IN THE SUPREME COURT OF FLORIDA

NO. SC06-1931

_________________________________________________________

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

Motion to Correct an Illegal Sentences, pursuant to Florida Rule of Criminal Procedure

3.800(a). The following symbols will be used to designate references to the record in

this appeal:

postconviction relief following a limited

postconviction relief.

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 October 18, 2006, at 6:00 p.m. This Court has allowed oral argument in other cases

238 (Fla. 1999); Mills v. Moore, 786 So. 2d 532 (Fla. 2001);

Swafford v. State, 828 So. 2d 966 (Fla. 2002); Roberts v. State,

840 So. 2d 962 (Fla. 2002); Wright v. State, 857 So. 2d 861 (Fla.

appropriate in this case, given the seriousness of the claims involved, as well as Mr.

Court permit oral argument.

ii

TABLE OF CONTENTS

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

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

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

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

INTRODUCTION....................................................1

STATEMENT OF THE CASE...........................................2

STATEMENT OF THE FACTS..........................................5

SUMMARY OF THE ARGUMENT........................................13

STANDARD OF REVIEW.............................................14

ARGUMENT.......................................................15

ARGUMENT I

THAT NEWLY DISCOVERED EMPIRICAL EVIDENCE DEMONSTRATES

THAT HIS CONVICTION AND SENTENCE OF DEATH CONSTITUTES CRUEL

AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND

FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION..............................................15

ARGUMENT II

TO CORRECT AN ILLEGAL SENTENCE PURSUANT TO FLORIDA RULE OF

CRIMINAL PROCEDURE 3.800(a)...............................75

ARGUMENT III

THE LOWER COURT ERRED IN DENYING MR. RUTHERFORD AN

EVIDENTIARY HEARING ON HIS CLAIM OF NEWLY DISCOVERED

AND RECORDS DO NOT SHOW THAT HE WAS CONCLUSIVELY ENTITLED

TO NO RELIEF.....................................81

ARGUMENT IV

THAT HIS CONVICTION AND SENTENCE OF DEATH VIOLATE THE EIGHTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION...89

iii

ARGUMENT V

VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.......................................93

