff hearing was held on Mr.

Rutherford’s successive Rule 3.850 motion and amendment. At the

hearing and through his pleadings, Mr. Rutherford requested an

evidentiary hearing on his claims (Dec. 28, 2005, hearing)(By Mr.

McClain: “[T]his is the same kind of significant information that

did not exist before. Ms. Heaton telling someone that she had

committed the murder. And so an Evidentiary Hearing at which

witnesses, Heaton, Gilkerson, and Kissinger, Gary Hendricks, and

others can be called to inquire regarding the matter” is

required).

The lower court inquired of the State as to the need for an

evidentiary hearing:

Let me ask the State. With regard to the issue on

an Evidentiary Hearing on newly discovered – on Claim

read over the last couple of weeks anyway dealing with

this issue, indicates that an Evidentiary Hearing

position that an Evidentiary Hearing is not required on

Claim 4?

evidence and not the standard to obtain an evidentiary hearing.

18

(Dec. 28, 2005, hearing)(emphasis added). In response to the

court’s inquiry, the State argued that a hearing was unnecessary

because the evidence “is not likely to produce, it doesn’t meet

The State argued that Heaton’s statement to Glantz

“inculpates [Mr. Rutherford] more”. (Dec. 28, 2005, hearing).

And, as to Gilkerson’s affidavit, the State argued “that is

contradictory both to the trial testimony and to the statement

regarding the latest version.” (Dec. 28, 2005, hearing).

The lower court probed further:

(By the Court) I’m trying to get clear in my mind

whether or not it requires an Evidentiary Hearing to

properly weigh the credibility of the statement.

I mean, would you agree that to resolve the issue

without an Evidentiary Hearing I would have to assume

the allegations contained in the motion are true?

do that. You would have, you would have to believe –

No. You would have to take Gilkerson’s statement that

Mary Heaton said that to him to be true, to deny it

without an Evidentiary Hearing.

(Dec. 28, 2005, hearing). The State, without any authority,

insisted that the lower court could summarily deny Mr.

Rutherford’s claim.

B. The Standard for Receiving an Evidentiary Hearing.

This Court has long held that a postconviction defendant is

“entitled to an evidentiary hearing unless ‘the motion and the

19

files and records in the case conclusively show that the prisoner

is entitled to no relief.’” Lemon v. State, 498 So. 2d 923 (Fla.

1986), quoting Fla. R. Crim. P. 3.850. Similarly situated

capital postconviction defendants have received evidentiary

hearings based on newly discovered evidence. State v. Mills, 788

So. 2d 249, 250 (Fla. 2001)(noting that lower court held an

evidentiary hearing on allegations that co-defendant had made

inculpatory statements to an individual while incarcerated);

Lightbourne v. State, 742 So. 2d 238, 249 (Fla. 1999)(remanding

for an evidentiary hearing to evaluate the reliability and

veracity of trial testimony); Melendez v. State, 718 So. 2d 746

(Fla. 1998)(noting that lower court held an evidentiary hearing

on defendant’s allegations that another individual had confessed

to committing the crimes with which defendant was charged and

convicted); Swafford v. State, 679 So. 2d 736, 739 (Fla.

1996)(remanding for an evidentiary hearing to determine if

evidence would probably produce and acquittal); Roberts v. State,

678 So. 2d 1232, 1235 (Fla. 1996)(remanding for evidentiary

hearing because of trial witness recanting her testimony); Scott

v. State, 657 So. 2d 1129, 1132 (Fla. 1995)(holding that lower

court erred in failing to hold an evidentiary hearing and

remanding); Johnson v. Singletary, 647 So. 2d 106, 111 (Fla.

1994)(remanding case for limited evidentiary hearing to permit

affiants to testify and allow appellant to “demonstrate the

under warrant. Perhaps this was the authority to which the lower

court was referring when the court stated: “the case law that I

have seen, I’ve read over the last couple of weeks anyway dealing

with this issue, indicates that an Evidentiary Hearing almost in

all cases is required.” (Dec. 28, 2005, hearing).

20

corroborating circumstances sufficient to establish the

trustworthiness of [newly discovered evidence]”); Jones v. State,

591 So. 2d 911, 916 (Fla. 1991)(remanding for an evidentiary

hearing on allegations that another individual confessed to the

murder with which Jones was charged and convicted and was seen in

Additionally, this Court, like the lower court must accept

that Mr. Rutherford’s allegations are true at this point in the

proceedings. Lightbourne v. State, 549 So. 2d 1364, 1365 (Fla.

1989).

C. The Lower Court’s Analysis Demonstrates that the Court

Did Not Take Mr. Rutherford’s Allegations as True and

Did Not Determine that the “Motion and the Files and

Records Conclusively Show that Mr. Rutherford is

Entitled to No Relief”.

1. Mr. Rutherford’s allegations were not taken as

true.

The lower court did not take Mr. Gilkerson’s affidavit as

true, as the court was required to do. See Lightbourne v. State,

549 So. 2d 1364, 1365 (Fla. 1989). Indeed, the lower court

repeatedly commented and determined that the information

In doing so, the lower court relied on the inconsistencies

argued the fact that the affidavit of Gilkerson conflicted with

the evidence presented at trial and therefore it would not meet

the standard enunciated in Jones. However, as postconviction

counsel pointed out: “that is precisely the point. It impeaches

every aspect of the State’s case, every bit of evidence that the

State has presented is shot down if this is true.” (Dec. 28,

2005, hearing).

the court did not take Gilkerson’s affidavit as true.

21

between the two affidavits and the inconsistencies with the

that “there are factual inconsistencies on the face of the

affidavits”. (Jan. 5, Order, at 11). And, the lower court went

on to state that: “Heaton’s recent statement to Glantz in and of

itself refutes her alleged confession to Gilkerson.” (Jan. 5,

postconviction counsel’s argument:

Heaton didn’t make the statement that she was

present until she was confronted with Gilkerson’s

statements that she confessed.

I’m not asserting, Mr. Rutherford is not asserting

that she is telling the truth now. It’s our position

that she’s a liar and she always has been a liar. And

the fact of which she is confronted with Gilkerson’s

statement, she makes up a new story, is actually

evidence of her guilt, . . . it supports what Gilkerson

has to say. And certainly if the shoe were on the

other foot and the State was prosecuting Ms. Heaton for

murder, her change of her story in light of Gilkerson’s

statement would be evidence of her guilt.

(Dec. 28, 2005, hearing).

Thus, the lower court did not accept Mr. Rutherford’s

factual allegations as true. The allegation was that Heaton lied

that a criminal while denying guilt to individuals connected with

the criminal justice system, truthfully confide in and confess to

friends and relatives. Certainly, it is not without precedent

that while guilt is denied in the formal criminal process, it is

revealed in much more informal settings.

22

in her trial testimony and lied when she spoke to Glantz. In

denying without holding an evidentiary hearing, the circuit court

relied upon the trial testimony and the statements to Glantz as

refuting Gilkerson’s affidavit. The circuit court completely

ignored the fact that Heaton’s trial testimony and her statements

to Glantz contradicted each other. The circuit court completely

disregarded Mr. Rutherford’s claim that she was lying on both of

The circuit court even ignored the State’s suggestion that

Heaton’s mental health may undercut the credibility of her

statements to Glantz. At the Huff hearing, the State’s

representative addressed Heaton’s statement to Glantz saying that

she had told the police that she witnessed the murder: “[Heaton]

has a mental illness. She may very well have been confused, and

I don’t know what she said. So I don’t, you know, she could be

confused for all we know. This is not a matter of her definitely

lying.” (Dec. 28, 2005, hearing). Thus, Heaton’s statements to

Glantz that may be the product of “confusion” cannot be found as

a basis to not accept the Gilkerson affidavit as true.

As argued before the lower court, Mr. Rutherford does not

23

believe that Heaton’s statements to Glantz are true, and Mr.

Rutherford is not in a position to know whether Heaton told

police as she now claims that she witnessed the murder. However,

what is significant is that she changed her story, and that she

changed her story when confronted with her confession to

claims that she was innocent of the murder. By in essence

repudiating her trial testimony that she was home when Mr.

Rutherford came by, Heaton’s December 22, 2005, statement,

provides circumstantial corroboration of Gilkerson’s affidavit.

When confronted with Gilkerson’s statement, she does not say she

does not know Gilkerson, she does not say that her trial

testimony was true and that she was in her own home at the time

of the murder, she, now for the first that any attorney

representing Mr. Rutherford is aware, claims that she witnessed

the murder. If that is true, why didn’t she say so at Mr.

Rutherford’s trial? Equally significant, why does this version

pop up when confronted with Gilkerson’s affidavit?

The lower court also relied on the testimony presented at

trial in finding that Gilkerson’s affidavit was not true:

“Specifically as to the affidavit implicating herself, Heaton’s

statement to Gilkerson that ‘her motive to murder the old lady to

get her money’ is refuted in the record by Perritt’s testimony

that he observed Defendant with the money and her subsequent

shows that the court relied upon the testimony of State witnesses

on direct examination. The court ignored the contradictory

evidence that was brought forth through cross examination and in

the defense’s case. This is not the proper analysis under Jones

v. State, 591 So. 2d 911 (Fla. 1991).

