IN THE SUPREME COURT OF FLORIDA

CASE NO. _________

______________________________________________________

ARTHUR DENNIS RUTHERFORD,

Petitioner,

v.

JAMES McDONOUGH,

Secretary, Florida Department of Corrections,

Respondent.

______________________________________________________

______________________________________________

PETITION FOR WRIT OF HABEAS CORPUS AND

PETITION SEEKING TO INVOKE THIS COURT'S ALL

WRITS JURISDICTION

______________________________________________

LINDA McDERMOTT

Florida Bar No. 0102857

MARTIN J. McCLAIN

Florida Bar No. 0754773

McClain & McDermott, P.A.

141 N.E. 30th Street

Wilton Manors, FL 33334

Telephone: (850) 322-2172

FAX: (954) 564-5412

COUNSEL FOR PETITIONER

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INTRODUCTION

On September 17, 2006, five (5) days before the Governor Bush re-scheduled

Implementation Project and the Florida Death Penalty Assessment Team published its

(hereinafter ABA Report on Florida). In light of the content of the ABA Report,

Florida capital sentencing scheme now stands in violation of the Eighth Amendment for

the reasons set forth in Furman v. Georgia, 408 U.S. 238, 310 (1972)(per curiam).

successive 3.850 motion. When the State responded that the ABA Report was not

267 So. 2d 8 (Fla. 1972). The State then moved to strike the 3.800 motion arguing that

the capital defendants were precluded from filing 3.800 motions. The circuit court

granted the motion to strike indicating that since the ABA Report was not in the court

jurisprudence regarding the identified problems with various death penalty statutes that

when this Court granted relief in Hopping v. State, 708 So. 2d 263 (Fla. 1998), it said

unconstitutionally enhanced in violation of the double jeopardy clause, the sentence is

violation, this Court of necessity concerned itself with the law regarding what constituted

a double jeopardy violation. Thus, the more appropriate dichotomy would seem the

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3.850 premised upon Furman, indicating that the ABA Report did not constitute

usual one concerning matters that are questions of fact versus ones that are questions

of law. Thus, the issue should be, does the ABA Report present questions of fact or

constitutional or statutory claim, need merely establish the error. Roberts v. State, 840

So. 2d 962 (Fla. 2002)(relief granted in a third successive 3.850 motion because of new

findings in support of death sentence); Porter v. State, 723 So. 2d 191, 196-7 (Fla.

1998)(granting sentencing relief to defendant who proved judicial bias through newly

discovered evidence in a successive collateral proceeding).

These circuit court rulings in this regard seems inherently inconsistent: 1) the

information contained in the ABA Report is not in the record, so a 3.800 motion is

inappropriate, and 2) the ABA Report is not evidence, but merely a compilation of

identified problems with the death penalty procedure, and thus cannot be considered in

3.850 proceedings on the issue of the constitutionality of the capital sentencing statute.

Without waiving his argument that one these procedural vehicles permits Mr.

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Rutherford to present the merits of his Furman, he files this Petition as a third

alternative vehicle for having his claim heard. Following Furman, this Court did on one

sentence be voided. In re Baker, 267 So. 2d 331 (Fla. 1972). Given that jurisprudence,

Mr. Rutherford alternatively presents his claim in this petition, which is being filed in

Furman v. Georgia, 408 U.S. 238, 310 (1972)(per curiam).

Neither Mr. Rutherford, nor his counsel, mean any disrespect to this Court. It is

decisions, and given this Court rulings in Anderson and in Baker, there are three

Mr. Rutherford, nor his counsel, wish to fail to invoke the proper procedure. From Mr.

that it is proper to the exclusion of the others. He merely wishes to have this Court

consider his claim and rule on the merits, as it did in Anderson and Baker. Accordingly,

he presents his claim in the three different procedural methods merely as alternatives.

JURISDICTION

Mr. Rutherford invokes the jurisdiction of this Court pursuant to Fla. R. App. P.

9.100. This Court has original jurisdiction under Fla. R. App. P. 9.030(a)(3) and Article

Fla. Const.

Additionally, Mr. Rutherford also invokes the jurisdiction of this Court pursuant to

Article V, Section 3(b)(1) and (7) of the Florida Constitution which gives this Court

exclusive appellate jurisdiction over all capital cases and the ability to issue "all writs

necessary to the complete exercise of its jurisdiction." This Court's "all writs" jurisdiction

4

may be invoked in capital cases when warranted by circumstances. Johnston v.

Singletary, 640 So. 2d 1102 (Fla. 1994). The circumstances presented herein warrant

invocation of the "all writs" jurisdiction. In re Baker, 267 So. 2d 331 (Fla. 1972).

This Court has consistently maintained an especially vigilant control over capital

cases, exercising a special scope of review, see Elledge v. State, 346 So. 2d 998, 1002

(Fla. 1977); Wilson v. Wainwright, 474 So. 2d at 1165, and has not hesitated in

exercising its inherent jurisdiction to review issues arising in the course of capital

postconviction proceedings. State v. Lewis, 656 So. 2d 1248 (Fla. 1995). The reasons

set forth herein demonstrate that the Court's exercise of its "all writs" jurisdiction, and of

its authority to correct errors such as those herein pled, is warranted in this action.

Mr. Rutherford urges this Court to invoke its inherent jurisdiction to do justice.

court of record had absolute control over its orders, decrees, etc., and could amend,

now is in the courts during the period allowed by the rules of court, terms (as used in

common law) having been abandoned. But this restriction does not apply to such

orders, judgments or decrees which are the product of fraud, collusion, deceit, mistake,

is an inherent power of courts of record, and one essential to insure the true

REQUEST FOR ORAL ARGUMENT

Mr. Rutherford requests oral argument on this petition/writ.

STATEMENT OF THE CASE AND FACTS

Mr. Rutherford was indicted in Santa Rosa County, Florida, for first-degree

murder and robbery (R. 1). A jury found Mr. Rutherford guilty (R. 74) and

recommended death by a vote of 8 to 4 (R. 75). The court found the State had

5

knowingly committed a discovery violation and ordered a retrial (R. 106-11).

At a retrial, the jury found Mr. Rutherford guilty (R. 150). The jury recommended

death by a 7 to 5 vote (R. 156). The judge sentenced Mr. Rutherford to death (2nd

Rutherford v. State, 545 So. 2d 853 (Fla. 1989), cert. denied, 110 S. Ct. 353 (1989).

Mr. Rutherford filed a postconviction motion under Fla. R. Crim. P. 3.850 (PC-R.