CONCLUSION.....................................................99

CERTIFICATE OF SERVICE........................................100

CERTIFICATION OF FONT.........................................100

iv

TABLE OF AUTHORITIES

Cases

Agan v. Singletary,

Anderson v. State,

267 So. 2d 8 (Fla. 1972)......................72, 75, 76, 78

Arango v. State,

497 So. 2d 1161 (Fla. 1986)...............................50

Berger v. United States,

295 U.S. 78 (1935)........................................52

Callins v. Collins,

510 U.S. 1141 (1994)......................................20

Card v. State,

652 So. 2d 344 (Fla. 1995)................................67

Cardona v. State,

826 So. 2d 968 (Fla. 2002)................................50

Cheshire v. State,

568 So. 2d 908 (1990).....................................43

Cochran v. State,

547 So. 2d 928 (Fla. 1989)............................45, 56

Combs v. State,

525 So. 2d 853 (Fla. 1988)........................44, 47, 56

Crawford v. Washington,

124 S.Ct. 1354 (2004)......................................3

Davis v. State,

742 So. 2d 233 (Fla. 1999)................................67

Deck v. Missouri,

125 S. Ct. 2007 (2005).....................................4

Delgado v. State,

776 So. 2d 233 (Fla. 2000)................................58

Dixon v. State,

730 So. 2d 265 (Fla. 1999)................................77

Duest v. Dugger,

555 So. 2d 849 (Fla. 1990)................................51

v

Duncan v. Louisiana,

391 U.S. 145 (1968).......................................42

Evitts v. Lucey,

469 U.S. 387 (1984).......................................95

Fla. Bar v. Cox,

794 So. 2d 1278 (Fla. 2001)...............................51

Fla. Dept.of Financial Services v. Freeman,

921 So. 2d 598 (Fla. 2006)............................35, 36

Fitzpatrick v. State,

859 So. 2d 486 (Fla. 2003)................................59

Floyd v. State,

902 So. 2d 775 (Fla. 2005)................................49

Furman v. Georgia,

408 U.S. 238 (1972)........................6, 8, 15, 16, 17, 23, 25, 28, 31, 39 44, 48, 52,

55, 60, 61, 68, 70, 71, 75

Garcia v. State,

622 So. 2d 1325 (Fla. 1993)...............................50

Godfrey v. Georgia,

446 U.S. 420 (1980).......................................19

Gorham v. State,

597 So. 2d 782 (Fla. 1992)................................50

Gregg v. Georgia,

428 U.S. 153 (1976).......................................18

Guzman v. State,

2006 Fla. LEXIS 1398 (Fla. June 29, 2006).................50

Herrera v. Collins,

506 U.S. 390 (1993)...................................61, 98

Hoffman v. State,

800 So. 2d 174 (Fla. 2001)................................50

Hopping v. State,

708 So. 2d 263 (Fla. 1998)....................................76

House v. Bell,

126 S.Ct. 2064 (2006).................................29, 89

In re Baker,

267 So. 2d 331 (Fla. 1972)................................73

vi

Jimenez v. State,

703 So. 2d 437 (Fla. 1997)................................59

Johnson v. Singletary,

647 So. 2d 106 (Fla. 1994)................................82

Jones v. State,

591 So. 2d 911 (Fla. 1991)........................82, 85, 86

Jones v. State,

678 So. 2d 309 (Fla. 1996)............................85, 86

Jones v. State,

709 So. 2d 512 (Fla. 1998)................27, 39, 60, 85, 86

Jurek v. Texas,

428 U.S. 262 (1976).......................................19

Kansas v. Marsh,

126 S.Ct. 2516 (2006).................................22, 24

Kokal v. State,

901 So. 2d 766 (2005).....................................67

Kyles v. Whitley,

514 U.S. 419 (1995).......................................30

Lambrix v. State,

698 So. 2d 247 (Fla. 1996)................................36

Lemon v. State,

498 So. 2d 923 (Fla. 1986)................................81

Lightbourne v. State,

549 So. 2d 1364 (Fla. 1989)...................14, 81, 84, 86

Lightbourne v. State,

742 So. 2d 238 (Fla. 1999)........................82, 84, 86

Lockett v. Ohio,

438 U.S. 586 (1978).......................................19

Maynard v. Cartwright,

486 U.S. 356 (1988).......................................19

McGautha v. California,

402 U.S. 183 (1971)...............................15, 16, 80

Melendez v. State,

718 So. 2d 746 (Fla. 1998)................................82

vii

Miller-El v. Drehtke,

545 U.S. 231 (2005).......................................67

Mills v. State,

786 So. 2d 547 (Fla. 2001)............................84, 86

Mordenti v. State,

894 So. 2d 161 (Fla. 2004)............................49, 51

Ohio Adult Parole Authority, et al. v. Woodard,

523 U.S. 272 (1998)...................................93, 95

Oregon v. Guzek,

126 S.Ct. 1226 (2006).....................................43

Parker v. Dugger,

498 U.S. 308 (1991)...............................46, 56, 57

Penry v. Lynaugh,

492 U.S. 302 (1989).......................................19

Porter v. State,

723 So. 2d 191 (Fla. 1998)............................67, 68

Porter v. State,

788 So. 2d 917 (Fla. 2001)................................37

Proffitt v. Florida,

428 U.S. 242 (1976)...............................18, 19, 74

Provenzano v. State,

739 So. 2d 1150 (Fla. 1999)...............................67

Raleigh v. State,

932 So. 2d 1054 (Fla. 2006)...............................59

Ring v. Arizona,

122 S.Ct. 2428 (2002)......................................3

Roberts v. State,

678 So. 2d 1232 (Fla. 1996)...........................14, 82

Roberts v. State,

840 So. 2d 962 (Fla. 2002)................................67

Rogers v. State,

782 So. 2d 373 (Fla. 2001)................................50

Roman v. State,

528 So. 2d 1169 (Fla. 1988)...............................50

Rompilla v. Beard,

viii

545 U.S. 374 (2005)...............................32, 57, 58

Rutherford v. Crosby,

1847 (2005)................................................4

Rutherford v. Crosby,

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

Rutherford v. Crosby,

Case No. 05-2139 (Fla. 2006)...............................3

Rutherford v. Moore,

774 So. 2d 637 (Fla. 2000).................................3

Rutherford v. State,

545 So. 2d 853 (Fla.), cert. denied, 110 S.Ct. 353 (1989)..3

Rutherford v. State,

727 So. 2d 216 (Fla. 1999).................................3

Rutherford v. State,

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

Rutherford v. State,

926 So. 2d 1100 (Fla. 2006)....................4, 26, 67, 83

Schlup v. Delo,

513 U.S. 298 (1995).......................................91

Scott v. State,

657 So. 2d 1129 (Fla. 1995)...........................14, 82

Smith v. State,

931 So. 2d 790 (Fla. 2006)................................50

Smith v. Wainwright,

Spalding v. Dugger,

526 So. 2d 71 (Fla. 1988).................................36

Spaziano v. Florida,

468 U.S. 447 (1984).......................................42

State v. Callaway,

658 So. 2d 983 (Fla. 1995)................................77

State v. Gunsby,

670 So. 2d 920 (Fla. 1996)................................50

State v. Huggins,

ix

788 So. 2d 238 (Fla. 2001)................................50

State v. Mancino,

714 So. 2d 429 (Fla. 1998)................................76

State v. Mills,

788 So. 2d 249 (Fla. 2001)........................81, 84, 86

State v. Riechmann,

777 So. 2d 342 (Fla. 2000)................................50

State v. Steele,

921 So. 2d 538 (Fla. 2005)................................41

Steele v. Kehoe,

747 So. 2d 931 (Fla. 1999)................................36

Stephens v. State,

748 So. 2d 1028 (Fla. 1999)...............................32

Strickland v. Washington,

466 U.S. 668 (1984)...............................32, 57, 58

Swafford v. State,

679 So. 2d 736 (Fla. 1996)........................82, 85, 86

Swafford v. State,

828 So. 2d 966 (Fla. 2002)............26, 29, 37, 60, 85, 86

Tedder v. State,

322 So. 2d 908 (Fla. 1975)............................44, 56

Ventura v. State,

794 So. 2d 553 (Fla. 2001)................................50

Walton v. Arizona,

497 U.S. 639 (1990).......................................20

Wiggins v.Smith,

539 U.S. 510 (2003)...................................32, 57

Williams v. Taylor,

529 U.S. 362 (2000)...................................32, 57

Woodson v. North Carolina,

428 U.S. 280 (1976).......................................19

Young v. State,

739 So. 2d 553 (Fla. 1999)................................50

Zakrzewski v. State,

717 So. 2d 488 (Fla. 1998)............................45, 56

1

INTRODUCTION

tolerable under the state and federal constitutions? It is clear that the Florida capital

sentencing scheme is flawed. Is it too flawed? And what is too flawed? What is the

standard?

But beyond the questions concerning an arbitrary capital sentencing scheme in

In order to convict, the State presented the testimony of four individuals who claimed

that Mr. Rutherford made incriminating statements to them. The stories these

individuals told were not consistent with each other and certainly were not consistent

State presented these four individuals on the principle that there is strength in numbers

- because there were four, it was more likely that Mr. Rutherford was guilty. Now, Mr.

Rutherford has presented sworn statements from two individuals recounting how Mary

affidavit from the second individual was that it was in essence irrelevant because it

merely repeated what was in the first affidavit. If that is the governing law, then

presumably it would not matter if Mr. Rutherford presented one hundred affidavits from

one hundred individuals claiming that Mary Heaton confessed committing the murder

herself. Surely, that cannot be the rule of law.