24

statement to Glantz that she observed Defendant strike the fatal

blow.” (Jan. 5, 2005, Order, at 17).

While this again demonstrates that the circuit court did not

take Gilkerson’s affidavit as true, another flaw in the lower

court’s analysis is exposed. The lower court is taking the

evidence at trial in the light most favorable to the State and

using it to refute an affidavit that by law it is required to

accept as true. The circuit court relied on the evidence

presented by the State at Mr. Rutherford’s trial, without

acknowledging that there were inconsistencies, problems and

court cites to Heaton and Johnny Perritt’s testimony that Mr.

Rutherford possessed $1500.00 of the proceeds from the victim’s

check that was cashed, the court fails to acknowledge that the

money was never found despite the State’s search of Mr.

Rutherford, his belongings and his home. Therefore, the issue

that Mr. Rutherford possessed proceeds from the cashed check was

contested at trial and impeached with the evidence that only

$61.00 was ever found in Mr. Rutherford’s possession. Likewise,

Mr. Rutherford presented evidence that he borrowed money after

time of trial to obtain a conviction and death sentence against

Mr. Rutherford. The lower court ignored the inconsistencies and

impeachment of the State’s case.

25

the crime occurred, thus, showing that he was not in possession

of any proceeds from the crime.

The only person proven to possess an unusually large amount

of money following the crime was Heaton. Harvey Smith testified

that Heaton contacted him on August 22, 1985, told him that she

had just received her income tax refund and wanted to purchase an

automobile (R. 444). In fact, later that day Heaton purchased an

automobile from Smith (R. 444). So, Heaton lied to Smith about

where she obtained the funds to purchase the car and was proven

to possess an unusually large quantity of money, facts which

corroborate Gilkerson’s affidavit, impeach Heaton’s testimony and

show evidence of Heaton’s guilt.

Additionally, Johnny Perritt’s testimony was also

inconsistent with the State’s evidence of Mr. Rutherford’s guilt,

initially speaking to law enforcement about his interaction with

Mr. Rutherford on August 22, 1985, Perritt told Deputy Paul

Pridgen that Mr. Rutherford had been at his home between 12:00

and 1:00 p.m. on August 22, 1985, flashing the money from the

robbery and discussing the fact that he had killed the victim

(Supp. PC-R. 363-4). However, Perritt’s initial statement was

26

rendered impossible based on the evidence that the victim was at

the K-Mart at 11:22 a.m., according to a receipt found and that

the victim’s check was not even cashed until 2:02 p.m. (R. 440).

Thus, when it came time for trial, Perritt changed his story

and testified that Mr. Rutherford had arrived at his home between

1:00 and 3:00 p.m. on August 22, 1985, possessed $1500.00 and

confessed to killing the victim, and stayed for 30 or 40 minutes.

Perritt knew this because at 3:00 p.m. he went fishing (Supp. PCR.

379). However, even this scenario is inconceivable. The

victim’s check was cashed at 2:02 p.m. If Perritt went fishing

at 3:00 p.m., Mr. Rutherford had to have arrived and spoken to

him between 2:15 and 3:00 p.m. But, two independent witnesses

placed Mr. Rutherford at a convenience store near his home

between 2:30 and 3:00 p.m. (Supp. R. 452, 464). Perritt’s

testimony is inconsistent with other testimony presented at Mr.

Rutherford’s trial, including Mr. Rutherford’s. The lower

court’s reliance upon testimony which was challenged at trial and

in fact conflicted with other evidence and testimony from trial

was error and demonstrates a flaw in the lower court’s analysis

of Mr. Rutherford’s claim.

In evaluating whether the new evidence would have caused the

jury to have found a reasonable doubt about Mr. Rutherford’s

guilt, the evidence presented at trial by the defense refuting

the State’s case must be considered and given weight. The new

27

evidence would not have been heard in a vacuum. It would have

been heard with the rest of the defense’s case.

The lower court’s failure to accept Gilkerson’s affidavit as

true is error. Accepting Gilkerson’s affidavit as true means

accepting as true his claim that Heaton confessed not just the

murder to him, but also her claim that she made it look like Mr.

Rutherford committed the murder. If a jury believed that the

person who in fact cashed the check from the victim’s account

claimed to have committed the murder and set it up to make Mr.

Rutherford committed the murder, surely reasonable doubt would

exist as to Mr. Rutherford’s guilt. If Mr. Rutherford’s factual

allegations are true, Rule 3.850 relief is mandated.

Accordingly, this Court must reverse and remand for an

evidentiary hearing so that Mr. Rutherford has the opportunity to

“demonstrate the corroborating circumstances sufficient to

establish the trustworthiness of [newly discovered evidence].”

Johnson v. Singletary, 647 So. 2d 106, 111 (Fla. 1994).

2. The Motion and the Files and Records Do Not

Conclusively Show that Mr. Rutherford is Entitled

to No Relief

Certainly, if true, Gilkerson’s affidavit that Mary Heaton

confessed to the crimes with which Mr. Rutherford was charged and

convicted entitles Mr. Rutherford to relief. As argued at the

Huff hearing, if true, then Gilkerson’s affidavit “impeaches

every aspect of the State’s case, every bit of evidence that the

Heaton” and was endorsed with the signature “Mary Francis

Heaton”. Heaton was identified as cashing the check at

approximately 2:02 p.m. on August 22, 1985. The bank teller did

not see any other individuals present with Heaton. The victim

was found deceased later that day, at approximately 7:30 p.m.

Heaton’s fingerprints were never compared to the unidentified

fingerprints found at the crime scene. Heaton’s hair was never

compared to the unidentified hair found on the victim’s body.

And, the handwriting exemplars submitted by Heaton were

insufficient to exclude her as having written or signed the

check. Additional samples were not submitted, though requested

by law enforcement personnel.

28

State has presented is shot down if this is true.” (Dec. 28,

2005, hearing). Indeed, Gilkerson’s affidavit is significant to

Mr. Rutherford’s case because it impeaches Heaton’s testimony and

also provides the basis for a credible defense theory that Heaton

committed the crime. At Mr. Rutherford’s capital trial, Mr.

Rutherford maintained his innocence when he testified before the

jury, both at the guilt and penalty phases. During closing

argument at the guilt phase, trial counsel argued that Mary

Heaton was the only person directly linked to the victim’s

property, thus, suggesting reasonable doubt as to Mr.

Rutherford’s guilt and reasonable suspicion that Heaton was

Likewise, Mr. Rutherford argued below that the evidence

would have also impacted the jury’s recommendation at the penalty

phase, especially considering that the jury recommended the death

sentence by the narrowest of margins – seven (7) to five (5).

The evidence of Heaton’s confession would have affected the

29

jury’s consideration of mitigation, aggravation and provided

lingering doubt. Therefore, the files and records do not rebut

the affidavit and the factual allegations and conclusively show

that Mr. Rutherford is entitled to no relief.

As stated previously, numerous capital postconviction

defendants have received evidentiary hearings based on similar

claims of newly discovered evidence. Mr. Rutherford is entitled

to a full and fair evidentiary hearing. State v. Mills, 788 So.

2d 249, 250 (Fla. 2001)(noting that lower court held an

evidentiary hearing on allegations that co-defendant had made

inculpatory statements to an individual while incarcerated);

Lightbourne v. State, 742 So. 2d 238, 249 (Fla. 1999)(remanding

for an evidentiary hearing to evaluate the reliability and

veracity of trial testimony); Swafford v. State, 679 So. 2d 736,

739 (Fla. 1996)(remanding for an evidentiary hearing to determine

if evidence of information inconsistent with trial testimony

would probably produce and acquittal); Roberts v. State, 678 So.

2d 1232, 1235 (Fla. 1996)(remanding for evidentiary hearing

because of trial witness recanting her testimony); Scott v.

State, 657 So. 2d 1129, 1132 (Fla. 1995)(holding that lower court

erred in failing to hold an evidentiary hearing); Johnson v.

Singletary, 647 So. 2d 106, 111 (Fla. 1994)(remanding case for

limited evidentiary hearing to permit affiants to testify and

allow appellant to “demonstrate the corroborating circumstances

30

sufficient to establish the trustworthiness of [newly discovered

evidence]”); Jones v. State, 591 So. 2d 911, 916 (Fla. 1991)

(remanding for an evidentiary hearing on allegations that another

individual confessed to the murder with which Jones was charged

and convicted and was seen in the area close in time to the

murder with a shotgun).

Additionally, Heaton has now informed a member of Mr.

Rutherford’s defense that she previously told law enforcement

about her latest version of events, i.e., that she was present at

the crime scene and witnessed Mr. Rutherford “strike the fatal

blow”. (See App. K).

At the Huff hearing, when responding to Heaton’s recent

statement to Mr. Glantz that she told law enforcement that she

was at the crime scene, Assistant Attorney General Charmaine

Millsaps stated: “We did not have that.” (Dec. 28, 2005,

hearing). The lower court accepted this representation in

denying Mr. Rutherford’s claim: “the State represented to this

Court that they had no knowledge of any statements by Heaton

consistent with her testimony to Glantz. Moreover, the records

request failed to produce any information to support this claim.