2). The circuit court held an evidentiary hearing on the penalty phase ineffective

assistance of counsel claims (PCR1. 386-94), and later denied relief (PCR1. 675-834).

This Court affirmed, Rutherford v. State, 727 So. 2d 216 (Fla. 1999), and denied relief

on a petition for a writ of habeas corpus. Rutherford v. Moore, 774 So. 2d 637 (Fla.

2000).

Mr. Rutherford filed a petition in federal district court. The district court denied

the petition, and the Eleventh Circuit affirmed. Rutherford v. Crosby, 385 F.3d 1300

(11th Cir. 2004), cert. denied 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

2005).

On November 28, 2005, Mr. Rutherford filed a petition for a writ of state habeas

corpus based on the decision in Deck v. Missouri, 125 S. Ct. 2007 (2005). This Court

05-2139 (Fla. 2006).

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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, which was summarily denied. This Court

affirmed. Rutherford v. State, 926 So. 2d 1100 (Fla. 2006).

On January 31, 2006, the United States Supreme Court granted a stay of

execution to Mr. Rutherford based on a petition for writ of certiorari concerning his

federal court proceedings. On June 19, 2006, the Supreme Court granted the petition

for writ of certiorari and remanded his case to the circuit court of appeals.

execution for October 18, 2006, at 6:00 p.m. On September 27, 2006 Mr. Rutherford

filed a successive 3.850 motion. On October 2, 2006, Mr. Rutherford also filed a

Motion to Correct an Illegal Sentence pursuant to Florida Rule of Criminal Procedure

3.800(a).

3.800(a) motion. On October 6, 2006, the lower court summarily denied Mr.

Simultaneously with this petition/writ, Mr. Rutherford files his appeal from the lower

GROUNDS FOR RELIEF AND ARGUMENT

AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

A. Introduction

Over thirty years ago, the United States Supreme Court announced that under

the Eighth Amendment, the death penalty must be imposed fairly, and with reasonable

7

402 U.S. 183 (1971), had considered whether:

the absence of standards to guide the jury's discretion on the punishment issue

is constitutionally intolerable. To fit their arguments within a constitutional frame

of reference petitioners contend that to leave the jury completely at large to

impose or withhold the death penalty as it sees fit is fundamentally lawless and

therefore violates the basic command of the Fourteenth Amendment that no

State shall deprive a person of his life without due process of law.

McGautha, 402 U.S. at 196. In the majority opinion written by Justice Harlan, the Court

found no due process violation. In reaching this conclusion, the majority noted the

impossibility of cataloging the appropriate factors to be considered:

8

Those who have come to grips with the hard task of actually attempting to draft

means of channeling capital sentencing discretion have confirmed the lesson

taught by the history recounted above. To identify before the fact those

characteristics of criminal homicides and their perpetrators which call for the

death penalty, and to express these characteristics in language which can be

fairly understood and applied by the sentencing authority, appear to be tasks

which are beyond present human ability . . . . For a court to attempt to catalog

the appropriate factors in this elusive area could inhibit rather than expand the

scope of consideration, for no list of circumstances would ever be really

complete.

Id. at 204, 208. When Furman reached the Court the next year and the Petitioners

presented an argument that the statutory schemes for imposing a sentence of death

violated the Eighth Amendment, Justice Stewart and Justice White joined the

dissenters from McGautha and found that the death penalty statutes were indeed

unconstitutional.

9

At issue in Furman were three death sentences: two from Georgia and one from

Texas. The Petitioners relying upon statistical analysis of the number of death

sentences being imposed and upon whom they were imposed argued that the death

penalty was cruel and unusual within the meaning of the Eighth Amendment. Five

justices agreed, and each wrote a separate opinion setting forth his reasoning. Each

found the manner in which the death schemes were then operating to be arbitrary and

facts disclosed in these records that these defendants were sentenced to death

because they were black. Yet our task is not restricted to an effort to divine what

motives impelled these death penalties. Rather, we deal with a system of law and of

justice that leaves to the uncontrolled discretion of judges or juries the determination

whether defendants committing these crimes should die or be imprisoned. Under these

laws no standards govern the selection of the penalty. People live or die, dependent on

sentences are cruel and unusual in the same way that being struck by lightning is cruel

distinguishing the few cases in which it is imposed from the many cases in which it is

punishment falls upon the poor, the ignorant, and the underprivileged members of

society. It is the poor, and the members of minority groups who are least able to voice

their complaints against capital punishment. Their impotence leaves them victims of a

sanction that the wealthier, better-represented, just-as-guilty person can escape. So

long as the capital sanction is used only against the forlorn, easily forgotten members of

society, legislators are content to maintain the status quo, because change would draw

10

Furman stands for the proposition most succinctly explained by Justice Stewart in his

infliction of a sentence of death under legal systems that permit this unique penalty to

of arbitrariness as to one individual claimant. Instead, the Court looked at the systemic

arbitrariness. Furman involved a macro analysis of a death penalty scheme and a

determination as to whether the scheme permitted the death penalty to be imposed in

an arbitrary and/or capricious manner.

In the wake of Furman, all death sentences were vacated. Proof of individual

harm or the lack of such proof was irrelevant. Thereafter, the State of Florida (as well

as others states) sought to adopt a death penalty scheme that would pass scrutiny

Supreme Court in Proffitt v. Florida, 428 U.S. 242 (1976). In Gregg v. Georgia, 428

U.S. 153 (1976), a companion case to Proffitt, the United States Supreme Court

in an arbitrary or capricious manner can be met by a carefully drafted statute that

newly-adopted capital sentencing scheme, the Supreme Court concluded:

passes constitutional muster. That legislation provides that after a person is

convicted of first-degree murder, there shall be an informed, focused, guided,

and objective inquiry into the question whether he should be sentenced to death.

If a death sentence is imposed, the sentencing authority articulates in writing the

11

statutory reasons that led to its decision. Those reasons, and the evidence

supporting them, are conscientiously reviewed by a court which, because of its

statewide jurisdiction, can assure consistency, fairness, and rationality in the

evenhanded operation of the state law. As in Georgia, this system serves to

assure that sentences of death will not be "wantonly" or "freakishly" imposed.

Proffitt, 428 U.S. at 259-60. Subsequent Supreme Court decisions have explained that

Furman required that a capital sentencing scheme produce constitutional reliability and

Penry v. Lynaugh, 492 U.S. 302, 319, (quoting California v. Brown, 479 U.S. 538, 545

(1987)(O'Connor, J., concurring) (emphasis deleted). See Woodson v. North Carolina,

428 U.S. 280, 305 (1976)(plurality opinion); Jurek v. Texas, 428 U.S. 262, 276

circumstances of the offense that the defendant proffers as a basis for a sentence less

v. Lynaugh, 492 U.S. 302, 324 (1989).