If the State is not limited to the number of individuals that it can present testifying

that the defendant made incriminating statements, a different rule cannot be applied to

a criminal defendant. There is a significant difference between the weight given to one

when a second person reports a nearly identical confession. When a second affidavit

2

is presented corroborating the first, a cumulative analysis must occur that factors in the

enhanced reliability that the two affidavits afford to each other.

The time to hear the evidence and evaluate it is before the execution. The

STATEMENT OF THE CASE

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

murder and robbery on September 1, 1985. Mr. Rutherford entered a plea of not guilty

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

and 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.

convicted on October 2, 1986. The penalty phase was that same day, and the jury

recommended a death sentence by a vote of 7 to 5. Mr. Rutherford was sentenced on

1986.

Mr. Rutherford appealed his convictions and sentences, which were affirmed.

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

Mr. Rutherford timely filed a motion for postconviction relief. The circuit court

entered an order denying relief on some claims and ordering an evidentiary hearing on

evidentiary hearing, the circuit court denied relief. This Court affirmed. Rutherford v.

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

3

Mr. Rutherford filed a petition for a writ of state habeas corpus on December 21,

1999. The petition was denied. Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000).

On March 30, 2001, Mr. Rutherford filed for habeas corpus relief in federal

district court. Habeas relief was denied. The Eleventh Circuit affirmed. Rutherford v.

In September of 2002, Mr. Rutherford filed a successive postconviction motion

based on Ring v. Arizona, 122 S.Ct. 2428 (2002). Following the denial of relief, this

Court affirmed. Rutherford v. State, Case No. SC03-243 (Fla. 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

the petition. Rutherford v. Crosby, Case No. SC05-376 (Fla. 2005).

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

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

petition. Rutherford v. Crosby, Case No. 05-2139 (Fla. 2006).

On November 29, 2005, Governor Bush signed a death warrant setting an

execution for January 31, 2006 at 6:00 p.m. Mr. Rutherford filed a 3.850 motion on

December 24, 2005. After a Huff hearing on December 28, 2005, the lower court, on

January 5, 2006, denied relief without the benefit of an evidentiary hearing. Thereafter,

So. 2d 1100 (Fla. 2006).

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

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

4

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

Rutherford subsequently filed a Motion to Correct an Illegal Sentence under Fla. R.

Crim. Pro. 3.800(a). Mr. Rutherford also filed an amendment to his pending Rule 3.850

to strike Mr. Rutherford 3.800(a) motion.

On October 3, 2006, the circuit court held a Huff hearing as to the pending

motion, while taking all other matters under advisement.

On October 6, 2006, the lower court summarily denied the Rule 3.850 motion

and its amendment. Mr. Rutherford filed his notice of appeal on October 6, 2006.

STATEMENT OF THE FACTS

On September 17, 2006, five days before the Governor Bush re-scheduled Mr.

Implementation Project and the Florida Death Penalty Assessment Team published its

(hereinafter ABA Report on Florida). See Appendix B to Motion to Vacate. The

information, analysis and ultimate conclusions contained in the ABA Report make clear:

concluded, however, that the State of Florida fails to comply or is only in partial

5

compliance with many of these recommendations and that many of these shortcomings

Furman v. Georgia, 408 U.S. 238, 310 (1972)(per curiam). The identified flaws and

defects inject arbitrariness into the capital sentencing process. Who in fact gets

executed in Florida does not depend upon the facts of the crime or the character of the

condemned; what objections he did or did not make; what investigation he did or did not

undertake; whether counsel was diligent in finding evidence demonstrating that the

condemned was innocence; at what point in time did this Court review the case; did the

condemned get the benefit of new law identifying constitutional or statutory error in his

case; did the State preserve the physical evidence containing DNA material that would

prove innocence; what procedural bars were applied by the courts to preclude

consideration of meritorious claims; etc.

6

In 2001, the ABA had created the Death Penalty Moratorium Implementation

Project to, among other things, collect and monitor data on death penalty

developments, as well as analyzing responses from government and courts to death

conducted comprehensive examinations of their death penalty systems, the Project

and preliminarily determine the extent to which they achieve fairness and provide due

assessment team were: the Chair, Professor Christopher Slobogin, Judge O.H. Eaton,

Jr., Dr. Mark R. Fondacaro, Michael J. Minerva, Mark Schlackman, Justice Leander J.

Shaw, Harry L. Shorstein, Sylvia Walbolt and students who assisted with research form

analyzing various laws, rules, procedures, standards and guidelines relating to the

areas: 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

However, it is equally clear that many of the members are in favor of the death penalty.

Specifically, State Attorney of the Fourth Judicial Circuit, Harry Shorstein, made clear

7

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.

recommendations were made to assist Florida in fixing a broken system. But, the team

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).

8

In light of the ABA Report, Mr. Rutherford argued in circuit court that the Florida

death penalty statute now violates Furman. Mr. Rutherford argued that death

sentences in Florida, like his, are a product of an arbitrary and capricious system. Not

only is the process arbitrary at trial and on direct appeal, but another layer of

arbitrariness arises from the postconviction process. Who is executed in Florida is

determined by a myriad of factors unrelated to the facts of the crime or the character of

the defendant.

Report upon which Mr. Rutherford primarily relied to establish his claim did not

conclusion was based on a mistaken understanding, which was urged by the State, that

the evidence upon which Mr. Rutherford relied to establish his constitutional violation

must be admissible at trial.

AND INNOCENCE OF THE DEATH PENALTY.

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). The bank teller testified that when Heaton entered the bank,

the teller could not process the check because the signature from Ms. Salamon was

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

compilation of existing facts about the manner in which the capital statute functions, Mr.

Rutherford presented the claim in a Rule 3.800(a) motion. The circuit court denied the

3.800 motion because the ABA Report was not in the record, and thus could not be

considered in passing upon the constitutionality of the death penalty statute.