The Court finds that the Defendant has failed to produce any

information to support this claim.” (Jan. 5, 2006, Order at

any evidence that the State possessed a statement from Heaton at

the time of trial that contradicted her trial testimony and

indicated that she was physically present when the murder

occurred, the circuit court did not credit Heaton’s December 22,

2005, statement to Glantz. Yet, the same circuit court used the

statement to Glantz to find Gilkerson’s affidavit not worthy of

belief. The circuit court credited her statement to Glantz that

she saw Mr. Rutherford commit the murder. Thus, it appears

Heaton’s statement (contradicting her trial testimony) was

accepted by the circuit court when it assisted the State and was

not accepted when it assisted the defense.

Again to be sure, Mr. Rutherford’s position is that the

statement to Glantz, like Heaton’s trial testimony, was a lie.

However, if it was not a lie, then she statement revealed a Brady

violation. However, the circuit court refused to consistently

regard the statement as either true or false. Its view of the

affidavit was always in the State’s favor - true when she claimed

to have seen the murder, false when she claimed to have told the

State that she saw the murder.

Rutherford in 1985 or 1986. Postconviction counsel is uncertain

as to whether she spoke to any individuals who investigated

and/or prosecuted Mr. Rutherford who had contact with Heaton. It

is important to note, that there were other statements made

during the investigation of Mr. Rutherford which were not

documented by law enforcement or revealed to defense counsel pretrial.

The discovery violations which occurred at Mr.

Rutherford’s first trial resulted in the trial court finding:

“The recalcitrance and failure of the State to comply with

discovery obligations impels this Court to the conclusion that

there is no other fair alternative to redress the State’s

discovery violation than to grant the Defendant’s Motion for

Mistrial and award the Defendant a new trial on all issues

. . . .” (R. 110).

31

However, Ms. Millsaps was not under oath, and Mr.

Rutherford’s counsel did not have the opportunity to question

no first hand knowledge. Certainly, Mr. Rutherford does want to

32

determine whether law enforcement knew of Heaton’s latest version

of events as it would have been impeachment evidence and also

provided trial counsel additional evidence to argue that Mr.

Rutherford did not commit the crime, but that Heaton did.

The United States Supreme Court has held that “the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or punishment, irrespective of the good

faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87

(1963). In Banks v. Dretke, 540 U.S. 668 (2004), the Supreme

Court held:

When 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, 540 U.S. at 675-76. A rule “declaring

‘prosecutor may hide, defendant must seek,’ is not tenable in a

system constitutionally bound to accord defendants due process.”

Id. at 696. The prosecutor as the State’s representative has “a

duty to learn of any favorable evidence known to the others

acting on the government’s behalf” and is responsible “for

failing to disclose known, favorable evidence rising to a

material level of importance.” Kyles v. Whitley, 514 U.S. 419,

437 (1995).

A due process violation under Brady is established when:

The evidence at issue [was] favorable to the accused,

relied upon the Heaton’s December 22, 2005, as truthful.

33

either because it [was] exculpatory, or because it

[was] impeaching; that evidence [was] suppressed by the

State, either willfully or inadvertently; and prejudice

[ ] ensued.

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Prejudice is

established where confidence in the reliability of the conviction

is undermined as a result of the prosecutor’s failure to comply

with his obligation to disclose exculpatory evidence. Cardona v.

State, 826 So.2d 968 (Fla. 2002); Hoffman v. State, 800 So.2d 174

(Fla. 2001).

In the Brady context, the United States Supreme Court and

this Court have explained that the materiality of evidence not

presented to the jury must be considered "collectively, not itemby-

item." Kyles v. Whitley, 514 U.S. at 436; Young v. State, 739

So.2d at 559. In addition, this Court has repeatedly held that

newly discovered evidence of innocence must be evaluated

cumulatively with any Brady evidence and the evidence that

counsel failed to discover undermines confidence in the guilty

verdict. Mordenti v. State, 894 So. 2d 161 (Fla. 2004); State v.

Gunsby, 670 So. 2d 920 (Fla. 1996).

Mr. Rutherford was entitled to an evidentiary hearing on

this claim. If Heaton’s statement that she told the police in

1985 that she witnessed the murder, then the State withheld

convicted Mr. Rutherford because of a finding that the State

intentionally withheld evidence from the defense.

34

that she was present for the murder was entirely inconsistent

with her testimony that she was at her own home when Mr.

provided abundant ammunition to further attack Heaton’s

testimony. It would have supported the defense that Heaton was

lying. She cashed the check, and she was fabricating a story to

frame Mr. Rutherford. Certainly at a minimum, an evidentiary

hearing is warranted on Mr. Rutherford’s Brady claim.

In fact, because the State and the lower court relied on

evidence not contained in the record, obviously the motion, files

and records did not conclusively show that Mr. Rutherford was

entitled to no relief.

II. MR. RUTHERFORD’S NEWLY DISCOVERED EVIDENCE OF INNOCENCE AND

BRADY WOULD PROBABLY PRODUCE AN ACQUITTAL OR A SENTENCE LESS

THAN DEATH.

In Jones v. State, 591 So. 2d 911 (Fla. 1991), this Court

revised the standard upon which a postconviction defendant can

obtain relief based upon a claim of newly discovered evidence.

“In order to obtain relief on a claim of newly discovered

evidence, a claimant must show, first, that the newly discovered

evidence was unknown to the defendant or defendant’s counsel at

the time of the trial and could not have been discovered through

due diligence and, second, that the evidence is of such a

35

character that it would probably produce an acquittal on retrial.

Mills v. State, 786 So. 2d 547, 549 (Fla. 2001); see also Jones

v. State, 709 So. 2d 512 (Fla. 1998). The same standard is

applicable when the issue is whether a life or death sentence

should have been imposed. Jones v. State, 591 So. 2d 911, 915

(Fla. 1991).

A. Diligence.

At the Huff hearing, the State informed the lower court that

the State was not disputing diligence. Thus, in its Order

denying relief, the lower court found: “the Assistant Attorney

General represented that they would not contest the diligence

requirement. Thus, this Court will turn to the second prong of

B. The Newly Discovered Evidence Would Probably Produce an

Acquittal or a Sentence Less Than Death.

In Mr. Rutherford’s successive Rule 3.850 motion and

amendment, he pleaded allegations that another individual, Mary

Heaton confessed to killing Stella Salamon and making “it look

like A.D. Rutherford did it.” Further, when Heaton was

confronted with her confession she changed the story to which she

had testified at Mr. Rutherford’s trial and revealed additional

information that was not previously known to Mr. Rutherford,

including that she had informed law enforcement of a statement

that was inconsistent with her trial testimony. Additional

evidence corroborating Gilkerson’s affidavit also became

Rutherford assisted Heaton in writing the check, Gilkerson’s

information shows that Mr. Rutherford did not kill the victim.

If Heaton involved Mr. Rutherford after she committed the murder

36

available, including that one of Heaton’s relatives was overheard

commenting: “You know, Mary Francis may have been the one that

killed that lady and not the man they said did it.” (App. L); and

that Heaton has previously admitted that she knew “how to kill

[her] and get away with it.” (App. M.).

1. The Newly Discovered Evidence Would Probably

Produce an Acquittal on Retrial.

At his capital trial, Mr. Rutherford asserted his innocence

and trial counsel argued to the jury that the verdict must be

“not guilty” because there was reasonable doubt that Mr.

Rutherford did not commit the crime (R. 749-50). Heaton’s

confession to Gilkerson provides ample reasonable doubt that Mr.

Rutherford did not murder the victim. Heaton’s confession

completely absolves Mr. Rutherford. According to Heaton’s

confession, Mr. Rutherford’s only involvement occurred when

Heaton decided to make “it look like A.D. Rutherford committed

the crime”. (App. I).

Further, the new evidence supports the conclusion that

Heaton testified falsely at Mr. Rutherford’s capital trial. It

also provides a logical and compelling explanation of why

Heaton’s niece testified as she did – because she was protecting

in order to make “it look like A.D. Rutherford committed the

crime”, Mr. Rutherford could not be found guilty of first degree

murder.

Mr. Rutherford struck her in the face when she refused to assist

him in cashing the check. This statement differed from anything

she had previously told law enforcement, or testified to during

deposition or Mr. Rutherford’s first trial.

37

testimony had it known of Heaton’s confession.

Likewise, the evidence of Heaton’s reaction when she was

confronted with her confession demonstrates her culpability and

again impeaches much of the testimony that was presented at Mr.

Rutherford’s trial.

At Mr. Rutherford’s capital trial, Heaton was presented as

having a minor role in a major production. She was the feeble,

struggling, woman who suffered from mental problems and was

trial, Heaton even claimed that she did not know that the check

she was cashing belonged to someone else, because she could not

read. According to Heaton, she took the money paid to her by Mr.

Rutherford because she was due babysitting money from the

previous year. She took her share of the money, $500.00, bought

a car and went shopping. She was an innocent.

