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Respondents have had sixty (60) days to prepare for today -

Rutherford’s counsel has had 3.5 hours to review the new lethal

injections procedures and present a response to the Respondents’

argument, while preparing pleadings for other courts in which

litigation is pending. Though counsel’s time has been short,

though he has been denied the opportunity to consult with

experts, though he has been denied the access to other public

records regarding the promulgation of the new lethal injection

procedures, though he has been denied discovery and the

opportunity to depose those who promulgated the new lethal

injection procedures and ascertain the standard why, where, when,

who and how questions, there are certain glaring, obvious, and

Court exercised jurisdiction. In order to exercise jurisdiction,

this Court of necessity found it had jurisdiction - otherwise the

opinion and the resulting proceedings would be a nullity.

Respondents’ argument in this regard is not well taken.

executioners who are fully capable of performing the designated

functions to carry out the execution.” The old protocol did not

provide the warden with this discretion. This change causes many

questions and concerns: What capabilities need an executioner

possess? Does a “capable” individual possess any medical

training?

The new protocol also requires the warden to administer a

presumptive drug test and alcohol test to the executioners. The

old protocol did not include this test. And, if one or both of

the executioners is disqualified, the warden “will continue to

select and test as many additional executioners as is necessary

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The new protocol requires that a “designated member of the

execution team will purchase, and at all times ensure a

sufficient supply of, the chemicals to be used in the lethal

injection process. The designated team member will ensure that

the lethal injection chemicals have not reached or surpassed

their expiration dates. The lethal chemicals will be stored

securely at all times . . . ”. The old protocol did not provide

The new protocol requires that after the physical

examination of the condemned, “[i]f the team member(s) reports an

issue that could potentially interfere with the proper

administration of the lethal injection process, the warden will

consult with any or all of the members of the execution team and

to ensure the presence of two qualified executioners”. The old

protocol did not provide the warden with this discretion.

The new protocol requires that “simulations of the execution

process” be performed on a quarterly basis. The old protocol did

not provide for any simulations.

The new protocol requires that the warden to ensure “that

all members of the execution team and other involved staff have

been adequately trained. . . ”. The old protocol did not provide

the warden with this discretion or responsibility. This change

causes many questions and concerns: What training is performed?

Are there guidelines for the training? What happens, i.e., is

disclosed or prepared if training procedures do not proceed as

planned?

The new protocol calls for the use of a checklist. The old

protocol did not provide for the use of checklist. Where is the

checklist from the execution of Clarence Hill?

chemicals be stored so that they are secure? What qualifications

does the execution member have to determine whether the chemicals

have surpassed their expiration dates?

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resolve the issue.” The old protocol did not provide for a

determination of issues that could interfere with the lethal

The new protocol calls for two hours prior to the execution

to “prepare the lethal injection chemicals. The old protocol did

calls for “A designated member of the execution team” to “explain

the lethal injection procedure to the inmate and offer any

medical assistance or care deemed appropriate. The old protocol

issues could interfere with the proper administration of the

lethal injection process? Will the condemned and/or his attorney

be notified? What resolutions will be considered in regard to

the problems? Will the condemned and/or his attorney be

notified?

that the chemicals are prepared two hours prior to the execution?

Who mixes the chemicals? What is his/her training?

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calls for a central venous line to be placed with or without a

venous cut-down if peropheral venous access cannot be achieved.

medical assistance is contemplated? Does this individual have

the required medical training and ability to administer the

medical care?

the cut-down? How will it be done? When will it be done?

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The new protocol calls for the administration of 2 syringes,

each with 2.5 grams of sodium pentothal. The old protocol

contained no discussion regarding the drugs or the amounts to be

100 mg of pancuronium bromide. The old protocol did not provide

elicited in the Sims hearing. The new protocol calls for the

administration of 2 syringes of potassium chloride, each of

120mEq. The old protocol did not provide for this amount of

potassium chloride. Nor did the testimony elicited in the Sims

hearing. Contrary to what the State has represented the amounts

Respondents protestation that the newly adopted lethal

injections procedure is really not new or different smacks of the

child with cookie crumbs around his mouth who indignantly asserts

that he did eat the cookies missing from the cookie jar. If it

is not a substantial revision, why was it not disclosed. If

during the Sims evidentiary hearing and this Court indicated its

understanding was the amount of sodium pentathol to be

administered was 2 grams. The change in the doseage causes many

questions and concerns: Is this enough sodium pentothal?

pancuronium bromide at all?

new protocol, but, due to the limited time in which file his

reply, Mr. Rutherford has done his best to demonstrate that there

are significant differences between the old and new protocols.

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Respondents truly believed that it was the same old procedure,

The new lethal injection procedure is but the tip of the ice

berg, that which we see above the waterline. What we don’t yet

know is that which is still submerged - the real story, why, what

where, when how, and who. And because we do not know the rest of

the story, we don’t know what else Respondents are withholding

that may demonstrate that there is or has been a problem with

Florida’s method of execution. There are many unanswered

questions: Why were the changes made? What information was

relied upon in making the changes? Why was this information

hidden from Mr. Rutherford and his counsel?

Mr. Rutherford respectfully requests the relief stated in

his petition.

Respectfully submitted,

______________________

LINDA MCDERMOTT

Fla. Bar No. 0102857

_______________________

MARTIN J. MCCLAIN

Fla. Bar No. 0754773

McClain & McDermott, P.A.

Attorneys at Law

Wilton Manors, FL 33334

(305) 984-8344

Counsel for Mr. Rutherford

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I HEREBY CERTIFY that a true copy of the foregoing Petition

Seeking to Invoke this Court’s All Writs Jurisdiction has been

furnished by United States Mail, first class postage prepaid, to

Carolyn Snurkowski, Deputy Attorney General, Office of the

Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-

1050; Charmaine Millsaps, Assistant Attorney General, Office of

the Attorney General, The Capitol, PL-01, Tallahassee, Florida

32399-1050, on October 17, 2006.

LINDA MCDERMOTT

Fla. Bar No. 0102857

I hereby certify that the foregoing petition has been

reproduced in a 12 point Courier type, a font which is not

proportionately spaced.

LINDA MCDERMOTT

Fla. Bar No. 0102857