9

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). Heaton received

Later that day, Heaton purchased an automobile from Harvey Smith (R. 443).

444).

mental institution (R. 411). However, Heaton testified on behalf of the State at Mr.

psychiatric problems and had a nervous breakdown, stroke and brain damage (R. 412).

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 she tried 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

10

then returned to the bank where Mr. Rutherford produced a signed check (R. 408).

408). Mr. Rutherford paid Heaton $500.00 and dropped her back at her home at 2:00

p.m. (R. 410).

law enforcement and her testimony during pretrial depositions. 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 the bank teller. The circumstances of filling out the check conflicted

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

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.

postconviction counsel learned of an individual, named Alan Gilkerson. In an affidavit,

Gilkerson stated:

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

11

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

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 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.

(Id.).

interview others who knew Heaton. Indeed, in December, Eddie Bivin, Elizabeth

(Id.).

Also, postconviction counsel located Marie Pouncey, a woman who resided with

Heaton in 1995 (Att. M to Jan. 6, 2006, Motion for Rehearing). Ms. Pouncey recalled

In December, 2005, Investigator Rosa Greenbaum identified Brian Adkison as a

person who would have had contact with Biven and Heaton during the 1990's.

However, all attempts to locate Adkison were unsuccessful.

However, during the week of September 25, 2006, Investigator Greenbaum

located Adkison. Ms. Greenbaum was advised by Adkison that he in fact had contact

with Heaton and that Heaton had confessed to him that she had killed an old lady in

Milton.

Adkison attested that he had previously lived in a trailer park near Bivin in the

late 1990's. During this time period, Heaton occasionally stayed with her niece, Bivin,

12

recalled Heaton elaborating that she had killed a woman in Milton. In his affidavit

regarding this conversation with Heaton, Adkison swore:

. . . [Heaton] mentioned killing a lady in Milton by beating her to death, with some

sort of tool.

3. When Mary would start talking about this, Liz would tell her to shut

up and quit running her mouth. Liz did not want her talking about this to me. But,

the lady she'd beaten to death and how it happened. She told me that she beat

the old lady to death when trying to rob the lady of money and medication. Mary

knew what she had. There had been a plan to get the stuff. But when it went

something like that.

(Appendix F).

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 of the constitutional infirmity of his death sentence. Evidence establishes that

and information upon which it is based is not evidence, as the lower court suggests,

then Mr. Rutherford 3.800 motion was properly brought and the lower court erred in

dismissing it.

Also, Mr. Rutherford has produced more newly discovered evidence of his

innocence of the crimes for which he was charged and convicted. The lower court

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).

was a legal one.

ARGUMENT I

CLAIM THAT NEWLY DISCOVERED EMPIRICAL EVIDENCE

DEMONSTRATES THAT HIS CONVICTION AND SENTENCE OF

DEATH CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN

VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION.

A. Introduction

14

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

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

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:

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.

15

in which the death schemes were then operating to be arbitrary and capricious.

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 the

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

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

16

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.

17

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

the proposition that standardless jury sentencing procedures were not employed

in the cases there before the Court so as to violate the Due Process Clause. We

guide and regularize jury sentencing in capital cases has been undermined by

subsequent experience. In view of that experience and the considerations set

punishment of death is at issue a system of standardless jury discretion violates

the Eighth and Fourteenth Amendments.

Gregg at 195 n. 47

18

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

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

19

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

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

20

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

(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).

B. The ABA Report

The ABA Report issued on September 17, 2006, identified numerous defects

and flaws in the Florida capital sentencing scheme that inject arbitrariness into the

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

21

issue in Furman were found to be unconstitutional. Death sentences, like Mr.

postconviction process. Who is executed in Florida is determined by a myriad of

factors unrelated to the facts of the crime or the character of the defendant.

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

crime. Given the number of exonerations so far, undoubtedly a risk that an innocent

has been or will be executed in Florida is great. Certainly, such an occurrence would

22

be itself violative of the Eighth Amendment. However also important under Furman are

the systemic safeguards in place and their likely effectiveness in rescuing the innocent.

and inhibit his chances of being able to establish his innocence.

23

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

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

Justice Souter in his dissenting opinion in Kansas v. Marsh, 126 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

deficient lawyering afflict the system. Yet in Florida, unlike in Illinois, there has been no

moratorium. There has been no investigation. There has been no reform. 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

309 (Stewart, J., concurring). The number of exonerations in the State of Florida alone

demonstrates a broken system that violates the Furman promise. But equally

symptomatic of a broken system is the lack of curiosity or concern that innocent men

have been sent to death row. Not only did Mr. Melendez serve 17 years there, Rudolph

24

Holton served 16 years before his release, and Frank Lee Smith served 15 years before

dying of cancer a few months before DNA evidence established his innocence.

a. The arbitrariness in the treatment of evidence of actual

innocence.

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

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

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.

innocence, was not dispositive.

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

25

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

diligence in bringing their claims of innocence.

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).

26

Indeed, this Court has held that it would not consider evidence of innocence

presented in a successive collateral motion where the circuit court had found that the

evidence that demonstrated innocence. Swafford v. State, 828 So. 2d 966, 977-78 (Fla.

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

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

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

would have probably produced an acquittal had it been presented to the jury. Id. at 978-

79 (Anstead, J., dissenting).

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

ABA Report on Florida at 8.

27

person committed the murder, and, yet, none of this evidence was heard by the jury

process in Florida's capital sentencing scheme is a constitutional safety net designed

above all to prevent the execution of an innocent man or woman. The present case is a

classic example of that safety net working properly--up to the present point. Although

Jones was tried and convicted in 1981, much of the present evidence did not--could

not--come to light until now, more than a decade later--after Officer Smith and

Schofield's accusers came forward. This evidence vastly implicates Schofield and casts

serious doubt on Jones' guilt. The case that stands against Leo Jones today is a horse

28

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

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

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

lawyering sometimes prevent claims of factual innocence from receiving full

created in Florida.