But, when viewing the evidence from trial with Heaton’s

confession and her change of story, the evidence would have

certainly assisted Mr. Rutherford and produced an acquittal of

first degree murder. In fact, the evidence from trial supports

between 11:30 a.m. and 12:00 p.m.

reviewed the claim in a light most favorable to the State, in

that the Court relied on testimony of State witnesses on direct

examination and never even mentioned the impeachment to the

witnesses and/or State’s case. This is not the proper analysis

under Jones v. State, 591 So. 2d 911 (Fla. 1991). Specifically,

the lower court heavily relied on Heaton’s own trial testimony to

conclude that the new evidence would not produce an acquittal

because it conflicts with Heaton’s testimony. (See Jan. 5, 2005,

Order at 11-12). However, the Court ignored all of the evidence

that corroborates Heaton’s guilt and all of the evidence that

impeaches her testimony, including other evidence presented by

the State. For example, Heaton testified that Mr. Rutherford

arrived at her home on August 22, 1985, between 11:30 a.m. and

38

Heaton’s confession: Heaton’s name and signature were on the

victim’s check; Heaton possessed a large quantity of money, and

purchased an automobile after the crime; Heaton’s testimony about

who signed the check changed more than once; Heaton’s statement,

depositions and trial testimony are riddled with inconsistencies;

Heaton’s testimony of when Mr. Rutherford arrived at her home on

the day of the crimes is impossible in light of the evidence that

identified as being the individual who cashed the check, the only

individual seen by bank personnel; although four latent prints

were lifted off of the check, none of them matched Mr.

Rutherford; fingerprints not matching Mr. Rutherford’s or the

victim’s were found in the area where the victim was found; and

other physical evidence was found on the victim that was not

12:00 p.m. This testimony conflicted with the testimony of

Elizabeth Ward and also with the evidence that the victim had

been shopping at the K-Mart at 11:22 a.m. according to her

receipt. It would have been impossible for Mr. Rutherford to

have committed the crime and arrived at Heaton’s home between

11:30 a.m. and 12:00 p.m. Other inconsistencies include Heaton

and Ward’s description of the victim’s wallet, and what happened

when Mr. Rutherford was at the Heaton/Ward residence. Also,

Heaton admitted at trial that she had difficulty in

distinguishing fact from fantasy on August 22, 1985, and some

things she did not remember (R. 412). She also admitted to

having lied to law enforcement in her initial statement. And she

lied to Harvey Smith about where she received the funds with

which she purchased the automobile. Thus, Heaton’s testimony at

trial does not refute the confession she made to Mr. Gilkerson.

39

It is also clear that based on the newly discovered

evidence, Heaton’s credibility could have been destroyed. Based

on her current version of events, none of her trial testimony was

true other than the fact that she cashed the victim’s check and

received the $2000.00 from the bank teller. And, it is no

surprise that she admitted this much since the bank teller

identified her as the person who came to the bank, cashed the

check and received the victim’s money. Indeed, there was nothing

Heaton could do other than admit that she cashed the check

because she used her own driver’s license at the bank. Defense

counsel could have credibly argued that because Heaton knew she

was caught, she constructed a story and testified that she had no

part in any criminal conduct. Rather, she simply cashed a check,

but did not know to whom the check belonged because she could not

read. She “made it look like A.D. Rutherford committed the

crime.” (App. I). And, now when presented with evidence of her

had witnessed the crime and been present at the victim’s home.

problems to argue that she was unpredictable and more likely to

commit a violent act. The trial court found that Mr. Rutherford

had no significant prior criminal history and his only contact

with the criminal justice system occurred when, after he returned

from Vietnam, he and his brother had a physical altercation. Mr.

Rutherford was drunk at the time.

Heaton’s confession would have had on Ward’s testimony and

40

role in the crime, Heaton changes her story, but still attempts

to “make it look like A.D. Rutherford did it.” The new evidence

also provides a motive for Heaton to lie and color her testimony

Moreover, based on the new evidence, not only would Heaton’s

credibility have been ruined, but the prosecution’s theory of the

case, that Mr. Rutherford had committed the crime by himself,

would have been similarly undermined. Heaton would no longer

have been an innocent in a minor role, but a significant

character in a violent crime. Trial counsel could have used

Heaton’s admissions to argue reasonable doubt as to the

prosecution’s case against Mr. Rutherford or to point the finger

Likewise, Heaton’s confession would have provided a motive

for Elizabeth Ward to fabricate or color her testimony if she

knew of her aunt’s involvement in the crime and wanted to protect

instead relied on Ward’s testimony to corroborate Heaton’s trial

testimony. (Jan. 5, 2005, Order at 12-13). However, a review of

Heaton and Ward’s testimony actually shows several critical

inconsistencies.

41

In addition, while the lower court relied on the testimony

of Attaway, Cook, Pittman and Perritt, that Mr. Rutherford had

made inculpatory statements to them, the lower court again

ignored the evidence that impeaches these witnesses. For

example, Attaway was an early suspect in the case and the defense

portrayed him as a suspect at the trial. The jury had reason to

discredit Attaway’s testimony, like the others.

The lower court’s analysis of Mr. Rutherford’s claim in

terms of Heaton’s reaction to Mr. Gilkerson’s affidavit misses

the point and the value of the newly discovered evidence. In its

order denying relief, the lower court states: “Heaton’s statement

. . . that she saw the Defendant strike the fatal blow is

inculpatory strengthening the State’s case against the

Defendant.” (January 6, 2006, Order at 13). But, in making this

statement, the Court ignores the facts argued at the Huff hearing

that Heaton made the statement to a representative of Mr.

Rutherford’s defense in response to being confronted by the

information that she killed Stella Salamon. She was not under

oath and Mr. Rutherford is not arguing that her statement is

true. Mr. Rutherford is arguing the exact opposite, i.e., what

is important about Heaton’s reaction and her statement is it

42

substantially differs from her trial testimony and shows that

Heaton is not a credible witness. When confronted with evidence

that she committed the crime, Heaton made up a story, like guilty

people tend to do. The statement is critical in showing that

Heaton’s trial testimony cannot be believed nor should her

current statement be believed.

Had the jury heard the new evidence, it would have probably

acquitted Mr. Rutherford of first degree murder. Mr. Rutherford

need not negate each and every item of circumstantial evidence

that had been offered against him at his original trial in order

to prevail on his claim. He simply must show that the evidence

would have probably produced an acquittal.

Mr. Rutherford is entitled to an evidentiary hearing and

relief based upon Heaton’s confession to Alan Gilkerson and the

other newly discovered evidence of innocence and Brady violation.

2. The Newly Discovered Evidence Would Probably

Produce a Sentence Less than Death on Retrial.

Mr. Rutherford’s newly discovered evidence of Heaton’s

admissions would have affected the outcome of the penalty phase.

Heaton’s confession requires the jury, sentencing court and this

Court to consider issues such as culpability, disparate

treatment, proportionality and statutory mitigation. See Enmund

v. Florida, 458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S.

137 (1987).

The lower court failed to make any analysis as to the effect

motion, the State incorrectly argued: “Collateral counsel oddly

states that the new evidence would probably result in a life

sentence assuming a conviction was obtainable. The newly

discovered evidence pertains to guilt only, not a life sentence.

It does not relate to the penalty phase.” (State’s Response to

Successive 3.851 Motion, filed December 23, 2005, p. 21).

43

of the new evidence in regard to Mr. Rutherford’s sentence of

Rutherford’s jury recommended death by the narrowest of margins,

seven (7) to five (5). Had only one juror been swayed, Mr.

Rutherford would have been sentenced to life. See State v. Mills,

788 So. 2d 249 (Fla. 2001); Scott v. Dugger, 604 So. 2d 465 (Fla.

1992).

Indeed, at trial, the jury's recommendation of death was

based upon the theory that Mr. Rutherford solely committed the

crimes. However, in light of Heaton’s confession, Mr. Rutherford

did not kill the victim and at the most was a minor participant,

after the fact. Mr. Rutherford is ineligible for the death

penalty. See Enmund v. Florida, 458 U.S. 782 (1982).

Heaton’s confession defeats all of the aggravators, because

according to the confession Heaton “killed [the victim] with a

hammer” and Mr. Rutherford’s was only involved because Heaton set

him up.

Heaton's confession also establishes mitigation: Mr.

Rutherford did not commit the murder and at the most Mr.

Rutherford was a minor participant in the crimes. Thus, Mr.

44

Rutherford was ineligible for the death penalty. The death

penalty is disproportionate for the crime of felony murder (the

only crime Mr. Rutherford could arguably be guilty of if Heaton

killed the victim) where the defendant was merely a minor

participant in the crime and the state's evidence of mental state

does not prove beyond a reasonable doubt that the defendant

actually killed, intended to kill, or attempted to kill. Mere

participation in a robbery that results in murder is not enough

culpability to warrant the death penalty. Jackson v. State, 575

So. 2d 181, 190-191 (Fla. 1991)(discussing Tison and Enmund).

In Garcia v. State, 622 So. 2d 1325 (Fla. 1993), this Court

found that the failure to present evidence of inculpatory

statements by a co-defendant undermines confidence in the outcome

of a sentencing phase. Garcia v. State, 622 So. 2d 1325 (Fla.

1993). This Court's conclusion in Garcia that the defendant was

prejudiced by his counsel's failure to present evidence of

another’s inculpatory statements supports Mr. Rutherford's

argument that his newly discovered evidence of Heaton's

culpability entitles him to relief. Also, pursuant to Garcia,

the unavailability of impeachment evidence at trial may undermine

confidence in the outcome of the trial and require relief during

postconviction.