However over time, various Justices of the United States Supreme Court have

expressed concern whether the capital sentencing schemes approved in Gregg and

Proffitt actually delivered the promised and requisite reliability. Justice Scalia observed

an inherent inconsistency between the narrowing requirement and the broad discretion

to consider mitigation requirement:

My initial and my fundamental problem, as I have described it in detail above, is

continue to say, in case after case, what degree of "narrowing" is sufficient to

12

what seem to me incompatible principles, I must reject the one that is plainly in

error.

Walton v. Arizona, 497 U.S. 639, 672-73 (1990).

Thereafter, Justice Blackmun soon concluded that the Furman promise could not

be delivered, and accordingly the death penalty should be declared unconstitutional:

Twenty years have passed since this Court declared that the death penalty must

devise legal formulas and procedural rules to meet this daunting challenge, the

death penalty remains fraught with arbitrariness, discrimination, caprice, and

mistake. This is not to say that the problems with the death penalty today are

identical to those that were present 20 years ago. Rather, the problems that were

pursued down one hole with procedural rules and verbal formulas have come to

the surface somewhere else, just as virulent and pernicious as they were in their

original form. Experience has taught us that the constitutional goal of eliminating

essential component of fundamental fairness -- individualized sentencing. See

Callins v. Collins, 510 U.S. 1141, 1143-44 (1994)(Blackmun, J., dissenting from the

denial of cert.).

Most recently, Justice Souter wrote in an opinion joined by Justices Stevens,

Ginsburg, and Breyer:

Decades of back-and-forth between legislative experiment and judicial review

have made it plain that the constitutional demand for rationality goes beyond the

minimal requirement to replace unbounded discretion with a sentencing

structure; a State has much leeway in devising such a structure and in selecting

the terms for measuring relative culpability, but a system must meet an ultimate

test of constitutional reliability in producing "'a reasoned moral response to the

STEVENS, JJ.) (sanctioning sentencing procedures that "focus the jury's

attention on the particularized nature of the crime and the particularized

demands both form and substance, both a system for decision and one geared

to produce morally justifiable results.

* * *

That precedent, demanding reasoned moral judgment, developed in response to

facts that could not be ignored, the kaleidoscope of life and death verdicts that

13

(Stewart, J., concurring). Today, a new body of fact must be accounted for in

tolerate, for the period starting in 1989 has seen repeated exonerations of

convicts under death sentences, in numbers never imagined before the

development of DNA tests. We cannot face up to these facts and still hold that

the guarantee of morally justifiable sentencing is hollow enough to allow

maximizing death sentences, by requiring them when juries fail to find the worst

degree of culpability: when, by a State's own standards and a State's own

characterization, the case for death is "doubtful."

* * *

We are thus in a period of new empirical argument about how "death is

opinion of Stewart, Powell, and STEVENS, JJ.): not only would these false

verdicts defy correction after the fatal moment, the Illinois experience shows

them to be remarkable in number, and they are probably disproportionately high

in capital cases. While it is far too soon for any generalization about the

soundness of capital sentencing across the country, the cautionary lesson of

recent experience addresses the tie-breaking potential of the Kansas statute: the

same risks of falsity that infect proof of guilt raise questions about sentences,

when the circumstances of the crime are aggravating factors and bear on

predictions of future dangerousness.

Kansas v. Marsh, 126 S.Ct. 2516, 2542, 2544, 2545-46 (2006) (Souter, J., dissenting).

The flaws and defects identified by the ABA Report issued on September 17,

sentencing process. Who in fact gets executed in Florida does not depend upon the

facts of the crime or the character of the defendant, but upon the flaws and defects of

1) death row demographics, 2) DNA testing and testing and preservation of biological

evidence; 3) law enforcement tools and techniques; 4) crime laboratories and medical

examiners; 5) prosecutorial professionalism; 6) defense services; 7) direct appeal

process; 8) state postconviction proceedings; 9) clemency; 10) jury instructions; 11)

judicial independence, 12) racial and ethnic minorities; and 13) mental retardation and

mental illness.

14

death penalty system falls short in the effort to afford every capital defendant fair and

were made to assist Florida in fixing a broken system. But, the report cautions that the

death penalty scheme is deficient for the many of the same reasons the schemes at

in the sentencing process that is set forth in the ABA Report on Florida. Furman, 408

U.S. at 256 n. 21 (whether counsel timely objected to error was on occasion a decisive,

albeit arbitrary factor in whether a death sentence was imposed); Id. at 290 (the manner

in which retroactivity rules operate injected arbitrariness); Id. at 293, 309-10, 313 (the

number of executions in comparison to the number of murders suggested a lottery); Id.

at 364-66 (evidence that racial prejudices and/or classism and/or sexism infected

sentencing decisions); Id. at 366-67 (likelihood that an innocent may be executed

suggested arbitrariness); Id. at 368 n. 158 (the failure to apply scientific developments

in criminal cases fast enough to enhance reliability of outcome of process created

arbitrary results).

Based on the information contained in the report, it is clear that death sentences,

15

executed in Florida is determined by a myriad of factors unrelated to the facts of the

crime or the character of the defendant.

B. Florida Death Penalty System

1. The Number of Executions

The information and conclusions contained in the ABA Report make clear that

capital sentencing is still arbitrary and capricious. Since 1972, Florida has carried out a

total of 61 executions; while between 1972 and 1999, there were 857 defendants

sentenced to death (obviously since 1999, there have been more death sentences

imposed). ABA Report on Florida at 7. Statistics of the number of individuals who

committed murder during that time has not been recorded. Nevertheless, it is clear that

few death sentences that are imposed are actually carried out. Undoubtedly, the

percentage of murderers in Florida actually executed since 1972 is minuscule. Furman,

demonstrates the same flaws and defects condemned in the Furman once again infect

2. The Exonerated

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In Florida, since 1972, twenty-two (22) people have been exonerated and

another individual has been exonerated posthumously, while sixty-one (61) people have

there has been no investigation to determine why. There has been no effort to learn

what defects and flaws have allowed innocent men to not just get convicted, not just

have the convictions and sentences affirmed on direct appeal, but to have those

convictions on at least one occasion (Juan Melendez) be all the way through a first

round and second round of state postconviction proceedings before prevailing in a his

third motion for postconviction relief and being released from death row after 17 years.

concurring). The number of Florida exonerations demonstrates a broken system that

violates the Furman promise. But equally symptomatic of a broken system is the lack of

S.Ct. at 2544-45, when Illinois had 13 exonerations between 1977 and 2000, a

moratorium was imposed and investigation launched. During the investigation, 4 more

individuals were determined to be innocent. As a result, the Illinois capital sentencing

scheme was reformed and all death sentences imposed under the old scheme were

vacated. Yet, as the ABA Report on Florida notes, Florida has had more capital

exonerations than Illinois. The staggering rate of exonerations certainly suggest that

prosecutorial misconduct and deficient lawyering afflict the system.