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,

29

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;

actual innocence exception does not include a diligence prong. It should be inherently

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.

Though it has made an exception for new evidence in the form of the results of DNA

testing, Florida has refused to apply the rationale for such an exception to its procedural

30

principles enunciated in 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

See Kyles v. Whitley, 514 U.S. 419 (1995).

31

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

The Florida Death Penalty Assessment Team 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.

critical factor determining 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).

due to storage issues and that weather problems in the recent years had also caused

evidence to be destroyed.

32

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

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

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

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

binding upon this Court as determining the meaning of the Sixth Amendment. Yet as

Strickland in a number of cases. Stephens v. State, 748 So. 2d 1028, 1032 n. 2 (Fla.

1999). Despite this acknowledgment, this Court refused to correct its error and

reconsider those cases in which the error had been committed. Certainly, this injects

Furman.

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.

33

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 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,

Collateral Representative (CCR) had in essence brought the death penalty in Florida to

a halt through abusive pleading practices. A committee was formed to consider these

complaints. This lead to a number of changes including: the creation of the

Commission on Capital Cases, the partition of CCR into three separate entities, and

created out of CCR that handled cases generally out of the northern part of the State.

actions in slowing, if not stopping, the pace of executions in Florida. No parallel interest

has arisen in light of the 22 exonerations and the prosecutorial misconduct or the

inadequate representation that cause innocent men to spend parts of their lives living

investigating erroneous convictions in order to eliminate arbitrary factors from infecting

the process. This fact too belies the promise of Furman.

34

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

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,

Report on Florida p. 195-6.

35

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

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

alone a third.

36

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

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

37

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

defendant under sentence of death is entitled, as a statutory right, to effective legal

representation by the capital collateral representative in all collateral relief proceedings.

This statutory right was established to alleviate problems in obtaining counsel to

recognized the statutorily created right, this Court has generally found that no remedy

exists for a breach of the statutorily created right to effective collateral counsel. Lambrix

recognize an exception to the Lambrix rule where state-provided collateral counsel due

to neglect failed to file a timely notice of appeal. Porter v. State, 788 So. 2d 917 (Fla.

investigating and timely presenting evidence of innocence or of a constitutional

See Swafford v. State, 828 So. 2d 966, 977-78 (Fla. 2002).

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.

38

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

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

accept the incompetent representation without recourse.

39

An amicus brief filed in the United States Supreme Court that is noted and 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

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. Undeniably

v. State, 709 So. 2d. at 535-36 (Shaw, J., dissenting). Yet, it is well-recognized within

meritorious claims for relief and who in fact may be innocence, have been arbitrarily

Furman, 408 U.S. at 293 (Brennan, J., concurring). The outcome of the post conviction

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 citizens in times of

40

process, directly linked to whether state-appointed counsel is incompetent, is a purely

arbitrary.

a. Jury Instructions.

The Florida Death Penalty Assessment Team based upon the evidence it

gathered that capital jurors, i.e., those individuals largely involved in the decision of

jurors did not understand that they could consider any evidence in mitigation and 48.7

percent believed that the defense had to prove mitigating factors beyond a reasonable

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

launched an investigation into 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.

41

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

Report on Florida cites a study which permitting capital sentencing recommendations

thoroughness of the deliberation. ABA Report on Florida at vi-vii. Of course, it is

inherently obvious that the requirement of a unanimous verdict at the guilt phase is

a reasonable doubt, and the general desire to ensure greater certainty of the reliability

during the penalty phase reflects a choice that the guilt phase concerns warranting

state assessment team recommended that the State of Florida require a unanimous

right to a jury guilt phase determination:

The framers of the constitutions strove to create an independent judiciary but

insisted upon further protection against arbitrary action. Providing an accused

with the right to be tried by a jury of his peers gave him an inestimable safeguard

against the corrupt or overzealous prosecutor and against the compliant, biased,

or eccentric judge. If the defendant preferred the common-sense judgment of a

jury to the more tutored but perhaps less sympathetic reaction of the single

judge, he was to have it. Beyond this, the jury trial provisions in the Federal and

State Constitutions reflect a fundamental decision about the exercise of official

power -- a reluctance to entrust plenary powers over the life and liberty of the

citizen to one judge or to a group of judges. Fear of unchecked power, so typical

of our State and Federal Governments in other respects, found expression in the

criminal law in this insistence upon community participation in the determination

of guilt or innocence.

Duncan v. Louisiana, 391 U.S. 145, 156 (1968).

recommendation voted for the death penalty.

42

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

penalty system or make the system less arbitrary.

43

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

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

that result in a person succumbing to the passions or frailties inherent in the human

condition necessarily constitute valid mitigation under the Constitution and must be

doubt as a basis for a sentence of less than death clearly increases the odds that an

innocent defendant will receive a sentence of death.

declare it to be unconstitutional to exclude consideration of residual or lingering doubt

as a mitigating factor warranting the imposition of life sentence. Oregon v. Guzek, 126

S.Ct. 1226 (2006).

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

44

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

The decision by Florida officials to simply accept the high exoneration rate without

seeking find the how and the why and then undertake corrective measures, breaches

the Furman promise.

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):

45

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).

In his opinion joined by Chief Justice Kogan and Justice Shaw, Justice Anstead

explained:

Hence, in addition to the unprecedented mitigation presented, the majority

has itself identified another substantial basis for the jury's recommendation by

pointing out that the jury could have reasonably concluded, because the

evidence was in conflict, that Anna was not aware of her impending death. In

that event, for example, the jury would also not have found the HAC

aggravator for Anna's death since that aggravator requires a finding of

consciousness of impending death. So, the majority opinion has

demonstrated a number of reasonable bases for the life recommendation.

As we approach the 21st century of our civilization, do we really want to take

a law (the trial judge's sentencing discretion) that was intended to act as a

rational check on a jury possibly voting for death based upon an emotional

appeal, and twist that law so as to use it as a sword for the judiciary to

emotionally trump a jury acting with reasoned mercy?