Also, in State v. Mills, 788 So. 2d 249 (Fla. 2001), this

Court affirmed the lower court’s grant of relief based on newly

conducted on December 7, 2005.

45

discovered evidence concerning the true culpability of those

individuals involved in the crime. The newly discovered evidence

consisted of the testimony of an inmate who had been incarcerated

with Mills’ co-defendant, Ashley, in 1980, and obtained a

confession from Ashley. Id. at 250. Ashley did not provide

Mills’ attorneys with the evidence until twenty years after he

obtained it. Mills received a new penalty phase based upon this

evidence. Id.

And, because Mr. Rutherford reasserted his innocence at his

penalty phase, Heaton’s confession would have corroborated his

testimony and provided a reasonable basis for lingering doubt as

to Mr. Rutherford’s guilt. See Oregon v. Guzek, ___ U.S. ___

(2005)(certiorari review was granted to determine if lingering

Also, the mitigating value of Heaton’s confession must be

considered with the other evidence of mitigation presented at

trial and at Mr. Rutherford’s postconviction evidentiary hearing.

At trial, the court found that Mr. Rutherford had no significant

history of prior criminal activity.

Mr. Rutherford’s background and childhood establish

significant mitigation. Mr. Rutherford was raised in an

impoverished, strict home. He was made to work on the farm and

46

in the fields and eventually dropped out of school to help

support his family. His parents were often violent to their

children. The children, including Mr. Rutherford were often

beaten with various implements, including switches. And, Mr.

Rutherford’s father was physically and emotionally abusive to his

wife.

Also, at the time of trial and in postconviction

proceedings, compelling evidence about Mr. Rutherford’s

dedication and honor of his country which he demonstrated in his

service in the United States Marine Core, during the Vietnam War,

was presented. Mr. Rutherford spent thirteen months in Vietnam,

five of those months in active combat. At the penalty phase of

his capital trial, he told the jury that he saw “action” every

day on the “DMZ”. Mr. Rutherford described that he had killed

many and seen many killed, including friends. Mr. Rutherford was

awarded the Vietnamese Service Ribbon, Vietnam National Campaign

Medal, National Defense Medal, Good Conduct Medal, and two

Presidential Unit Citations. Despite Mr. Rutherford’s honorable

service, he characterized his experience as “hell”.

Unfortunately, Mr. Rutherford’s “hell” did not cease when he

returned to the States in 1974, after being honorably discharged.

Mr. Rutherford soon learned that he brought much of his Vietnam

experience home with him. Mentally and emotionally Mr.

Rutherford was a completely different person than before he went

47

to Vietnam. He had nightmares and tremors and would act

bizarrely. He had difficulty discussing his experiences and like

many veterans, he developed a severe dependence on alcohol.

Mr. Rutherford was instructed to seek counseling, and was

immediately diagnosed with an anxiety disorder, and Post-

Traumatic Stress Disorder (PTSD). Mr. Rutherford was using

alcohol to cope with the effects of the war; he was selfmedicating.

The only aspect of Mr. Rutherford’s life that was not in

turmoil was his love and concern for his children. Despite his

own horrific childhood, Mr. Rutherford was committed to being a

good parent. He tried to provide for his children, spend time

with them, love and support them. He seemed to have done what

most parents who were victims of child abuse cannot – he broke

the cycle of violence and never physically abused his kids.

However, Mr. Rutherford soon learned that he had caused his

children great harm – he had been exposed to the chemical

referred to as Agent Orange on several occasions during his

service in Vietnam.

The United States military has confirmed where and when Mr.

Rutherford was exposed to Agent Orange. In addition, Mr.

Rutherford was exposed to other dangerous chemicals. These

chemicals, including Agent Orange have had serious effects on

veterans’ health as well as produced health problems for the

assisted Mr. Rutherford in disposing of the victim’s property and

cashed the victim’s check. (See App. K). This confession could

have been used by defense counsel to present evidence that Heaton

was an equal participant in the crime. Thus, Mr. Rutherford was

not eligible for the death penalty, especially because Heaton was

never even charged for her role in the crime.

48

offspring of veterans. Mr. Rutherford is one such veteran. The

chemicals to which he was exposed caused him health problems, as

well as his children. And, most recently, Mr. Rutherford has

learned that his grandchildren are still suffering from birth

defects and other problems due to his exposure to Agent Orange.

Mr. Rutherford’s service for his country had a profound

impact on his adult life. Prior to serving as a United States

Marine and seeing combat, Mr. Rutherford was described as happygo-

lucky. Upon his return, he was withdrawn, unpredictable,

troubled and suffering from a major mental health disorder. At

the time of this crime his life was in a downward spiral.

During Mr. Rutherford’s penalty phase, the jury recommended

death by the narrowest of margins, seven (7) to five (5). There

is no doubt that Heaton’s confession to Mr. Gilkerson and her

would have swayed one more juror to vote for life.

49

3. The lower court failed to consider Mr.

Rutherford’s claim cumulatively.

The lower court also failed to review Mr. Rutherford’s

claims cumulatively, as required by existing caselaw. See

Mordenti v. State, 894 So. 2d 161, 174-5 (Fla. 2004); State v.

Gunsby, 670 So. 2d 920 (Fla. 1996). Mr. Rutherford presented

allegations of newly discovered evidence of innocence and Brady.

Also, this evidence must be analyzed with the evidence previously

presented and the errors already found. Mr. Rutherford is

entitled to relief.

III. THE LOWER COURT ERRED IN FAILING TO ALLOW MR. RUTHERFORD TO

FULLY DEVELOP HIS CLAIM THROUGH DISCOVERY.

A. The Lower Court Erred in Denying Mr. Rutherford

Discovery.

On December 7, 2005, subsequent to his death warrant being

signed, Mr. Rutherford sent public records requests, pursuant to

rule 3.852(h)(3), to several state agencies. Within the records

received from the Santa Rosa County Sheriff’s Office, there was a

letter dated October 26, 2005, from the Office of the Governor to

the State Attorney’s Office, First Judicial Circuit. (Mr.

Rutherford’s Motion to Compel, Dec. 21, 2005, Att. B.). The

letter sought to determine whether DNA was collected at the time

of the offense; if so, whether the evidence was, in fact, tested;

and if the evidence was not tested or the results were

inconclusive, whether the evidence is still available for testing

today.

50

Subsequent to a motion to compel for more documents relating

to this issue, on December 22, 2005, counsel for Mr. Rutherford

received two letters from the State Attorney’s Office, First

Judicial Circuit, to the Governor’s Office. The first letter,

dated November 28, 2005, states in part that:

The clerk’s office in Santa Rosa County was unable

to provide me with a list of the exhibits introduced in

the trial of Rutherford. The Santa Rosa Sheriff’s

Office has informed me that the evidence that was not

introduced at his trial is no longer available.

(Mr. Rutherford’s Second Motion to Compel, Dec. 23, 2005, Att.

B).

The second letter, dated December 19, 2005, states in

relevant part that,

Dear Miss. Brennan:

I apologize if my letter of 11-28-05 was unclear.

The letter I received from you regarding Arthur

Rutherford and Clarence Hill asked (3) questions:

1. Whether evidence suitable for DNA testing was

collected at the time of the offense;

2. If so, whether the evidence was in fact

tested;

3. If the evidence was not tested or the results

were inconclusive, whether the evidence is

still available for testing today.

John Molchan is handling his case. All inquiries

should be directed to him. His address is the same as

mine. His phone number is 850-595-4737.

(Mr. Rutherford’s Second Motion to Compel, Dec. 23, 2005, Att.

Attorney John Molchan informed the Court there was no other

written correspondence relating to the above-mentioned letters.

51

On December 27, 2005, Mr. Rutherford filed a Motion to Get

the Facts, in an effort to determine whether there was in fact

any evidence to be tested. Mr. Rutherford explained that to this

point, he had been led to believe that the evidence had been

destroyed. (See Mr. Rutherford’s Motion to Get the Facts, Dec.

Governor’s Office indicated some confusion as to this issue and

simply referred the matter to Mr. Molchan.

As counsel for Mr. Rutherford explained at the December 28,

2005, hearing:

There appears to be some confusion about whether

or not there is any evidence available for testing in

this case. To be quite honest, we were under the

impression that there was not any evidence due to the

fact that we had received in the postconviction

proceedings records what appeared to demonstrate that

the evidence had been destroyed without any notice to

defense counsel in 1989.

However, based on some of the documents that have

been turned over within the past week or two weeks, it

seems like there may be some evidence available. And

certainly if there is any evidence available we would

be interested in conducting any post (sic) testing.

I just want to point out that in the list of

evidence that was collected at the time of the original

investigation into this case there were several things

that would be sufficient for doing some sort of

physical evidence, physical testing, including DNA

testing. There was blood obtained from the scene,

there was saliva samples from cigarette butts found at

52

the scene. There were hairs actually found on the

victim, and there were fibers likewise found on the

victim.

So just in sort of reviewing this evidence

certainly there would be evidence -- if this exists --

there would be potential evidence for testing on these

kinds of items.

(Dec. 28, 2005, hearing).