17

curiosity or concern that innocent men have been sent to death row.

a. The arbitrariness in the treatment of evidence of actual

innocence.

While the State of Florida has recently passed legislation to allow capital

cases, had no connection to favorable post-verdict DNA results. Yet, the State of

Florida has not made any substantive or procedural improvements for those who have

no DNA evidence in their case, but could show innocence through the use of other

Crim. P. 3.853, capital postconviction defendants, like Mr. Rutherford, must prove

diligence in bringing claims of innocence. Indeed, this Court has held that it would

not consider evidence of innocence presented in a successive collateral motion where

uncovering and presenting that evidence. Swafford v. State, 828 So. 2d 966, 977-78

clear that the other burdens and requirements will certainly cause arbitrariness in

determining who is granted the opportunity to test evidence and show proof of

innocence. See ABA Report on Florida at 51-3.

which could certainly prove useful to him today was destroyed shortly after his

conviction, without notice to Mr. Rutherford or his counsel. In collateral proceedings,

Mr. Rutherford has presented evidence in effort to establish his innocence. The

evidence, in the form of a confession by another individual to a third person has not

determination that there was other evidence of guilt. Rutherford v. State, 926 So. 2d

1100, 1109-10 (Fla. 2006).

evidence would have probably produced an acquittal had it been presented to the jury.

Id. at 978-79.

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discovered evidence presented in a successive collateral motion, excluded from its

consideration certain other pieces of the newly discovered evidence. This Court

in uncovering certain pieces of newly discovered evidence, and excluded evidence of

A system that precludes the presentation of evidence of innocence in a form other than

the results of DNA testing injects arbitrariness and randomness into the process in

because his attorney failed to prove diligence in discovering the evidence that proves

case of Leo Jones as one that may have resulted in the execution of an innocent man.

ABA Report on Florida at 8.

trial on the basis of the results of DNA testing apply with equal force to any evidence in

whatever form that demonstrates that an innocence man is under sentence of death.

The distinction that has been drawn is likely to result in the execution of innocents.

factual innocence are made. ABA Report on Florida at x. This type of system is

19

lawyering sometimes prevent claims of factual innocence from receiving full

created in Florida.

20

As was noted in Furman, any judicial system with procedural and substantive

protections for an accused will result in errors; innocent individuals will be convicted.

cases is intended to protect the innocent, but we know it is not foolproof. Various

studies have shown that people whose innocence is later convincingly established are

demonstrate that Florida has the highest exoneration in capital cases of any state,

nothing has been done to investigate, find out why, and attempt to remedy the matter.

Having such knowledge and experiencing such a situation first-hand in Florida, the

courts and government have ignored the arbitrariness that accompanies the

determinations that one type of proof of innocence is less valuable than another; one

type qualifies for less procedural restrictions than another; and one type imposes less

hurdles to be cleared before consideration of the evidence on the merits.

While DNA is a powerful tool in proving innocence, the recantation of witness

testimony, confession by another individual to a third-party and other scientific

improvement may be equally revealing. See House v. Bell, 126 S.Ct. 2064 (2006).

And, while there may be a more obvious issue of credibility attached to evidence of

recantations, confessions and other scientific advances than may not be present with

DNA, that does not mean that there will not be credibility issues raised as to the

accuracy of DNA results. It is simply arbitrary to place a diligence requirement when

dealing with a particular type of evidence of diligence, but not another. See Jones;

Swafford.

allows an individual to defeat procedural bars and to demonstrate innocence has

created a system that tolerates and accepts the risk of executing an innocent individual.

21

Furman.

b. DNA.

The State of Florida has now decided that DNA evidence will not be subjected to

the procedural bars that apply to other evidence of innocence. However, those ignored

by the State are those who cannot prove their innocence through DNA testing because

the State destroyed the evidence before the testing could be conducted. In fact, these

convicted cannot prove their innocence because states often fail to adequately

require the preservation of physical evidence in death penalty cases until October 1,

depending on whether an agency of the State of Florida had the space to store

available to some, but not others. There are no ramifications for the State or

protections for defendants who encounter such a situation. The distinction between the

case where the evidence was retained and the testing demonstrates innocence and the

case where the evidence would have established innocence, but was destroyed, can

2. Representation

destroyed due to storage issues and that weather problems.

The ABA Report identified several problems concerning the representation of

indigent capital defendants that leads to the arbitrary imposition of the death penalty

and the problems effect all levels of representation. Indeed, the Report noted that

22

whether a capital offender/defendant will receive the death penalty. ABA Report on

Florida at 135. See Furman, 408 U.S. at 256 n. 21 (whether counsel timely objected to

error was on occasion a decisive arbitrary factor in whether a death sentence was

imposed).

The team found that there was inadequate compensation for trial counsel in

death penalty proceedings. ABA Report on Florida at iv. In addition, the administration

obtaining qualified counsel who has adequate funding for a death penalty case. Of

course, Florida is obligated to provide effective representation at the trial under the

Sixth Amendment. Strickland v. Washington, 466 U.S. 668 (1984). As explained in

Strickland, the purpose of this constitutional obligation is insure that the trial is an

adequate adversarial testing that produces a reliable result. Recently, the United

States Supreme Court not only recognized that the ABA had promulgated a set of

guidelines devoted to setting forth the obligations of defense counsel in capital cases,

but found that those guidelines served as a benchmark in further the goal of obtaining a

With those guidelines in mind, the team recommended that steps be taken to insure

finding ineffective assistance in Rompilla v. Beard, Wiggins v.Smith, 539 U.S. 510

(2003), and Williams v. Taylor, 529 U.S. 362 (2000), were all dictated by its decision in

Strickland and therefore each of those decisions date back to Strickland, this Court has

refused to re-examine its decisions predicated on its understanding of Strickland which

are at least arguably in error under Rompilla, Wiggins, or Williams. Thus, individuals on

do not get the benefit of those three decisions if this Court had denied a Strickland

claim before the United States Supreme Court issued these decisions. As explained

that violates the principle of Furman.