Id.

46

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

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

47

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

Report on Florida at vii-viii. 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

The statistics relied on in the ABA Report on Florida make clear that race is a

be 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

knowledge of the disparities of race on its death penalty scheme and disregard of

the impacts of such a factor demonstrates an impermissible acceptance of a capital

U.S. at 310.

48

b. Geographic Disparities.

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

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

is in the panhandle.

of unacceptable disparities, whether they be racial, socio-economic,

49

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

prosecutorial misconduct. Floyd v. State, 902 So. 2d 775 (Fla. 2005); Mordenti v.

State,894 So. 2d 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

occasion, this Court has found the prosecutorial misconduct was only sufficiently

prejudicial at the penalty phase to warrant the grant of penalty phase relief. Young v.

And on a number of occasions, this Court has determined that the prosecutor acted

improperly, but prejudice was insufficiently established to warrant relief from either

the conviction or the death sentence. Guzman v. State, 2006 Fla. LEXIS 1398 (Fla.

June 29, 2006); Smith v. State, 931 So. 2d 790 (Fla. 2006); Ventura v. State, 794

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.

grounds, the issue of the prosecutorial misconduct was rendered moot at least as to the

penalty phase. State v. Riechmann, 777 So. 2d 342 (Fla. 2000).

50

Despite the numerous instances of prosecutorial misconduct in Florida capital

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

warranting or new trial, coupled with the fact that Florida leads the nation in the

number death row exonerations, no alarms have gone off, no bells have rung,

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.

United States Supreme Court has recognized that a prosecutor is:

was present are not an exhaustive listing.

Mordenti by for her actions as federal prosecutor during a non-capital proceeding.

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

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

51

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

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

to the State undoubtedly warrants sanctions against the prosecutor whose misconduct

led to the grant of relief. But the fact of the matter is that the misconduct should be

sanctionable regardless of whether relief is granted to the capital defendant. Under

misconduct is found to have been sufficiently prejudicial to warrant collateral relief or

not.

52

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

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

numerous instances of prosecutors not following the rules, or in essence excusing

prosecutors to convert the Berger limiting 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. The acceptance of

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

exonerations. It also 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, and the rules of law become

53

akin to the rules found inside a board game - merely a means to winning a

conviction and a sentence of death.

6. The Direct Appeal Process

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

has the obligation to determine whether death is a proportionate penalty. However,

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

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

death penalty was not sought and was not imposed in order to conduct a meaningful

proportionality review. Id. at xxiii.

54

not simply a comparison between the number of aggravating and mitigating

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

conducted. This variable has nothing to do with the facts of the crime or the

character of the defendant. Accordingly, it could only be describe as arbitrary. It is

vacations of death sentences on proportionality grounds to the political pressure from

the executive and legislative branches regarding the disposition of death penalty

commencing since the year 2000, reflects a reoccurring pattern in the appellate

shifted repeatedly. 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.

55

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

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

record was itself a violation of the Eighth Amendment. In granting Mr. Parker relief,

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

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

Parker, 498 U.S. at 321.

7. Retroactivity

Problems with the appellate review process show in other ways, some

previously noted. 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

the fashion that the United States Supreme Court said it was meant to be read. For

example in Williams, the issue addressed by the United States Supreme Court was the

failure of the Virginia Supreme Court to properly read and apply the standards

enunciated in Strickland. Thus, the ruling in Williams was quite simply that Strickland

56

this Court has refused to re-examine its decisions predicated upon its understanding

of the meaning of Strickland which was at least arguably in error under Rompilla,

claims under any 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 of their Sixth Amendment rights as defined by the United States

meant what the United States Supreme Court said in Williams it meant, and any court

who did not read and apply Strickland in the fashion explained Williams had

erroneously applied the constitutional principle at stake.

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 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.

57

Wiggins, and of Williams) was to insure that a constitutionally adequate adversarial

system.

Another example of arbitrariness injected into the capital process by this

in 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,

was done surreptitiously. In reaching this conclusion, this Court overturned a

number of prior decisions, including Jimenez v. State, 703 So. 2d 437, 441 (Fla.

proof of forced entry, or that Minas refused entry, or that she demanded that he

1992 and involving the same criminal statute at issue in 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).

58

Because of the manner in which this Court used retroactivity rules to preclude

consideration of meritorious claims, the ABA assessment team recommended in its

Supreme Court decisions in all proceedings, including second and successive postconviction

proceedings, and should consider in such proceedings the decisions of

manner in which the retroactivity rules operate currently has as at least as much to

do with who gets executed and who does not, than the facts of the crime and the

character of the defendant does. The manner in which this Court applies its

retroactivity rules is arbitrary and violates Furman.

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).

Certainly, 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

distinguishing the few cases in which [death] is imposed from the many cases in

intervening court decisions resulted in possibly meritorious claims not previously

Report on Florida at 241. As it is, the Florida death penalty scheme violates

Furman.

59

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

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

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

The clemency process is entirely arbitrary because there are no rules or

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

scheme. All it provides is more arbitrariness.

10. Politics

penalty scheme. In fact, the state assessment team noted that judicial elections and

recent quantitative approach to proportionality review, which has been caused by

political pressures and the change of composition of the Court. Id at 213.

60

of 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

that the stay has been lifted or dissolved, within 10 days after such certification, the

Fla. Stat (2005). In the recent case of Clarence Hill, Attorney General Charlie Crist

waited until August 24, 2006, to notify the Governor that the United States Supreme

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 States Supreme Court.

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

thus, he invoked the statute, Mr. Rutherford does have briefs pending before the

Eleventh Circuit Court of Appeals.

political gain rather than fairness.

11. Mental Disabilities

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

61

disabled at the time of the offense and others of whom became seriously ill after

recently excluded 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 assessment team recommends 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. Certainly, 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.