The State responded that it believed the Santa Rosa County

Sheriff’s Office had no physical evidence from Mr. Rutherford’s

case in their custody. (Dec. 28, 2005, hearing). With regard to

the Clerk’s Office the State was unsure as to what evidence, if

any, they had. (Dec. 28, 2005, hearing).

Subsequently, testimony was taken from the Evidence

Technician for the Santa Rosa County Sheriff’s Office:

We found that the initial check that there was no

physical evidence in the vault on that case. And since

then we've had a few items turned over to us from

Records Division that was deemed to be better off in

the Evidence vault, such as some fingerprint cards and

photographs contact sheets, stuff like that.

(Dec. 28, 2005, hearing). The Evidence Technician also testified

that he did not know why this evidence would have been destroyed:

Q: When did you do, when did you conduct this

search?

A: When the initial request was made, last month,

I believe.

Q: Do you know any reason why this evidence would

be destroyed?

A: No, ma'am. I have no idea. I don't know how

much original evidence existed, whether or not it was

all submitted to the Clerk during the trial phase.

documentation of records, but Ms. Brown was not present to

testify at the hearing on December 28, 2005.

53

Q: So is it routine to destroy evidence in

capital cases?

A: No, ma'am. It is not.

Q: What is the retention policy in your county in

terms of physical evidence?

A: We keep it until we are told to get rid of it.

On a capital case we have evidence from cases much

older than this one.

Q: Do you have any explanation as to why it would

have been destroyed in this case?

A: If in fact it was, no, I have no idea.

Q: So it could still exist?

A: I don't know where it would be, but

conceivably it might. If it ever existed.

(Dec. 28, 2005, hearing).

According to the Evidence Technician, documentation should

have been sent to the Records Division. (Dec. 28, 2005, hearing).

(Dec. 28, 2005, hearing). The witness did not check with any of

the investigators who worked on the case to see if they might

have knowledge of where the evidence was located. (Dec. 28, 2005,

hearing).

The testimony of the Evidence Technician adds more

uncertainty to whether the evidence was actually destroyed,

leading to Mr. Rutherford’s request for further inquiries and

an order on December 28, 2005, that a search be conducted to

determine if they had any physical evidence in Mr. Rutherford’s

case. The Clerk’s Office responded that it only had possession

of those items that marked and received during trial.

54

depositions:

The Destruction Form that I have a copy of from

1989 suggests that things that Mr. Lowery just

mentioned that still exist were destroyed. So I don't

think that we can have any confidence that this

Destruction Form is accurate since we now know that

things that were listed in here, for example, there was

the receipt, the handwriting sample, things like that.

And specifically the Check 1896 was mentioned, and the

Destruction Form. And I've attached that as Exhibit A

to my motion.

Those were listed in there as being destroyed, and

we now know they were not destroyed. So I certainly

don't think that this is an accurate document. Also,

just because we know the Retention Policy would be to

not to destroy evidence in capital cases -- I guess,

Your Honor, I don't know that this evidence has been

destroyed. And so it seems like there is a possibility

that it may have been sent to the Clerk's office. And

Mr. Lowery was not certain of that, but I would

certainly want to inquire of them. And obviously take

any available method of searching for the evidence that

we possibly can. And that may mean deposing some of

the original investigators in the case or something of

that nature. But certainly, I would like to pursue

this issue.

(Dec. 28, 2005, hearing).

The Court found that he was satisfied that the Sheriff’s

hearing).

If any evidence exists, including blood samples, hair,

cigarette butts or fibers Mr. Rutherford must be allowed to test

this evidence, particularly in light of Heaton’s confession to

55

Gilkerson and her recent change of her testimony. At the time of

trial, Heaton’s fingerprints were not compared to the

unidentified latent prints located in the bathroom, where the

victim was found. However, we know that Heaton ultimately

possessed property belonging to the victim. Additionally, the

State argued and the lower court relied, in part, on physical

evidence placing Mr. Rutherford at the victim’s residence, in her

bathroom where her body was located, to deny Mr. Rutherford’s

claims. Yet, it is uncertain whether or not the evidence has

been destroyed.

According to the destruction forms the evidence was

destroyed, without notice to Mr. Rutherford or his counsel, in

1989. However, evidence listed on the destruction form has now

been determined to exist. (See Dec. 28, 2005, hearing). Also,

the Santa Rosa County Sheriff’s Office has a policy not to

destroy evidence in capital cases. The Evidence Technician

presented by the State could not testify that the evidence had

been destroyed or that it did not exist. He only testified that

he could not find it. However, the evidence technician only

looked through some bins of evidence and in places where it was

supposed to be. Therefore, the physical evidence which could be

tested may exist.

Because of the seriousness and finality of Mr. Rutherford’s

sentence, he requests that this Court allow him further discovery

56

to determine whether or not the physical evidence exists.

Specifically, Mr. Rutherford should be allowed to depose other

individuals employed with the Santa Rosa County Sheriff’s

Department and any other relevant witnesses.

B. The Lower Court Erred in Denying Mr. Rutherford Access

to Mary Heaton’s Psychological Records.

At the time of Mr. Rutherford’s capital trial, Heaton

testified that she was residing in a mental institution because

she had suffered from a nervous breakdown, stroke and brain

damage (R. 412). Due to Heaton’s mental problems she informed

the jury that she had difficulty distinguishing fact from fantasy

on August 22, 1985, and had problems with her memory.

On December 21, 2005, postconviction counsel moved the lower

court to permit postconviction counsel access to Heaton’s mental

health records. The next day, after having interviewed Heaton

postconviction counsel supplemented her motion for access to

Heaton’s mental health records. During the interview with

Heaton, she revealed that she has discussed the facts of the

professionals individually and during group therapies over the

years, since 1985. (App. K; Appendix A to Mr. Rutherford’s

Supplement to Motion for Disclosure of Witness’ Mental Health

Records, Dec. 22, 2005).

On Friday, December 23, 2005, a hearing was held at which

time postconviction counsel requested that the lower court grant

57

her access to Heaton’s mental health records. At the hearing,

postconviction counsel argued that, at a minimum, Heaton’s latest

version of events constituted impeachment of her trial testimony.

The State did not dispute the fact that Heaton spoke to

mental health counselors about her role in the crime. The State

told the court: “just because she has spoken, you know, it would

be natural for a person to speak about a case. That does not

mean that she did anything different from what she said at her

trial testimony.” (Dec. 23, 2005, hearing, morning session).

Rather, the State argued that Heaton’s statements to Glantz were

consistent with her trial testimony: “And her testimony, her

statements to this investigator can be viewed as consistent

exactly with her trial testimony. She was there that day in the

sense there she was the one that took the check to the bank.”

(Dec. 23, 2005, hearing, morning session).

The lower court ruled that postconviction counsel had not

made “a sufficient showing for the Court to release mental health

records”. (Dec. 23, 2005, hearing, morning session).

In light of the fact that Heaton has confessed to the crimes

with which Mr. Rutherford was convicted and sentenced to death,

and in light of the fact that Heaton has revealed that she has in

fact spoken to mental health counselors about her role in the

crimes and presence at the scene, Mr. Rutherford is entitled to

access to her mental health records. Heaton clearly made

58

inconsistent statements to others which could have been used to

impeach her trial testimony and show that she was guilty of the

crime. Without the records, Mr. Rutherford cannot fairly

litigate his claim. Mr. Rutherford requests access to Heaton’s

mental health records.

ARGUMENT II

THE LOWER COURT ERRED IN DENYING AN EVIDENTIARY HEARING

ON MR. RUTHERFORD’S CLAIM THAT THE EXISTING PROCEDURE

THAT THE STATE OF FLORIDA UTILIZES FOR LETHAL INJECTION

VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AS IT CONSTITUTES CRUEL AND UNUSUAL

PUNISHMENT. ADDITIONALLY, THE LOWER COURT ERRED IN

DENYING DEFENDANT’S MOTIONS FOR SEROLOGICAL SAMPLES,

INDEPENDENT TESTING AND DISCOVERY.

A. Lethal Injection

In his 3.850 motion, Mr. Rutherford argued that in light of

new scientific evidence that was not previously available to the

Florida Supreme Court in Sims v. State, 754 So. 2d 657 (Fla.

2000), it is now clear that the existing procedure for lethal

injection that the State of Florida uses in executions violates

the Eighth Amendment to the United States Constitution, as it

will inflict upon Mr. Rutherford cruel and unusual punishment.

In denying an evidentiary hearing on this issue, the lower

court stated:

The Florida Supreme Court has stated that lethal

injection is “generally viewed as a more humane method

(Fla.2000). Moreover, the Florida Supreme Court has

held that the lethal injection procedures as

administered do not constitute cruel and unusual

59

punishment and has rejected the list of horribles

(Fla. 2000)(holding that execution by lethal injection

is not cruel and unusual punishment). In fact, the

could occur during the administration of the lethal

The denial of postconviction relief on issues

regarding the lethal injection procedures and their

2005)(rejecting a claim that execution by electrocution

or lethal injection constitutes cruel and unusual

punishment as “without merit because this Court has

consistently rejected arguments that these methods of

754 So.2d 657, 668 (Fla.2000)(holding that execution by

lethal injection not cruel and unusual punishment));

Therefore, this Court finds that Defendant’s claim

challenging the constitutionality of the chemicals used

in the lethal injection has been fully litigated and is

procedurally barred.