23

investigators and mitigation specialists. One member of the defense team should be

trained in mental health screening. Id. at 175-76. These and the other

recommendations made in the ABA Report reflect that Florida has not lived up to its

obligation to minimize, if not remove, arbitrary factors from the capital sentencing

process.

b. Postconviction representation

An even more substantive failure to deliver on the Furman promise arises in the

capital postconviction representation system has steadily declined over the past ten

years when the federal funding for resource centers was eliminated. The past ten

years have demonstrated a consistent pattern of turmoil and chaos in the

representation of capital postconviction defendants. The state-funded agency

responsible for representing postconviction defendants was overwhelmed with cases,

absorbing those cases that the federally funded organization had represented, and a

large number of cases in the mid-90s when death sentences spiked and rule changes

location of the agency was split into three regional offices but still managed under the

auspices of a single agency. The agency was then officially separated into three

regional offices with the creation of the Registry system to handle conflict and overflow

cases. A few years later, the Florida Legislature eliminated one of the regional offices

and sent Registry sixty-plus cases. Under the current system, at that part of the capital

ABA Report on Florida p. 195-6.

24

appointed to a capital postconviction case are minimal, oversight is non-existent, and

recognized that the cap may be breached in extraordinary circumstances, the fact that

the determination of whether the cap was properly breached is made after the fact. Fla.

Dept.of Financial Services v. Freeman, 921 So. 2d 598 (Fla. 2006). Certainly, requiring

attorneys who find that the requisite work exceeds the statutory cap to litigate their

compensation after the fact has a chilling effect. Within the Registry system, statutorily

funding is only available for 840 attorney hours for attorneys representing capital

postconviction defendants on the registry when research suggests that 3,300 attorney

hours are required to represent a capital postconviction defendant. ABA Report on

Florida at v. This is not the only monetary limitation, funds for investigative, expert,

travel and other costs is limited. Moreover, there is no provision for compensation for

While Registry counsel are restricted in funding, the Capital Collateral Counsel

(CCC) offices are not. Thus, CCC attorneys can exceed the 840 hours without the

consequence of non-payment. CCC attorneys can hire experts, pay investigators and

incur other costs associated with litigating a capital postconviction case without

consequence of non-payment. There is no valid basis for distinction between death

relief. Yet, the funding of the registry makes no provision for even a second

motion, let alone a third.

25

row defendants represented by Registry counsel and death row defendants

representation and arbitrarily effect the ultimate success of capital postconviction

defendants in challenging their convictions and death sentences.

Tallahassee to having representation by Registry. These capital defendants were

arbitrarily stripped of their right to have counsel working on their behalf outside the

26

In 1988, this Court recognized that the creation of CCR extend to all Florida

capital defendants the right to have effective representation in all collateral proceedings

in both state and federal court. Spalding v. Dugger, 526 So. 2d 71, 72 (Fla.

effective legal representation by the capital collateral representative in all collateral

generally found that no remedy exists for a breach of the statutorily created right to

of ineffective assistance of postconviction counsel do not present a valid basis for

collateral counsel due to neglect failed to file a timely notice of appeal. Porter

failure to exercise diligence in investigating and timely presenting evidence of

of the resulting claims for relief. See Swafford v. State, 828 So. 2d 966, 977-78 (Fla.

2002).

Because, beyond the narrow circumstance identified in Porter v. State, a capital

collateral counsel, this Court held that when a convicted defendant establishes that he

or she missed the deadline to file a rule 3.850 motion because his or her attorney had

agreed to file the motion but failed to do so in a timely manner, due process requires

that the convicted defendant be authorized to file a belated motion to vacate. Steele v.

remedies are subject to the more flexible standards of due process announced in the

that Fla. R. Crim. Pro. 3.850 that addresses post conviction motions filed by non-capital

defendant retained counsel to timely file a 3.850 motion and counsel, through neglect,

fashion.

27

defendant has no remedy when state-provided counsel either through negligence or a

process fails to live up to the Furman promise. As noted in the ABA Report, the

performance of Registry counsel has been openly criticized, even by members of this

Court:

This lack of appellate experience may account for the questionable performance

of some registry attorneys. For example, a number of registry attorneys have

missed state post-conviction and federal habeas corpus filing deadlines possibly

precluding their clients from having their claims heard. Specifically, registry

motions or federal habeas corpus petitions between two months to

three years after the applicable filing deadline.

Performance like this has led two Florida Supreme Court Justices to publicly

comment on the quality, or lack thereof, of registry attorneys. Justice Cantero

counsel have little or no experience in death penalty cases. They have not

raised the right issues . . . [and] [s]ometimes they raise too many issues and still

observed deficiencies and we would definitely endorse the need for increased

standards for registry counsel, as well as a continuing system of screening and

performance of these attorneys, as well as the lack of requisite qualifications, is

particularly troublesome in light of the fact that death-sentenced inmates do not

have a state of federal constitutional right to assert a claim of ineffective

assistance of post-conviction counsel.

The performance of these attorneys has also led many legal experts as well as

some Democratic and Republican Legislators to criticize the closure of CCRCNorth

Office in 2003. In fact, many legal experts, including Justice Cantero and

the Executive Director of the Commission on Capital Cases, have cautioned

against proposals to eliminate the two other CCRC Offices.

ABA Report on Florida at 183-84. Thus, it is well recognized by state officials in the

legislative and judicial branches of government that a number of the post-conviction

seen. Yet, the capital defendants provided some of the worst lawyering ever seen must

28

relied upon in the ABA Report, catalogues instances where Registry counsel simply do

not know or understand capital postconviction law, and thereby waive the capital

29

the right to complain and seek redress, simply does not comport with the Furman

promise that states with capital sentencing schemes must affirmatively take steps to

eliminate the risk that an execution will be as random as a bolt of lightning. It is wellrecognized

justice has ever seen and who may have meritorious claims for relief and who in fact

may be innocence, have been arbitrarily denied any real chance of obtaining relief by

The outcome of the post conviction process, directly linked to whether state-appointed

counsel is incompetent, is a purely arbitrary.

a. Jury Instructions.

greatness is its ability to retain compassion in time of crisis. No nation in the recorded

history of man has a greater tradition of revering justice and fair treatment for all its

The ABA Report makes clear that capital jurors, i.e., those individuals largely

involved in the decision of whether a defendant receives the death penalty, do not

30

interviewed Florida capital jurors did not understand that they could consider any

evidence in mitigation and 48.7 percent believed that the defense had to prove

reasonable doubt. Id. (emphasis in original). Over twenty-five percent (25%)

considered future dangerousness, even though such a factor is not a legitimate

sentencing factor under Florida law. Id. Based on these disturbing results, the state

assessment team recommended that the State of Florida redraft its capital jury

instructions in order to prevent common juror misconceptions, misconceptions that can

only inject arbitrariness to the process. Id. at x. The presence of an identified arbitrary

why there have been some many exonerations from death row, it may have learned

that one factor contributing to the problem was juror confusing. But instead, as red

flags are waved, as alarm bells go off, as identified arbitrary factors are identified,

nothing is done. The system tolerates it. This violates the promise of Furman.

b. Unanimity.