Furthermore, 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 those individuals whose cases are final and those who

final receive none of the protections as those whose cases are not final, including,

guarantee to effective assistance of counsel. These distinction depending on where

a defendant is in his criminal process are arbitrary.

The ABA assessment team also criticized the burden of proof imposed on

capital defendants and recommended that the State be required to disprove a

at xxxviii. The imposition of the burden of proof on the defendant will undoubtedly

cause the decision as to who is mental retarded and does not get executed and who

is not retarded and gets executed to turn on arbitrary factors, such as whether

records demonstrating onset before the age of 18 exist, are family members still

62

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

Clearly, the ABA Report does not constitute newly discovered

evidence. The information, analysis and conclusions that are contained

within the ABA Report are based on the opinions of individuals who were

selected by the ABA to form an assessment team. This assessment team

reviewed and identified problems that they perceived undermine the death

penalty procedures in this state.

A newly discovered evidence claim may be raised pursuant to Rule

3.851(e)(2)( c). However, to consider this newly discovered evidence in light

of granting a new trial, the evidence must be determined to be admissible.

* * *

Here Defendant fails to establish how the information gathered by the

ABA assessment team regarding death penalty procedure falls within the

(holding an OIG report to be inadmissible hearsay). Thus, this claim is

denied.

However, this ruling was erroneous and premised upon a misreading of the

multitude of cases which establish the standard for proving through new evidence

63

in raising his claim, while the State urged the incorrect Jones standard to the lower

court repeatedly, in both its written response and argument at the Huff hearing. (Sept.

Evidence must be admissible at a retrial for it to warrant a retrial. He is not going to be

able to call these eight or nine people that he wants to call at this retrial. They are not

going to let him introduce evidence about other people being exonerated in Mr.

Rutherford's trial. None of that will be admissible, so there is no point in holding an

. . . And there is nothing that precludes presenting evidence to establish the

unconstitutionality of a statute in a 3.850 proceeding.

It's not a Jones claim in the sense that I am alleging in [the innocence

claim], the Furman claim, . . . It is a claim that there is new evidence, now

establishing that the despite Proffitt, that the Death Penalty in Florida violates

Furman.

(Oct. 3, 2006, Hearing, at 100-1).

This Court, as well as the United States Supreme Court has recognized that

new evidence can support a claim of a constitutional violation, and even relief in

64

some cases, i.e., judicial bias, juror misconduct, destruction of evidence, exclusion

of evidence, or the constitutionality of a particular method of execution. See Miller-El

v. Drehtke, 545 U.S. 231 (2005)(holding that evidence of racial bias by the

prosecutors in selecting a jury in a capital case entitled defendant to relief);

Rutherford v. State, 926 So. 2d 1100 (Fla. 2006)(analyzing claim of newly

discovered evidence of unconstitutionality of lethal injection); Kokal v. State, 901 So.

2d 766, 779 (2005)(reviewing claim of constitutional violation of newly discovered

destruction of evidence); Roberts v. State, 840 So. 2d 962 (Fla. 2002)(relief granted

in a third successive 3.850 motion because of new evidence that the judge through

sentence); Provenzano v. State, 739 So. 2d 1150, 1153 (Fla. 1999)(reviewing newly

discovered evidence claim of constitutional violation of method of execution); Davis

v. State, 742 So. 2d 233, 235-6 (Fla. 1999)(same); Card v. State, 652 So. 344 (Fla.

1995)(granting an evidentiary hearing to defendant to show through newly

discovered evidence a constitutional violation in sentencing the defendant to death

because there was no independent weighing); Porter v. State, 723 So. 2d 191, 196-

7 (Fla. 1998)(granting sentencing relief to defendant who proved, through newly

discovered evidence, unconstitutional judicial bias).

Obviously, there are two type of newly discovered evidence claims: those that

concern innocence and therefore require admissibility and those that concern

constitutional violations. For example, in the case of Raleigh Porter, hours before

his execution was to occur, newly discovered evidence surfaced as to comments

that had been made by the trial judge who had imposed death. Porter, 723 So. 2d

191 (Fla. 1998). These comments made by the trial judge were inadmissible in a retrial

or new penalty phase, yet, relief was granted because the new evidence

65

has presented evidence which he argues now establishes that his sentence of death

precedent.

support of the death sentence. This was after Mr. Roberts had been under two

separate death warrants, and more than 15 years after the death sentence had been

a retrial or at a resentencing.

Mr. Rutherford has established a constitutional violation that entitles him to

curiam), and its aftermath here in Florida, with the evidence submitted by Mr.

Rutherford to determine: 1) that the evidence is nearly identical in proving that the

death penalty system in question is arbitrary and unconstitutional; 2) that death

of the death penalty system to his/her case; and 3) that no procedural default rules

or bars apply when making a Furman challenge.

In Furman, the Supreme Court reviewed three deaths sentences: two from

Georgia and one from Texas. The Petitioners in Furman relied on compilations of

problematic aspects of the death penalty statutes at issue, like those outlined in the

66

ABA Report upon which Mr. Rutherford relies.

The evidence presented to establish that the death penalty systems in

Georgia and Texas were administered in an arbitrary or discriminatory manner were

the number of murders in a given time frame, versus the number of death sentences

occurring each year, Justice Brennan determined that the rate of infliction was

number of death sentences are available. In 2002 there were 911 murder, but only 9

actually leading to an execution is even rarer. 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. And of the 857 death sentences, there have

been 22 exonerations.

a trivial number of cases in which it is legally available, the conclusion is virtually

inescapable that it is being inflicted arbitrarily. Indeed it smack of little more than a

his experience in the criminal justice system to determine that he rarity of the imposition

than state a conclusion based on 10 years of almost daily exposure to the facts and

circumstances of hundreds and hundreds of federal and state criminal cases involving

inflicts an unusually severe punishment no more than 50 times a year, the inference is

strong that the punishment is not being regularly and fairly applied. To dispel it would

October 1, 2006, only forty-three (43) individuals have been executed in 2006. To date,

in Florida, only one (1) individual has been executed in 2006. See www

deathpenaltyinfo org

67

socio-economic status of a capital defendant have an impact on who is sentenced to

convicted of a capital crime and sentenced to death was actually innocent:

Just as Americans know little about who is executed and why, they are

unaware of the potential dangers of executing an innocent man. Our "beyond a

reasonable doubt" burden of proof in criminal 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 convicted and

sentenced to death.