Order at 7-8.

The lower court’s order is erroneous. Here, Mr. Rutherford

is not challenging the statutory provision which allows for

lethal injection as a method of execution. Rather, he is

challenging the use of specific chemicals and the quantity of

Department of Corrections uses to carry out executions. Unlike

Sims, this claim is no longer about the “ifs” of what could go

wrong, but rather what actually is going wrong during executions

by lethal injection.

As Mr. Rutherford argued in his 3.850 motion, in Sims, 754

60

So. 2d at 668, in denying a lethal injection challenge, this

Court determined that the possibility of mishaps during the

lethal injection process was insufficient to support a finding of

cruel and unusual punishment:

Sims’ reliance on Professor Radelet and Dr. Lipman’s

testimony concerning the list of horribles that could

happen if a mishap occurs during the execution does not

sufficiently demonstrate that the procedures currently

in place are not adequate to accomplish the intended

result in a painless manner. Other than demonstrating a

failure to reduce every aspect of the procedure to

writing, Sims has not shown that the DOC procedures

will subject him to pain or degradation if carried out

as planned. Sims’ argument centers solely on what may

happen if something goes wrong. From 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. n20

(note omitted). Subsequent to this opinion, and contrary to the

lower court’s order, recent empirical evidence has established

that the infliction of cruel and unusual punishment and the

wanton infliction of pain is no longer speculative.

A recent study published in the world-renowned medical

journal THE LANCET by Dr. David A. Lubarsky (whose declaration

was attached to Mr. Rutherfords’s motion) and three co-authors

detailed the results of their research on the effects of

autopsies and prepared toxicology reports, and which made such

data available to these scholars. (App. B).

in the Lancet study reflects his opinion to a reasonable degree

of scientific certainty. (App. B).

61

T.A., Lubarski D.A., Sheldon J.P., Inadequate anaesthesia in

lethal injection for execution, Vol 365, THE LANCET 1412-14

(April 16, 2005). This study confirmed, through the analysis of

empirical after-the-fact data, that the scientific critique of

the use of sodium pentothal, pancuronium bromide, and potassium

chloride creates a foreseeable risk of the gratuitous and

authors found that in toxicology reports in the cases they

studied, post-mortem concentrations of thiopental in the blood

were lower than that required for surgery in 43 of 49 executed

inmates (88%). Moreover, 21 of the 49 executed inmates (43%) had

concentrations consistent with awareness, as the inmates had an

inadequate amount of sodium pentothal in their bloodstream to

provide anesthesia. (App. B). In other words, in close to half

of the cases, the prisoner felt the suffering of suffocation from

pancuronium bromide, and the burning through the veins followed

by the heart attack caused by the potassium chloride.

The chemical process utilized in executions in Florida is

identical to that identified in the study:

assume that 2 to 3 grams of sodium thiopental will assure loss of

sensation, especially considering that personnel administering it

are unskilled, that the execution could last up to 10 minutes,

and that people on death row are extremely anxious and their

bodies are flooded with adrenaline, thus necessitating more of

the drug to render them unconscious. (App. B).

the Department of Corrections, the lower court denied this

request. Thus, at the present time, Mr. Rutherford can only

assume that the Florida Department of Corrections has not changed

this chemical process since the Sims opinion.

62

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

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 onehundred-

fifty milliequivalents of potassium chloride,

which stops the heart from beating.

As set forth in greater detail in the declaration of

anesthesiologist, David A. Lubarsky, M.D. (App. C), the use of

this succession of chemicals (sodium pentothal, pancuronium

bromide, and potassium chloride) in judicial executions by lethal

injection creates a foreseeable risk of the unnecessary

infliction of pain and suffering.

Sodium pentothal, also known as thiopental, is an

ultra-short acting substance which produces shallow anesthesia.

mixed up and applied in a way that requires the expertise

associated with licensed health-care professionals who cannot by

law and professional ethics participate in executions.

63

(App. C). Health-care professionals use it as an initial

anesthetic in preparation for surgery while they set up a

breathing tube in the patient and use different drugs to bring

the patient to a “surgical plane” of anesthesia that will last

through the operation and will block the stimuli of surgery which

would otherwise cause pain. Sodium pentothal is intended to be

defeasible by stimuli associated with errors in setting up the

breathing tube and initiating the long-run, deep anesthesia; the

The second chemical used in lethal injections in Florida is

pancuronium bromide, sometimes referred to simply as pancuronium.

It is not an anesthetic. It is a paralytic agent, which stops the

breathing. It has two contradictory effects: first, it causes the

person to whom it is applied to suffer suffocation when the lungs

stop moving; second, it prevents the person from manifesting this

suffering, or any other sensation, by facial expression, hand

movement, or speech. (App. C).

Pancuronium bromide is unnecessary to bring about the death

of a person being executed by lethal injection. (App. C). Its

only relevant function is to prevent the media and the Department

64

of Corrections’ staff from knowing when the sodium pentothal has

worn off and the prisoner is suffering from suffocation or from

the administration of the third chemical.

The third chemical is potassium chloride, which is the

substance that causes the death of the prisoner. It burns

intensely as it courses through the veins toward the heart. It

also causes massive muscle cramping before causing cardiac

arrest. (App. C). When the potassium chloride reaches the heart,

it causes a heart attack. If the anesthesia has worn off by that

time, the condemned feels the pain of a heart attack. However,

in this case, Mr. Rutherford will be unable to communicate his

pain because the pancuronium bromide has paralyzed his face, his

arms, and his entire body so that he cannot express himself

either verbally or otherwise. (App. C).

Significant is the fact that the American Veterinary Medical

Association (AVMA) panel on euthanasia specifically prohibits the

use of pentobarbital with a neuromuscular blocking agent to kill

animals. (App. B, E). Additionally, 19 states have expressly or

implicitly prohibited the use of neuromuscular blocking agents in

animal euthanasia because of the risk of unrecognized

consciousness. (App. B).

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

(Fla. November 17, 2005), Elledge v. State, 911 So.2d 57, 78-79

(Fla. 2005); Johnson v. State, 904 So.2d 400, 412 (Fla. 2005);

Parker v. State, 904 So.2d 370, 380 (Fla. 2005).” (Order at 8).

65

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. (App. C).

It is no wonder that the chemicals used in lethal injection

are inadequate and to a reasonable degree of medical certainty

cause pain and torture to condemned inmates. When the chemicals

were suggested it was merely a “recommendation” by a doctor in

Oklahoma. (App. D). There were no studies conducted on the use

of the chemicals, the potential pain that an inmate might suffer

or what alternative chemicals could be used. (App. D). Likewise,

no testing was conducted prior to the adoption of the chemicals

used in Florida – two of which were specifically contained in the

original “recommendation” in Oklahoma. (App. D).

In denying an evidentiary hearing, the lower court relies on

a number of post-Sims cases in finding that “Defendant’s claim

challenging the constitutionality of the chemicals used in the

lethal injection has been fully litigated and is procedurally

erroneous for two reasons. First, in none of the cases which the

lower court refers to was the issue of lethal injection fully

litigated. Contrary to the lower court’s statement, the lethal

will be presenting this new scientific evidence, an evidentiary

hearing has been ordered. See Knight v. State, Palm Beach County

Case No. 97-05175.

misplaced.

new scientific DNA techniques were developed after those cases

had concluded. Just as in those cases where courts are

reconsidering prior rulings in light of subsequent scientific

research, so should Mr. Rutherford’s claim be considered in light

of new scientific evidence.

66

injection issue in Suggs, Elledge, Johnson and Parker were

summarily denied without evidentiary hearings. Second, in none

of these cases did the appellant rely on the scientific evidence

Here, the study upon which Mr. Rutherford relies was

published in 2005. It is new. It is post-Sims and post-Suggs.

No cases in Florida prior to now have relied on this study. This

Court did not have the benefit of this study when finding that

Mr. Rutherford’s knowledge, this study constitutes the first

empirical research published regarding lethal injection, thus

Under the present circumstances, the State will violate Mr.

Rutherford’s right to be free of cruel and unusual punishments

secured to him by the Eighth Amendment to the U.S. Constitution,

by executing him using the sequence of three chemicals (sodium

67

pentothal a/k/a thiopental, pancuronium bromide, and potassium

chloride) which they have admitted to be their practice, which is

unnecessary as a means of employing lethal injection, and which

creates a foreseeable risk of inflicting unnecessary and wanton

infliction of pain contrary to contemporary standards of decency.

The Eighth Amendment “proscribes more than physically

barbarous punishments.” Estelle v. Gamble, 429 U.S. 97, 102

unnecessary and wanton infliction of pain,” or “torture or a

lingering death,” Gregg v. Georgia, 428 U.S. 153, 173 (1976);

Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459 (1947).

“Among the ‘unnecessary and wanton’ inflictions of pain are those

that are ‘totally without penological justification.’” Rhodes v.