State v. Steele, 921 So. 2d 538, 548-49 (Fla. 2005)(emphasis in original). The ABA

Report on Florida cites a study which finds that permitting capital sentencing

diminish the thoroughness of the deliberation. ABA Report on Florida at vi-vii. In the

ABA Report on Florida, the state assessment team recommended that the State of

31

on the how the change in statute may effect the fairness and reliability of the death

penalty system or make the system less arbitrary.

Of course, the question of the constitutionality of permitting a jury to recommend

a death sentence on the basis of a majority vote has been upheld. Spaziano v. Florida,

468 U.S. 447 (1984). But here in Florida where death recommendations have been

permitted on less than a unanimous vote, 22 exonerations of death sentenced

individuals has occurred since 1972. Of course, the cause for the highest rate of capital

exonerations in the nation has not been investigated. However, it is recognized that

Florida has held that a sentencing jury is precluded from consideration of residual or

lingering doubt as to guilt as a mitigating factor that may warrant a life sentence. ABA

logical that an innocent man or woman may have less to argue in the way of mitigation

in a person succumbing to the passions or frailties inherent in the human condition

necessarily constitute valid mitigation under the Constitution and must be considered by

32

for a sentence of less than death clearly increases the odds that an innocent defendant

will receive a sentence of death.

The coupling of a simple majority verdict with the preclusion of consideration of

lingering doubt as a basis for a sentence of less than death certainly add to the risk that

an innocent will be sentence to death. Given that Florida is the only state to have

coupled these things together and given that Florida leads the nation in capital

exoneration, certainly provides a basis for arguing the synergistic effect of the choices

c. Judicial Overrides.

In Florida, the judge who presides over a capital sentencing proceedings has the

This Court adopted the standard to be employed when reviewing a judicial override in

Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975). However, the Tedder standard has

been the source of great debate over the years. Justice Shaw opined in 1988 that the

Tedder standard had created Furman error:

both this Court and the sentencing judge can only speculate as to what factors

the jury found in making its recommendation and, thus, cannot rationally

distinguish between those cases where death is imposed and those where it is

not.

Combs v. State, 525 So. 2d 853, 859 (Fla. 1988) (Shaw, J., specially concurring)

(footnote omitted). In 1989, a majority of this Court held that the vigorousness of the

Tedder standard had waxed and waned over the years:

Finally, we agree with the dissent that "legal precedent consists more in what

courts do than in what they say." However, in expounding upon this point to

the dissent draws entirely from cases occurring in 1984 or earlier. This is not

indicative of what the present court does, as Justice Shaw noted in his special

specially concurring):

33

During 1984-85, we affirmed on direct appeal trial judge overrides in

eleven of fifteen cases, seventy-three percent. By contrast, during

1986 and 1987, we have affirmed overrides in only two of eleven

cases, less than twenty percent. This current reversal rate of over

eighty percent is a strong indicator to judges that they should place

less reliance on their independent weighing of aggravation and

mitigation. . . .

precisely what it says,that the judge must concur with the jury's life

recommendation unless "the facts suggesting a sentence of death

[are] so clear and convincing that virtually no reasonable person could

Cochran v. State, 547 So. 2d 928, 933 (Fla. 1989). Thus, this Court confessed that

standard used to review overrides on appeal had varied over time. A clearer

confession that arbitrariness had infected the decision making process is hard to

imagine.

More recently, three dissenters argued that a majority of the Court once again

failing to give meaning to the Tedder standard:

In the final analysis, the majority's tenuous reliance on Garcia simply

underscores its abandonment, with no compelling rationale, of our principled

and well-reasoned caselaw in Tedder and its progeny.

Zakrzewski v. State, 717 So. 2d 488, 498 n. 6 (Fla. 1998) (Anstead, J., dissenting).

But not just members of this Court have been trouble by the jury override and

the Tedder standard and its resulting affirmance of a judicial override of a life

recommendation. The United States Supreme Court found:

What the Florida Supreme Court could not do, but what it did, was to ignore

the evidence of mitigating circumstances in the record and misread the trial

Parker, 498 U.S. at 320. In reversing, the United States Supreme Court explained:

We have emphasized repeatedly the crucial role of meaningful appellate

review in ensuring that the death penalty is not imposed arbitrarily or

irrationally. * * * The Florida Supreme Court did not conduct an independent

34

review here. In fact, there is a sense in which the court did not review

Parker, 498 U.S. at 321.

The sporadic use of the judicial override and the erratic application of the

scheme. As noted by Justice Shaw, the use of the override and the use of the

Combs v. State, 525 So. 2d at 859 (Shaw, J., specially concurring). The failure to

address this problem reflects an abandonment of the Furman promise. Layer upon

layer of arbitrary sentencing factors entirely divorced from the facts of the crime or

the character of the defendant have accumulated and rendered the Florida

sentencing scheme in violation of Furman.

4. Racial and Geographic Disparities

as noted in the ABA Report.

a. Racial Disparities.

The ABA Report relied on three previous studies concerning race and the

death penalty as well as an analysis of current statistical discrepancies concerning

race and the death penalty. In 1991, a criminal defendant in a capital case was 3.4

times more likely to receive the death penalty if the victim is white that if the victim is

for killing blacks. Six were condemned for the serial killings of whites and blacks.

since Florida reinstated the death penalty there have been no executions of white

35

penalty scheme and disregard of the impacts of such a factor demonstrates an

individuals. Furman, 408 U.S. at 310.

b. Geographic Disparities.

arbitrary and capricious. Furman, 408 U.S. at 364-66 (Eighth Amendment violated

where racial prejudices and/or classism and/or sexism infected sentencing decisions).

Even after Governor Bush commissioned a study of race and its impact on the justice

system in 2000, and those involved recommended an additional study, no steps have

been taken find a remedy for the injection of a improper factor into the sentencing

process. ABA Report on Florida at xi.