Proving one's innocence after a jury finding of guilt is almost impossible.

While reviewing courts are willing to entertain all kinds of collateral attacks where

a sentence of death is involved, they very rarely dispute the jury's interpretation

of the evidence. This is, perhaps, as it should be. But, if an innocent man has

been found guilty, he must then depend on the good faith of the prosecutor's

office to help him establish his innocence. There is evidence, however, that

prosecutors do not welcome the idea of having convictions, which they labored

hard to secure, overturned, and that their cooperation is highly unlikely.

No matter how careful courts are, the possibility of perjured testimony,

mistaken honest testimony, and human error remain all too real. n158 We have

no way of judging how many innocent persons have been executed but we can

be certain that there were some. Whether there were many is an open question

made difficult by the loss of those who were most knowledgeable about the

crime for which they were convicted. Surely there will be more as long as capital

punishment remains part of our penal law.

Furman, at 366-7 (Footnotes omitted).

system is unconstitutional cannot help Mr. Rutherford because he is white. (Sept. 29,

2006, Response at 13). However, when this Court vacated death sentences in the

wake of Furman, it granted relief to all death sentenced individuals, not just blacks.

Moreover, the statistics relied upon by Mr. Rutherford shows that the racial arbitrariness

is based on the race of the victim, a death sentence more likely occurs when the victim,

as here, is white.

sentence and the exercise of dispensing power by the courts and the executive follow

discriminatory patterns. The death sentence is disproportionately imposed and carried

68

and statistics that were produced nearly fifty years before the petitioners were

sentenced to death, yet, the State suggested to the lower court that relying on historical

statistics is somehow improper (Sept. 29, 2006, Response at 14). It was not improper

in Furman and it is not improper now.

applied is based on similar evidence and information that was relied upon by the

death penalty system is nothing more than a lottery.

69

In addition, the petitioners in Furman were not required to connect

themselves to each factor showing that the death penalty systems in which they

were sentenced was arbitrary or discriminatory. While Mr. Rutherford has pointed to

question of whether he can demonstrate that any of those factors actually caused

his sentence of death. If the death penalty statute is unconstitutional, the resulting

death sentences are illegal and must be vacated, as this Court held in the wake of

defendants at issue there were required to demonstrate how the factors relied upon

in Furman effected or prejudiced his case. None of the death sentenced individuals

in Anderson were required to connect the problems in the Florida death penalty

system to his case. All that was necessary was simply the demonstration that the

system under which one was sentenced to death allowed factors to be considered

that were not relevant or proper in the sentencing scheme, i.e., that the system was

administered in an arbitrary and discriminatory manner.

his death sentence be voided. 267 So. 2d 331 (Fla. 1972). In Baker, this Court

other individuals in his class, i.e., under a sentence of death, were likewise not

required to demonstrate how the factors relied upon in Furman effected or

prejudiced their cases.

Florida Supreme Court could vacate the forty (40) death sentences as illegal sentences.

Id. There, the Attorney General did not argue that before the death sentences were

vacated, each death sentenced defendant must demonstrate that some aspect of the

unconstitutional statute specifically effected their case and lead to the death sentence

that was imposed. And, this Court did not require a petitioner to do so.

70

Furman majority. The Supreme Court relied on statistics, treatises, studies and firsthand

information that had existed for years. Yet, no time bar was applied by this

Court or any other court. To adopt one now would require this Court to overrule

Anderson and Baker, and to arbitrary apply a time bar to a Furman challenge that

violates the eighth amendment by permitting the process to be permeated with

arbitrary factors that determine who is executed and who is not.

how through the synergistic effect the flaws and defects in the system rendered the

outcome in individual cases dependent upon a myriad of arbitrary factors totally

unrelated to the circumstances of the crime or the character of the defendant. No

previous report, prepared since 1976 when Proffitt v. Florida, 428 U.S. 242 (1976),

arbitrary manner as those schemes found unconstitutional in Furman. Now, in

2006, the data and information is extensive and clearly demonstrates that the flaws

results. The imposition of death sentences is premised upon facts unrelated to the

circumstances of the crime or the character of the defendant. These arbitrary

factors are virtually identical to the ones identified in Furman, and have caused

Report identifying many of the factors which demonstrate the arbitrariness of the

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system is newly discovered evidence of a constitutional violation that requires relief.

ARGUMENT II

MOTION TO CORRECT AN ILLEGAL SENTENCE PURSUANT TO

FLORIDA RULE OF CRIMINAL PROCEDURE 3.800(a).

If the ABA Report on Florida is not evidence, but a compilation of wellrecognized

argues, for purposes of being raised pursuant to Rule 3.850, then those facts

compiled in the Report is properly raised as a Rule 3.800(a) motion. Rule 3.800(a)

After Furman v. Georgia, 408 U.S. 238, 310 (1972)(per curiam), the Florida Attorney

General filed a motion in this Court asking this Court to vacate 40 death sentences

because in light of Furman the death sentences were illegal. As this Court said,

Anderson v. State, 267 So. 2d 8, 9 (Fla. 1972). This Court noted that though it

recognized and follow the consensus determination of the several opinions rendered

Court applied Furman, which involved three petitioners (two from Georgia and one

from Texas) challenging the death sentences imposed upon them, to the Florida

statutory scheme and concluded that it was unconstitutional in light of opinions

should correct the illegal sentences previously imposed without returning the

petitioners had been sentenced to death and the information contained in the

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Furman opinion was sufficient to establish Rule 3.800(a) relief. In addition, this