Chapman, 452 U.S. 337, 346 (1981). The Eighth Amendment reaches

“exercises of cruelty by laws other than those which inflict

bodily pain or mutilation.” Weems v. United States, 217 U.S. 349,

373 (1909). It forbids laws subjecting a person to

“circumstance[s] of degradation,” Id. at 366, or to

“circumstances of terror, pain, or disgrace” “superadded” to a

sentence of death. Id. at 370 (emphasis added). Under the

present circumstances, Mr. Rutherford will be unnecessarily

subjected to the wanton infliction of pain, in violation of the

Eighth Amendment.

The lower court erred in denying Mr. Rutherford an

68

evidentiary hearing on this issue as he has presented facts that

were not known at the time the Florida Supreme Court decided Sims

v. State, 754 So. 2d 657 (Fla. 2000), and the motion, files and

records in this action fail to conclusively show that Mr.

Rutherford is entitled to “no relief.” See Lemon v. State, 498

So. 2d 923 (Fla. 1986); Fl. R. Crim. P. 3.851(f)(5)(B).

Accordingly, an evidentiary hearing is required.

B. Motion for Independent Testing

As stated above, Mr. Rutherford has asserted that the

existing procedure for lethal injection that the State of Florida

uses in executions violates the Eighth Amendment to the United

States Constitution, as it will inflict upon Mr. Rutherford cruel

and unusual punishment.

The lower court, however, denied Mr. Rutherford’s public

records requests relating to previous autopsy reports. See

Argument IV. Moreover, the lower court erroneously denied

Defendant’s Motion for Serological Samples and for Independent

Testing. Through this motion, Mr. Rutherford sought to have

independent testing of blood samples from Clarence Hill following

his execution in order to determine the post-mortem

concentrations of thiopental and/or any other toxins present in

his body.

Despite having the opportunity to disprove Mr. Rutherford’s

claim that post-mortem concentrations of thiopental in the blood

69

will have concentrations consistent with awareness, the State

instead urged, and the lower court acquiesced, in the denial of

this motion as well as Mr. Rutherford’s requests for public

records. Any failure in developing evidence in support of his

claim for relief cannot be attributed to Mr. Rutherford. Mr.

Rutherford requests that the lower court’s order be overturned

and that his Motion for Serological Samples and for Independent

Testing be granted.

C. Motion for Discovery

On January 5, 2006, undersigned counsel learned that on or

about January 4, 2006, Mr. Rutherford was informed that he was

going to be examined by two doctors, for the purpose of

determining whether his veins were suitable for the lethal

injection process.

That evening, Mr. Rutherford was escorted into a room, where

he encountered two individuals wearing masks. Neither individual

identified himself. One of the individuals placed a rubber band

around Mr. Rutherford’s arm. Mr. Rutherford was asked about his

health and “whether he had anything in his lungs”.

On January 6, 2005, postconviction counsel filed a motion

for discovery requesting “any files, records, reports, letters,

memoranda, notes, drafts and/or electronic mail in the possession

or control of the Department of Corrections (DOC), regarding the

“examination” which occurred on or about January 4, 2006". (See

70

Mr. Rutherford’s Motion for Discovery, Jan. 6, 2006).

Additionally, if the Department of Corrections were to claim

that no documentation were to exist, Mr. Rutherford requested

that he be permitted to depose all individuals involved in the

“examination”.

Mr. Rutherford also requested any protocols enacted

subsequent to Sims regarding the lethal injection process because

this “examination” clearly does not comport with the protocol

examined by this Court during the Sims proceedings.

The lower court ordered the Department of Corrections to

respond. On January 9, 2006, DOC responded and admitted that an

“examination occurred”. However, DOC claimed that “There is no

documentation connected with the aforementioned examination.”

DOC also objected to Mr. Rutherford’s deposing the individuals

because they are “part of the execution team whose identities

remain secret”.

The lower court denied Mr. Rutherford’s motion. (Order, Jan.

9, 2006). In doing so, the lower court relied on DOC’s

representations that no documentation was produced and that this

procedure is in accordance with the procedure used in Sims.

Mr. Rutherford must be allowed to depose these individuals

involved with his “examination”, especially in light of the fact

is attempting to thwart public records laws and operate in a

cloak of secrecy.

71

raises serious questions: What were the results of the

“examination”? What are these individuals’ opinions as to the

suitability of Mr. Rutherford’s veins for the lethal injection

process? Do these individuals anticipate having to use any “cutdown”

procedures that are not considered in the execution

protocols? Who are these individuals conducting the

“examination”? What are there qualifications? If they are part

of the “execution team” do they have the medical training to

conduct a medical examination? Why, if given a thorough

examination were no documents produced indicating Mr.

Rutherford’s blood pressure, temperature, heart rate or other

information that is obtained in a “thorough medical examination”?

Why, if a comprehensive medical history is obtained was only one

question asked – “Do you have an anything in your lungs?” And

what does that question even mean? Why were no questions asked

about any injuries or problems Mr. Rutherford suffered during his

active combat in Vietnam? Do these individuals have any

knowledge or experience about the effects of Agent Orange

exposure on an individual’s health, like Mr. Rutherford? Why

were no questions asked about this?

Obviously Mr. Rutherford has an interest in determining how

72

his execution will be conducted. He has a right to know this

information. The lower court erred in denying Mr. Rutherford

discovery. This Court must grant the requested relief.

ARGUMENT III

THE LOWER COURT ERRED IN DENYING AN EVIDENTIARY HEARING

ON MR. RUTHERFORD’S CLAIM THAT THE ADMINISTRATION OF

PANCURONIUM BROMIDE VIOLATES MR. RUTHERFORD’S FIRST

AMENDMENT RIGHT TO FREE SPEECH.

During the 3.850 proceedings, Mr. Rutherford asserted that

if he is executed in accordance with the chemical combination set

out in Sims, he will be denied his first amendment right to free

speech. The administration of pancuronium bromide during the

execution procedure will paralyze Mr. Rutherford’s voluntary

muscles, resulting in his inability to speak or move. In the

event that he has not been properly anaesthetized, Mr. Rutherford

wants to be able to communicate this as well as the fact that he

is experiencing excruciating pain.

Mr. Rutherford wants to communicate this information so that

other defendants, the State, the judiciary, as well as the

public, can evaluate whether Florida’s execution procedures

violate the Eighth Amendment prohibition against cruel and

unusual punishment.

In summarily denying this claim, the lower court stated,

(2005)(holding Defendant failed to establish the

73

likelihood that he would be conscious during

(1989)(holding that prison regulations impacting First

Amendment rights are valid if they are reasonably

related to legitimate penological interests rather than

the normal “strict” or “heightened” scrutiny).

(Order at 9).

Contrary to the lower court’s order, the Ninth Circuit

opinion in Beardslee does not constitute controlling authority

here. Aside from the fact that Florida is not bound by rulings

of federal courts from other circuits, Beardslee is

distinguishable both procedurally and factually.

Procedurally, the petitioner in Beardslee was attempting to

proceed under a 1983 action in federal court. 395 F.3d at 1066.

He was seeking a preliminary injunction to prevent the State from

executing him. Id. The Ninth Circuit addressed the granting of a

preliminary injunction under the following legal standard:

In order to obtain a preliminary injunction on his

claim, Beardslee was required to demonstrate “(1) a

strong likelihood of success on the merits, (2) the

possibility of irreparable injury to the plaintiff if

preliminary relief is not granted, (3) a balance of

hardships favoring the plaintiff, and (4) advancement

omitted). Alternatively, injunctive relief could be

probable success on the merits and the possibility of

and the balance of hardships tips sharply in his

Id. at 1067. Clearly, this is not the standard to be applied for

in California differ from those used in Florida.

74

determining whether an evidentiary hearing should be granted in a

postconviction case in Florida. See Lemon v. State, 498 So. 2d

923 (Fla. 1986)(defendant is entitled to an evidentiary hearing

if the motion, files and records in the action fail to

conclusively show that the defendant is entitled to “no relief.”)

See also Fl. R. Crim. P. 3.851(f)(5)(B). Here. the lower court’s

reliance on Beardslee is erroneous.

Further, it is equally clear that the facts upon which the

Ninth Circuit relies are distinguishable from those in Mr.

Rutherford’s case. First, the opinion in Beardslee preceded the

published study upon which Mr. Rutherford relies. Second, unlike

in California, see Beardslee, 395 F.3d at 1075, there was no

evidentiary development in Mr. Rutherford’s case, Mr.

Rutherford’s experts have not conceded that any State expert has

more expertise in this area, and in fact the State here has

presented no expert to rebut Mr. Rutherford’s proffer of

the facts presented in this appeal must be taken as true. Peede

v. State, 748 So. 2d 253, 257 (Fla. 1999); Gaskin v. State, 737

So. 2d 509, 516 (Fla. 1999). Since the motion, files and records

in Mr. Rutherford’s case failed to conclusively show that he is

entitled to no relief, an evidentiary hearing should have been

the states through the Due Process clause of the Fourteenth

Amendment. Edwards v. South Carolina, 372 U.S. 229, 235 (1963),

DeJonge v. Oregon, 299 U.S. 353, 364 (1937).

connection between the regulation and the assertedly legitimate

penological goal, 2) whether the inmate has alternate means of

exercising the right at issue, 3) the impact that exercise of the

right has on the institution, and 4) the availability of