36

death penalty scheme. In 2000, 20 percent of the death sentences imposed that

year came from the panhandle, while in 2001, 30 percent of the death sentences

death sentences are significantly influenced by the county where a crime occurred.

Geographic disparities clearly show that a factor unrelated to the circumstances of

the crime or the character of the defendant are at work in the decision to seek and

impose a death sentence. In a state such as Florida, where race, ethnicity, religious

affiliation, cultural background, age and political philosophies differ so drastically

from county to county, the geographic disparity breaches the Furman promise that

death sentences not be premised upon arbitrary factors.

5. Prosecutorial Misconduct

which is in the panhandle.

37

Report on Florida at 107. And, even more so in a capital case, where the

penalty. Id. Yet, this Court regularly orders new trials in capital cases because of

misconduct was only sufficiently prejudicial at the penalty phase to warrant the grant

that the prosecutor acted improperly, but prejudice was insufficiently established to

Despite the numerous instances of prosecutorial misconduct in Florida capital

cases, no investigation has been launched nor program instituted to stamp out such

161 (Fla. 2004); Cardona v. State, 826 So.2d 968 (Fla. 2002); Hoffman v. State, 800

So.2d 174 (Fla. 2001); Rogers v. State, 782 So.2d 373 (Fla. 2001); State v. Huggins,

788 So.2d 238 (Fla. 2001); State v. Gunsby, 670 so. 2d 920 (Fla. 1996); Gorham v.

State, 597 So.2d 782 (Fla. 1992); Roman v. State, 528 So.2d 1169 (Fla. 1988); Arango

v. State, 497 So. 2d 1161 (Fla. 1986).

New trials on the basis of prosecutorial error have also been ordered by the

federal courts in course of federal habeas proceedings. Agan v. Singletary, 12 F.3d

have also been ordered on prosecutorial misconduct for which there is no reported

decision. Ernest Miller and William Jent both received new trials from the federal

district court in light evidence that the State withheld exculpatory information from the

defense. Similarly, Juan Melendez received a new trial from the state circuit court on

the basis of his claim that the State improperly withheld exculpatory information..

1325 (Fla. 1993).

State, 931 So. 2d 790 (Fla. 2006); Ventura v. State, 794 So. 2d 553 (Fla. 2001); Duest

v. Dugger, 555 So. 2d 849 (Fla. 1990).

misconduct in Mordenti by for her actions as federal prosecutor during a non-capital

38

The United States Supreme Court has recognized that a prosecutor is:

the representative not of an ordinary party to a controversy, but of a

sovereignty whose obligation to govern impartially is as compelling as its

obligation to govern at all; and whose interest, therefore, in a criminal

prosecution is not that it shall win a case, but that justice shall be done.

proceeding. Florida Bar v. Cox, 794 So. 2d 1278 (Fla. 2001).

39

Berger v. United States, 295 U.S. 78, 88 (1935). Thus, there should be a higher

ethical obligation because the prosecutor carries with him power derived from his

position which must be held in check, just as each branch of government is subject

written polices governing the exercise of prosecutorial discretion. Id at 125. This is

trial, but in the exercise of prosecutorial discretion to seek death in the first

trial, coupled with the fact that Florida leads the nation in the number death row

exonerations, nothing has been done to investigate the causes for the pattern of

prosecutorial misconduct and frequency of exonerations. The State of Florida by its

conduct has demonstrated that the situation is acceptable, and that the risks that an

innocence man or woman will be convicted, or that guilty man or woman will receive an

undeserved death sentence are okay.

40

sought the death penalty 3 1/2 times more often in cases with white victims than those

victims and accused killers were friends or relatives, prosecutors in Orange and

Seminole Counties asked for the death penalty four times more often when the victim

41

the rules of evidence, the rules of due process. This Court often identifies capital

cases where the prosecutor went to far, or was guilty of a discovery violation, yet,

the Court refuses to grant relief because the defense failed to object and/or the error

misconduct as merely a kind of error, like a deficient jury instruction, certainly offers

constitutes a violation of Furman that turns the capital process, not into a search for

truth or for justice or for the objectively right result, but into a game of relativity,

where all that matters is winning.

6. The Direct Appeal Process

principle into a perversion of itself, to make it into a self-righteous justification that

because winning is justice, winning is everything, and therefore, the ends justify the

means.

This Court reviews all of the cases where the death sentence is imposed in

order to determine whether death is a proportionate penalty. Yet, because this

review can play in eliminating arbitrary and excessive death sentences, states that

do not engage in the review, or that do so only superficially, substantially increase

42

the risk that their capital punishment system will function in an arbitrary and

review, only looking at other cases in which death has been imposed, skews the

Court is no longer holding true to its own rule that proportionality review should be a

not simply a comparison between the number of aggravating and mitigating

death sentences on proportionality grounds to the political pressure from the executive

and legislative branches regarding the disposition of death penalty appeals and the

43

The shift in the affirmance rate and in the manner in which the proportionality

review was conducted is an arbitrary factor. Whether a death sentence was or is

affirmed on appeal depends upon what year the appellate review was or is

7. Retroactivity

Supreme Court could not do, but what it did, was to ignore the evidence of mitigating

circumstances, and affirm the sentence based on a mischaracterization of the trial

a violation of the Eighth Amendment.

since the year 2000, reflects a reoccurring pattern in the appellate process. This

Even though the majority of the Court always cites Tedder v. State as establishing the

standard, dissenting justices who were previously in other cases in the majority

repeatedly assert that the manner in which the Tedder is applied has shifted. See

Combs v. State; Cochran v. State; Zakrzewski v. State. Moreover, the affirmance rate

of judicial overrides also waxes and wanes in a fashion supporting dissenting justices

claim that the manner in which the standard was applied has altered.

