IN THE SUPREME COURT OF FLORIDA

CASE NO. SC06-2023

v.

RESPONSE TO PETITION FOR ALL WRITS

May issue writs of prohibition to courts and all writs necessary to the

complete exercise of its jurisdiction.

1980), this Court explained that the all writs provision of section 3(b)(7) does not confer

added appellate jurisdiction on this Court, and this Court's all writs power cannot be used

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petition.

This Court's all writs power cannot be used as an independent basis of jurisdiction

which is what Rutherford is seeking to do. The fact that this is a capital case does not

(Fla. 2000)(noting this Court does not have common law certiorari jurisdiction). The

petition should be dismissed for lack of appellate jurisdiction.

Court's all writs jurisdiction, challenging the electric chair as cruel and unusual punishment.

This Court relinquished jurisdiction over petition to trial court to conduct an evidentiary

hearing regarding the fact that flames had erupted on two occasions during use of chair.

issue. The petition should be dismissed for lack of appellate jurisdiction.

are the redacted January 28, 2000 Execution Day Procedures which are distributed to

witnesses during each execution, and the August 16, 2006, Execution by Lethal Injection

Procedures that provide a written overview of the entire process commencing from the

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signing of a warrant through the post-execution procedures, which includes a checklist of

the process.

Included in both documents is the protocols of what transpires, to-wit: that lethal

chemicals will be administered to carry out a lawful execution. The description in the

Execution By Lethal Injection Procedures provides that the same drug cocktail used and

n17 The witnesses included: James Crosby, Warden of the Florida State

Prison; William Mathews, a physician's assistant with the DOC; and Michael

Moore, Secretary of the DOC. Collectively, they provided the execution-day

procedures. On the morning of the execution, the inmate will receive a

physical examination, be given a Valium if necessary to calm anxiety, and

will receive his or her last meal. Next, the inmate will be taken to the

execution room where he will be strapped to a gurney and placed on a heart

monitor. The inmate will then be injected with two IV's containing saline

solution. He will then be escorted into the execution chamber where the

witnesses will be able to view the execution. While the inmate is being

prepared, a pharmacist will prepare the lethal substances. In all, a total of

eight syringes will be used, each of which will be injected in a consecutive

order into the IV tube attached to the inmate. The first two syringes will

contain "no less than" two grams of sodium pentothal, an ultra-short-acting

barbiturate which renders the inmate unconscious. The third syringe will

contain a saline solution to act as a flushing agent. The fourth and fifth

syringes will contain no less than fifty milligrams of pancuronium bromide,

which paralyzes the muscles. The sixth syringe will contain saline, again as a

flushing agent. Finally, the seventh and eighth syringes will contain no less

than one-hundred-fifty milliequivalents of potassium chloride, which stops the

heart from beating. Each syringe will be numbered to ensure that they are

injected into the IV tube in the proper order. A physician will stand behind the

executioner while the chemicals are being injected. The physician's

assistance will also observe the execution and will certify the inmate's death

upon completion of the execution. Moore testified that these procedures

were created with the purpose of "accomplishing our mission with humane

dignity [while] carrying out the court's sentence."

On the issue of dosage, a defense expert admitted that only one milligram

per kilogram of body weight is necessary to induce unconsciousness, and

that a barbiturate coma is induced at five milligrams per kilogram of body

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weight. Thus, two grams of sodium pentothal (i.e., 2000 milligrams) is a

lethal dose and certain to cause rapid loss of consciousness (i.e., within 30

seconds of injection). The expert further stated that muscle paralysis occurs

at .1 milligram of pancuronium bromide per kilogram of body weight. Thus,

fifty milligrams of pancuronium bromide far exceeds the amount necessary to

achieve complete muscle paralysis. Finally, the expert admitted that 150 to

250 milliequivalents of potassium chloride would cause the heart to stop if

injected quickly into the inmate and that an IV push would qualify as

"quickly."

Second, there is nothing in the August 16, 2006, procedures which alters in any way

the drugs used or how the drugs will be administered to a defendant. Nor, contrary to

been false or a repeated misrepresentation.

Nor has either the parties or the Courts been misled. In fact, the protocols used to

carry out the lethal injection process is identical to that which has occurred in the last 17

collateral counsel, on October 12, 2006, requested public records from the Department of

specifically request any information regarding the Hill execution on September 20, 2006.

Any public records requests pursuant to Rule 3.852(i) which provides a procedure to

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failed to make the requisite showing that any additional public records request will generate

either relevant information to the subject matter of a postconviction proceeding or are

2003), a defendant is not required to wait until the death warrant is signed to make an

additional public records request, provided he makes the required showing under rule

3.852(i).

In the instant case, Rutherford has again waited until days before his scheduled

926 So.2d 1100, 1115 (Fla. 2006).

DOC requesting access ro records and information pursuant to Chapter 119 Fla. Stat.

October 13, 2006. In response, DOC directed Ms. McDermott to Fla. Stat. 27.7081 and

Rule 3.852 which provide the sole basis for obtaining public records in capital litigation.

See: Judge O.H. Eaton, Jr., FEATURE: DISCOVERY OF PUBLIC RECORDS IN CAPITAL

CASES, 76 Fla. Bar J. 24, (April, 2002).

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

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was reactivated on September 22, 2006, and according to the rule, counsel had 10 days or

until October 2, 2006 to request public records. The request is dated October 12, 2006

and was emailed to undersigned counsel on October 13, 2006. The request was too late.

authorized under rule 3.852(h)(3), which is designed to allow an update of records

previously requested, because he has failed to demonstrate that he previously requested

sought from these agencies are not related to a colorable claim for postconviction relief

because the scientific evidence Rutherford relies on does not require this Court to

reconsider our holding that Florida's lethal injection procedure does not violate the Eighth

noted previously concerns matters which he never sought.

CONCLUSION

The State respectfully requests that this Honorable Court

deny the petition for all writs jurisdiction.

Respectfully submitted,

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

____________________________

CHARMAINE M. MILLSAPS

ASSISTANT ATTORNEY GENERAL

FLORIDA BAR NO. 0989134

OFFICE OF THE ATTORNEY GENERAL

THE CAPITOL

TALLAHASSEE, FL 32399-1050

(850) 414-3300

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COUNSEL FOR RESPONDENT

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

RESPONSE TO PETITION FOR ALL WRITS has been furnished by electronic mail Linda

McDermott, Esq. at lindammcdermott@msn.com with a follow up hard copy by U.S. mail to

2006.

_

_______________________________

Charmaine M. Millsaps

Attorney for the State of Florida

CERTIFICATE OF FONT AND TYPE SIZE

Counsel certifies that this brief was typed using Courier New 12.

________________________________

Charmaine M. Millsaps

Attorney for the State of Florida