44

Problems with the appellate review process show in other ways. For

example, the United States Supreme Court has explained that its decisions finding

ineffective assistance in Rompilla v. Beard, Wiggins v.Smith, and Williams v. Taylor,

were all dictated by its decision in Strickland and therefore each of those decisions,

while issuing between 2000 and 2005, actually date back to Strickland, and reflect

what the decision in Strickland the very day it was issued in 1984. Between 1984

and 2000, this Court addressed ineffective assistance of counsel claims under

Strickland in virtually every capital post conviction case that it heard. It is clear from

analyzing those opinions that this Court did not read Strickland the way it was read

and applied in Rompilla, Wiggins, and Taylor. Yet, this Court has refused to reexamine

its decisions predicated upon its understanding of the meaning of

Strickland which was at least arguably in error under Rompilla, Wiggins, or Williams.

one of these three decisions and who presented those claims to this Court before

the issuance of these three opinions since the year 2000, will not get the benefit of

those three decisions. In essence, this Court has stripped those death row inmates

this Court prior to 2000 have also submitted the ineffective assistance claim to the

federal courts in a federal habeas petition. Just as the federal courts in Rompilla,

Wiggins, and Williams, had failed to properly to read Strickland or failed to recognize

45

that the state court reading was in fact contrary to Strickland, the Eleventh Circuit

denied many ineffective assistance of counsel arguable meritorious under Rompilla,

Wiggins, and Williams. But by virtue, the Anti-Terrorism and Effective Death Penalty

Act of 1996, the ability to file a second habeas and obtain review of the previously,

albeit wrongly, denied ineffective assistance claim. Thus, numerous individuals are

now stuck with a meritorious claim in light of Rompilla, Wiggins, or Williams, but with no

court in which to have the claim properly evaluated.

46

which it has handled the fallout from its decision in Delgado v. State, 776 So. 2d 233

(Fla. 2000). There, Mr. Delgado had been convicted of first degree murder on the basis

that the homicide occurred in the course of a burglary in 1990. On appeal, the issue

In reaching this conclusion, this Court overturned a number of prior decisions, including

was not proven because there was no proof of forced entry, or that Minas refused entry,

Delgado. Yet, this Court refused to apply its construction of legislative intent as to the

meaning of a criminal statute that it applied to a 1990 crime, to a criminal case

occurring in 1992 involving the same statute. Subsequently, this Court gave the benefit

of the Delgado construction to a defendant who was charged with a 1980 burglary in

which a homicide occurred. Fitzpatrick v. State, 859 So. 2d 486 (Fla. 2003), and give

the benefit of the Delgado construction to a defendant who was charged with a 1994

burglary in which a homicide occurred. Raleigh v. State, 932 So. 2d 1054 (Fla. 2006).

47

proceedings, including second and successive post-conviction proceedings, and

should consider in such proceedings the decisions of federal appeals and district

operate impacts who gets executed and who does not. The manner in which this

Court applies its retroactivity rules injects unacceptable arbitrariness into the capital

process.

8. Procedural Default

Further, this Court frequently relies upon procedural defaults to create

procedural bars that preclude consideration of meritorious issues that go to the

reliability of the conviction and sentence of death. See Swafford v. State, 828 So.

2d 966, 977-78 (Fla. 2002); Jones v. State, 709 so. 2d 512, 519-20, 525 (Fla. 1998).

The refusal to consider issues that go towards the reliability of the conviction and/or

the sentence of death increase the risk that the innocent or the legally undeserving

permit second and successive post-conviction proceedings in capital cases where

claims not previously being raised, factually or legally developed, or accepted as

scheme violates Furman.

9. Clemency

Clemency is a critical stage of the death penalty scheme. It is the only stage

at which factors like lingering doubt of innocence, remorse, rehabilitation, racial and

geographic influences and factors that the legal system does not correct can be

48

considered. See Herrera v. Collins, 506 U.S. 390, 412 (1993). However, the ABA

process and that fact that clemency has not been granted to a death-sentenced

For all practical purposes, the clemency process seems to be dead. It does

not appear that any serious consideration is given. It certainly does not function in

the manner that is suggested it should in Herrera. The clemency process is part

10. Politics

49

scheme. In fact, the ABA Report noted that judicial elections and appointments are

approach to proportionality review, which has been caused by political pressures

his death warrant was controlled by a gubernatorial candidate, who is currently the

Attorney General of Florida, Charles Crist. Under Florida law when a stay of execution

has been lifted or dissolved, within 10 days after such certification, the Governor must

the recent case of Clarence Hill, Attorney General Charlie Crist waited until August 24,

execution had dissolved. This was a little less than two weeks before the contested

primary election in which Mr. Crist was seeking the Republican nomination for governor

however, and nearly two months after the stay had actually dissolved. Attorney

General Crist and his representatives claimed that because Mr. Hill had nothing

pending in court the statute was invoked; yet, his case was in fact pending in the

Eleventh Circuit awaiting action by that court following the remand from the United

50

scheme is infected by politics and decisions made for political gain rather than in

fairness.

11. Mental Disabilities

States Supreme Court.

Now, only weeks away from the general election, Attorney General Crist has

invoked the statute, Mr. Rutherford had briefs pending before the Eleventh Circuit.

people with severe mental disabilities on death row, some of whom were disabled at

the time of the offense and others of whom became seriously ill after conviction and

individuals suffering from mental retardation from the death penalty, it has not

extended its logic to those suffering from severe mental disabilities. Id. at xi. The

ABA Report recommended that the logic regarding those with mental retardation be

extended to those with severe mental disabilities, noting that mental illness can

effect every stage of a capital trial. Id at xxxviii. The distinction between the mental

impairment of the mental retarded and the mental impairment of the mental ill and

corresponding culpability of those inflicted with each condition appears to be

arbitrary.

Even in the case of the mentally retarded, Florida has created a procedure

that will produce arbitrary results, as ABA assessment team

acknowledges. The legislation and rule governing mental

retardation procedures makes a distinction between individuals

921.137; Fla. R. Crim. P. 3.203. Those whose cases are final

51

receive none of the protections received by those whose cases

are not final. A distinction depending on where a defendant is

The ABA Report on Florida also describes many of the problems in the crime

of technicians have been attributed to the lack of proper training and supervision,

the lack of testing procedures and the failures to follow such procedures, and

unchallenged and uncorrected before the jury. Thus, yet another factor, unrelated

to the circumstances of the crime or the character of the defendant, that injects

CONCLUSION AND RELIEF REQUESTED

Mr. Rutherford, through counsel, respectfully urges that the Court issue its

Writ of Habeas Corpus and vacate his unconstitutional sentence of death.

52

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Petition/Writ has been

furnished by electronic mail, to Charmaine Millsaps, Assistant Attorney General,

Department of Legal Affairs, The Capitol PL01, Tallahassee, Florida 32399-1050 on

October 9, 2006.

LINDA McDERMOTT

Florida Bar No. 0102857

_______________________________

MARTIN J. McCLAIN

Florida Bar No. 0754773

McClain & McDermott, P.A.

141 NE 30th Street

Wilton Manors, FL 33334

Telephone: (850) 322-2172

FAX: (954) 564-5412

COUNSEL FOR PETITIONER

CERTIFICATE OF FONT

This petition is typed in Courier 12 point not proportionately spaced.

LINDA MCDERMOTT